LW v. THE MEDICAL COUNCIL OF HONG KONG

HCAL 1072/2021

[2022] HKCFI 734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1072 OF 2021

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BETWEEN

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DECISION

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A. Introduction

1.  This application raises an important question about the ability and the desirability for the Court to receive evidence about the private and confidential deliberations conducted amongst the members of a disciplinary panel prior to the open pronouncement of the panel’s reasoned decision.

2.  The question arises in the context of an intended challenge by way of judicial review. The Applicant is the widow of the deceased Mr Y (“Patient”), who had been under the care of the Interested Party, a doctor in general practice, Dr M (“Doctor”). The Applicant made a complaint to the Putative Respondent, the Medical Council of Hong Kong (“Medical Council”) in relation to the Doctor’s treatment of the Patient. Ultimately, after investigation, charges were preferred against the Doctor, and a hearing of the inquiry into those charges took place on 30 April 2021 (“Inquiry”).

3.  At the Inquiry, the Panel (“Panel”) of the Medical Council which conducted the Inquiry found the Doctor guilty of professional misconduct in respect of both charges, on his own admission. By its written decision (“Decision”), the Panel determined that the Doctor’s name should be removed from the General Register for 3 months, ordering that such removal be suspended for 18 months, subject to the satisfaction of a number of conditions designed to improve aspects of his practice (“Sentence”).

4.  In these proceedings, the Applicant seeks leave to apply for judicial review to challenge the Decision, on the basis that the Sentence was inadequate. Broadly, as identified in the Form 86, the intended grounds of review are that the Panel (1) failed fully to investigate the facts, (2) failed to take into account relevant considerations, and (3) failed to apply consistent sentencing policy.

5.  I originally gave directions for the filing of evidence and a ‘rolled-up’ hearing to address both the application for leave and the substantive application for judicial review. I fixed the date for the ‘rolled-up’ hearing as 8 December 2021.

6.  However, by summons (“Intervention Summons”) and his supporting affirmation both dated 22 November 2021, the Intended Intervener (“L”) applied for leave to intervene in the proceedings and to file evidence, as well as to make representations in the judicial review proceedings.

7.  L was one of the five members of the Panel, he being one of the two lay (non-medical) members/assessors of the Panel. His application is made for the purpose of disclosing certain information (“Confidential Information”) relating to the Panel’s private and internal discussions and decision-making/reasoning process before it reached and pronounced the Decision and Sentence.

8.  The Intervention Summons was opposed by the Medical Council. I also took the view that (1) where L seeks leave to intervene in the Applicant’s application for judicial review, that is a matter on which the Applicant is entitled to be heard, and (2) where the underlying challenge is to a decision of the Panel of the Medical Council in relation to disciplinary charges against the Doctor, it may be a matter on which the Doctor would wish to be heard (though I had already otherwise excused his attendance at the ‘rolled-up’ hearing). Further, I noted that the Intervention Summons might itself give rise to significant points with potentially wider-reaching consequences, which merited an oral hearing.

9.  In those circumstances, I vacated the ‘rolled-up’ hearing date, and gave directions for the hearing of the Intervention Summons. Amongst the directions, I required L’s application and supporting affirmation to be served on all interested parties, except that I directed the Confidential Information to be redacted from the copy materials served on the Applicant and the Doctor. As a result, neither the Applicant nor the Doctor (nor their legal advisers) have had sight of the Confidential Information.

10.  The hearing of the Intervention Summons took place remotely, using VCF, on 16 March 2022. At the hearing: (1) L was represented by Ms Sabrina Ho and Mr Arthur Poon of Counsel; (2) the Applicant was represented by Mr Anthony Neoh SC, leading Ms Barbara Wong and Mr Jiang Zixin of Counsel; (3) the Medical Council was represented by Mr Anthony Ismail of Counsel and Ms Carmen Siu, Senior Government Counsel; and (4) the Doctor was represented by Mr Timothy Parker of Counsel.

11.  At the end of the hearing, I reserved my decision. This is my Decision.

12.  But before turning to the detail of the matter, I would specifically point out that, though I will traverse some of the ground as will necessarily be traversed in the ‘rolled-up’ hearing in due course, I remind myself (1) that I am not yet deciding the issues in the intended underlying judicial review challenge and (2) that any views I appear to express on those issues is only preliminary or provisional and for the purpose of resolving the issues which arise on the Intervention Summons.

B. Further Background

13.  The Doctor is a general practitioner. The Patient was one of his general practice patients, having consulted the Doctor on and off for some 10 years. The Doctor knew at the time of the events material to the subsequent Inquiry by the Panel that the Patient had a history of end-stage renal failure, and was receiving peritoneal dialysis.

14.  The Patient consulted the Doctor at his clinic on five occasions during the period from 31 October 2016 to 11 November 2016. He was diagnosed with, among other things, acute gouty attacks. The Doctor prescribed to the Patient (1) Colchicine on 31 October 2016 and 3 November 2016, and (2) Methotrexate on 7 November 2016 and 11 November 2016.

15.  The Patient saw the Doctor at his clinic on 14 November 2016, complaining of deterioration in physical condition. Upon the Doctor’s referral, the Patient attended the Accident and Emergency Department of Pamela Youde Nethersole Eastern Hospital (“PYNEH”) later the same day.

16.  According to the medical records obtained from PYNEH, the Patient was found to have pancytopenia upon admission, and later found to have deranged liver function and coagulopathy. The Patient suffered sudden deterioration on 17 November 2016, with cardiac arrest. He was resuscitated with intubation and high-dose inotropic support. His clinical presentation was compatible with multiple organ toxicity of severe Colchicine and/or Methotrexate poisoning. The Patient remained in critical condition, and sadly passed away on the evening of 18 November 2016.

