CACV 251/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 251 OF 2008

(ON APPEAL FROM THE ORDER OF THE DISCIPLINARY INQUIRY OF

THE VETERINARY SURGEONS BOARD ON 28^TH APRIL 2008)

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BETWEEN

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a decision of the inquiry committee of the Veterinary Surgeons Board that the appellant had been guilty of misconduct in a professional respect contrary to section 17(1)(a) of the Veterinary Surgeons Registration Ordinance, Cap. 529 (“the Ordinance”). At the conclusion of the hearing of this appeal judgment was reserved, which we now give.

2.  The appellant was charged with the following matters which were said to be disciplinary offences:

“(a) In about the end of March 2005, when being approached by Dr. Michael David Hilditch, who was then the veterinary surgeon providing treatment to an animal which you had treated the previous night, you failed and/or refused to provide Dr. Hilditch with any or any adequate information pertinent to the medical history or condition of the said animal despite Dr. Hilditch’s request; and

(b) In about the end of March 2005, you distributed or caused or permitted to be distributed name cards representing yourself by the name of “Dr. Nelson”, instead of by your real name of “Chiu Chi Keung”, thereby failing to provide true and/or accurate information to person(s) who might be in receipt of the said name cards.”

3.  In respect of the first charge, the inquiry committee held that, although the appellant had mentioned to the client that he had given Ketamin and Amoxicillin to the animal, the information which he had given was “ grossly insufficient”.  In respect of the second charge, the inquiry committee held that by not including any indication of the appellant’s first name, surname or Chinese name and not containing any titles of qualification, the card was not accurate and fell well below the standard of a professional name card.

4.  The background to the matter was that the animal in question had been bought to Dr Hilditch’s surgery by its owner, who said that the animal had had an operation the night before.  The owner gave Dr Hilditch the name card, which she had in her possession and was the means by which she could identify the veterinary surgeon who treated her animal the night before.  The details of the card are as follows:

“【聯邦獸醫服務站】Veterinary service
X-ray放射線檢查，血液學檢查。細菌學鑒定
內科診療、外科手術
洗牙、拔牙、眼科；腫瘤手術	Dr Nelson
各種貓狗疫苗注射，絕育、健康檢查及證明書
其他小動物、觀賞魚、鳥類等···飼養問題及治療
We have Registered Veterinary Surgeon for Animal Health Monitoring
註冊獸醫、專業出診、現場教學
No.66 Wai Tsui, Ngau Tam Mei, Yuen Long, N.T.
nelsonvetservice@yahoo.com.hk
急診請電Emergency Tel: 8202 2633”

The English translation of which is:

“Union Veterinary Service Station
X-ray radiological examinations, blood tests. Bacteriological examinations
Internal diagnosis and treatments, surgery
Scaling and polishing, extraction, ophthalmology; oncological surgery	Dr Nelson
All kinds of vaccine injection for dogs and cats, sterilization, body check & certification
Other small animals, ornamental fishes, birds, etc.---keeping and treatments
X-ray radiological examinations, blood tests. Bacteriological examinations
We have Registered Veterinary Surgeon for Animal Health Monitoring
Registered Veterinary Surgeon, professional home visit, on-site teaching
No.66 Wai Tsui, Ngau Tam Mei, Yuen Long, N.T.
nelsonvetservice@yahoo.com.hk
For emergency, please call Tel: 8202 2633”

5.  Dr Hilditch had been unable to locate a Dr Nelson in the list of veterinary surgeons and asked his nurse to contact Dr Nelson using the phone number on the card.  Matters became fraught because, initially, the nurse had not revealed that she was a veterinary surgeon's nurse.  She had pretended to be a layperson.  When the phone was passed to Dr Hilditch, communication appeared to be at a standstill because of language difficulties.  Eventually, the appellant did speak to the client and did reveal the names of the drugs which he had administered, but he gave no further details as he was not in his surgery at the time.  Thereafter, there was no further contact by the appellant.  It was on those basic facts that the inquiry committee reached its decision in respect of the first charge.

6.  In respect of the second charge, the appellant was asked whether Dr Nelson referred to himself and he answered in the affirmative.  Beyond that it is not known whether Nelson was a name the appellant had used for a long time or simply a name which he chose for the purposes of the card.  There is no dispute that the name Nelson does not appear on the register of veterinary surgeons.

