NORMAN ERIC TOMLIN v. THE PRELIMINARY INVESTIGATION COMMITTEE OF THE DENTAL COUNCIL OF HONG KONG

1993, MP No.4322

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is an application for judicial review of the decision of the Preliminary Investigation Committee ("PIC") not to refer to the Dental Council the applicant's complaint against a dentist for professional misconduct arising out of an alleged adulterous relationship between that dentist and the applicant's wife. The application was successful and the decision of the PIC was quashed. An order was made for the complaint to be remitted to the PIC for a rehearing in accordance with findings of the court. I now hand down the reasons for the decision together with the necessary directions.

2. At the commencement of the hearing, an application was made by the respondent to prohibit reference to the name of the dentist in the proceedings. Upon clarification with leading counsel for the respondent, the application was extended to cover publication by the press of the name of the dentist. The application was apparently prompted by the observation of Godfrey, J.A. in the appeal that upheld an order for disjoining the dentist as the 2nd respondent herein. In his dissenting judgment, Godfrey, J.A. observed that :

"The dentist's real point seems to have been that he ought not to have been subjected to this sort of public embarrassment. But Mr. Tomlin's application would be heard by a judge sitting in open court anyway: see O 53 r 5(1), so such embarrassment could not be long postponed. What the dentist could and should have done was to apply to the judge in chambers for an order that the title to the proceedings be amended so as to refer to him only as 'X' or something similar. At the substantive hearing, if he chose to attend it at all, his counsel could ask for an order that he should be referred to only in that same way. The court would, in my judgment, have had jurisdiction to make such orders and in my opinion it should now do so, of its own motion, to save the dentist from any further embarrassment, though most of the damage has already been done. It must be remembered that the PIC's business is conducted in private. It would be quite wrong for the PIC's proceedings to be publicised, to the injury of a professional man who might ultimately be found innocent of the charge laid against him. It would equally be quite wrong for the court to refuse him a similar degree of protection."

It appears to me academic for a court to order that the name of the dentist should not be referred to by counsel during the proceedings without making an order to prohibit publication of his name in the media. It would be unrealistic for one to assume that the media is ignorant of the name of the dentist when the case had already attracted press coverage since commencement (though the extent of such coverage is contentious). It would also not prevent a determined person from disclosing the name to the media outside courtroom. In the premises, I see little point in making any order to restrict mention of the name during proceedings only.

3. The respondent was not able to refer me to any statutory authority for making a prohibition order against publication by the media in the circumstances of these proceedings. Nor was any case law cited to me to provide jurisdiction for such an order. I was asked to exercise my "inherent jurisdiction". I am not persuaded that the court has any inherent jurisdiction against the media in this respect. As was noted in the quoted passage of the dissenting judgment, most of the damage has already been done. The identity of the dentist is a matter of public knowledge as a result of press coverage long before the hearing of this application. Even if it is not already a matter of public knowledge, there is nothing preventing it from so being. It is open to member of the public, including the press, as of right pursuant to Order 63 rule 4 to have access to a copy of the originating motion, that contained the name of the 2nd respondent, upon payment of the prescribed fee. This becomes possible as no order was sought by the 2nd respondent, at the time of the application for disjoining, to remove his name from all court documents. I do not see how justice can now be better served by requiring counsel to put up such a show in court. It may well be that under different circumstances, when the name of the affected party is unknown and could not have been known to the public or the media, that an order substituting his true name with Mr. X in all court documents and throughout the proceedings will be effective. The matter had developed to such a stage now that it is too late for an order restricting mention of the dentist's name in court to be of any benefit to him. There being no persuasive authority shown to me on the jurisdiction to make an order prohibiting publication by the media, I am not satisfy that such an order should be made. In the premises, no order was made restricting mention of the dentist's name.

