DR WU DANIEL YIANG v. THE MEDICAL COUNCIL OF HONG KONG

CACV162/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.162 OF 2013

(ON APPEAL FROM THE ORDER OF

THE MEDICAL COUNCIL OF HONG KONG

MADE ON 13 JULY 2013)

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JUDGMENT

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Hon McWalters JA (giving the judgment of the Court):

Introduction

1.  The appellant is a specialist medical practitioner practicing in the field of Orthopaedics and Traumatology.  He operates a medical centre specializing in bunion surgery.  He was charged with four charges of being guilty of misconduct in a professional respect in the treatment he provided to his patient Madam Tanmizi Diandra (“the patient”).  The four charges alleged that:

“(1) on or about 9 February 2009, he inappropriately advised the patient to undergo a bilateral bunion operation (‘the Operation’) when her left foot was painless or essentially painless;

(2) on or about 9 February 2009, he failed to properly advise the patient of the alternative treatment options;

(3) he failed to explain or adequately explain to the patient the possible complications of the Operation before the Operation;

(4) he failed to provide proper advice and/or treatment to the patient after the Operation when she complained of pain and stiffness.”

2.  The hearing took place before the Medical Council on 25 March 2013, 12 May 2013, 9 July 2013 and 13 July 2013.  Charges 1-3 refer to pre-operative advice and charge 4 refers to post-operative advice and treatment.  At the conclusion of the Inquiry the Council found the appellant not guilty of charges 1 and 4 but guilty of charges 2 and 3.

3.  The punishment the Council imposed on the appellant was a global order that he be removed from the General Register for a period of 3 months.

4.  The appellant appeals against both the findings of guilt by the Council in respect of charges 2 and 3 and the punishment which it ordered in respect of those charges.

5.  At the hearing of the appeal we reserved our judgment which we said we would hand down at a later date.  This we now do.

The Factual Background

6.  The appellant specialized in the treatment of hallux valgus, a mis-alignment of the first metatarsal bone in the foot which can cause bunions. The most common treatment for this problem is known as osteotomy which involves the breaking of the misaligned bone in order to return it to a proper alignment.  However, the appellant developed a surgical technique which did not involve the breaking of the bone.  Instead he would drill holes in the misaligned bone through which he would insert sutures which he would connect to the adjoining bone and by this method re-align the bone.  Over time the sutures would dissolve and be absorbed by the body.  He called this technique “Syndesmosis Procedure”.  It was a soft-tissue approach to treatment of the problem as opposed to the bone-breaking approach of osteotomy.

7.  The patient is resident in Singapore but read of the appellant’s treatment technique on the internet and travelled to Hong Kong to have a consultation with him on 5 January 2009.  She had bunions on both feet and after her consultation made a decision to undergo the appellant’s Syndesmosis Procedure on both feet.  The operation was performed on 9 February 2009.

8.  The patient maintained that prior to the operation she was told by the appellant that it was not necessary to cut the bunion bones in order to correct the position of the toes.  She said she asked many questions of the appellant and was assured by him that  his procedure was painless and she would heal faster than if the procedure of cutting the bones was used.  He claimed to the patient that his procedure was better than cutting the bones which he said was a bad method to treat bunions.  She said the appellant told her she could walk normally in 3 months and wear high heels six months after the operation.  He also said that the sutures used to connect the two bones together would dissolve over a period of three months.

9.  The patient maintained that in the course of explaining his technique to her, the appellant did not mention any adverse side-effects of it.  Nor did he discuss with her alternative treatment options.  She portrayed her conversation with him as one where he tried to promote his technique and to discourage her from osteotomy surgery.  She said he told her:

“He said its more painful and longer healing and would be more problematic because there’s a screws inside.”

10.  He never mentioned any advantages of the osteotomy surgery nor said anything about the possible risks or complications arising from his operation.  He did mention there would be swelling for a couple of months and stiffness in the toes for which she would have to do exercises.  But he did not tell her about the risks of a possible recurrence of the deformity, of transfer pain to other metatarsal bones, of the sutures breaking or becoming loose or of there being no fusion between the misaligned metatarsal bone and the adjoining bone.  In summary he only mentioned the advantages of his surgical technique and the disadvantages of the bone‑breaking technique.

