ONG KIN KEE TONY v. THE COMMISSIONER FOR ADMINISTRATIVE COMPLAINTS

1997 A.L. No. 55

Headnote

[The Commissioner for Administrative Complaints, now known as the Ombudsman, does not have the power to investigate complaints relating to the exercise of clinical judgment by medical practitioners.]

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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INTRODUCTION

1. This is an application for judicial review. It relates to the refusal of the Commissioner for Administrative Complaints ("the Commissioner") to investigate a complaint made by the Applicant relating to medical treatment which he had received. Since that refusal, the Commissioner's title has changed to "the Ombudsman". However, I shall refer to him by his title at the date when he made the decision challenged. The case raises the important question of whether the Commissioner has the power to investigate complaints relating to the exercise of clinical judgment by medical practitioners.

THE FACTS

2. In 1989, the Applicant, Tony Ong Kin Kee, was prescribed a course of the drug isotretinoin. Two years later, he was diagnosed as suffering from cheilitis, a relatively minor lip condition. He was treated for the condition at two dermatological clinics, and was prescribed steroid ointment, anti-fungal cream and vaseline.

3. Mr. Ong has been dissatisfied about many things. He criticised the manufacturer and distributor of isotretinoin, and the doctors who prescribed it for him in 1989, as he believes that the drug had side-effects which resulted in the onset of cheilitis. He criticised the Legal Aid Department for not providing him with copies in 1992 of various medical reports on him which had been obtained for the purpose of deciding whether he should continue to have legal aid to pursue this criticism. He criticised the Department of Health for failing to scrutinise with sufficient care the health advisory pamphlet issued by the manufacturer of isotretinoin. Finally, he criticises two of the doctors who treated him in 1991 for failing to conduct tests which would have shown that the cheilitis was attributable to the course of isotretinoin two years earlier. He claims that if they had appreciated that, they would have treated him differently.

4. Mr. Ong's complaints have spawned a series of legal proceedings, which might appear to some people to be disproportionate to the gravity of the condition from which Mr. Ong suffers:

(i) In 1992, he issued proceedings for damages for negligence against the manufacturer and distributor of the drug, and the doctors who treated him in 1989. Those proceedings were discontinued later in 1992.

(ii) In 1995, he complained to the Commissioner about the Legal Aid Department's failure to provide him with copies of the various medical reports. That complaint was investigated by the Commissioner, and in due course it was upheld.

(iii) In 1996, he complained to the Commissioner about the Department of Health's failure to scrutinise the pamphlet issued by the manufacturer of the drug. That complaint was investigated by the Commissioner, and in due course it was dismissed.

(iv) Also in 1996, he complained to the Commissioner about the treatment he had received from the two doctors in 1991. The Commissioner decided not to investigate that complaint. In his view, the complaint involved "the exercise of professional judgment by medical professionals". He did not regard that as "an administrative matter" falling within his jurisdiction.

It is the Commissioner's refusal to investigate this last complaint which has given rise to the present application for judicial review.

THE EXERCISE OF CLINICAL JUDGMENT

5. The Commissioner's power to investigate complaints is laid down by the Commissioner for Administrative Complaints Ordinance (Cap. 397) ("the Ordinance"). The extent of his power is dealt with in section 7(1), which provides (so far as is material):

"The Commissioner may investigate any action [except such action specified in Schedule 2] taken by or on behalf of an organization [specified in Schedule 1] in the exercise of its administrative functions in any case where... a complaint is made by a person who claims to have sustained injustice in consequence of maladministration in connection with that action..." (My emphasis.)

The two doctors to whom Mr. Ong's complaint relates worked at clinics for which the Department of Health and the Hospital Authority were respectively responsible. Both the Department of Health and the Hospital Authority are organisations specified in Schedule 1 to the Ordinance, and the Commissioner's power to investigate the complaint was therefore engaged - provided, of course, that the action complained of could be said to have been taken in the exercise of their administrative functions.

