DR CHEUNG SAU YI v. THE MEDICAL COUNCIL OF HONG KONG

HCAL16/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW PROCEEDINGS NO.16 OF 1998

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J U D G M E N T

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Background

1. The applicant is a registered medical practitioner. In May 1996 a patient went to consult her at her clinic, and she prescribed for him a number of drugs, one of which contained penicillin. The patient was allergic to penicillin, a fact which had on an earlier occasion been recorded at the clinic. In consequence of this medication he became unwell, and in due course complaints against the applicant were lodged on the patient's behalf with the Medical Council. The Medical Council notified the applicant of the complaint and referred the matter to its Preliminary Investigation Committee ("PIC"). It was put to the applicant that she prescribed the drug when she knew the patient to be allergic to penicillin. She was invited to make representations to the PIC. She did so. She said that she did not know when she prescribed the drug that he was allergic to penicillin; that fact had not appeared on the information which she retrieved from the computer during the consultation. There had been a failure to transfer information recorded upon initial registration of the patient onto the database which the clinic possessed. Information which should have been on the computer was not there.

2. The PIC referred the case to the Medical Council for an inquiry, and the applicant was notified of that fact and of the charge which she then faced before the Council; which was that she had disregarded her professional responsibilities or neglected her professional duties to her patient in that she prescribed the drug when she knew or ought to have known that he was allergic to it. She was invited to appear at a meeting of the Council to answer the charge. But her solicitors wrote and pointed out that the original complaint as framed and put to her did not say that she ought to have known about his allergy; merely that she did know, and they complained that she had not been given the opportunity to answer the additional or alternative complaint.

3. So the Council referred the matter back to the PIC for further consideration and the applicant was then asked to make such representations as she wished on the broadened allegation. But she did not avail herself of that opportunity, because she alleged through her solicitors that the PIC had then no jurisdiction further to consider the matter. The PIC thereupon, in December 1997, decided to refer the new charge to the Council, and the Council informed the applicant that an inquiry was to be held into that charge.

4. This application for judicial review seeks an order of certiorari to quash the (December 1997) decision of the PIC to refer the broadened complaint to the Council, and an order of prohibition to preclude the Council from inquiring into the case thus referred.

5. On 7th April this year, I granted leave for the application to be made; and stayed the disciplinary proceedings in the meantime.

Legislation

(1) The Ordinance

6. The Medical Registration Ordinance was subjected to substantial amendment in 1996. The amendments came into effect in January 1997. It is common ground that the Ordinance as amended applies in this case.

7. The Ordinance empowers the Medical Council ("the Council") to establish a number of committees for the better performance of its duties (section 20 BA). Amongst the committees which it is empowered to establish is the Preliminary Investigation Committee ("the PIC") which is to have such functions as are assigned to it by the Ordinance and delegated to it by the Council (section 20BA(2)).

8. Part III of the Ordinance makes provision for the composition and functions of a Preliminary Investigation Committee if established by the Council. Section 20T of the Ordinance reads thus :

" (1) The Preliminary Investigation Committee has the following functions -

(a) to make preliminary investigations into complaints or information touching any matter that may be inquired into by the Council or heard by the Health Committee and to give advice on the matter to any registered medical practitioner;

(b) to make recommendations to the Council for the holding of an inquiry under section 21;

(c) to make recommendations to the Health Committee for conduction a hearing;

(d) to make preliminary investigations upon a referral by the Education and Accreditation Committee.

(2) A matter brought to the attention of the Preliminary Investigation Committee for determining whether the Health Committee should be recommended to conduct a hearing or whether the Council should be recommended to hold an inquiry shall first be considered by the chairman of the Preliminary Investigation Committee or, in his absence, the deputy chairman thereof.

(3) The Preliminary Investigation Committee, its chairman and deputy chairman shall act in accordance with such regulations in relation to their procedure made under section 33."

9. Section 33 empowers the Council to make provision by regulation for the receipt of complaints; the submission of complaints and information to the PIC; the preliminary investigation of any complaint or information by the PIC; the formulation of charges arising out of complaints and information; the reference to the Council by the PIC of cases arising out of complaints; and the procedure to be followed in relation to inquiries held by the Council. Before amendment, the Ordinance gave the power to make requisite regulations only to the Governor-in-Council. The amended Ordinance, by section 33, divided that regulation making power between the Governor-in-Council (now the Chief Executive in Council), the Secretary for Health and Welfare, and the Medical Council, according to various subject matters.

10. Section 21 provides that after "due inquiry" into a case referred to it by the PIC, the Council may take punitive action against a registered medical practitioner if satisfied that the practitioner "has been guilty of misconduct in any professional respect." It is noteworthy that "due inquiry" is defined by the same section - section21 - as meaning "an inquiry by the Council conducted substantially in accordance with procedure prescribed by regulations made under section 33."

