RE A DOCTOR

Headnote

1.    On appeals from the Medical Council of Hong Kong under S. 26 of Medical Registration Ordinance (Can 161) the court of Appeal exercises its civil jurisdiction.

2.    On facts no grounds for interfering with Council's decision on misconduct or for admitting fresh evidence.

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J U D G M E N T

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Silke, J.A. :

1. I shall ask my lord, Hunter J.A. to give the judgment of the court.

Hunter, J. A. :

2. On 22nd July 1997 the Medical Council of Hong Kong at the conclusion of a disciplinary enquiry held under Section 21 of the Medical Registration Ordinance (Cap. 161), found a number of doctors guilty of misconduct in a professional respect, in relation to a charge of canvassing. The appellant was one of these doctors, and now brings this appeal pursuant to the provisions of Section 26 of that Ordinance.

3. The hearing below was held in camera. The Council imposed its minimum penalty. It ordered that a warning letter be served upon the doctors, with a direction that the order was not to be published in the Gazette. At the outset of the hearing we acceded to an application to hear the appeal in camera. It seemed to us that a public hearing would itself add to the penalty imposed below, and might incidentally add to the penalties of any other doctor or organisation that was mentioned in the course of such hearing. The same view had already been taken by another division of this court, on an appeal from the same determination, Appeal no. 121 of 1987. For like reasons I shall endeavour when giving the judgment of the court not to use the real names of any of the parties or organisations concerned.

4. The problem arises from a scheme for the provision of contract medicine which was the brain child of its originator, whom I shall call Dr. X. The purpose of the scheme was to provide contract medical services to any large organisation, which wished to be able to provide, or assist in providing, its staff with basic medical care e.g. general practitioner care.

5. Two organisations were established to implement the scheme. The first was a management company, a limited company. Basically it did three things. First, it entered into contracts with the employers, the customers, to provide their staff with the level of medical care chosen by that particular employer. Secondly, it entered into contracts with each doctor in a chosen group of doctors, which contracts dealt with the provision by that doctor of services to the staff of the employer companies. Thirdly, the company had an administrative function; it made the appointments, paid the bills and so on.

6. The second organisation was a chosen group of doctors. It was given a group name which was no more really than a professional trading name. I shall call it the group". One of the features of the group is that its members had offices and surgeries all over the territory.

7. As far as the appellant was concerned, he first joined the group, and then entered into a contract with the management company, which has been put before us. The contract dealt with the relationship between the doctor and the management company in this way :

"the management company will respond to any approach made to a member of the group by any firm or corporation for a contractual medical scheme for employees, with a view to negotiating a contract on behalf of all members of the group as a group".

This explains the dual function of the management company. The contract also provides under a side-heading "Procedure - Contract Patients" :

"3.3 Lists of the names and permitted details (address, telephone number and emergency call number and consulting hours) of each member of the group will be supplied to the members of the group and to firms or companies entering into contracts with the management company for the provision of medical services by members of the group. These firms or companies will be permitted to pass these lists only to bona fide employees".

The significance of that is that these employees are the potential patients. There is also a covenant by the management company not to infringe any of the guidelines of the Council in relation to advertising and promotional activities.

8. I come now to the crucial document in the case. That was a brochure produced, it would seem by the management company in the name of the group. It was part of the publicity material. It seems to have been the principal means by which the group informed potential employer customers of its services and the means through which the group hoped to sell its services to them. The brochure described such services. It also contained a listing of all the doctors in the group with names, addresses, qualifications, surgery offices and so on.

9. This brochure was produced in November 1984, and was sent out by the group to all its members with circular no. 35. This circular said this :

"Group brochure - The group has produced a brochure which is sent only to clients from whom we have received a written enquiry, and who have asked what services our group can provide. This brochure has certainly proved very useful and has been much appreciated by the people with whom we are in correspondence. A copy of this brochure has been sent to each member of the group, so that you can have a better understanding of what our group has to offer. Please note that this brochure has been specifically supplied to you, and that your name is written in it on the last page. Should you have any potential corporate clients who may be interested in a medical scheme with our group, please ask them to write to the group, so that we can enter into correspondence with them and sent them this brochure".

