郭貴文 v. 香港醫院管理局

HCAL 1143/2022

[2022] HKCFI 3842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1143 OF 2022

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D E C I S I O N

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A.  Introduction

1.  The Applicant was the husband of a stomach cancer patient (“Wife”) who unfortunately passed away in January 2020. This application for leave to apply for judicial review arises from incidents when the Wife was treated in the Princess Margaret Hospital (“PMH”) in 2019. The Hong Kong Hospital Authority (“HA”), the authority running the PMH, is identified as the putative respondent in the Form 86 which was filed on 25 October 2022.

2.  Having considered the materials before the Court, I consider that this application could be dealt with on paper. This is my Decision.

B.  Background Facts and Proposed Grounds of Review

3.  The Wife was diagnosed with stomach cancer in 2019 and was once treated in the PMH. I will turn to the details of the two incidents giving rise to this application below. But it is more convenient to set out first how the Applicant made complaints about the two incidents.

4.  The Applicant first complained to PMH. The HA handles complaints against public hospitals by a two-tier mechanism. The first tier handler is the public hospital against which the complaint was made. The second tier is the “Public Complaints Committee” (“PCC”) of the HA. The Applicant had gone through both tiers but remained unsatisfied with the PCC’s conclusions.

5.  The Applicant escalated the matter by complaining to the Office of the Chief Executive, the Food and Health Bureau and the Ombudsman.

6.  Whilst the target of the Applicant’s proposed challenge seems to be the actions or decisions of the HA in handling his complaints, the Applicant did not exhibit all of the written replies issued by PMH and/or the PCC. But he had exhibited a substantial amount of correspondence with the Ombudsman which set out in some detail the enquiries made by the Ombudsman to the HA and the HA’s replies to those inquires.

7.  It would appear that, through the Ombudsman, the HA had provided more information or replies to the Applicant. But it is not clear whether the additional information/replies were not provided to the Applicant at the beginning only because they were not covered in the Applicant’s initial complaints made to PMH and/or the PCC, or that the HA only provided them when the Ombudsman was involved.

8.  In any event, the Applicant’s proposed grounds of review against the HA, said to be identified in his supporting affirmation, cover four matters: the first two are two incidents concerning the Wife’s treatment received at PMH, and the other two concern how the staff members of the HA handled the Applicant’s complaints regarding those two incidents.

9.  The first incident occurred in the surgical ward in June 2019 (“Surgical Ward Incident”). The Wife had just received an operation and had not yet regained full consciousness under the effect of general anaesthesia. The Applicant’s case was that two doctors, one male and one female, requested his Wife to sign a document to consent to the insertion of a stomach stent. His Wife did not sign the document. The Applicant said it was wrong for the two doctors to have requested for consent to another operation when his Wife was still under the effect of general anaesthesia.

10.  The Applicant sought from the HA the names of the two doctors. Through the enquiries made by the Ombudsman, the HA said the medical records of the Wife did not reflect that such document was signed or that the Wife was ever requested to sign such a document. The HA gave the Applicant the name of a female doctor who was responsible for explaining to the Wife her situation on that day. But the HA could not give the Applicant the name of the male doctor because no such doctor is shown in the Wife’s medical records. The Applicant said the incident was witnessed by a Patient Relations Officer, Ms Tam. The HA later made enquiry with Ms Tam, but Ms Tam said she no longer had a clear recollection of the incident because time had elapsed. It was not clear whether the complaint in respect of the Surgical Ward Incident was handled by PMH or the PCC officially as part of the two-tier mechanism.

11.  The second incident occurred in the Accident and Emergency Unit of PMH on 18 November 2019 (“A&E Unit Incident”), when the Wife was admitted to the A&E Unit. The Applicant’s case was that his Wife had waited for several hours (either 3 hours or 6 hours depending on the point from which time started to count) before she was sent up to the ward. The Applicant said he made enquiry with one of the staff members who told him that the Wife had to wait for the attending doctor to explain to her the situation before she could be sent up to the ward, and 2 hours of the waiting time was attributed to waiting for that attending doctor. The Applicant said he saw some other patients in the A&E Unit who received a diagnosis later than his Wife but who were sent up to the ward faster than her on that day.

12.  This matter was handled by the PCC. The PCC accepted PMH’s explanation that the waiting time in the A&E Unit depended on all circumstances on that day and apparently the PCC had found that the waiting time for the Wife to be sent up to the ward was not unjustifiable given the circumstances of that time. The Applicant disagreed. He said the A&E Unit was not as busy on that day as PMH would like to portray.

13.  The third matter concerns the Ms Tam already mentioned above. Ms Tam appeared to be the Patient Relations Officer who mostly dealt with the Applicant. The Applicant said Ms Tam witnessed the Surgical Ward Incident and had promised to follow up on the matter and to give him the names of the two doctors. He had also complained about the A&E Unit Incident to Ms Tam who also promised to handle the matter. The Applicant said Ms Tam did not do as she promised: Ms Tam only paid lip service, saying that she would follow up without actually doing so, hence Ms Tam had neglected her duty. PMH by a letter dated 23 April 2021 said that the hospital understood that the Applicant was dissatisfied with how their Patient Relations Officer – referring to Ms Tam – handled the matter and apologized for any hard feelings experienced by the Applicant. The Applicant was not happy with this apology; he said the apology was not sincere.