17.  Following the Applicant’s complaint made, with the assistance of a District Councillor, to the Medical Council, an investigation began. On 22 January 2019, the Preliminary Investigation Committee (“PIC”) invited the Doctor to comment on the complaint (framed in terms similar to the charges ultimately raised). The Doctor admitted the complaint. As part of his explanation for the prescription of Colchicine and Methotrexate, the Doctor said it was for treatment of the Patient’s gout attack and/or psoriatic arthropathy.

18.  The course of treatment, as well as the Patient’s deterioration and its causes, were considered in an Expert Report provided to the Medical Council by Dr Shum Yuk Wah (“Dr Shum”) in June 2020. It is relevant for present purposes simply to note that Dr Shum made certain comments and stated two conclusions. The Comments and the two Conclusions are as follows:

Comments

As [the Patient]’s family physician for a number of years, [the Doctor] must be familiar with his medical condition. With a background of peritoneal dialysis, the patient could never have excreted the colchicine in his system. Prescription of total 8 days of colchicine 4 times daily was grossly inappropriate. For patients undergoing dialysis, the total recommended dose for the treatment of gout flares should be reduced to a single dose of 0.6 mg (1 tablet), and not to be repeated more than once every 2 weeks.

The clinical picture would be similar to a normal person taking a very high, poisonous dose of colchicine with the following results: nausea and vomiting, bone marrow suppression leading to sepsis, adult respiratory distress syndrome and direct cardiotoxicity. All of which have manifested to a certain degree in [the Patient].

Without evidence of skin lesions suggestive of psoriasis, the diagnosis of psoriatic arthropathy is highly unlikely. As a result the repeated prescription of methotrexate is totally ungrounded. Given the fact that methotrexate is an antimetabolite of the folate pathway, and that it is non-dialyzable, again [the Patient] could never excrete methotrexate in his system. Subsequent hepatotoxicity and leukopenia was evident.

Conclusion

1. Prescription of repeated doses of colchicine to a patient on peritoneal dialysis is grossly improper and inappropriate.

2. Prescription of methotrexate to a patient on peritoneal dialysis is grossly improper and inappropriate.

19.  It seems that the two conclusions reached by Dr Shum formed the basis of the charges raised against the Doctor. By Notice of Inquiry dated 8 February 2021, the Doctor was informed that he was charged as follows (“Charges”):

That he, being a registered medical practitioner, disregarded your professional responsibility to his patient […] deceased (“the Patient”), in that when he knew or ought to have known that the Patient had renal failure:

(a) he inappropriately prescribed Colchicine to the Patient on or about 31 October 2016 and/or 3 November 2016; and

(b) he inappropriately prescribed Methotrexate to the Patient on or about 7 November 2016 and/or 11 November 2016.

In relation to the facts alleged, either singularly or cumulatively, he has been guilty of misconduct in a professional respect.

20.  The Inquiry was conducted in accordance with the provisions of the Medical Registration Ordinance Cap 161 (“MRO”).

21.  The Panel constituted to conduct the Inquiry comprised five members, three medical and two lay. As already noted, L was one of the lay members. L is a registered professional engineer. He had been appointed as a lay assessor by the Medical Council in January 2020, and had been a member of two previous panels. Though he mentions in his affirmation the very limited training or briefing given to him on his role as a lay assessor, L plainly understood that decisions are taken in “closed-door deliberations amongst panel members” (his own words), and that there was, and he owes, a duty of confidentiality as to the information concerning those closed-door deliberations.

22.  At the Inquiry, various materials were produced, including: (1) a Statement of Agreed Facts signed by the Legal Officer (i.e. the ‘prosecutor’) and the solicitors for the Doctor; (2) a bundle of documents prepared by the Secretary of the Medical Council, including the expert reports of Dr Shum; and (3) a mitigation bundle, including a written plea in mitigation submitted on behalf of the Doctor. The Doctor’s own medical records and most of the records of the Patient with PYNEH from 2010 to 2016 were not produced. No witnesses were called to give live evidence.

23.  At the Inquiry, the Doctor admitted the Charges. In his written mitigation submissions, it was said (amongst other things):

[The Doctor] is very sorry for his mistake. At those consultations, [the Doctor’s] sole intention was to treat and ease the Patient’s foot pain. He prescribed Colchicine on the first two occasions because he believed the Patient had gout attack. Since the Patient did not show much improvement, [the Doctor] considered a differential diagnosis of psoriatic arthritis, and prescribed Methotrexate.

24.  On behalf of L, it is pointed out that during the Inquiry – that is, prior to the Decision and the Sentence – the following questions or topics were canvassed by the Legal Adviser with the Panel and the parties: (1) whether the Doctor’s clinical suspicion that the Patient was suffering from psoriatic arthritis was genuine and valid; and (2) whether the Doctor’s medical records supported that suspicion. Reference can be made to parts of the transcript of the Inquiry (where ‘LA’ is the Legal Adviser to the Panel and ‘DS’ is the Defence Solicitor for the Doctor), in particular:

(1) at transcript page 20 line 35 to page 21 line 34:

LA: … I wish the defendant to confirm his position in relation to his PIC submission that the Methotrexate was prescribed to the patient in order to treat the Patient’s gouty attack and/or psoriatic arthropathy. He still maintains that position?

DS: Perhaps I will say this. That was the clinical suspicion of [the Doctor] but our position is that we are not going to challenge the expert …

LA: No, this is going to affect, you know, the nature and gravity of the case. It is of course, as the defendant rightly admitted, inappropriate to prescribe the two medications to a patient with a known history of end stage renal failure and who is put on peritoneal dialysis. But if the prescription of one of the drugs is actually not clinically indicated because the diagnosis was without sufficient evidence, then it is something that the council members will take into consideration when they come to sentencing. Because inappropriate can mean not only it is contraindicated for a patient because of his existing medical conditions, in this case end stage renal failure, but also it can be inappropriate because it was not justified in the sense that it is not clinically indicated for the patient. He does not have that type of illness to start off, so the Inquiry Panel member may wish to know the precise position … whether the defendant agrees with what is stated in the last paragraph … the middle of page 35 [a reference to the last paragraph of Comments], the expert report of Dr Shum or is he not agreeing to that?