11.  The patient said she started to feel pain and stiffness in both feet around 3 months after the operation.  She was still in Hong Kong and when she raised this with the appellant he told her that there was no need for her to receive physiotherapy and she should just continue massaging her toes. 

12.  After the operation the patient had pain, stiffness and swelling in both feet.  The appellant told her to continue massaging her toes and perform passive movement of the toes as he had previously instructed her.  Sixteen months after the operation the patient was still suffering from pain and stiffness in both feet and felt that her bunion problem had not improved.  She then made a complaint to the Medical Council. 

13.  The advice provided to the patient before the operation was recorded on the consent form for the operation which was signed on 9 February 2009. In that form the appellant confirmed that he had explained to the patient the nature, potential complications and risks of his Syndesmosis Procedure.

14.  Before February 2009 the appellant’s procedure was introduced to patients in two pamphlets.  The pamphlets mention bone‑breaking surgery in order to distinguish the appellant’s surgical technique from it and to explain the benefits and advantages of his technique.  Under the heading “How does conventional surgery straighten the first metatarsal bone?” he wrote:

“The conventional bunion surgery has been using the break‑n‑shift (osteotomy) method to straighten the first metatarsal bone and thus help the foot and great toe look straighter from the outside. Currently, more than 98% of bunion surgeries around the world are done by one of the more than 15 most commonly practiced break-n-shift techniques.”

15.  Immediately after this, under the heading “How does Dr Wu’s method differ from the break-n-shift surgery?” he wrote:

“Wu’s bunion surgery is called ‘Syndesmosis Procedure’. It differs primarily by being the first proven successful surgery able to correct the bunion problem without having to break or cut any bones. It corrects and maintains foot straight by creating a natural fibrous bonding between the first and second metatarsals. Dr Wu champions the concept that bones are not at fault in bunion formation and he is emphatically against any breaking of bones because he believes it would invariably introduce irreversible damage to the foot, especially for function such as walking, running, wearing high heels etc.”

16.  The appellant maintained that he properly explained to the patient that most surgeries performed to treat her condition were of the bone-breaking kind and of the reasons why he disagreed with that method of treatment.  He also said he would have explained to the patient that he did not perform the bone-breaking surgery and if this was the option she preferred he would have to refer her to another surgeon but the patient was not able to recall this being said.  He explained to her how his technique worked and that the absorbable sutures would last about 3 months.  He explained to her what she would have to do in this period to avoid stiffness in the big toes.  He also explained to her the advantages of the bone‑breaking technique and the disadvantages of his technique.  He claimed he did mention to the patient about the possible recurrence of the deformities and the recurrence of stiffness in the big toe joint and the risk that excessive walking could lead to rupture or loosening of the sutures.  He said that in discussing his surgery with his patients he was conscious that his technique was unconventional and so he took a long time to carefully explain to them the principles behind his surgery.

The Findings of the Council

17.  The Council commenced its discussion of charges (2) and (3) by setting out what it regarded as the obligation on doctors when advising a patient of different treatment options.  It said:

“The purpose of advice on alternative treatment options is to enable a patient to make an informed decision on which option to adopt. It is not adequate to simply mention what other alternatives are available. A doctor should advise on the pros and cons and comparative advantages and disadvantages of the alternatives relative to the proposed option.

The extent of advice required will depend on the proposed treatment. If the proposed treatment is not well-established or the efficacy of which is controversial or not proven, it is necessary to give advice on suitable alternatives with proven efficacy in order that the patient can make an informed decision.

A doctor should give a balanced explanation of the nature, effect, complications and risks of the proposed treatment.  The explanation should cover the significant complications and risks, and also complications and risks of serious consequence even though the probability is low.”

18.  The Council then noted that there was no documentation of what advice had been given to the patient.  What advice was given was the subject of testimony by the patient and the appellant. 

19.  The Council, however, accepted the patient’s evidence which characterised the appellant’s explanation as being “more like a promotion of the Syndesmosis Procedure, with no mention of the disadvantages and complications”.  This, the Council felt, was consistent with the contents of the pamphlets which the appellant gave to his patients outlining his procedure.  