4. The wife of the applicant was the patient of the dentist since April 1992. It is not disputed that subsequently the relationship between the dentist and the wife had developed beyond the professional level and became an adulterous one. The precise moment when such a transformation took place is disputed. The applicant alleged that it took place soon after the wife became his patient, probably during the latter part of the year. The wife and dentist alleged that sexual relationship only occurred during January 1993. It would appear that such a dispute is academic as it is common ground that the applicant and his wife were only divorced at the end of 1993. Thus, even on the dentist's case, adulterous relationship commenced whilst the couple was still lawfully married (though the applicant might be under a non-molestation order). Upon discovery of the adultery, and by a letter dated 18 December 1992, the applicant made a general complaint to the Dental Council against the conduct of the dentist. To his letter of complaint the applicant annexed a copy of the petition for divorce, alleging improper association by the dentist with his wife, and some love letters and postcards exchanged between the two of them. On 14 January 1993, the Dental Council advised the applicant that in view of the pending divorce proceedings, his complaint would be held in abeyance. Then, quite unexpectedly, the Dental Council informed the applicant by letter dated 15 February 1993 that his complaint had been dismissed by the chairman of the PIC in accordance with reg. 13 of the Dentists (Registration and Disciplinary Procedure) Regulations on the ground that there were "no grounds on which any charge of unprofessional conduct can be levelled" against the dentist. Not being contented with such treatment, the applicant instructed another firm of solicitors to pursue the complaint. As a result of his further efforts, the chairman of the PIC finally agreed to refer the complaint to the PIC for inquiry. By letter dated 10 November 1993, the applicant was advised that pursuant to a meeting held on the previous day the PIC had "determined that the matter should not proceed further and that no inquiry should be held". Obviously taken aback by the decision of the PIC, the applicant requested to see the dentist's written submission and the record of explanation given by him in person that had convinced the PIC that the complaint was not even worth to be investigated properly and fully by an inquiry. That was refused by the PIC by letter dated 10 December 1993 citing dentist and patient confidentiality as a ground. The letter further advised the applicant that he "can have no possible grounds for applying for judicial review in this matter".

5. The applicant submits that the decision not to refer the complaint to the Dental Council for an inquiry was perverse. Firstly, he says it is unreasonably as the evidence before it clearly demonstrated a strong prima facie case of professional misconduct. Secondly, he says it acted so unreasonably in coming to that conclusion because it had been unduly misled by the skilful written submission of the dentist's lawyers to believe that there could be no professional misconduct on immoral grounds outside the scope of paragraph 5 of Part II of the "Warning Notice of the Dental Council of Hong Kong".

6. The respondent submits that the applicant has never been granted leave to judicial review the decision on ground of the PIC's mistake as to what may constitute professional misconduct for acts of immorality and adultery. It is true that no leave to proceed specifically to challenge the decision on grounds of mistake as to law was ever granted to the applicant. It is, however, not true to submit that by reason thereof any mistake committed by the PIC cannot be relevant to a judicial review on ground of Wednesbury unreasonableness. The misdirection in law could well explain why the PIC had come to such an unreasonable decision. It is relevant to explain that the PIC had not acted capriciously, maliciously or out of bad faith. It provides the innocent cause for a possible unreasonable decision. It cannot provide, and the applicant did not seek to rely on it, an independent ground for quashing the decision (unless an application to amend the motion was sought to include such a ground).

7. Whether it was the work of the skilful written submission of the dentist's solicitors or not, it is beyond a peradventure that the PIC considered that the only issue before it was whether the complaint came within the ambit of the conduct described in paragraph 5 of the Warning Notice. The approach of the secretary to the Dental Council prior to the involvement of the dentist's solicitors is clearly indicative of the attitude taken of the complaint. In his letter dated 21 September 1993, the secretary defined the complaint to the dentist in this manner :

"It is alleged that you, being a registered dentist, did in and after April 1992, abuse your professional position in order to further an improper, immoral, or indecent association or to commit adultery with Mrs Michele Tomlin with whom you stood in a professional relation; contrary to Section 5 of the Warning Notice of the Dental Council of Hong Kong."

The dentist's solicitors then seized on this invitation and presented the case for the dentist on the basis that the complaint was one contrary to Section 5 and no others. The complaint was thus proceeded with on the basis that there could be no other grounds for professional misconduct for immorality or adultery outside the section. Not surprisingly, the PIC approached the determination wholly on such an assumption. In the notes of proceedings kept by the secretary of the meeting on 9 November 1993, it was recorded the Chairman was satisfied the circumstances relating to the charge against the dentist were largely proven without doubt. Notwithstanding such a finding the PIC concluded that there was no evidence to support the claim that the dentist "had abused his professional position to further an improper association or to commit adultery with his patient". The PIC ruled that "the only point in question was whether an abuse of the dentist's professional position existed". There can be no doubt at all that the PIC had only Section 5 in mind and nothing else when they approached the determination. Was that an error of law?