DS: … My understanding of [the Doctor]’s position is that he prescribed Methotrexate on his clinical suspicion that there was the condition of psoriatic arthropathy. Having said that, in view of the wording of the charge, that was inappropriate in any event given the patient’s renal failure. …

(2) and at transcript page 22 line 35 to page 23 line:

LA: … you understand my difficulty. As the legal adviser, I have to give my legal advice to the Inquiry Panel member on what they can take into consideration or cannot taking into consideration. And one of the matters of course, is that the expert opinion of Dr Shum in this respect, they of course they take into consideration whether the position of the defendant. At the same time, they also need to consider the evidence before them. As I always say in my advice to the Enquiry Panel member, all the questions of facts and law are for them to decide, not for the expert. So I highlighted to the legal officer, without the patient’s medical records kept by the defendant, the Enquiry Panel member may not be in a position to tell whether the diagnosis of psoriatic arthropathy was justified or not. It may turn out to be wrong, be at a point in time when it was made, whether it was justified or not very much depends on the medical records.

DS: I understand what you say. The difficulty now is that the records have never been produced and in fact, never been considered by the expert when he gave remarks. Either we go back and …

LA: No, no, so I want to cut it short, is the defendant’s position still maintained he made … had a suspicion or provisional diagnosis of psoriatic arthropathy at the time was bona fide based on the clinical evidence before him at the time?

DS: Yes. That’s confirmed.

LA: Okay, thank you.

25.  Before the members of the Panel retired into their private deliberations, the Legal Adviser (as is usual) gave his legal advice to the Panel before the parties and their legal representatives. Other than the general reminder to the Panel that the role of the expert report is to assist the Panel’s understanding of the matter, but all questions of fact and law are for the Panel to decide and not for the expert, no part of that legal advice touched on the question about the basis for the diagnosis leading to the prescription of Methotrexate.

26.  The transcript of the Inquiry shows that the Panel members then retired for discussion. After returning, the Chairperson delivered, or read out, the findings of the Panel. Those findings can be seen from the transcript, but they have also been subsequently reduced into the written Decision (with numbered paragraphs to which I can refer).

27.  In the Panel’s Decision, under the heading ‘Findings of the Inquiry Panel’, (at §12) the Panel noted that the Doctor admitted the factual particulars of the disciplinary charges against him and indicated that he was not going to contest the issue of professional misconduct. The Panel referred (at §13) to the unchallenged evidence of Dr Shum and agreed with his conclusion that the prescription of repeated doses of Colchicine to a patient on peritoneal dialysis is grossly improper and inappropriate. Hence the Panel found (at §14) the Doctor guilty of misconduct in a professional respect as per disciplinary Charge (a). The Panel also (at §16) referred to and agreed with Dr Shum’s conclusion that prescription of Methotrexate to a patient on peritoneal dialysis is grossly improper and inappropriate. Hence the Panel also found (at §17) the Doctor guilty of misconduct in a professional respect as per disciplinary Charge (b).

28.  As it has given rise to some of the argument on the Intervention Summons, it is helpful to set out the entirety of §16 of the Decision (italics in original):

In his submission to the Preliminary Investigation Committee (“PIC”), the [Doctor] sought to explain that Methotrexate was prescribed to the patient on 7 November 2016 and 11 November 2016 for treatment of “psoriatic arthropathy”. However that may be, regardless of whether the Patient was suffering from “psoriatic arthropathy”, we agree with the Secretary’s expert that “[p]rescription of [M]ethotrexate to a patient on peritoneal dialysis is grossly improper and inappropriate”.

29.  Following the announcement of the findings of professional misconduct, the Panel invited and heard the Doctor’s plea in mitigation. After that, the Chairperson invited the Legal Adviser to advise the Panel on the sentencing options and the facts for consideration in sentencing. After identifying the various sentencing options as set out in section 21 of the MRO, the Legal Adviser stated:

In sentencing the defendant, you should take into account his plea of guilty today and his not contesting the issue of professional misconduct. In line with your published policy, you should give him credit in sentencing. And when you come to consider the appropriate sentence to be imposed upon the defendant, you should bear in mind the primary purpose of a disciplinary order is not to punish the defendant, rather it is to protect the public from persons who are unfit to practice medicine and to uphold the public confidence in the medical profession by upholding its high standards and good reputation. You should of course take into consideration the nature and gravity of the disciplinary charges for which you find the defendant guilty, as well is what you have heard and read in mitigation.

30.  Again, there was no specific reference in that advice to the basis for the diagnosis leading to the prescription of Methotrexate.

31.  The Panel then again retired to consider and determine the sentence. Upon return, the Chairperson of the Panel delivered, or read out, the Sentence. This can be seen from the transcript, but again it was reduced into the written Decision (with numbered paragraphs to which I can refer).

32.  The Panel’s written Decision therefore continues in §§18-24 under the heading ‘Sentencing’. The Sentence itself is set out in §24. Those paragraphs read as follows:

18. The Defendant has a clear disciplinary record.

19. In line with our published policy, we shall give the Defendant credit in sentencing for his frank admission and full cooperation throughout these disciplinary proceedings.

20. We bear in mind that the primary purpose of a disciplinary order is not to publish the Defendant but to protect the public from persons who are unfit to practise medicine and to maintain public confidence in the medical profession by upholding its high standards and good reputation.