6. The Ordinance does not state what functions can be characterised as "administrative". The primary argument of Mr. Christopher Lam for Mr. Ong was that the exercise of a clinical judgment by medical practitioners not to conduct tests which might have disclosed the cause of Mr. Ong's condition amounted to the exercise of an administrative function. He relied on 5 factors in support of that proposition: (i) the contents of Schedule 2 to the Ordinance, (ii) the definition of "maladministration", (iii) the executive branch of government, (iv) precedent and (v) previous practice. I propose to deal with each in turn.

(i) Non-inclusion in Schedule 2. Mr. Lam relied on the fact that the Ordinance identified in Schedule 2 the types of action which the Commissioner was not permitted to investigate. Neither the exercise of professional judgment in general, nor the exercise of a clinical judgment by medical practitioners in particular, were included in Schedule 2. Since Schedule 2 should be treated as being an exhaustive list of the types of action which the Commissioner was not permitted to investigate, the exercise of clinical judgment by medical practitioners was action of a type which the Commissioner was empowered to investigate.

7. I cannot accept this argument. Since the only type of action which the Commissioner can investigate is action taken in the exercise of an administrative function, the list only seeks to exclude from the Commissioner's power of investigation such action as the Commissioner would otherwise have been empowered to investigate. In other words, the focus of the list is on action taken in the exercise of an administrative function. Accordingly, there would have been no need for action involving the exercise of clinical judgment by medical practitioners to be included in Schedule 2 if such action was regarded as not having been taken in the exercise of an administrative function. It follows that this argument begs the question which the court has to decide.

(ii) Maladministration. Maladministration is defined in the Ordinance as follows:

" 'maladministration' means inefficient, bad or improper administration and, without derogation from the generality of the foregoing, includes-

(a) unreasonable conduct, including delay, discourtesy and lack of consideration for a person affected by any action;

(b) abuse of any power (including any discretionary power) or authority including any action which -

(i) is unreasonable, unjust, oppressive or improperly discriminatory or which is in accordance with a practice which is or may be unreasonable, unjust, oppressive or improperly discriminatory; or

(ii) was based wholly or partly on a mistake of law or fact; or

(c) unreasonable, unjust, oppressive or improperly discriminatory procedures..."

Mr. Lam argued that the Commissioner has the power to investigate any action which, if established, would constitute maladministration. I cannot accept this argument. The definition of maladministration identifies the circumstances in which such action as has been taken amounts to maladministration. However, since the Commissioner can only investigate action taken in the exercise of an administrative function, it follows that the definition of maladministration merely identifies the circumstances in which action taken in the exercise of an administrative function amounts to maladministration. It does not seek to define which action amounts to action taken in the exercise of an administrative function.

(iii) Executive action. Mr. Lam argued that the phrase "administrative functions" refers to all functions of the executive branch of government. In other words, apart from Schedule 2, the only type of action which the Commissioner does not have power to investigate is action of a legislative or judicial kind. I cannot accept this argument either. None of the organisations specified in Schedule 1 to the Ordinance have legislative or judicial functions. Accordingly, the logic of Mr. Lam's argument is that the Commissioner has power to investigate all action taken in the exercise of the functions of those organisations. On that footing, the word "administrative" in section 7 is completely unnecessary. That cannot be right. Ordinances must be construed, if possible, in a way which gives effect to their language.

8. If the phrase "administrative functions" cannot be equated with all functions of the executive branch of government, what do the words "administrative functions" mean? It would be wrong for me to give any exhaustive definition of the phrase when the legislature has chosen not to do so, but broadly speaking I think that the phrase refers to action taken by an organisation in the management of its affairs. In the context of health care, the phrase relates to the way in which medical services are provided to the public. What the phrase "administrative functions" therefore does not include is the exercise of a clinical judgment by the medical practitioners who treated Mr. Ong in 1991, because in treating Mr. Ong they were not under the managerial control of the two organisations to which this case relates, namely the Department of Health and the Hospital Authority.