14.  The fourth matter concerns another Patient Relations Officer, Ms Liu. The Applicant said in one of the meetings Ms Liu used inappropriate language and had insulted him. This matter was handled by the PCC but its actual reply was not provided to the Court. From the Applicant’s narrative in his correspondence with the Ombudsman, the PCC had concluded that Ms Liu did not mean to give offence (“無意冒犯”). The Applicant disagreed with the conclusion. The actual words which caused the Applicant’s dissatisfaction are not known to the Court.

15.  After having made enquiry with the HA, the Ombudsman concluded that no further action should be taken. The Applicant disagreed and complained against the officer(s) from the Ombudsman in charge of his case.

16.  In the field in the Form 86 where the Applicant is supposed to identify any interested parties, he also listed four more complaints: (a) the Ombudsman has failed to exercise its powers to carry out an effective investigation; (b) the Wife was unfairly treated; (c) the Applicant himself was unreasonably rebuked and insulted in the process; and (d) in the investigation process someone was suspected to have made false representations.

C.  Relief Sought

17.  The Applicant acts in person and the Form 86 is home made. He seems to have mistaken the field for identifying the decisions as the subject of the proposed review for the relief he would like to seek.

18.  In summary, what appears to be relief sought as identified in the Form 86 are the following:

(1)  Ms Liu to offer a letter of apology;

(2)  the HA to make public the daily occurrence records in the A&E Unit concerning the A&E Unit Incident;

(3)  the HA to make public its own internal investigation report concerning the A&E Unit Incident;

(4)  the HA or the PCC to rewrite its conclusion and to offer a sincere apology (this appears to refer to PMH’s apology by letter dated 23 April 2021 and the PCC’s conclusion that Ms Liu did not mean to give offence);

(5)  the HA to submit the officer in charge of the A&E Unit and the relevant medical staff members to the Medical Council for investigation regarding the A&E Unit Incident;

(6)  the HA seriously and solemnly to reprimand the staff members involved in the Surgical Ward Incident, including the male doctor which had asked for the Wife’s consent for a stomach stent.

19.  The Applicant said he had also submitted some of his complaints to the Medical Council which would look into the matters soon, but he did not identify the exact matters submitted.

D.  Merits of the Application

20.  The four matters said to give rise to grounds of review are matters which ordinary citizens may find unsatisfactory, or may refer to as complaints in the ordinary sense of the word. But judicial review is not a venue for scrutinizing general complaints citizens may experience in their dealings with a public authority. The Courts’ judicial review jurisdiction is only engaged when the complaints are capable of giving rise to or identifying public law wrongs. The Applicant has not identified any public law wrong said to have arisen from the four matters.

21.  In the Surgical Ward Incident, even assuming that the Wife was asked to give her consent for another operation before she had regained full consciousness, that would be a medical matter the appropriateness of which could be made subject of an investigation by the Medical Council. I do not see any arguable public law failure in this complaint. I see no basis upon which to order the HA to submit such a complaint to the Medical Council when its own investigation did not reflect that the Surgical Ward Incident occurred at all.

22.  The A&E Unit Incident is essentially a complaint that the waiting time for his Wife was too long. A preference for better or more efficient emergency medical services is understandable. But the fact that the service was below any person’s individual expectation does not on its own give rise to any public law wrong. On the facts, there is nothing to suggest that the HA had acted illegally, irrationally or with procedural impropriety in deploying its resources with regard to the A&E Unit Incident. As to the Applicant’s view that some other patients had a shorter waiting time than his Wife, that is not a good reason for the Court to micromanage how the HA should deploy its emergency medical resources. Nor did the Applicant point out why it was wrong, in a public law sense, for the PCC to accept PMH’s evidence about the circumstances of the A&E Unit on that day.

23.  The third and the fourth matters concern how Ms Tam and Ms Liu handled the Applicant’s complaints. These are not the sort of targets one would expect in judicial review. Nor did the Applicant identify the public law failures which he alleges PMH and/or the PCC might have committed in handling the Applicant’s complaints against Ms Tam and Ms Liu. PMH had apologized on behalf of Ms Tam, but the Applicant was not satisfied with the apology. The PCC found that Ms Liu did not mean to give offence, but the Applicant disagreed and demanded an apology from Ms Liu personally. It is not the function of the judicial review Courts to decide if an apology – or a more sincere apology – was due from the HA or any of the staff members concerned.

24.  The Applicant did not identify the Ombudsman as a putative respondent. Nor has he explained why the Ombudsman had failed in carrying out its statutory duty in a way which would give rise to any public law failure.

E.  Conclusion

25.  The application does not put forward any grounds of review which are reasonably arguable with any realistic prospect of success.

26.  In passing, I would also note that the application was substantially out of time, in that both the Surgical Ward Incident and the A&E Unit Incident occurred in 2019, and most of his dealings with the HA occurred in 2021. No reasons were given to explain the substantial delay (save, perhaps, implicitly in the steps taken to seek to redress from elsewhere).

27.  The application for leave to apply for judicial review is dismissed with no order as to costs.