21. We appreciate that the Defendant is a caring doctor and he has a lot of support from professional colleagues, patients and friends.

22. We are told in mitigation that the Defendant has since the incident taken steps to improve his medical practice. Before making prescriptions, the Defendant would double check with his patients regarding their past medical history, including any significant health condition or history of drug allergy. In addition, the Defendant has adjusted his clinic software and included a red box of warning on the front page of every patient’s consultation records. Any reported special health condition would be included in the red warning box. The red warning box would pop up and the Defendant has to click on the red box in order to make it disappear and access the rest of the patient’s consultation records. Through adjusting his clinic software, the Defendant wishes to make sure that he is alert of special health conditions and drug allergy history of his patients before making prescriptions.

23. We accept that the Defendant has learnt his lesson but we need to ensure that he will not commit the same or similar prescription errors in the future.

24. Taking into consideration the nature and gravity of this case and what we have read and heard in mitigation, we shall make a global order in respect of disciplinary charges (a) and (b) that the name of the Defendant be removed from the General Register for a period of 3 months. We further order that the operation of the removal order be suspended for a period of 18 months, subject to the conditions [then set out].

33.  The Doctor did not appeal from the Decision and Sentence, and by now 11 months of the suspended sentence period has passed.

34.  The Applicant began these proceedings by her Form 86, Notice of application for leave to apply for judicial review, dated 28 July 2021. As already stated, the Form 86 identifies the intended challenge as being against the Decision of the Panel, of course names the Medical Council as Putative Respondent. No other person was identified as an Interested Party. Nevertheless, on 1 November 2021 – notably after the Medical Counsel filed its affirmation in opposition to the Applicant’s challenge – the Applicant served the Form 86, her affirmation and the affirmation in opposition on L (and, I think, the other individual members of the Panel). It is said to be that service which prompted L to seek to intervene.

35.  It can also be noted that, since L issued the Intervention Summons, the Applicant has made an application to amend her Form 86 (and then a further application to offer different proposed amendments to her Form 86). I have not yet dealt with the amendment application, so the original Form 86 is the prevailing version, and it was the one prompting L’s application to intervene. In any event, I think it fair to say that, whichever version is considered, the thrust of Ground 1 remains the same, namely the allegation that there was a failure to have discharged the duty to make “due inquiry” into a number of questions which the Applicant asserts ought to have been answered.

C. L’s Stance

36.  In the Intervention Summons itself, L sought leave to make representations at the hearing of the substantive judicial review application. However, in Ms Ho’s oral submissions, she made clear that L (now) only intends to file evidence in the substantive judicial review, so as to disclose the Confidential Information (and the remainder of the affirmation is to explain the basis of the Intervention Summons and the relevance of the Confidential Information to what she says are the issues in the substantive judicial review).

37.  Now that any application to make representations has been abandoned, the purpose of intervention would only be to adduce the Confidential Information as evidence. In other words, the aspects of intervention and adducing evidence stand or fall together.

38.  Ms Ho submits that L considers himself duty-bound to make this application with the aim of bringing the Confidential Information to the attention of the Court. It is said that the Confidential Information is relevant to Ground 1 as found either in the original Form 86 or the proposed Amended Form 86.

39.  Whatever his stated motive, it is also clear from L’s affirmation that he was personally dissatisfied with the Decision, and in particular the Sentence. It appears he was in the minority on the decision-making, because his affirmation has specifically pointed to his understanding that “there is no procedure for a dissenting member of the Inquiry Panel to have his views recorded or summarised in the Medical Council’s final Decision”. I was also told by Ms Ho at the hearing that L had given his name card to the Applicant after the Inquiry. As I have also already pointed out, the application as originally formulated sought leave for L to make representations in the underlying judicial review.

40.  Therefore, though it is not in any way determinative of, and perhaps is not even very relevant to, the current consideration on the Intervention Summons, I am afraid I take with ‘a pinch of salt’ the suggestion that L seeks to intervene to provide the Confidential Information irrespective of whether it assists either the Applicant or the Medical Council in the underlying substantive judicial review.

41.  On the basis of what is evident from the Decision itself, it is said on behalf of L that two aspects were not explained at all in the Decision, being:

(1) Why did the Panel consider the issue of whether the Patient was suffering from psoriatic arthropathy to be irrelevant to its sentencing exercise?

(2) Whether the Panel had considered if the Doctor’s medical records or the PYNEH records (meaning most of the records of the Patient with PYNEH from 2010 to 2016) should be called for, and if so the reason for not asking for production of the medical records?

42.  On behalf of L, those two questions have been defined as the “Key Aspects”. However, that definition is plainly ‘loaded’ or self-serving, and it seems to me to be preferable to adopt a neutral definition. I shall refer to them simply as the “Questions”.

43.  First, it can be noted that there is plainly no difficulty for anyone (including even this Court) to identify that the Questions were not dealt with in the Decision. Secondly, there is in any event no complaint in the Form 86 that the Panel failed to provide adequate reasons for the Decision. The reasons can be read for themselves, and if they give rise to an inference of a failure in the decision-making process, that can be identified.

44.  But, Ms Ho submits that, because of the lack of explanation as to the Questions, the Decision of the Panel is open to four possible interpretations:

(1) the Panel turned a blind eye to the Questions;

(2) the Panel considered the Questions irrelevant as being beyond the Charge;

(3) the Panel gave the benefit of the doubt to the Doctor and assumed the clinical suspicion was correct but nevertheless it was inappropriate to prescribe the Methotrexate; or

(4) the Panel assumed the clinical suspicion was wrong, and took that into account in some way coupled with the contra-indication of Methotrexate when passing the Sentence.