10. So all the doctors in the group knew that the brochure was going to potential employer customers on their request; that such request could originate with the employer, or also be inspired by a doctor; that it contained the full listing; and that the purpose, expectation or hope was that the employer would enter into a contract with the management company in relation to its staff, and those members of the staff would thus become patients of one or more of the doctors in the list.

11. The originator of the scheme and those associated with it, were plainly concerned about the ethics of this, and concerned to keep themselves on the right side of the line of misconduct. There were two hazards; namely the distinct but overlapping concepts of advertising and canvassing. And in relation of both these, the Medical Council of Hong Kong has published a Warning Notice.

12. The position on advertising is dealt with in paragraph 8. The problem about advertising is this. Some advertising by doctors is plainly necessary and desirable. it is necessary that they should be able to give certain basic information to the public. It is necessary for them from time to time to engage in activities which are bound to lead to publicity. Where then is the dividing line to be drawn? The best test we know is that suggested by Lord Pearson in his speech in the Privy Council in the case of Tarnesby v. General Medical Council⁽¹⁾. He then spoke of a dividing line:

"between properly giving information to the public and  wrongful self advertising"

In the course of that speech, Lord Pearson emphasized that the location of this dividing line was particularly a matter for the Disciplinary Committee, to whom, in this jurisdication, this function is given by section 21. He also cited from the speech of Lord Morris in Gardiner v. General Medical Council dated 31st May 1961. He there said this :

"..... within the profession the line between the kind of publication that is unobjectionable and the kind that is unobjectionable should present no difficulties of recognition to any reasonable practitioner".

The purpose of this Warning Notice is to give guidance to the practitioner both by general principle and by example, and in fact, amongst other things, it quotes other passages in Lord Morris's speech.

13. Canvassing is dealt with under paragraph 10 of the warning notice, in two separate paragraphs. The gravamen of misconduct in relation to canvassing arises on the giving of information in the wrong way or to the wrong people for example, by giving information to non-patients in circumstances giving rise to the expectation that as a result they may become patients. Thus is in the first paragraph under canvassing there is a prohibition against passing on calling cards to individuals, who are not patients, save on express request. In the second paragraph these words appear :

"Medical practitioners are warned that association with any such institution, company etc. which advertises clinical or diagnostic services to the general public, and directs patients to particular medical practitioners, may be regarded as canvassing".

In those circumstances complaint was made to the General Medical Council. Three charges are preferred which in order to understand the appellant's submissions I must read in full. The first charge is this:

"That you being a registered medical practitioner advertised by the publication of matter drawing attention to the services you provide as a medical practitioner and that you have instigated, sanctioned, connived at or organised such publication or failed to take adequate steps to prevent such publication contrary to section 8 of the Warning Notice".

The matters relied upon as constituting publication were principally the brochure, plus the listing, plus various contract documents setting out the varying levels of service available. Publication was particularised as to three named organizations between October 1984 and March 1985. Charge 2 was :

"That you being a registered medical practitioner have canvassed for the purpose of obtaining patient by associating with an organisation ( the group) which advertises clinical or diagnostic services to the general public, and directs patients to particular medical practitioners contrary to section 10 of the Warning Notice".

Particulars were given which particularised the "general public" as the three named concerns that had received brochures; and the direction as the submission to them of this listing. Charge 3 :

"That you being a registered medical practitioner have canvassed for the purpose of obtaining patients by your association an organisation (the group which communicates with persons who are not already patients of the organisation, with a view to providing advice or treatment to those persons and in the absence of express requests by those persons".

The communication was again said to be the sending of the brochures to the three named concerns.

14. It can be seen straightaway, I think, that something went wrong with charge 3. The group could not have any patients as such. The persons to whom the brochure were sent likewise could never become patients. The evidence which emerged was that those companies had in fact requested the brochure. It is therefore not really very surprising that that charge collapsed on the facts in the face of a submission of no case at the half time stage.

15. On that submission being made, the Council's ruling on the other charges was this. On charge 1 it ruled that the facts has been made out; and that Dr. X had instigated and the remaining doctors had taken inadequate steps to prevent the publication of the specified documents. It further ruled that such conduct created a prima facie case of misconduct only against Dr. X. On the 2nd charge the Council ruled that the facts were made out, and that this disclosed a prima facie case of misconduct against all doctors.