(2) The Regulations

11. Pursuant to the provisions of section 33 of the Ordinance, the Council has made the Medical Practitioners (Registration and Disciplinary Procedure) Regulations.

12. Each regulation is referred to as a "section". I understand that this is now a common device utilised by the draftsman when framing regulations. There may well be good reason for so doing of which I am not aware, but I comment only that the practice is unhelpful, for it serves to render less clear the course of submissions and exchange of views when a court is engaged upon scrutinising regulations as well as primary legislation under which they have been promulgated. Since this judgment is peppered with references to the Ordinance as well as to the Regulations, I shall refer to each regulation as a regulation rather than as a section.

13. By virtue of regulation 6, where a complaint is received by the Secretary of the Council that a registered medical practitioner "has been guilty of misconduct in any professional respect", the Secretary is required to submit the complaint to the chairman or deputy chairman of the PIC. If they consider the case to be frivolous or groundless, they may dismiss the case. Otherwise, the matter must be referred to the PIC for its consideration (see regulation 9), and a date fixed for it to meet for that purpose. Where the chairman of the PIC is of the opinion that a complaint gives rise to a question whether there has been professional misconduct, he may require the complainant to do a number of things; for example, to make clarification about the complaint or information (regulation 8(1)).

14. The Secretary of the Council is then to notify the defendant - that is the doctor against whom the allegation is made -

"... of the receipt of the complaint and indicate any matters or allegations which may appear to raise a question whether the defendant has been guilty of misconduct in a professional respect." (regulation 9(2)(b)); and

"... invite him to submit to the Committee in writing any explanation of his conduct or of any matter alleged in the complaint ... which he may have to offer." (regulation 9(2)(f))

15. The case is then considered by the PIC at a meeting. At its meeting, the PIC is required to consider, amongst other matters, "such explanation as may be advanced by the defendant."(see regulation 11(2))

16. Regulation 11 is entitled : "Consideration of case by Committee," and regulation 11(6) provides as follows :

"(6) Where the Committee considers that the matter indicated to the defendant under section 9 (2)(b) should be amended, the Committee may direct the Secretary to make the amendment and advise the defendant of the amendment and invite him to give any further explanation which he may offer."

17. Having regard to the material before it as well as the defendant's explanation, the PIC may then :

"(a) decide that no inquiry shall be held;

(b) decide that no inquiry shall be held and issue a letter of advice to the defendant in such terms as it thinks fit;

(c) refer the case, in whole or in part, to the Council for inquiry;

(d) refer the case, in whole or in part, to the Health Committee for a hearing."

(see regulation 11(8))

18. However, regulation 11(7) states that :

"(7) Before coming to a decision under subsection (8), the Committee may cause to be made such further investigations or further clarification from the defendant with regard to the case being considered by the Committee and with regard to his written explanation, and may obtain such additional advice or assistance as it considers necessary."

19. If the PIC refers the case to the Council, a written notification of its decision to do so must then be sent to the Chairman of the Council "specifying the matters as identified by the Committee to be so referred and which forms the basis of the charge or charges into which an inquiry is to be held." (see regulation 13(1)).

20. On receipt of that notification "the Chairman shall direct the Secretary to fix a date upon which it is proposed the inquiry shall be held." (regulation 13(2))

21. The Secretary of the Council is then required (regulation 13(4) to serve on the defendant a notice of inquiry which must :

"(a) specify in the form of a charge or charges the matters into which inquiry is to be held; and

(b) state the date, time and place at which the inquiry is to be held."

22. Regulation 12 provides that :

"(1) If the Committee decides that no inquiry is to be held, the chairman of the Committee shall direct the Secretary to, and the Secretary when so directed shall, inform the complainant and the defendant of the decision of the Committee."

23. There is power in the Council to refer a case back to the PIC. That power is conferred by regulation 15 :

"(1) Where, after a case has been referred to the Council for inquiry, further information is subsequently produced in writing which suggests that an inquiry should not be held, the Chairman may refer back the case to the Committee, the Health Committee or the Education and Accreditation Committee, as the case may be, for further consideration.

(2) As soon as may be after the case is referred back to the Committee, the Health Committee or the Education and Accreditation Committee, as the case may be, the chairman of the committee shall direct the Secretary to, and the Secretary when so directed shall, advise the complainant and the defendant accordingly."

24. Regulation 16 empowers the Council to consolidate cases against the same defendant, and to amend a notice of inquiry where that notice appears to the chairman to be defective.

25. Part IV of the Regulations caters for the inquiry proceedings themselves, but I do not consider these germane to the issues in this application, save perhaps to note that regulation 25, which sets down the procedures to be observed at an inquiry, stipulates that the order of procedures "must be observed".

The facts of this case

(1) Consultation

26. The applicant and another doctor run a clinic in the New Territories. On 30th May 1996 the patient went to see the applicant, apparently with some throat complaint, and the applicant prescribed a number of drugs including the drug Amoxycillin, which contains penicillin. The patient was allergic to penicillin. He took the drug and suffered an adverse reaction, in consequence of which he went to his District Board member as well as to a daily newspaper. Both the District Board member and the paper referred the complaint to the Medical Council.