45.  Ms Ho submits that the Court needs to consider these possible interpretations. As she puts it, it is not about whether the Questions were taken into account, but rather why they were or were not. In short, she says that with the benefit of the Confidential Information the Court would not have to resort to guesswork to ascertain why the Panel has come to its sentencing decision.

D. Broad Outline of Arguments

46.  On behalf of L, Ms Ho submits in outline:

(1) The Confidential Information is factual evidence relevant to the Panel’s decision-making/reasoning process before it decided on the Sentence, and the Medical Council should have disclosed the Confidential Information pursuant to its duty of candour.

(2) The Confidential Information will give the Court “a more rounded picture” of the decision-making process.

(3) The substantive judicial review involves primarily questions of general public importance concerning the extent of the Medical Counsel’s duty to make “due enquiry” under section 21 of the MRO.

(4) Balancing (a) the public interest in preserving the confidentiality of the closed-door deliberations against (b) the public interest in the Court receiving all the relevant evidence, the balance lies in favour of allowing the disclosure in the present case.

47.  On behalf of the Medical Council, Mr Ismail submits in outline:

(1) L has failed to show that he acted promptly as required by Order 53 rule 5B.

(2) L is also not a proper person to be heard for the purposes of Order 53 rule 5B.

(3) The Intervention Summons is an abuse of that rule.

(4) There is an important public interest that deliberations of the Panel, a quasi-judicial body, conducted in private remain private.

(5) The principle of judicial privilege or judicial immunity applies.

(6) The evidence of the deliberations of a quasi-judicial body is inadmissible as a matter of public policy.

(7) L’s offer of a confidentiality undertaking is irrelevant and/or academic and/or should be approached with a great deal of caution and/or is problematic.

(8) In any event, L’s argument that the administration of justice requires all facts and matters relevant to a legal dispute to be put before the court is misconceived. The Court does not need to know or receive the Confidential Information when dealing with the legal dispute between the Applicant and the Medical Council.

48.  On behalf of the Applicant, Mr Neoh submits in outline:

(1) L was a member of the Panel, whose Decision the Applicant seeks to impugn, and therefore must be entitled to be heard.

(2) As a member of the Panel, he is bound in performance of his public duty to be candid with the Court.

(3) The underlying application for judicial review seeks a definitive view as to the scope and duty of the Panel to make “due enquiry” under the MRO.

(4) The objections raised by the Medical Council must be balanced by the important objective in any matter of judicial review, that duties and powers conferred by law are to be fully performed.

(5) In exercising its supervisory function, the Court should ask whether it thinks the Confidential Information is relevant and helpful to the questions raised in the judicial review. If so, that material should be admitted as evidence.

49.  On behalf of the Doctor, Mr Parker submits in outline:

(1) L is not a proper person to be heard within the meaning of Order 53 rule 5B, and indeed he is an improper person to be heard.

(2) L’s evidence is irrelevant to the real issues in dispute in the underlying judicial review proceedings.

(3) It is impermissible to use parol evidence to explain written reasons.

(4) The Confidential Information is indeed confidential, and there is no proper basis to waive or override the confidentiality in the evidence L seeks to adduce.

(5) None of the primary considerations relevant to an intervention application point in favour of permitting intervention in this case.

50.  From this identification of the broad outline of the arguments, I think that it might be convenient and appropriate to address the following, albeit overlapping, issues under separate headings, as follows:

(1) The Statutory Regime for an Inquiry.

(2) Order 53 rule 5B and Intervention.

(3) The Competing Public Interests.

(4) Is the Confidential Information Relevant?

(5) Balancing of The Duties

(6) Is L a Proper Person?

(7) Has L Acted Promptly?

E. The Short Answer

51.  However, before looking at the detail and coming to the conclusion the longer way round, it seems to me that there is a simple and short answer to this Intervention Summons.

52.  Leaving aside for the moment whether it could ever be appropriate for an apparently dissenting member of a unitary or ‘corporate’ decision-making body to seek to place before the Court materials relating to the private and confidential discussions of that body:

(1) The proposed intervention is said to be relevant to Ground 1 of the intended underlying judicial review challenge.

(2) Ground 1 is that there was a failure by the Panel to have made “due inquiry” into a number of questions which the Applicant asserts ought to have been answered.

(3) The Applicant asserts that the questions were not answered and could not have been properly answered, because the relevant necessary evidence was not before the Inquiry and not asked for by the Panel.

(4) The position is entirely clear (and no guesswork is necessary) as to (a) what evidential material was before the Panel at the Inquiry, and what was not, (b) what was said at the Inquiry, and so (c) what materials the Panel did or did not consider and pursue.

(5) Because there is a written decision, it is also entirely clear (and no guesswork is necessary) what reasons were given for the Decision and the Sentence.

(6) The proper scope of “due inquiry” is a matter of law.

(7) Once the proper scope of the “duty of inquiry” is identified, whether there was in fact compliance with that duty by the Panel at the Inquiry can be determined by reference to the materials as to (a) what was and was not before the Panel and (b) what was or was not identified as part of the reasoning in the Decision and leading to the Sentence.

(8) If “due inquiry” required the Panel to answer the questions identified by the Applicant, and the answer to those questions required evidence which the Panel was obliged but failed to obtain, the Applicant can say so.

(9) If “due enquiry” required the Panel to give reasons which are not shown on the Decision, the Applicant can say so.

(10) The Applicant can also address what is said to be the consequence of any such failure, if established.

(11) L has nothing to add to that exercise.

53.  Now to the longer way round.

F. The Statutory Regime for an Inquiry

54.  Under section 2 of the MRO an “assessor” means a “lay assessor” appointed under section 20BB(4) or a “medical assessor” appointed under section 20BC(4). However, section 20BD makes clear that the general duties of both types of assessor are the same.

55.  Section 3B of the MRO provides that the Medical Council shall have a Legal Adviser, who shall be appointed by the Chief Executive.