(iv) Authority. Mr. Lam relied on Halifax Building Society v. Edell [1992] 3 All E.R. 389 as authority for the proposition that the Commissioner is empowered to investigate complaints which relate to the negligent performance of duties which involve the exercise of professional judgment. Since the exercise of clinical judgment by a medical practitioner is an example of the exercise of professional judgment, it is said that the Commissioner is empowered to investigate complaints about the exercise of clinical judgment by a medical practitioner.

9. I am not persuaded by this argument. The relevant question in the Edell case for present purposes was whether the negligent valuation of properties by valuers employed by building societies amounted to maladministration. The court concluded that it did because the valuations were obtained to enable the building societies to determine whether loans to borrowers should be made, and the determination of that question was a part of the administration of the building societies' business. That is a long way from the question in this case. This case is not about whether the treatment of patients is part of the administration of the "business" of the Department of Health and the Hospital Authority. This case is about whether the treatment of patients by medical practitioners for whom the Department of Health and the Hospital Authority are responsible comes within their administrative functions. Their administrative functions are the administrative arrangements by which health care is provided to the public, and the treatment of patients by medical practitioners exercising clinical judgment cannot be said to come within those administrative arrangements.

(v) Previous practice. The previous Commissioner believed that complaints involving the exercise of professional judgment were within his remit. Indeed, on a number of occasions he investigated complaints which involved the exercise of clinical judgment by medical practitioners. For the reasons I have given, I disagree with the previous Commissioner's practice. But the previous Commissioner's practice, argued Mr. Lam, gave rise to a legitimate expectation on Mr. Ong's part that his complaint about the way he was treated in 1991 would be investigated.

10. It may well be that the previous Commissioner's practice led Mr. Ong to believe that the present Commissioner would investigate his complaint. But that belief would have only given rise to a right to have his complaint investigated if the investigation of the complaint had been within the Commissioner's power. That is because the doctrine of substantive legitimate expectation - whereby a public authority is held to its promises - only applies where the public authority has been acting within the lawful scope of its authority: see de Smith, Woolf & Jowell, "Judicial Review of Administrative Action", 5th. ed., para. 13-029. Since the investigation of complaints relating to the exercise of clinical judgment by medical practitioners is not within the lawful scope of the Commissioner's authority, his predecessor's practice did not give rise to any right which Mr. Ong could assert.

11. For these reasons, therefore, I reject the grounds on which Mr. Lam argued that the exercise of clinical judgment by medical practitioners who work within, or under the auspices of, the Department of Health or the Hospital Authority falls within the Commissioner's remit. The exercise of clinical judgment by such medical practitioners is outside his investigative powers, because neither the Department of Health nor the Hospital Authority retain any kind of managerial control over the way in which the clinical judgments made by such medical practitioners are to be exercised.

THE NEED FOR PRELIMINARY INVESTIGATION

12. However, not every decision concerning the care or treatment of a patient involves the exercise of clinical judgment. For example, where the price of drugs differs considerably, the decision to prescribe a particular drug may have been dictated, not by the doctor's clinical judgment that a particular drug was the most suitable for the patient, but by the need to keep within financial budgets. Again, the exercise of clinical judgment may be affected by factors which are within the managerial control of the institution in which the medical practitioner may be working. For example, the clinical judgment of junior doctors may be affected by the number of hours which they may be required to work. Accordingly, where the complaint relates to the care or treatment of a patient by a medical practitioner, it is necessary to check whether the action complained of was really the exercise of a clinical judgment for which the institution in which the doctor was working could not be held managerially responsible. It will, of course, be very unusual for decisions by medical practitioners concerning the care or treatment of a patient to be attributable, even in part, to something for which the institution in which they work is managerially responsible, but it must be acknowledged that on rare occasions that could be the case.

13. It is this analysis which gives rise to a secondary argument deployed by Mr. Lam. Even if action taken in the exercise of a clinical judgment was beyond the scope of the Commissioner's investigative powers, it is said that he had to conduct, at the very least, an investigation to satisfy himself that Mr. Ong's complaint really did relate to the exercise of a clinical judgment for which the Department of Health or the Hospital Authority could not be held managerially responsible. That could only be determined by finding out why the two doctors did not conduct tests to discover what the cause of Mr. Ong's cheilitis was. If the doctors did not conduct the tests, for example, because of financial constraints, it may be that the action complained of would not have been attributable to the exercise of clinical judgment.