27. The complaint was that the patient had told the applicant on 30th May that he was allergic to penicillin before she prescribed the drugs; and, further, that after he was handed the drugs by the nurse at the clinic he specifically asked whether the drugs contained any penicillin and that the nurse referred his question to the applicant who said they did not. Accordingly, he took the medicine, but his body then swelled and he had to attend hospital more than once, became an in-patient, and fell into a poorly condition.

(2) The Secretary's first letter

28. On 10th January 1997, the Secretary of the Council wrote a letter to the applicant informing her that :

"A complaint has been received by me ... that you have been guilty of misconduct in a professional respect.

The substance of the complaint is that on or about 30 May 1996 ... you, being a registered medical practitioner, did disregard your professional responsibilities to treat or care for your patient ... or otherwise did neglect your professional duties to him, in that you did prescribe Amoxycillin to [him] knowing that he was allergic to penicillin."

29. The letters of complaint which had been received by the Council were copied to the applicant. She was informed by the Secretary's letter that the complaint had been referred to the PIC, which was due to meet on 17th March 1997 to consider the complaint, and she was invited to submit to the Committee "any written explanation of your conduct or of any matter alleged in the complaint which you may have to offer."

(3) The applicant's reply

30. Representations were then made to the PIC on behalf of the applicant by a letter from the applicant's solicitors dated 3rd March 1997. The solicitors noted in that letter that the substance of the allegation was that the drug Amoxycillin was prescribed by the applicant "knowing that he [the patient] was allergic to penicillin." The letter states that the patient first came to the clinic in December 1995 and had been there several times since and, with the exception of one consultation, was seen on all occasions by the applicant. The letter goes on as follows :

" The practice of the clinic, at the material times, was that when a new patient came and was registered at the reception, the new patient would fill in a registration form on which he would state, inter alia, whether he was allergic to any drugs. The patient's registration form would then be kept by the clinic. After registration and when the patient saw the doctor, he would again be asked whether he was allergic to any drugs. This information would then be recorded in the clinical notes stored in a computer. When the patient returned on another occasion, the attending doctor would retrieve previous clinical notes from the computer. The patient's registration form, however, would not be put into the computer.

We are instructed that on [the patient's] patient registration form, he indeed wrote that he was allergic to penicillin. However, this information was not included in the clinical notes from [the patient's] first consultation on 5th December 1995 or subsequent consultations. Dr. Cheung does not know why this information does not appear in the clinical notes for the first consultation on 5th December 1995. The absence of this information in the clinical notes means that when [the patient] consulted Dr. Cheung on 30th May 1996 for tongue ulcer, even though Dr. Cheung duly reviewed, on the computer, the clinical notes for previous consultations, she did not know that [the patient] was allergic to penicillin. On that occasion, Dr. Cheung prescribed flagyl, kemdent mouthwash, amoxycillin, and oflen 100SR. While Dr. Cheung was seeing the next patient, a nurse came in with a bag of oflen 100SR, which had been given to [the patient], and said that [the patient] would like to know whether it was penicillin. Since Dr. Cheung was then attending another patient, the significance of this question did not cross her mind and she simply answered that the oflen 100SR was not penicillin. In the evening on that day, [the patient] telephoned the clinic to complain of allergy to the drugs which had been given to him. Dr. Cheung was not in the clinic and Dr. Edwin Chan spoke with [the patient]. Dr. Chan asked [the patient] to come back to the clinic but [he] did not do so.

After this incident, the system in the clinic was reviewed and changed. The information regarding allergy on the registration form would automatically be entered into the computer. Nurses dispensing drugs to patients were also instructed to ask every patient whether they were allergic to any drug before dispensing the drugs."

31. So, pausing there, there is an admission that the patient had informed the clinic that he was allergic to penicillin, that that fact had not apparently found its way onto the clinical notes, and that the applicant had been asked specifically on 30th May, shortly after she had written the prescription for drugs, whether one of the other drugs she had prescribed for the patient that day contained penicillin.

32. The letter expresses regret for what happened; it asserts that the applicant did not know when she prescribed the drugs that the patient was allergic to penicillin; it goes on to say that in view of what had happened the record keeping system had been reviewed and remedial measures implemented.

33. The letter further asserts that what has transpired might constitute negligence, but could not be said to constitute misconduct in a professional sense, since that has been defined by the Medical Council as something which can reasonably be regarded by professional colleagues of good repute as "disgraceful, unethical or dishonourable."

(4) The first referral for an inquiry: March 1997

34. On 17th March, the PIC decided nonetheless to refer the complaint to the Council, and by letter dated 20th March so notified the applicant.