20.  Of these pamphlets the Council found that they emphasized the advantages of the appellant’s procedure but failed to mention at all the unproven success rate and the disadvantages such as complications of stiffness of toes and of it being suitable for the treatment of only mild deformities.  In respect of the content of these pamphlets the Medical Council found:

“It was one-sided and misleading information which promoted Syndesmosis Procedure as being superior to osteotomy.”

21.  The Council was satisfied that the appellant did mention the alternative procedure of osteotomy but concluded that he did not give proper advice on the advantages and disadvantages of each procedure.  It said:

“Instead, he emphasised the advantages of his own technique and the disadvantages of osteotomy. There was important omission as to the complications of Syndesmosis Procedure, such as the uncertain recurrence rate and the uncertain long-term outcome. Such lop-sided advice was illustrated by the pamphlets, which formed a part of his advice to the Patient.”

22.  Noting that the defence expert witness had testified that the patient suffered from moderate to severe hallux valgus deformity, for which the soft‑tissue approach to treatment was inappropriate, the Council said that the patient should have been advised of this.  The Council concluded that the appellant “failed to advise the Patient properly on the alternative of osteotomy” and said that this was an important failure as it “defeats the purpose of explanation to enable the Patient to make an informed choice of the treatment option”.

23.  The Council then found that the appellant failed to explain to the patient some significant complications of his procedure, including the uncertain recurrent rate and long-term outcome.  In the absence of such an explanation, the Council said “the Patient was unable to make an informed decision when she decided to undergo the Syndesmosis Procedure”.

24.  These two findings underlay the verdict of the Council that the appellant was guilty of professional misconduct in charges (2) and (3) for immediately after these findings the Council said:  

“We are satisfied that the Defendant’s conduct in failing to properly advise the Patient of the alternative treatment option is below the standard expected amongst registered medical practitioners. We find him guilty of professional misconduct as in Charge (2).

We are satisfied that the Defendant’s conduct in failing to adequately explain to the Patient the significant complications of the Syndesmosis Procedure is below the standard expected amongst registered medical practitioners.  We find him guilty of professional misconduct as in Charge (3).”

25.  When it came to determining the appropriate punishment for these two charges the Council was informed that the appellant had a previous disciplinary conviction in April 2007 in respect of the issue of a sick leave certificate without examination.  Of this the Council said that although it was misconduct that was dissimilar in nature from the present case it did mean that the present case was not the first time the appellant had committed professional misconduct.  Furthermore, as a result of a warning given to him at the time of that disciplinary hearing, the appellant was put on notice that any future professional misconduct would be regarded very seriously by the Council.

26.  In his mitigation the appellant produced a number of reference letters but as they had been redacted to conceal the identity of the authors the Council did not attach any weight to them.  He also placed before the Council a new brochure for patients on his Syndesmosis Procedure which the appellant adopted after the present incident.  This was put forward in order to show that he had learnt from his mistake and was intent on ensuring his patients had all the information they needed in order to make an informed decision about their treatment.  However the Council noted that there were a number of inconsistencies between what was in this brochure and what the appellant told the Council in his evidence.  The Council cited the following three examples:

(i) that there is a risk of stress fracture after the Syndesmosis Procedure and this was known before this patient underwent her surgery;

(ii) that the suture will be absorbed in about 11 months and not the 3 months the appellant told the patient; and

(iii) that if after 2 months the big toe extension was not more than 60 degrees then the patient should consult a physiotherapist which was contrary to how the appellant had advised the patient who had less than 30 degrees extension of her big toe after the 2^nd month.

27.  On the basis of the inconsistencies between the brochure and the appellant’s evidence the Council concluded:

“These matters show that the Defendant has been dishonest to the Patient in hiding the known risks from her and in advising her not to consult a physiotherapist.”

28.  The Council said that it was “concerned that the Defendant is promoting a technique on which there is little, if any, evidence of its efficacy”. Against the backdrop of this view of his procedure the Council then addressed his culpability for charges (2) and (3).  It said:

“In his pamphlets explaining the procedure, there were ample misleading and unjustified statements on the advantages of the Syndesmosis Procedure and the disadvantages of the established surgical procedures for hallux valgus correction. Even worse, he was hiding the known risks and complications from the Patient and playing up the disadvantages of the well-established mainstream osteotomy approach, in order to attract the Patient to accept his technique. He was exploiting the Patient’s ignorance about medical matters to pursue his own interest. He placed his own interest above the interest of the Patient. In so doing, he poses a danger to the public.”