56.  Section 20S provides for the establishment of the PIC. Section 20T provides for the functions of the PIC and its chairman, as follows:

(1) A 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 an inquiry panel or heard by the Health Committee and to give advice on the matter to any registered medical practitioner;

(b) to refer a case to an inquiry panel for holding an inquiry under section 21;

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

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

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

(2A) If a Preliminary Investigation Committee decides to exercise its function described in subsection (1)(b), it must send a written notification of the decision to the Council.

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

57.  Section 21 of the MRO provides for the disciplinary powers of an inquiry panel. In so far as is material for present purposes, section 21 is in the following terms:

(1) If, after due inquiry into any case referred to it by a Preliminary Investigation Committee in accordance with regulations made under section 33, or any case remitted by the Court of Appeal, an inquiry panel is satisfied that any registered medical practitioner—

…

(b) has been guilty of misconduct in any professional respect;

…

the panel may, in its discretion, exercise one or more of the following powers—

(i) order the name of the registered medical practitioner to be removed from the General Register;

(ii) order the name of the registered medical practitioner to be removed from the General Register for such period as it may think fit;

(iii) order the registered medical practitioner to be reprimanded;

(iiia) order that the name of the registered medical practitioner be removed from the Specialist Register;

(iiib) order that the name of the registered medical practitioner be removed from the Specialist Register for such period as it may think fit;

(iv) make any such order as aforesaid but suspend the application thereof, subject to such conditions as the panel may think fit, for a period, or periods in the aggregate, not exceeding 3 years;

(iva) make any such order as aforesaid (except an order under paragraph (iv)) and further order that such order take effect upon its publication in the Gazette if the panel is satisfied that it is necessary to do so for the protection of the public or in the best interest of the registered medical practitioner;

(ivb) refer the case to the Health Committee;

(v) order that a warning letter be served on the registered medical practitioner,

and may, in any case, make such order as the panel thinks fit with regard to the payment of the costs of the Registrar, the Secretary, any complainant or any person presenting the case to the panel or of the registered medical practitioner, and any costs awarded may be recovered summarily as a civil debt in accordance with the provisions of section 67 of the Magistrates Ordinance (Cap. 227).

(1A) An order made by an inquiry panel under subsection (1) must be signed by the chairperson of the panel.

(2) For the purpose of subsection (1)—

due inquiry (適當的研訊) means an inquiry by an inquiry panel conducted substantially in accordance with procedure prescribed by regulations made under section 33.

…

(4A) A member of a Preliminary Investigation Committee who took part in the preliminary investigation of a complaint or information must not attend a meeting of an inquiry panel while it is inquiring into the complaint or information under this section.

…

(5) Where an order under subsection (1) is made without an order under subsection (1)(iva) being made at the same time, within 1 month after the expiry of the time within which an appeal against an order under subsection (1) may be made to the Court of Appeal under section 26 or, if such an appeal has been made, within 1 month after the appeal is finally determined, the Council—

(a) shall, in the case of an order made under subsection (1)(i), (ii), (iii), (iiia), (iiib) or (iv), publish the order or, if the order is varied on appeal, the order as so varied in the Gazette; and

(b) may, in the case of an order made under subsection (1)(v), publish the order in the Gazette.

(5A) Where an order under subsection (1)(iva) is made at the same time as any order under subsection (1)(i), (ii), (iii), (iiia), (iiib) or (iv) is made, the Council shall, as soon as possible, publish the orders in the Gazette.

(6) Where any order is published in the Gazette under subsection (5) or (5A), the Council—

(a) shall publish with such order sufficient particulars to acquaint the public with the nature of the matter to which the order relates; and

(b) may publish with such order an account of the proceedings at the inquiry at which the order was made.

58.  Though less directly relevant for present purposes, it can in passing also be noted that section 21(4B)-(4D) provides that an inquiry panel may, within 14 days of its decision, review that decision on its own initiative (but not otherwise), and if it decides so to do it may invite the parties to appear before it again and make further submissions, before deciding whether to affirm, vary or revoke its decision.

59.  As is clear, “due inquiry” means an inquiry by an inquiry panel conducted substantially in accordance with procedure prescribed by regulations made under section 33 of the MRO. Though it may be obvious, an inquiry conducted substantially in accordance with the procedure in the relevant regulations simply means that the procedure in the regulations must be complied with in substance.

60.  It is also clear that, whatever else is meant by “due inquiry”, the process of the inquiry will be informed by (1) the charge, (2) the facts alleged in the charge, and (3) the evidence that is adduced to prove the facts alleged in the charge.

61.  In my view, what amounts to a “due inquiry” is a question of law, and the scope of a “due inquiry” does not turn on the facts of any individual case – though the scope and content of the duty is context specific. Whether in any case there was compliance with the duty to conduct “due inquiry” – that is, an inquiry substantially in accordance with the procedure in the regulations – is a question of fact, and it is the facts of the individual case which will therefore identify compliance or a breach in that case.

62.  But, for the purposes of the Intervention Summons, I do not need to decide – and I do not finally decide – the correct scope of “due inquiry”, nor whether there was a “due inquiry” by the Panel. Those matters are for consideration and determination in the underlying application for judicial review.

63.  The relevant regulations are the Medical Practitioners (Registration and Disciplinary Procedure) regulation Cap 161E (“DP Regulation”), though reference can be made also to the Medical Registration (Miscellaneous Provisions) Regulation Cap 161D (“MP Regulation”).

64.  Under section 6 of the MP Regulation, a legal adviser must be present at every inquiry held by an inquiry panel under section 21 of the MRO, and the inquiry must not be commenced if a legal adviser is not present.