35. There followed a letter dated 7th May 1997 from the Council to the applicant. In those parts of that letter which are relevant to this inquiry the following was stated :

" On behalf of the Medical Council of Hong Kong, notice is hereby given to you that in consequence of a complaint made against you to the Council, an inquiry is to be held into the following charge against you : -

'That, you, being a registered medical practitioner, did on or about 30 May 1996 at your joint surgery with Dr CHAN See-keung at Room 153-154, 1/F, Metroplaza, 223, Hing Fong Road, Kwai Fong in the New Territories where you were practising medicine, disregard your professional responsibilities to treat or care for your patient, Mr ... or otherwise did neglect your professional duties to him, in that you did prescribe Amoxycillin to Mr ... knowing or should have known that he was allergic to penicillin and that in relation to the facts alleged, you have been guilty or misconduct in a professional respect.'

Notice is further given to you that on Thursday, the 10th day of July 1997, a meeting of the Medical Council of Hong Kong will be held at the Conference Room, Department of Health HQ, Room 76, 17th Floor, Wu Chung House, 213 Queen's Road East, Wanchai, Hong Kong at 1:30 p.m. to consider the above-mentioned charge against you, and to determine whether or not the Medical Council should take any action against you under subsection (1) of Section 21 of the Medical Registration.

You are hereby invited to answer in writing the above-mentioned charge and also to appear before the Council at the place and time specified above, for the purpose of answering them. You may appear in person or by counsel or solicitor. The Council has power, if you do not appear, to hear and decide upon the said charge in your absence.

Any answer, admission or other statement or communication which you may desire to make with respect to the said charge could be addressed to the Secretary of the Council."

(5) The applicant's complaint

36. Matters at this stage took a crucial turn, for by a letter dated 31st May 1997 the applicant solicitors pointed out that in the letter dated 10th January 1997 from the Council, there had been no allegation that the applicant should have known about the allergy and therefore, said the solicitors, "when we made a written submission to the PIC on [the applicant's behalf] we were not aware that we had to and consequently we did not address this allegation."

(6) Reference back to the PIC

37. The Council responded to this complaint by saying that the disciplinary inquiry was adjourned and that further comment was to be sought from the PIC.

38. The next development was a letter from the Council to the applicant's solicitors dated 24th October 1997. It expressly refers to the letters from the solicitors in which they raise the suggested new allegation against the applicant. The letter then informs them that :

" Please be informed that the Chairman of the Medical Council had on 30.9.97 directed that the case should be referred back to the PIC for further consideration pursuant to section 15(1) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations.

In this regard, the PIC decided on 7.10.97 that your client should be invited to make further representation to the Committee in regard to the following allegation : -

'That, you, being the registered medical practitioner, did on or about 30 May 1996 at your joint surgery with Dr CHAN See-keung at Room 153-154, 1/F, Metroplaza, 223, Hing Fong Road, Kwai Fong in the New Territories where you were practising medicine, disregard your professional responsibilities to treat or care for your patient, Mr ... or otherwise did neglect your professional duties to him, in that you did prescribe Amoxycillin to Mr ... knowing or should have known that he was allergic to penicillin and that in relation to the facts alleged, you have been guilty of misconduct in a professional respect.'

The case will be discussed at the PIC meeting to be held on 2.12.97 (Tuesday) at 2:00 p.m. Apart from those documents enclosed in the Notice of PIC meeting to your client, copies of the following additional documents available are now enclosed herewith:

1. two medical reports dated 13.5.97 and 31.5.97 in respect of Mr ... from Tuen Mun Hospital;

2. medical report dated 1.5.97 in respect of Mr Chung written by Dr Edwin C.L. Yu;

3. letter dated 6.9.97 from Dr Edwin S.K. Chan with enclosures (please let me know if you would like to view the video tape); and

4. five medical certificates in respect of Mr ....

Your client is now invited to submit to the Committee any further explanation of the matter alleged in the paragraph 3 above which she may have to offer. Such explanation or information should be submitted to me before 21.11.97. The Committee will then consider your submissions including the previous written submission dated 3.3.97 and arrive at its decision at the meeting.

You may wish to take note that all or any part of your explanation or information made to the Committee may be used by the Secretary or the Legal Officer on his behalf as part of his case against your client for the purpose of an inquiry under Section 21 of the Medical Registration Ordinance, Cap. 161 subject to the determination of the Committee that an inquiry shall be held."

39. So the setting at that stage was that the applicant had complained that she had not been given an opportunity to answer the allegation that she should have known of the allergy and the Council, taking that complaint "on board", referred the case back to the PIC, which in turn invited the applicant to make such representations to it as she wished on that very point for the fresh consideration of the PIC.