29.  Before imposing the three month removal order as its punishment for this conduct the Council said that it had “regard to the gravity of the case and that there is no mitigation of weight”.

30.  It went on to consider whether its removal order could be suspended but decided that this was not an appropriate case for suspension.

The Grounds of Appeal

31.  There are 13 grounds of appeal.  Grounds 1-4 concern the 2^nd charge, ground 5 the 3^rd charge and grounds 6-13 relate to the punishment imposed on the appellant.

32.  In grounds 1-4 the appellant complained that the Council erred in finding that his procedure was inappropriate for this patient who should have been so advised; that the Council erred in finding the contents of his pamphlets were “one-sided and misleading” without putting this view to the appellant and without taking into account the patient’s evidence and that the Council erred in finding that the appellant made no mention of the disadvantages.

33.  In ground 5 the appellant says that the Council erred in finding that he failed to explain some significant complications of his procedure to the patient.

34.  As to his punishment the appellant complains that the Council erred in its finding that he had been dishonest with the patient; that his pamphlets contained misleading and unjustified statements and that he posed a danger to the public.  In respect of the appellant’s previous disciplinary conviction and the warning that accompanied it, the appellant argued that the Council adopted an approach that was flawed and wrong in principle.  The appellant also submitted that the Council erred in not attaching any weight to the letters produced in mitigation and that it should not have made the recommendation that before the appellant be restored to the General Register he be required “to produce cogent evidence that patients will be advised of all known risks and complications of the Syndesmosis Procedure before obtaining their consent to undergo the procedure”.

35.  In reply submissions, Mr Huggins SC for the appellant, placed great emphasis on the unfairness inherent in the Council’s findings which impugned the integrity of the appellant.  He was, in effect, convicted on a different basis from that with which he was charged.  

36.  Here, Mr Huggins is referring to the highly adverse and prejudicial findings of the Council that the appellant acted dishonestly and deliberately misled the patient in order to advance his own interests.

Discussion

37.  Charge (2) is drafted as the appellant “failed to properly advise” and charge (3) as he “failed to explain or properly explain”.  No allegation is made in either charge that his failures were deliberate and no allegation is made that his deliberate actions were dishonestly done in order to conceal information from the patient so that she would be misled into choosing the appellant’s surgical technique.  A defendant facing such a charge would be entitled to assume that he was being prosecuted simply for a neglectful failure to comply with the requirements and standards of his profession. 

38.  It goes without saying that there is an enormous difference in culpability between a neglectful failure to comply with professional standards and a wilful failure to so comply that is motivated by an intention by the professional to advance his own interests to the detriment of his patient. Where, as here, the prosecution flows from a Preliminary Investigation Committee there is no reason why the prosecution should not know well in advance how it will present its case and what allegations it will be making against the appellant.  One can only assume from the way these charges were drafted that the prosecution had made a considered decision not to allege that any specific improper motive or intention underlay the appellant’s conduct.

39.  If the prosecution intends to explain a defendant’s conduct by an allegation of dishonesty then that should be made apparent in the charge and properly particularized. What fairness requires in this situation was clearly spelt out by Lord Hoffmann in delivering the judgment of the Privy Council in Osama Hassan Salha & Anor v The GMC [2004] ECDR 12 when he said at page 158, paragraph 14:

“It is a fundamental principle of fairness that a charge of dishonesty should be unambiguously formulated and adequately particularised.”

40.  Clarity in the drafting of the charge is an important first step in ensuring that there is no uncertainty, ambiguity or confusion in the allegations being made and what the prosecution asserts is the basis of the defendant’s culpability.  We cannot emphasize enough the importance of there being clarity on these matters from the outset of the inquiry.