16. Thereafter evidence was led by the defence which evidence did not include any from this appellant. There was never any serious issue on the facts, namely that those set out in charges 1 and 2 were in fact' correct. At the end of the hearing, the conclusion of the Council coincided with its earlier ruling. It found Dr. X guilty under charge 1, and the remaining doctors guilty under charge 2.

17. On this appeal the appellant takes two points. His main submission by way of attack upon the Council's ruling is that it was inconsistent. He submits that his conviction under charge 2 was inconsistent with his acquittal under charges 1 and 3. The suggested inconsistency between charges 2 and 3 can shortly be dealt with. For the reasons I have indicated charge 3 was never very aptly framed and never left the ground. It simply failed on the facts. For that to fail on the facts give rise to no inconsistency at all.

18. As between charges 1 and 2, the suggestion which was put to the Council in argument and rejected, was that the two matters went hand in hand, and that what had happened here with either advertising and canvassing or neither. It is that submission which his been repeated to this court. Now if one applies to that submission the principles set out in Libman v. General Medical Council⁽²⁾ at p. 220, it is apparent that this court would have to conclude that in no way was it open to the Council to place the dividing line in the position that they did, before it could interfere. This court would have to be satisfied that no medical council directing itself reasonably could differentiate between these two charges.

19. We cannot accept or agree with those propositions. The location of the dividing line was peculiarly a matter for the council. The concepts convassing and advertising may well overlap, but they are distinct. As Lord Pearson pointed out, in relation to advertising, the giving of information is legitimate; what is wrong is the self-adulation. In relation to canvassing, it is the giving of information in the wrong way, which may amount to misconduct. It seems to us here that basically the Council could have looked at these facts and said that in relation to the advertising charge, what the doctors were doing, was giving information or perhaps allowing information to be given, and they were not indulging in self-adulation. The problem arose because of the way in which they gave information and the persons to whom such information was given. This conduct brought them four square within the second paragraph I have read under the paraeraph 10 of the Warning Notice.

20. Equally it seems to us perfectly permissible for the Council to have felt that a distinction should he drawn in relation to advertising, between the originator of the scheme Dr. X, and the other doctors who went along with him. A similar distinction was drawn by the Privy Council in the case of Whitby v. General Medical Council⁽³⁾, as can be seen from the extract of the opinion in that case cited in Longstaff v. Medical Council of Hong Kong⁽⁴⁾ at p. 861. There is therefore in our judgment no substance in this criticism of the Council.

21. The second point taken by the appellant is that he asks for leave to adduce fresh evidence. Before the Council the group conducted the defence, which was apparently financed by the Medical Defence Union. The group retained distinguished solicitors, leading and junior counsel. Apparently upon the advice of leading counsel, the solicitors addressed a questionnaire to each of the doctors with a view to finding out whether there was any special feature, so we apprehend, in relation to their attitude and their defence.

The relevant questions in the questionnaire were these :

"6. I confirm that I have been supplied with the copy of the brochure of the group. I received a copy of the brochure (there were 2. alternatives) with circular no. 35 distributed in November 1984 or (alternatively) at the time I joined the group in ________.

This doctor put.a cross against the second of those alternatives, thus acknowledging that he received the brochure with the circular I have read. Then :

"7. I confirm that at no time had I ever raised any objection to the format and content of this brochure".

The doctor put a cross against that.

"8. I understand that this brochure was only to be supplied to a member of the public in response to a written enquiry".

There was no cross against that, which of course precisely accorded with what had been said had happened, and would happen in circular no. 35.

22. When the solicitors saw the cross against question 7, they asked for elucidation. The doctor wrote back a letter dated 21st May 1987 in which the relevant paragraph reads :

"During a telephone conversation with Dr., (I shall call) N, I raised objection concerning the contents of the brochure. He assured me that at no time the brochure would be distributed, and under no circumstances would it be passed on to any one except with written specific request".

In the light of that answer, it seems to us that the solicitors would readily have concluded, as do we, that the appellant in fact had no objection to the contents of the brochure. He had only an objection to the manner in which it was distributed, and was satisfied so long as it was distributed in its existing form only on specific request. That had always been the defendant's case. No doubt so reading the letter, the solicitors made no further enquiry from the appellant, and made no suggestion to the Council that his defence was in any way special or separate.