(7) The crunch

40. Now here is the rub, for the applicant says that this was all out of order; it was too late. It was not in order for the PIC to consider the matter in the way proposed. The PIC was functus officio. That was the point made in a letter from the applicant's solicitors dated 27th October 1997 in which they contended: "we would object to the consideration by the PIC of an allegation which is the same as the charge set out in the Notice of Inquiry dated 7th May 1997." Any amendment of the substance of the allegation ought, it was said, to have been made by the PIC before the case was referred to the Council, under regulation 11(6) of the Regulations. "A referral back to the PIC by the Chairman pursuant to section 15(1) of the Regulations cannot cure the non-compliance with section 11(6) and in fact in our view section 15(1) of the Regulations has a completely different scope and is for a completely different purpose. We would contend that the PIC has no jurisdiction to consider the allegation."

41. The Council replied that the "further information" which triggered the regulation 15 referral back to the PIC was the letter from the applicant dated 31st May, namely, the fact of a discrepancy between the charge and the complaint originally referred to the applicant, and the suggestion that the applicant had not been given an opportunity to answer the further contention that she should have known of the allergy. In the circumstances, the Council explains, "the Chairman decided that an inquiry should not be held at this stage and directed that the case should be referred back to the PIC for further consideration."

(8) The December 1997 referral to the Council

42. No representations were then made by the applicant about the substance of the broadened complaint or allegation against her, and accordingly by letter date 5th February 1998, the Council informed the applicant that the PIC had decided to refer the "matter in full" to the Council for a disciplinary inquiry. That decision had been taken on 2nd December 1997. It is the decision which is challenged in these proceedings.

43. A Notice of Inquiry dated 5th February was then sent to the applicant with the broadened charge spelt out. The hearing date for the inquiry was set for 14th May 1998.

44. The applicant then launched these proceedings by which she seeks to quash the December decision of the PIC to refer the broadened case to the Council, and seeks also an order to prevent the Council from inquiring into the case thus referred. There is no objection to the Council hearing that part of the original referral which alleges that the applicant prescribed Amoxycillin knowing the patient to be allergic to penicillin.

This application

45. The arguments advanced by the applicant are these :

1. The case should not in the first instance have been sent in its amended form to the Council without the applicant first having had an opportunity of answering the amended allegation. Regulation 11(6) gives to the PIC the power to amend an allegation. If the Committee chooses to exercise that power, it is then incumbent upon the Committee to notify a defendant of that amendment and to give to him or her an opportunity to provide a further explanation. In this case, the Committee failed, having exercised the power of amendment, to give the applicant that opportunity.

2. The argument goes on to contend that regulation 11(6) is a mandatory provision, and that if that is so, the failure to observe its requirements renders all that follows nugatory. It matters not then whether regulation 15 gives to the Council a power to refer a case back to the Committee or for what purpose that power may be exercised, for the case was never lawfully before the Council. If, on the other hand, the requirement to notify the defendant of the amendment was merely directory, then it is not suggested that in this particular case the failure to observe that direction should move this court to grant relief in favour of the defendant.

3. It is said that in any event there was no power for the case to be referred back to the PIC for the purpose for which it was referred back, namely, to enable the PIC to put the case as amended or broadened to the defendant with a view, perhaps, to a reference back to the Council for an inquiry. And it was not open to the PIC to refer the case to the Council a second time as it sought to do. The PIC was, it is suggested, in the circumstances which arose functus, and the act was inconsistent with the Council's decision, as evident from its referral under regulation 15, that there was to be no inquiry. It is argued that regulation 15 is not a remedial provision to be used for the correction of errors made by the PIC and, furthermore, once there is a referral back, it is for the purpose of closing the case. The PIC is then duty bound to give effect to the view of the Council that there should be no inquiry, to make a decision to that effect, and then either to leave matters at that, or provide some advice to the defendant or, perhaps, to refer the case to the Health Committee or some other Committee of the Council. The defendant and the complainant are then to be informed accordingly of what has transpired.

4. The allegation that the applicant should have known of the allergy was not capable of constituting an allegation of professional misconduct, for professional misconduct means something which is disgraceful or dishonourable, and to characterise the failure of the record keeping system described by the solicitor's letter as professional misconduct is said to be unreasonable in the Wednesbury sense of that word.

Analysis

(1) Was there an amendment under regulation 11(6)?

46. I have considered a question not debated by counsel before me, which is whether there was in fact a decision by the PIC that "the matter indicated to the defendant under regulation 9(2)(b) should be amended." (see regulation 11(6)). It might be suggested that what is envisaged by that phrase is the general subject matter of the complaint, rather than some formulation of a proposed charge, and that so long as there is no change to the subject matter of the complaint, the mere crystallisation of a further "charge" arising from the same facts does not constitute an amendment for the purpose of regulation 11(6). However, in light of the terms of regulation 13(1) and (5), and in the context of this particular case, I proceed on the footing that there has in fact been an amendment for the purpose of regulation11(6). The "matter" put to the applicant in the first letter from the PIC to her (10th January 1997) was put in the nature of a specific charge, and the letter dated 14th April 1997 from the PIC to the Council informed the Council that the PIC had "determined at a meeting held on 17th March 1997 that the following matter against [the applicant] should be referred to the Council for inquiry." The matter thus specified was different from the complaint put to the applicant in the 10th January letter in that it added the allegation that she "should have known" of the allergy when she prescribed the drugs. There has been no suggestion in correspondence that there was no decision by the Committee to amend, and indeed Mr Kwok, on behalf of the respondent, says in terms that the procedure required by regulation 11(6) has not been followed in full, and that it ought to have been.