8. Consideration of this issue should be begun by referring to the definition of "unprofessional conduct" in Part I of the Warning Notice. It says :

"The term 'unprofessional conduct' has been defined by the Dental Council of Hong Kong as "If a dental practitioner, in the pursuit of his profession, has done something which may be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency judged according to the rules, written or unwritten, governing the profession, then it is open to the Dental Council of Hong Kong, if such be proved, to say that he has been guilty of unprofessional conduct."

9. Part II of the Warning Notice sets out to advise the profession of how they should approach the question of ethics in the clearest of terms. It says :

"PART II

CONVICTIONS AND FORMS OF UNPROFESSIONAL CONDUCT WHICH MAY LEAD TO DISCIPLINARY PROCEEDINGS

This part of the pamphlet sets out certain kinds of offences and of unprofessional conduct which may lead to disciplinary proceedings by the Council. The Preliminary Investigation Committee and the Council must proceed as quasi-judicial bodies. The pamphlet is thus NOT a complete code of professional ethics, nor can it specify all offences which may lead to disciplinary action.

The question whether any particular course of conduct amounts to unprofessional conduct and the gravity of such unprofessional conduct and of any conviction, are matters which fall to be determined by the Preliminary Investigation Committee and as appropriate the Council after considering the evidence in each individual case. The Council, having regard to its quasi-judicial function, is not able to advise individuals. The Council may, however, be prepared to give guidance on matters of principle where such guidance is sought by the Hong Kong Dental Association. Dental practitioners desiring detailed advice on questions of professional conduct arising in particular circumstances are advised to direct their enquiries to the Hon. Secretary of the Hong Kong Dental Association or to consult their own legal advisers for advice on such matters.

N.B. Please refer to the Note which appears at the end of this Warning Notice following the paragraph Conclusion.

The following paragraphs describe the more common types of offence or unprofessional conduct which may be regarded as grounds for disciplinary proceedings."

The pamphlet then proceeds to set out examples of unprofessional conduct including Section 5. After referring to the examples, the pamphlet returned to the earlier warning in its "Conclusion" in the following manner :

"CONCLUSION

It must be emphasized that the categories of unprofessional conduct described in this Warning Notice cannot be regarded as exhaustive, since from time to time with changing circumstances, the Council's attention may be drawn to new forms of unprofessional conduct. Any abuse by a dental practitioner of any of the privileges and opportunities afforded to him, or any dereliction of professional duty or breach of dental ethics, may give rise to a charge of unprofessional conduct.

Note: Dental practitioners requiring advice on matters pertaining to professional ethics and etiquette may direct their enquiries to the Hon. Secretary of the Hong Kong Dental Association.

The Executive Committee of the Hong Kong Dental Association advises that the Hon. Secretary has been instructed to take either of the following procedures upon receiving any such enquiries:

(1) notify the Executive Committee; or

(2) notify the Legislation and Ethics Sub-Committee.

Any response given by the Hon. Secretary will only be final, following discussion by and the decision of the Executive Committee and/or the Legislation & Ethics Sub-Committee."

10. The PIC had clearly been labouring under a mistake as to the effect of the examples listed out in the various sections. It is wholly wrong for them to assume that the examples were meant to be exhaustive. They were clearly wrong in approaching the complaint as one under Section 5 only. The complaint of the applicant was in the most general nature. It is for the PIC to consider and determine if the general complaint was a matter warranting further investigation by an inquiry not only under Section 5, but also under any possible unprofessional conduct as defined in Part I of the Warning Notice (as "unprofessional conduct" has not been defined in the Ordinance). The narrow and arbitrarily restrictive view it took of the nature and ambit of the complaint could be, though not necessarily, fatal to the reasonableness of its decision. The next question is : did it in fact render the decision unreasonable?