23. The appellant now wishes to introduce two additional pieces of evidence. The first is his original contract with the management company. He wishes to rely upon the deletion of certain words in the termination clause in that contract. It is admitted that the deletion itself is not relevant, but it is asserted that it goes to credit. In our view the contract is totally irrelevant, and deletion does not even go to credit.

24. Secondly he wishes to introduce evidence that in the course of his telephone call with Dr. N., he "demanded that no distribution of the brochure should take place at all". This necessarily involves reading the words "at all" into his letter of 21st May so that it would then read : "he assured me that at no time the brochure would be distributed at all". The rest remains the same. It is quite obvious that if those words are read into this letter it is blatantly contradictory. The first half of the sentence is saying; no distribution at all : the second half is saying; alright on specific request.

25. That is the nature of the application. Questions have arisen first as to basis of the application, and whether in sitting on an appeal under section 26, this court is sitting in its civil or its criminal capacity. If it is sitting in its civil capacity, then the jurisdiction starts with section 559(1) of the Supreme Court Ordinance, which refers exclusively to the court's civil jurisdiction. It also founded upon 0. 59 r. 10(2) which permits the court to admit additional evidence "on special grounds". The criminal route is based upon section 83V of the Criminal Procedure Ordinance (Cap 221) which gives rather wider powers "for the purposes of" part IV of that ordinance.

26. Although it is in fact not necessary to our decision, having regard to the view we take, we have no doubt at all that we are sitting here in a civil capacity. First if you read section 26(3) of the Medical Ordinance with section 55B of the Supreme Court Ordinance they virtually say in terms that that is the nature of our jurisdiction. Secondly, this is plainly not an appeal within part IV of the Criminal Procedure Ordinance. Thirdly, our position in Hong Kong is no different from that of the Privy Council in England and in the same case of Tarnesby⁽¹⁾, Lord Pearson said :

"These are not criminal preceedings, and the rules as to the burden of proof in criminal preceedings are not applicable".

So we have no doubt that this is a civil hearing.

27. Having said that, in the very next sentence, Lord Pearson goes on :

"Nevertheless, the weight of the burden depends on the gravity of the issues. Hornal v. Neuberger Products Ltd. [1957] 1 OB 247, Blyth v. Blyth AC 643, 676-7. The issues in this case are grave issues".

The learned judge was recognising that the standard of proof, in a case such this, will wary in accordance with the gravity of the situation. It may vell be that by analogy with that and in a borderline case this court might feel able to adopt a more generous view on an application such as this in recognition of the greater similarity in fact which disciplinary proceedings may bear to criminal proceedings rather than to a pure civil list. But this is not a borderline case and the application of both rules would lead, in our view, to the same result.

28. I therefore turn to the civil rules which are set out in Ladd v. Marshall⁽5). The first requirement there is that the evidence could not with reasonable diligence have been obtained at the trial. This evidence was there. The point is the appellant was not called. Now we think that serious questions arise as to the circumstances in which a defendant who has enjoyed collective representation in the court below, can for the purposes of such an application, divorce himself from the solicitors who handled his defence below, Mr. Woo for the appellant seeks to do this by showing a failure in the solicitors to use reasonable diligence in obtaining or probing the appellant's defence. For the purposes of this application we are a prepared to assume that this is sufficient route (without deciding it) because on the facts this route seems to us wholly to fail. For the reasons I have already indicated, the solicitors were perfectly entitled, in our view, to read the letter of 21st May in the way I have suggested, as showing that no special defence existed in this particular doctor. So this application upon that basis fails at the first hurdle.

29. It also seems to us to fail at the second and third hurdles, by which I mean the two remaining principles in Ladd v. Marshall⁽5). They can be summarised as decisiveness and apparent credibility. If the Council had had before it the evidence which has been placed before us, the most we think that it could possibly have said in kindness to the appellant would he something like this : "Whatever you may now think you said to Dr. N in November 1984, if you could write a letter in these terms as late as May 1987 years after, you plainly did not make yourself clear to Dr. N in November 1984, or thereafter at any material time, or take sufficient steps to disassocciate yourself from this group".

30. For this reason, both the application and the appeal fail.

(1) Privy Council Appeal No. 21 of 1969

(2) [1972] AC 217

(3) Privy Council Appeal no 10 of 1963

(4) [1980] HKLR 858

(5) [1954] 1 All EL 745