14. This argument is not available to Mr. Ong on the facts of this case. On the material which Mr. Ong provided to the Commissioner, there was absolutely nothing to suggest that the reason why the two doctors did not conduct tests to find out what the cause of Mr. Ong's cheilitis was might have had something to do with managerial decisions of the Department of Health or the Hospital Authority. Indeed, Mr. Ong himself was complaining about the exercise of their clinical judgment, because his complaint was that their reason for not conducting the tests was because the doctors did not believe that to be necessary. They thought that his treatment would not be affected by what had caused his condition. His complaint was that that was wrong. If cheilitis is caused by candida, that can be ascertained by appropriate tests, and there is specific treatment for candida cheilitis. The implication was that if his cheilitis was caused by the isotretinoin he had been prescribed, he would have been treated differently. That was why he submitted to the Commissioner various medical publications, including lengthy extracts from a textbook on dermatology. The whole crux of his complaint was that he had been given wrong treatment because the doctors did not believe that the cause of his condition was relevant to the treatment he should receive.

15. I appreciate that a patient will not know for sure whether the form of care or treatment he receives is solely attributable to the exercise of clinical judgment. But if a patient complains to the Commissioner about the care or treatment he has received, he must at least raise the possibility that it was attributable, if only in part, to something for which the institution in which the medical practitioner was working was managerially responsible. Otherwise, the Commissioner would have to conduct an investigation whenever a complaint is made relating to the exercise of clinical judgment - just in case the complaint related to one of those rare cases in which the decision of the medical practitioner was not wholly attributable to the exercise of clinical judgment. In this case, Mr. Ong did not suggest that there may have been some operational reason for the conduct which gave rise to his complaint.

16. In any event, it is important to remember that it is for the Commissioner to decide whether his powers of investigation have been triggered. That is because section 9 provides:

"... any question whether a complaint is duly made under this Ordinance shall be determined by the Commissioner."

When he made his decision in this case, the Commissioner was alive to the possibility that actions taken by professional men did not necessarily involve the making of professional judgments (and therefore that the actions of doctors did not necessarily involve the making of clinical judgments). In view of the absence of any complaint by Mr. Ong that his treatment was attributable to an operational practice for which the Department of Health or the Hospital Authority was responsible, it was, in my view, open to the Commissioner to conclude that Mr. Ong's complaint related only to the exercise of a clinical judgment by the two doctors. Accordingly, the Commissioner's determination that his powers of investigation had not been triggered was one which it was reasonably open to him to make.

CONCLUSION

17. For these reasons, this application for judicial review must be dismissed. In those circumstances, it is unnecessary for me to deal with the various arguments on the nature of the relief which Mr. Ong was seeking, but I should, I think, mention one thing. Although the Commissioner has the power to investigate complaints within his jurisdiction, he is not under a duty to do so. Section 9 also provides:

"In determining whether to undertake, continue or discontinue an investigation, the Commissioner shall, subject to the provisions of this Ordinance, act in accordance with his own discretion..."

Accordingly, if I had found that the Commissioner had had the power to investigate Mr. Ong's complaint, he would still have had to decide whether to exercise his discretion to do so. The relief which I would have given Mr. Ong would have reflected that.

18. As for costs, Mr. Ong was granted legal aid to pursue this application because it was thought appropriate for the court to have an opportunity to rule on whether the Commissioner had the power to investigate the exercise of clinical judgment by medical practitioners - especially as the present Commissioner's view is different from that of his predecessor. Since this has been in the nature of a test case, I do not think that it would be right to make an adverse order as to costs. Accordingly, the order nisi I make as to costs is that there should be no order as to costs, save for the taxation of Mr. Ong's costs pursuant to the Legal Aid Regulations.