(2) The application of regulation 15

47. It will be recalled that regulation 15 provides as follows:

"15. Referring back to committee

(1) Where, after a case has been referred to the Council for inquiry, further information is subsequently produced in writing which suggests that an inquiry should not be held, the Chairman may refer back the case to the Committee, the Health Committee or the Education and Accreditation Committee, as the case may be, for further consideration.

(2) As soon as may be after the case is referred back to the Committee, the Health Committee or the Education and Accreditation Committee, as the case may be, the chairman of the committee shall direct the Secretary to, and the Secretary when so directed shall, advise the complainant and the defendant accordingly."

48. To the extent that the applicant contends that a referral back to the PIC under regulation 15 brings the inquiry to an end, and that the case cannot then revert back to the Council at the behest of the PIC, it is a contention with which I do not agree. In other words, it is not, in my judgment, the case that regulation 15 envisages that by reason of the referral back to the PIC, the inquiry or the proposal to hold an inquiry is then necessarily ended.

49. The regulation envisages that information has come to hand which "suggests" that an inquiry should not be held; and the case is referred back specifically "for further consideration." Had it been intended that the referral back could solely be a consequence of a conclusion by the Council that there was, in the light of the fresh information, nothing which warranted an inquiry or further investigation, terminology in different vein would have been used. The very phrase "refer back the case" is not of a kind foreign to proceedings which are of a judicial or quasi judicial character. Referral back to a subsidiary or subordinate tribunal or body may be for one of several purposes. Within judicial experience, such referrals are sometimes accompanied by a direction to decide a case in a particular way or, as in this example, to consider a case further. The regulation does not empower the Council to dismiss the case, as well it might have, were Mr Dykes' submission correct as to what was intended; nor does it say that in the circumstances envisaged by regulation 15, the Council may refer back to the case with a direction that the Committee shall dismiss the case. The phrase "for further consideration" must bear its natural meaning, and regulation 11 describes the PIC's prime function which is the "consideration" of a case; and the "consideration" of that case entails consideration of the prima facie merits of a complaint; as well as investigation and clarification if necessary (see regulation 11(7)).

50. Mr Dykes seeks comfort from the terms of regulation 15(2) by which the Secretary is required to "advise the complainant and the defendant accordingly," his suggestion being that the complainant and defendant are to be advised that the matter is concluded. But that is not what regulation 15(2) says, a fact to be contrasted with the requirement of regulation 12(1) that if the PIC decides that no inquiry is to be held, that "decision of the Committee" (emphasis added) is to be communicated to the complainant and the defendant. Regulation 15 makes no reference to any decision, provisional or otherwise.

51. In my judgment, regulation 15 envisages the emergence of some new evidence or information which justifies further thought by the PIC; a re-evaluation of its original decision to refer the charge to the Council, which may indeed result in a decision by the PIC to go back upon its original decision to refer case to the Council for an inquiry. But it may on the other hand result in a decision by the PIC to investigate the fresh information further; or to seek clarification from the person who has provided the fresh information; or to go to the complainant, perhaps, and ask what he has to say about the new information. One is bound, I think, to the view that regulation 15 was primarily intended for a situation in which fresh evidence comes to light which suggests that an inquiry is not after all warranted and where it is felt that the new situation should be the subject of consideration and perhaps investigation by the PIC, in the expectation, perhaps, that the PIC will come to the same conclusion after such investigation, if any, as may be warranted. But I do not see why that is the long and the short of the matter. I do not see why the regulation precludes the PIC from considering a fresh representation from a defendant who has sought to persuade the Council that there should, in the light of the fresh representation, be no inquiry at all. If a defendant says to the Council before an inquiry gets underway that he or she is facing a charge to which he or she has a complete answer, and that that answer has not been canvassed before the PIC, it seems to me to make a great deal of sense for the Council to ask the PIC to give the matter its further consideration in the light of this information, and it is too restrictive a reading of regulation 15 to say that such a course is outwith the contemplation of the legislative scheme.

(3) Is Regulation 11(6) mandatory

52. This conclusion - that regulation 15(1) permits a referral back of a case by the Council for the PIC to consider representations of a defendant of the type advanced to the Council in this case, and to take that which amounts to remedial action - is a conclusion which necessarily affects one's view of the character of regulation 11(6), for regulation 11(6) is not to be construed in isolation.