This appeal

The first charge

7.  This court’s attention was drawn to the current Code of Practice for the Guidance of Registered Veterinary Surgeons.  Although this court did not have available to it the Code which was in force at the time of the incident, it was agreed between the parties that, so far as is relevant as regards these proceedings, save for the numbering, the present code was in the same terms as the Code that was in force in 2008.  Importantly, in Part II, under the general rubric Professional Relationships amongst Veterinary Surgeons, the heading of clause 8 is Referrals, second opinions and supersession.  Clause 8.2 provides:

“When a second opinion on a case is requested by a client it is the duty of the attending veterinary surgeon to arrange for consultation with, or referral to, an appropriate colleague. No such request should be refused. Moreover, if special difficulties of diagnosis and/or treatment pertain, the option of referral for specialist or second opinion should be offered, without waiting for the client to suggest this.”

8.  The client had clearly sought a second opinion in this case, namely from Dr Hilditch.  There is no doubt that the appellant knew that the client was consulting another veterinary surgeon.  It thus became the duty of the appellant, who in the context was the “attending veterinary surgeon”, to arrange for consultation with the person giving the second opinion, namely Dr Hilditch.  At the very least he should have asked the client the name and contact details of the veterinary surgeon who she was then consulting.  He could then have contacted Dr Hilditch again.

9.  In this case, although the appellant did reveal the names of the drugs which had been administered to the animal, he did not provide Dr Hilditch with the information which the inquiry committee clearly considered was required.  The reference to the information being grossly insufficient is a matter which was within the committee’s expertise and something about which they were entitled to use their own knowledge and experience to decide.  Conversely, it is something about which this court would not know and could not bring its own knowledge to bear.  In so saying, this court is not abdicating its role but, in the absence of any relevant evidence, the question as to the adequacy of the information given is clearly a matter for the inquiry committee to decide.  The committee had amongst its members, veterinary surgeons for the very purpose of being able to understand what was and what was not necessary.

10.  Although Ms Ng, who appeared on behalf of the appellant, put forward the case, particularly in the skeleton argument, that the legal adviser to the inquiry committee had overstepped the role of the legal adviser to a considerable extent, as this court made clear in the course of argument, whether or not that was so in this case was not a matter which would affect the outcome.  On the face of the matter, the essential facts were not in dispute

The second charge

11.  In respect of second charge, no further evidence other than the admitted distribution, albeit apparently for a short time, of the card was relevant.  Whether or not, the card was a name card or a business card or a visiting card was a matter of some discussion, but it matters not. It was clearly a card distributed by the appellant relating to his professional practice.  Although not determinative of this case it can be noted that the use of the title “registered veterinary surgeon” is regarded as important under the Ordinance.  Section 24(1) of the Ordinance provides:

“(1) A person whose name does not appear on the register shall not be entitled to describe himself as a “registered veterinary surgeon” or “註冊獸醫”.

12.  The appellant was aggrieved that there was nothing in the Code of Practice, other than under clause 18.2, which could be said to relate to business or name cards.  Clause 18.2 provides:

“Advertising by registered veterinary surgeons must conform to the guiding principles of this Code and ensure continuation of ethical behaviour and a high standard of practice. The first duty of the veterinary surgeon in this matter is to comply with the requirements of the Veterinary Surgeons Registration Ordinance and its Regulations. The principles of acceptable professional advertising are that:

· it must not be false, misleading or deceptive;

· it must not seek personal advantage at the expense a professional colleague; and

· it must not lower the status of the veterinary profession in the eyes of the public.”

13.  I consider that the committee was entitled to say that the card fell well below the standard of a professional name card.  If a name is used on a professional card it can be expected that it will be the full or proper name of the relevant professional person.  It clearly does not meet the standards expected of a professional person that he should use some name which is not the name under which he is admitted to professional practice.  I consider that the card does lower the status of the veterinary profession in the eyes of the public.

14.  In my view, the committee was correct in its holding.

15.  I would, therefore, dismiss this appeal and make an order nisi of costs in favour of the respondent.

Hon Le Pichon JA:

16.  I agree.

Hon Stone J:

17.  I agree with the judgment of the Vice President.

18.  Of the two charges, the first clearly is the far more significant, and I confess that the subsidiary issue of the ‘name card’, and the correlative charge relating thereto, has given me pause for reflection; I cannot help thinking that at the end of the day this particular episode amounts to a good deal about not very much, and that had this been the only infraction alleged against Mr Chiu I doubt that this charge would have seen the light of day.

19.  However, notwithstanding Miss Ng’s skilful and attractive presentation, if and in so far as the inquiry committee of the Veterinary Surgeons’ Board, having fully considered the factual situation, takes the view that, however it be characterized, a card in this form is professionally unacceptable ‑ as indeed it now has done ‑ ultimately I incline to the view that this is not a situation with which this court should interfere.