65.  Section 8 of the MP Regulation provides that the advice of the Legal Adviser shall not be confidential:

(1) This section applies if a legal adviser gives advice on a question of law as to evidence, procedure or any other matter—

(a) at a meeting or an inquiry mentioned in section 6(1);

…

(1A) The legal adviser must give the advice in the presence of every party to the proceedings.

(1B) If the advice is given after the inquiry panel or Council has commenced to deliberate as to its findings, every party to the proceedings must be informed of it.

(1C) If a party to the proceedings is represented by a solicitor or counsel—

(a) subsection (1A) is regarded as having been complied with in relation to the party if the advice is given in the presence of the solicitor or counsel; and

(b) subsection (1B) is regarded as having been complied with in relation to the party if the solicitor or counsel is informed of the advice.

(2) In any case where an inquiry panel or the Council does not accept the advice of a legal adviser on any such question mentioned in subsection (1), every such party or solicitor or counsel must be informed of this fact.

66.  Section 13(4) and (5) of the DP Regulation require, amongst other things a notice of inquiry to be served on the defendant, and that the notice of inquiry must specify in the form of a charge or charges the matters into which inquiry is to be held.

67.  Section 16(2) of the DP Regulation permits the charge on the notice of inquiry to be amended:

Where before the opening of an inquiry by an inquiry panel, it appears to the chairperson of the panel that a notice of inquiry is defective, the chairperson may give such directions for the amendment of the notice as he thinks necessary to remedy the defect unless, having regard to the merits of the case, he is of the opinion that the required amendments cannot be made without injustice to the defendant.

68.  Part IV (sections 19 to 34) of the DP Regulation provides for ‘Proceedings at an Inquiry of an Inquiry Panel’. The matters provided for include, but are not limited to: public or private hearing; adjournment; representation; record of proceedings; objections on points of law; order of procedure; evidence; voting; and review by inquiry panel.

69.  Section 31 of the DP Regulation makes provision for ‘Evidence’ as follows:

(1) The rules of evidence do not apply to the proceedings of an inquiry.

(2) Evidence may be taken by an inquiry panel by oral statement on oath or by written deposition or statement and the chairperson of the panel may administer an oath.

(3) Every witness shall be examined by the party calling him and may then be cross-examined by the other party and only upon matters arising out of the cross-examination may be re-examined by the party calling him.

(4) An inquiry panel may decline to admit the evidence of any deponent to a document who is not present for, or who declines to submit to, cross- examination.

(5) The chairperson of an inquiry panel, and other members of the panel through the chairperson, may put such questions to the parties or to any witness as they think desirable.

(6) An inquiry panel may at the hearing of an inquiry admit or take into account any statement, document, information or matter whether or not it would be admissible in a court of law.

70.  Sections 32 of the DP Regulation provides for ‘Voting’, as follows:

(1) In the taking of the votes of an inquiry panel on any question to be decided by it, the chairperson of the panel must call on the members of the panel to signify their votes by raising their right hands, and shall thereupon declare the decision of the panel in respect of such question.

(2) If the decision of an inquiry panel so declared by the chairperson of the panel is challenged by any other member of the panel, the chairperson must call on each member severally to declare his vote, announce his own vote and announce the number of members of the panel who have voted each way, and the result of the vote.

(3) (Repealed)

(4) No person other than members of an inquiry panel and legal advisers may be present when the panel votes on any matter.

71.  In summary, the inquiry panel’s deliberations take place in private, behind closed doors, with only the members and assessors of the inquiry panel and the Legal Adviser present. The Legal Adviser does not participate in the deliberation or the voting, and his role is to advise the inquiry panel on any question of law as to evidence, procedure or any other matter in any inquiry. His advice, even if given during deliberations, is not confidential, and should be given in front of or notified to the parties. But it can be noted that the only part of the private deliberations which the legislature has directed is allowed to be, and should be, disclosed is the giving of legal advice by the Legal Adviser.

72.  Decisions are made by the taking of votes from the members and assessors, where each member and assessor (but not the Legal Adviser) has a single vote. As was the fact in this particular case, there can be no equal or tied votes, because there are altogether five members and assessors on the inquiry panel. If the voting is not unanimous, the decision of the majority will be taken as the final decision of the inquiry panel. In other words, the inquiry panel decides by the majority rule, and the majority decision is the joint decision of all members of the inquiry panel arrived at after deliberation. Dissenting minority voters are bound by the decision of the majority voters.

73.  It follows that the intended challenge by way of judicial review in these proceedings is to a decision of the Panel (that is, the single decision of the Panel as a whole, and not to the decision of any or some individual members of the Panel).

74.  At this point, it is perhaps also helpful to remember that on a judicial review challenge to that type of decision, the Court is concerned with the decision-making process and does not act as an appellate body. It does not ordinarily evaluate the relative strengths and weaknesses of the evidence, or engage in any weighing of relevant considerations, because those are matters for the decision-maker (perhaps particularly where that decision-maker is a professional body such as the Medical Council).

G. Order 53 rule 5B and Intervention

75.  RHC Order 53 rule 5B is headed ‘Court’s powers to hear any person’ and provides as follows:

(1) Any person may apply for leave to –

(a) file evidence; or

(b) make representations at the hearing of the application for judicial review.

(2) An application under paragraph (1) must be made promptly.

(3) The Court shall not grant leave under paragraph (1) unless the applicant appears to the Court to be a proper person to be heard at the hearing of the application for judicial review.

76.  A similar provision exists in Order 53 rule 9(1), though L places no reliance on it.

77.  Therefore, the Court shall not grant leave for a non-party to file evidence or make representations unless satisfied that the proposed intervener – here L – is a proper person to be heard.

