WAN HUNG CHING AARON v. PHYSIOTHERAPISTS BOARD HONG KONG

HCAL 34/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 34 OF 2006

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DECISION

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1.  The applicant applies for leave to judicial review the decision of the Preliminary Investigation Committee (“the Committee”) of the Hong Kong Physiotherapists Board (“the Board”), not to refer the applicant's complaint against a Mr Siu to the Board for inquiry.  The decision was communicated to the applicant by a letter dated 6 March 2006.

Applicable principle

2.  In an application for leave to judicial review, the standard for granting leave is that set out by the Court of Appeal in Ho Ming Sai v Director of Immigration [1994] 1 HKLR 21.  It is that whether the material before the court disclosed matters which might on further consideration demonstrate an arguable case for the grant of the relief sought.

Factual background

3.  Briefly stated, the facts of this case are as follows.

4.  Since March 2005, ELCHK, a charity, operated a community programme for the elderly people in the Kwai Tsing area.  The programme was sponsored by the Apple Charity and held at the Grace Rehabilitation Centre of ELCHK.  Phase I of the programme ended in October 2005. 

5.  Between April and September 2005, the applicant was employed to work as a physiotherapist at the Centre in connection with the programme.  He was the supervisor of Mr Siu, the subject matter of his subsequent complaint to the Board.  The applicant was involved in monitoring the programme and providing frontline services to clients.  He left after the end of Phase I.  Mr Siu, however, continued to work under the programme.

6.  According to the leaflet distributed to the public, the purpose of the programme was to help elderly people suffering from chronic pain to overcome the pain physically and psychologically, to reduce the impact of the pain on their daily lives and emotion, and to improve their quality of life. 

7.  What happened is after leaving the programme, the applicant made a complaint to the Board against Mr Siu in November 2005.  The complaint has two aspects.  The first is that Mr Sui, as a Part Ib registrant practised independently without the supervision of a Part Ia registrant. Secondly, it was said that Mr Siu practised physiotherapy without a medical doctor's referral.

8.  In accordance with section 20(2) of the Physiotherapists (Registration Disciplinary Procedure) Regulation, cap. 359J (“the Regulation”), the Secretary of the Board invited explanation from Mr Siu.  Mr Siu responded by letter dated 8 February 2006, attaching, among other matters, the promotional leaflet about the programme that I had referred to above.  On 16 February 2006, ELCHK, the operator of the programme, also wrote to the Board in connection with the complaint. 

9.  Pursuant to section 18 of the Regulation, the complaint was referred to the Committee.  Section 21(2) provides that the committee shall determine either (a) that no inquiry be held; or (b) to refer the complaint in whole or in part to the board for inquiry.  Section 21(3) further provides that the Committee may cause further investigation and obtain additional advice or assistance before making a determination. 

10.  The Committee held its meeting on 28 February 2006.  At that meeting, after deliberations, the committee decided not to refer the complaint to the Board for inquiry.  By letter dated 6 March 2006, it informed the applicant of the decision, indicating at the same time that there was no prima facie evidence to support the applicant's allegations.

The leave application

11.  On 11 March 2006, the applicant commenced these proceedings.

12.  In summary, the applicant raises two matters.  Firstly, he challenges the propriety or reasonableness of the Committee's decision.  Secondly, he says that the Committee committed procedural impropriety in not conducting further investigation into the complaint. 

The Committee's decision

13.  The deliberations of the Committee were explained in the affirmation of the secretary of the Board filed in these proceedings. 

14.  In essence, the committee considered there was no requirement under the relevant legislation or the code of practice or conduct that a Part Ib registrant must practice under the supervision of a Part Ia registrant.  Further, having regard to the materials before it, the Committee considered that the programme involved the provision of exercises, training and education health lectures and talks to participants.  The Committee found there was no evidence showing Mr Siu had participated in activities other than training and education health lectures.  It concluded there was no evidence of Mr Siu providing treatment without medical doctors' referral.

Reasons for decision on the leave application

15.  In respect of the complaint that Mr Siu as a Part Ib registrant practised without the supervision of a Part Ia registrant, the applicant has not in these proceedings identified any specific provision in the relevant legislation, or in any code of practice or conduct, that contains such a requirement.  By contrast, section 6 of the Regulations only provides that: “A Part II physiotherapist shall not practise otherwise than under the supervision of a Part Ia physiotherapist.”  There is no similar restriction placed on a Part Ib physiotherapist.     

16.  In his affirmation in support of the leave application, the applicant says that it is widely interpreted in the physiotherapy profession that Part Ib registrant has to work under the supervision of a Part Ia registrant.  Such a contention is plainly contradicted by the professional body, namely, the Committee.  In the absence of any statutory or other form of authoritative support, the applicant's contention cannot be accepted as the basis for showing that the Committee's reasoning and decision on this aspect of the applicant's complaint was improper or Wednesbury unreasonable or irrational.