11. The test of unreasonableness is well established. To suffice, the decision must be so manifestly unreasonable that no reasonable authority, entrusted with the power in question, could reasonably have made such a decision; see : Associated Provincial Picture Houses Ltd. V. Wednesbury Corporation [1948] 1 KB 223. "It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system" (per Lord Diplock in C.C.S.U. v. Minister for Civil Service [1985] AC at 410).

12. The thrust of the dentist's submission is that the wife, whom he called the "victim" in the complaint, never complained of the professional manner the dentist had rendered his services. The dentist was merely having a mature adult affair with the wife. The two of them were genuinely in love. The wife was physically abused by the applicant and thus their marriage was doomed in any event. Their relationship developed as the wife often came to him for consolation. The divorce was not the product of the adultery. In the premises, it was argued, the dentist had not abuse its professional relationship with the wife. The adultery was simply a social relationship that was carried on outside the professional relationship of dentist and patient. Apparently the PIC accepted the dentist's arguments in coming to it's said decision.

13. The ethical standard expected of a medical practitioner has been the subject of many judicial decisions. It was observed by Lord Upjohn in McCoan v. General Medical Council, [1964] 1 W.L.R. 1107 at 1112, that "One of the most fundamental duties of a medical adviser, recognised for as long as the profession has been in existence, is that a doctor must never permit his professional relationship with a patient to deteriorate into an association which would be described by responsible medical opinion as improper". The case of Richard Wordsworth Barker v. General Medical Council, Privy Council Appeal No.6 of 1971, provides useful assistance to a proper understanding of the ethical standard the PIC should expect of the dentist. Dr. Barker involved himself in a remarkably similar situation as the dentist herein. Mrs. Kerr, a patient of the doctor, became a German teacher to the doctor when he desired to learn the language. After a dinner out on one occasion they discovered they became attached to one another. A month later they committed adultery. Within a year of the adultery Mr. Kerr commenced divorce proceedings against the wife on the ground of the adultery. Prior to the decree nisi, Mrs. Kerr moved to live with the doctor. A distinguishing feature is that Dr. Barker was the family doctor of the Kerr family. It was argued on behalf of the doctor that the forming of an improper association with a patient cannot constitute serious professional misconduct unless it is in some way furthered by the existence of professional relationship. It was submitted in that case that the improper relationship grew out of the German lessons and was not further in any way by the fact that Dr. Barker was Mrs. Kerr's doctor. An almost identical argument as the dentist herein. The 1971 Pamphlet issued by the General Medical Council contained an almost identical provision in Section V that referred to "Abuse of professional position in order to further an improper association or commit adultery". Counsel for the doctor submitted that the change of wording in the 1970 Pamphlet to those to be found in the 1971 edition was indicative of a change of the profession's views on the ethical standard. In the 1970 edition the corresponding paragraph reads : "Any doctor who commits adultery or other improper conduct or who maintains an improper association with a person with whom he stands in professional relationship at the material time is liable to disciplinary proceedings". At page 4 of the judgment the Judicial Committee held :

"Their Lordships cannot accept these submissions. The pamphlet does not profess to be a complete code of professional ethics telling doctors in detail what they can and what they cannot do without being guilty of professional misconduct. It simply records certain kinds of conduct which have in the past led to disciplinary proceedings and it emphasises that the question whether any particular course of conduct amounts to serious professional misconduct falls to be determined by the Disciplinary Committee after considering the evidence in each individual case. Their Lordship think it most unlikely that those responsible for the change in wording on which Counsel relies were meaning to indicate that in their view the forming of an improper association with a patient in circumstances such as existed here ought not to be considered as serious professional misconduct. There is no real distinction to be drawn between the case of a doctor who asks a patient who is a married woman to give him German lessons and gradually becomes aware that they are falling in love with each other and the case of a doctor, who is frequently asked to visit a patient who is a married woman while her husband is out of the house and gradually comes to realise that he is not being sent for because his professional services are needed but because the lady is in love with him. In either case a time must come when the doctor will be guilty of serious professional misconduct if he allows the association to continue."