53. Mr Dykes asks me to address the question whether the requirement in regulation 11(6) to notify a defendant of an amendment by the PIC is a mandatory requirement or, on the other hand, merely directory, relying on the principle that :

"If the step is mandatory, the failure vitiates the exercise of the statutory power. If the step is merely directory the failure will not be fatal."

(see Statutory Interpretation (Third Edition) F.A.R. Bennion page 34).

"There is no rule of thumb in this matter. 'No universal rule can be laid down ... It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed' ... The interpreter's task is always to scrutinise the Act and determine, in the light of its particular provisions, the legal consequence most likely to have been intended for breach of duty." (Bennion, pages 31 and 32).

54. The scheme of that part of this particular legislation with which this case is concerned is to cater for consideration of complaints against medical practitioners and for the regulation of professional conduct, and there arises in the case of any complaint lodged by a patient the possibility that a disciplinary inquiry will be launched, with the further possibility of grave consequences for the practitioner concerned. Procedural rights, especially the right to be heard in relation to an allegation, are of the utmost importance, and, in so far as one has to categorise requirements to ensure the observance of those rights, they are prima facie mandatory requirements. And the importance of the right is significant also at the preliminary stage, for it is no small matter for a professional person to be brought before the Council on a charge, even if the charge is shown ultimately to have been without foundation, or somehow misconceived.

55. Nonetheless, I am satisfied that upon a proper reading of the Ordinance and the Regulations, it was not intended by the legislature that a breach of regulation 11(6) would necessarily render nugatory that which followed. There are a number of indicia to this effect.

56. Section 21(2) stipulates that the Council may exercise its powers of discipline after "due inquiry" which is defined (section 21(2)) as an inquiry "conducted substantially in accordance with procedures prescribed by Regulations made under section 33." (emphasis added). In this regard, Mr Dykes presses upon my attention the existence and words of section 20T(3) of the Ordinance :

"The Preliminary Investigation Committee its chairman and deputy chairman shall act in accordance with such regulations in relation to their procedure made under section 33,"

as sitting in contrast with the more liberal theme of section 21.

57. I think that that is to place a gloss upon section 20T(3) which is not warranted. Unusual a provision though it is, it seems to me that the purport of section 20T(3) is to draw attention to the regulations which are to govern the PIC's functions and procedure, rather than to lay down some dramatic imperative. In particular, it would be odd if the legislature intended that the body which has the power ultimately to discipline the practitioner - a power which includes the making of an order to remove the name of a doctor from the General Register - was required to observe prescribed procedure substantially, but that the preliminary investigation body was required to do so to the letter, failing which the entire proceedings would then be vitiated. Indeed, I note that it is envisaged by the Ordinance that there will be circumstances in which an allegation of misconduct may be the subject of an inquiry by the Council even though it has not been considered by the PIC at all (see regulation 16(1)), a fact which sits comfortably with the role envisaged by the legislation for the two bodies: that of a primary body (the Council) and that of a subsidiary arm (the PIC) which is there to act as a filter and to carry out a preliminary process, and indeed not merely to carry out the functions itemised by the Regulations but also "such [other] functions as are delegated to [it] by the Council." (see section 20BA (2) of the Ordinance).

58. Furthermore, since I have concluded that the power of the Council to refer a case back to the Committee for further consideration includes a power in the Committee to consider information not previously considered by it, to put that information or matters arising from it to the defendant even though it is a matter which it ought to have put to the defendant in the course of its initial consideration, it must follow that the legislature cannot have intended that the failure to put the matter the first time round would in such circumstances be fatal.

59. It is implicit in my interpretation of the effect of regulation 15 that the PIC is empowered, after the further consideration which it undertakes, to make a recommendation under section 20T(b) of the Ordinance and regulation 11(8) of the Regulations to the Council for the holding of an inquiry under section 21. That is what happened in this case in December 1997, and that recommendation or referral was, I find, lawful; and for reasons which I have canvassed, I find that the decision was not rendered unlawful by the failure to observe the requirements of regulation 11(6).

60. That is not to suggest that the requirement of regulation 11(6) is to be treated lightly. There may be cases in which the failure to observe its requirements will move a court to grant relief, but this is not such a case; and Mr Dykes accepts that, given the history of this particular episode, there is scant ground upon which to argue that, if the requirement of regulation 11(6) is not mandatory, I ought to grant the relief sought. As matters have turned out, the applicant has been given every opportunity to answer the allegation which it is proposed she is to face at the inquiry triggered by the December 1997 referral, and there is no basis at all upon which to suggest that she has suffered prejudice or disadvantage because of the earlier failure to ask her to answer the broadened charge.

The Wednesbury point

61. It is not suggested that if the applicant actually knew that the patient was allergic to penicillin, the prescription of a drug containing penicillin was not capable of constituting professional misconduct. Indeed, Mr Dykes points out that this application for judicial review is not aimed at that part of the proposed inquiry to look into the allegation of actual knowledge, but rather it is directed at the allegation that she ought to have known of the allergy. But it is suggested that it is irrational to say that on the facts of this case the failure of the recording system could amount to misconduct in a professional sense.