41.  Of course it is always possible that in response to new evidence or to changes in circumstances the prosecution may wish to alter the basis of its case or the Council may wish to pursue, of its own accord, a different view of the evidence which is adverse to the defendant.  This must be permissible, indeed it may be necessary, if the Council is to properly perform its function.  But it cannot be done in a way which deprives the defendant of a fair hearing.  Where this happens then it may, depending on the circumstances, be appropriate to adopt one or more measures, such as amending the charge, recalling witnesses, granting an adjournment, allowing the defendant a further opportunity to testify or call other witnesses or, in an extreme case, declaring a mistrial and starting again, in order to ensure procedural fairness to the defendant.  At the very least the defendant has to be informed by the prosecutor or the Council that the basis of the prosecution case is changed, that new and different allegations are to be made and that a more prejudicial view of the defendant’s culpability is to be alleged.

42.  The question for us is in this case is whether the Council formed a view of the culpability of the appellant different from, and much more adverse than, the basis on which he was being presented and failed to alert the parties to this change of circumstances.  Mr Huggins maintains it did but that it did not become apparent until the Council made comments in the process of sentencing the appellant.  Mr Ismail, for the respondent, argues that the comments on sentencing were made, necessarily so, after the Council had convicted the appellant and do not taint its reasons for convicting him.  He says we should keep separate the reasons for conviction and the reasons for sentence.

43.  The problem with Mr Ismail’s approach is that the seeds of the Council’s view of the appellant’s culpability can be found in the Council’s reasons for conviction.  When describing the appellant’s pamphlets it characterised them as “one-sided and misleading” and when describing the advice he gave to the patient the Council called it “lop-sided”.  True it is that these comments do not contain any reference to the appellant’s intention or motivation in slanting his advice but it does not seem to us that it follows that the view the Council formed of his culpability was only formed in the course of mitigation.  What the Council meant when it described the pamphlets in the way it did was made clear in its reasons for sentence.  There, after again describing the pamphlets as containing “ample misleading and unjustified statements on the advantages of the Syndesmosis Procedure and the disadvantages of the established surgical procedures for hallux valgus correction”, the Council characterized the appellant’s actions as set out in the excerpt of its decision quoted at paragraph 28 herein.

44.  These views of the appellant’s culpability flowed from the Council’s assessment of the pamphlets and so when it described the pamphlets in its reasons for conviction as “one-sided and misleading” and “lop-sided” it was, by so doing, also ascribing to the appellant a highly prejudicial motive for his actions.  Everything points to the Council having formed this view at the time of conviction.  We, therefore, do not think that we can compartmentalize the two sets of reasons as Mr Ismail would have us do.  It is not so much that the reasons for sentence taint or infect the reasons for conviction; rather they help to explain what was in the Council’s mind when it used the language it did to describe the appellant’s pamphlets.

45.  We have considered whether we can, nevertheless, uphold the conviction on the basis that once the Council disbelieved the appellant and believed the patient then there was ample evidence on which the appellant could be convicted of neglectful failure to provide the standard of advice that was required by his profession.  If we could act in this way then we could sentence the appellant afresh and substitute our sentence for that of the Council.  However, we could only so act if we could properly rely on the decision of the Council to reject the evidence of the appellant.

46.  We are not convinced that it would be safe or fair for us to rely on the Council’s assessment of the credibility of the appellant.  We say that because the Council’s assessment was clearly influenced by the view it took of the appellant’s motives as revealed by the pamphlets.  That view was never made known to the appellant and so he never had an opportunity to respond to it.

Conclusion

47.  For these reasons we are of the view that there is no alternative but to quash the decisions of the Council to convict the appellant on charges (2) and (3) and to remit these two charges back to a differently constituted Council for a fresh hearing, and this we so order. 

48.  In view of our conclusion it is not necessary for us to address the other grounds of appeal relating to conviction and sentence.

49.  It was not disputed that the appellant should receive the costs of this appeal and we so order.  The parties were not asked as to their views on the costs of the hearing before the Council but, subject to any submissions the respondent may wish to make to the contrary, we are minded to award the appellant his costs of those proceedings.

50.  We, therefore also make an order nisi that the appellant receive his costs of the hearing before the Medical Council.  This order will become absolute within 14 days from the date of this judgment unless application is made within this period to vary it.