17.  In respect of the second other aspect of the complaint, namely, Mr Siu practised physiotherapy without medical doctors' referrals, the applicant, in his submissions, says that the leaflet provided to the Committee does not give a full picture.  He also points out that the leaflet shows that Phase I of the programme involved providing pain easing and sports equipment for use by the participants.  Other than this, he has not elaborated as to what are the other matters that had been left out from the leaflet provided by Mr Siu to the Committee.

18.  On the provision of pain easing and sports equipment for use by participants, the applicant says that this amounts to physiotherapy treatment.  In my view, this completely misses the point made by the Committee at its meeting.  It is that the programme was essentially aiming at training and educating the participants on how to deal with their chronic pain.  The mere provision of relevant equipment will not take the programme outside its nature as a training and education programme.  Whether the provision of pain easing and sporting equipment for use by the participants amounts to a physiotherapy treatment must be viewed against the purpose of making available the equipment and, in turn, the objective and the nature of the programme.

19.  In any event, the applicant says that even training and education health talks or lectures fall within physiotherapy treatment.  Apparently, his reason is that there are potential liabilities to the event organizers or the physiotherapists involved in the event they give wrong advice during the event.  He says that, in his view, such talks, lectures or education programmes should also be regarded as physiotherapy treatment.

20.  The applicant is, of course, entitled to his views, but it is another thing to impose his views as the standards for the profession.  This court in judicial review proceedings sits in a supervisory jurisdiction.  In the supervisory capacity, the court always defers to the views of the professional body unless it can be demonstrated that its views are so outrageously defied of logic.  This is because the professional is made up of members of the profession, well versed and involved in the profession itself.  The present case is clearly not one of those cases that the court can justifiably intervene with the professional judgment. 

21.  As Mr Marshall SC submitted, there is sound rationale and readily appreciated benefits underlying the views of the Committee.  Plainly, the giving of free or low cost education and training programmes for elderly people to deal with their pain on their own must be socially beneficial.  The requirement to obtain medical referrals, even for attending health lectures or education programmes on means of pain relief clearly is not only cumbersome, but must be counter-productive to the objective of helping patients in need, especially elderly people, to overcome or reduce their day-to-day problems. 

22.  The Committee is therefore plainly justified in their views that taking part in training and educational programmes does not amount to practicing physiotherapy.  On the materials before it, there is nothing that would require the Committee to conduct further investigation into the complaint.  It should be noted that the legislation confers a discretion on the Committee to decide whether to conduct further investigation.  It is not as a rule that the Committee must conduct further investigation, or that it is, for example, duty bound to call upon the person being complained of to attend before the Committee to be questioned or investigated. 

23.  In conclusion, for the reasons that I have indicated, I am not satisfied that this is a case where it meets the standard of potential arguability.  Leave to judicial review is refused. 

Costs

24.  As to costs, it is a matter of judicial discretion. This leave application was listed for an inter partes hearing partly because the applicant has sought interim relief prohibiting Mr Siu from practising and partly because after reading the papers filed by the applicant, I cannot be sure that I have been provided with all the relevant information.  Indeed, as it turned out, the respondent's affirmation has set out some very helpful factual information, including the background surrounding the complaint and the deliberations of the Committee. 

25.  The applicant says that had he known of the Committee's reasoning, he might have made a different decision.  In my view, if the respondent's affirmation was filed sufficiently in time for the applicant to form a view as to whether to proceed with the leave application, that should be determinative of whether the applicant should bear all the costs of these proceedings.  However, since the affirmation was only filed three days ago on Monday and Wednesday was a holiday, little weight can be attached to the fact that the applicant had chosen to proceed with the application today. 

26.  Nevertheless, the applicant had decided to carry on with his application and also lodged with the court written submissions in reply.  In the end, the application has failed.  In the circumstances, I consider that the fair approach is to ask the applicant to bear the costs of the preparation of the respondent's affirmation.  This affirmation is occasioned and necessitated by the applicant's application. It has enabled the court to have a full understanding of the case.  Among other matters, the leaflet of the programme is not something privy to the Committee.  Mr Wan himself, having worked under it at the centre, should have no difficulty providing the court with information of what is contained in this leaflet or involved in the programme.  Such information is highly important and relevant to assessing the complaint made by the applicant against Mr Siu and in turn the merits of his present application. 

27.  In short, there is an order that the respondent's cost of the preparation of the affirmation filed on 3 April 2006 be paid by the applicant to the respondent, to be taxed if not agreed.  Otherwise there is no order as to the costs of these proceedings.