14. In De Greory v. General Medical Council [1961] AC 957, the Judicial Committee rejected any distinction between conduct on social and professional occasions. It was held by Lord Denning, at p.965-6, that :

"A doctor gains entry to the home in the trust that he will take care of the physical and mental health of the family. He must not abuse his professional position so as, by act or word, to impair in the least the confidence and security which should subsist between husband and wife. His association with the wife becomes improper when by look, touch, or gesture he shows undue affection for her, when he seeks opportunities of meeting her alone, or does anything else to show that he thinks more of her than he should. Even if she sets her cap at him, he must in no way respond or encourage her. If she seeks opportunities of meeting him, which are not necessary for professional reasons, he must be on his guard. He must shun any association with her altogether, rather than let it become improper. He must be above suspicion."

15. The courts have appeared to demand of the medical profession a very high standard of morality. It might even be described by some as harsh and inhuman at first glance. However, it must be understood that a person is likely to be at one of his or her most vulnerable moments when he or she sees the doctor. The patient is suffering physically if not also mentally. The crave for sympathy and understanding is high. It is also easy for the tender and caring attitude of the doctor to be misinterpreted by a patient. Those probably are some of the reasons for the Hippocratic Oath to include a vow to "With purity and with holiness I will pass my life and practise my Art ............Into whatever house I enter, I will go into them for the benefit of the sick, and will abstain from every voluntary act of mischief and corruption; and, further, from the seduction of females or males .......". A dentist is required to take the Hippocratic Oath like his brethren in other fields of the medical profession. No distinction can nor is sought by the respondent to be drawn between the moral and ethical standards of a dentist with other species of medical practitioners.

16. On the judicial observations upon the moral and ethical standard expected of the medical profession, it is obvious that the evidence placed before the PIC amply justified a reference to the Dental Council for further investigation and determination at an inquiry. Counsel for the respondent, very properly, conceded that adultery is still regarded generally (including the medical profession) as immoral. Adultery whilst the wife remained his patient was admitted by the dentist; albeit he claimed that it would be in the best interest of the patient not to transfer her to another dentist. Despite the very liberal view taken by the superior of the dentist of his immoral activities, I am wholly convinced that dentists in general do not readily accept adultery with a patient as a trivial common place occurrence not worthy of any concern at all. I do not believe, even with the recent more liberal views taken of sexual activities, our society or the medical professional has degenerated to such a low level of morality that regards adultery as anything but disgraceful conduct requiring condemnation and disapproval.

17. I am overwhelmingly satisfied that the decision of the PIC that the complaint, as supported by the admissions of the dentist of committing adultery with a patient during the subsistence of professional relationship, did not justify going before the Dental Council for an inquiry to be an affront to the legitimate expectations of any reasonable man. I found the decision to be wholly unreasonable and outrageous and a travesty of justice. There is not the slightest doubt that the applicant has clearly satisfied the requisite criteria for the court to interfere to administer justice in the abyss of unreasonableness brought about by the irrational decision of the PIC to reject the complaint offhand. It will indeed be a sad day if the applicant could have no redress against such injustice.

18. It is regrettable that the opposition put up by the dentist and the respondent to the application had brought into the open what would otherwise have been a private inquiry and had attracted such volume of adverse publicity to the parties involved. It is also regrettable that the PIC was not provided with any legal advice in the discharge of its statutory duties. As parties are likely to be legally represented nowadays, provision of proper legal advice to the PIC is essential to enable it to cope with the ingenious submissions they would have to grabble. The PIC should be provided with proper legal assistance in the same manner as the Council in an inquiry.

19. It is also advisable for the PIC to seek proper legal advice on whether it is acting properly within the legislative scheme to allow, and in the present case, to invite the dentist to attend the meeting of the PIC to make personal representations. Affording the dentist such a privilege, to the exclusion of the complainant, would no doubt weaken the credibility of the decision. It appears to me the legislative scheme merely envisages a paper board considering the complaint and the written submissions of the parties only.

20. For reasons given above, an order was made quashing the decision of the PIC. The complaint was directed to be remitted to the PIC for a rehearing in accordance with findings to be delivered in this judgment. In the premises, the PIC is directed that the complaint should be considered not only on the basis of Section 5 in Part II of the Warning Notice, but on the basis of unprofessional conduct as defined in Part I therein. In this regard, the PIC is to take into account the judicial rulings on the moral and ethical standard expected of a medical practitioner as set out in this judgment. Costs of the application were awarded to the applicant with certificate for two counsel.

(J. Chan)

Judge of the High Court