62. Misconduct in a professional respect has been defined in the Code of Conduct promulgated by the Council :

"The definition of misconduct in a professional respect can be broadly defined as if a medical practitioner in the pursuit of his/her profession has done something which will be reasonably regarded as disgraceful, unethical or dishonourable by his/her professional colleges of good repute and competency, then it is open to the Medical Council, if that be shown, to say that he/she has been guilty of professional misconduct."

63. Mr Dykes argues that it cannot be misconduct as thus defined to omit through advertence to insert a specific item of information about a patient on a database designed - as it was in this case - to include information about allergies. Nor, he says, can it be misconduct in this sense not to appreciate immediately the significance of a question put by a nurse when asked whether one of the drugs prescribed contained penicillin.

64. It is common ground that the patient had informed the clinic that he was allergic to penicillin; and it is the applicant's case that after she had prescribed the drug which contained penicillin, the nurse had specifically asked her whether one of the other drugs contained penicillin, and she concedes that despite that question she did not withdraw the prescription or the medication or raise any query.

65. The matter goes further than that, for the contention of the patient himself is that :

"I told the doctor that I must avoid taking drugs containing penicillin. After the consultation she prescribed me some medicine for treating my problem. Upon receiving the drugs I asked the doctor whether the drugs contained any penicillin. The nurse referred my question to the doctor who gave me the answer 'no'."

66. The effect of that passage may well be no more than a suggestion that the patient asked the doctor about the drugs not directly but through the nurse. Be that as it may, there is a suggestion by the patient that the doctor was asked about all three drugs, which would include the one that contained penicillin. It is not of course for me to resolve that issue of fact, but the point is that there is that allegation. (I notice that it is an allegation of what happened after the drugs were actually prescribed, and that the proposed charge is that Amoxycillin was prescribed when the applicant (knew or) should have known that the patient was allergic. But this particular point of timing - which invites a nice question of when the act of prescription begins and ends - is not taken. No doubt the allegation includes the suggestion that the prescription was permitted to stand despite the questions raised by the patient through the nurse).

67. The question which it is for me to address is not whether there was in fact misconduct in this case, but whether the conduct alleged is capable of amounting to professional misconduct. What facts may be found hereafter and how they will be categorised; what view the medical professional through the Council will take of them is a matter which it is for that profession to decide.

68. But accepting for the purpose of this point that professional misconduct requires something which would be viewed by medical professional colleagues as "disgraceful, unethical or dishonourable," I cannot say that the conduct alleged is not capable of being so categorised. I would have thought that, if proved , a significant and culpable neglect of duty to a patient was capable of falling within the range envisaged. If, for example, no records of any kind were kept by a clinic, it would be hard to maintain that that neglect did not constitute professional misconduct. For reasons which are too obvious to state, doctors are expected to keep records about the medical history of their patients. If the records are kept in such an inefficient manner as to leave a practitioner who prescribes medication ignorant of information on those records which is fundamental, such as whether the patient for whom that medication is prescribed is allergic to it and if the fault in the system is attributable to the practitioner under investigation, it may well be possible to conclude that that constitutes misconduct. Of course the circumstances may be such that the Council would conclude that the failure of proper records, or the manner in which records were kept, or the break in communication of those records to the practitioner did not, in the circumstances of a case, constitute professional misconduct. But these are matters eminently for the Council itself. It would in my judgment, be perverse for this court to say that the allegation levelled in this case cannot, on any view which the Council may take, properly be viewed as professional misconduct. And in this regard I would add the note that the allegation does not rest purely on a record keeping problem. It rests also on the question asked by the nurse of the doctor herself - on one version about all the drugs, including the one containing penicillin; and on the other version about one of the other drugs; and the failure of the applicant to note the import of the question. Clearly, there is a rational basis for contending that the applicant in such circumstances ought to have been on notice that the patient was or may have been allergic to one of the drugs she had just prescribed; and if that is so, the contention that in allowing the prescription to stand, there had been professional misconduct, is not a contention which can be described as irrational.

69. There is in my opinion nothing of substance in this ground.

Conclusion

70. The applicant seeks an order of certiorari to quash the Committee's decision of 2nd December 1997 to refer to the Medical Council for inquiry a matter concerning a complaint of misconduct in a professional respect made against the applicant, and an order of prohibition to prevent the Medical Council from inquiring into the case thus referred. It follows from my analysis of the law, and my view of the submissions advanced on the applicant's behalf, that no grounds have been established that the decision made by the PIC was unlawful.

71. Accordingly the application for the relief which sought in this case fails, and is dismissed. There will be a costs order nisi that the applicant shall pay to the respondent the costs of this application.

(F. Stock)

Judge of the Court of First Instance,
High Court