78.  When considering whether the proposed intervener is a proper person to be heard, the Court will address the five ‘primary’ considerations identified by the Court of Appeal in QT v Director of Immigration (unreported, CACV 117/2016, 8 June 2017), affirmed in QT v Director of Immigration (Leave to Intervene) (2018) 21 HKCFAR 150 (“QT(CFA)”); and in ZN v Secretary for Justice [2018] HKCA 255 at §8. Though the relevant observations were made in the context of ‘public interest’ interventions, I think it right that they are of general application.

79.  The five ‘primary’ considerations are:

(1) whether the matter involves primarily a legal question of general public importance;

(2) whether the proposed intervener’s fund of knowledge or particular point of view enables him to provide the Court with a more rounded picture than the Court would otherwise obtain;

(3) conversely, whether the proposed intervener will merely repeat points that an existing party will be making;

(4) overall, whether the intervention is likely to be helpful and appears justified; and

(5) whether the intervention will cause any prejudice to the existing parties or the Court.

80.  There are also additional or explanatory principles or considerations to be divined from the analysis of various authorities performed in QT(CFA) at §§10-18. They seem to me to include the following:

(1) it is not the role of an intervener to be an additional counsel for one of the parties;

(2) so, leave to intervene will not be granted to allow a party merely to act as an additional supporting party for one or other side in the case;

(3) a member of the public has no apparent interest or standing to argue points of law;

(4) the value of an intervention will be most apparent where aspects of the public interest in a legal issue of general importance may not be represented by either of the two parties before the court;

(5) there is a clear need for some degree of restraint because, even on issues of general importance, litigation is not an open battleground;

(6) potential interveners need to be able to contribute something relevant that is not already before the court.

81.  I would also respectfully endorse the summary offered by Chow J (as Chow JA then was) in Junior Police Officers’ Association of the Hong Kong Police Force v Electoral Affairs Commission [2019] HKCFI 2887 at §5. Subject to considerations of specific prejudice to the parties to the proceedings, the primary consideration of the court when deciding whether to permit intervention is whether the proposed intervener is likely to be able to provide additional, material, assistance on either law or fact or the consequences of the court’s judgment which it is unlikely will be provided by the immediate parties to the proceedings.

82.  Rule 5B also requires the application to be made “promptly”.

H. The Competing Public Interests

H.1 Which Public Interests Are Engaged?

83.  The parties have identified the following areas of public interest as being potentially engaged:

(1) The administration of justice requires that all facts and matters relevant to a legal dispute should, generally speaking, be put before the court.

(2) The Medical Council’s duty as the governing body of the medical profession to protect the public against incompetent medical practitioners.

(3) The duty of candour in judicial review.

(4) The duty of maintaining confidentiality and privacy of closed-door deliberations.

(5) The principle of judicial privilege or judicial immunity.

84.  In considering those duties, reference can also be made to the balancing of certain duties in varying circumstances.

H.2 All Facts and Matters before the Court

85.  There is no dispute that there is a general principle of public policy that the administration of justice requires that all facts and matters relevant to a legal dispute should, generally speaking, be put before the court: see for example Ho Loy v Director of Environmental Protection [2016] HKCFI 951 at §28. However, in the same paragraph, it was recognised that there may well be exceptions to this principle. In particular, there may be occasions when the public interest in the administration of justice must give way to a greater public interest (for example, the public interest in avoiding harm to society as a whole).

86.  Relevantly, it has also been recognised that confidentiality may sometimes have to yield to the general public interest that in the administration of justice truth will out. In D v National Society for the Protection of Cruelty to Children [1978] AC 171 at 218B-C, it was said:

The fact that information has been communicated by one person to another in confidence, however, is not of itself a sufficient ground for protecting from disclosure in a Court of Law the nature of the information or the identity of the informant if either of these matters would assist the Court to ascertain facts which are relevant to an issue on which it is adjudicating. The private promise of confidentiality must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant, a more important public interest is served by protecting the information or the identity of the informant from disclosure in a Court of Law.

87.  As it was also put slightly differently in the same case, at 246D:

The disclosure of all evidence relevant to the trial of an issue being at all times a matter of considerable public interest, the question to be determined is whether it is clearly demonstrated that in the particular case the public interest would nevertheless be better served by excluding evidence despite its relevance. If, on balance, the matter is left in doubt, disclosure should be ordered.

88.  The facts and matters which public policy ordinarily requires to be available to the court in the determination of a legal dispute are those facts and matters relevant to that dispute. But, even assuming a relatively broad approach to the question of relevance, there may be countervailing features in the case, not least arising from other aspects of the public interest.

H.3 Medical Council’s Duty

89.  There is no dispute that the MRO is designed to protect the public from the risk of practice by medical practitioners who are incompetent or unfit to practice, and to maintain and sustain the reputation of, and public confidence in, the medical profession in Hong Kong. The Medical Council as the governing body is under a duty to protect the public against incompetent medical practitioners: see, for example, Law Yiu Wai Ray v Medical Council of Hong Kong [2016] 4 HKC 1 at §115.

90.  I also accept that, when deciding on sentences, the Medical Council must have regard to its wider duties as a professional disciplinary body, which include ensuring the penalty reflects the gravity of the occasion, maintaining the reputation of the medical profession and preserving the confidence of the public in the profession.

H.4 The Duty of Candour

91.  The law on the duty of candour in judicial review proceedings was considered in Chu Woan Chyi v Director of Immigration [2009] 6 HKC 77 at §§11-21. Focusing on those aspects which are relevant for present purposes, I can summarise some of the relevant principles as follows:

(1) Where a decision is challenged in judicial review proceedings, it is in some cases unnecessary to go into any or any great detail as to the reasons underlying the decision.

(2) However, sometimes it is necessary for the court to examine the reasons for the decision in order to test the legality of it (subject to the limitations that exist in judicial review proceedings).

(3) But, even in such cases the need to have regard to the duty of candour is rare. This is because the reasons for most decisions are readily apparent or readily made available by the decision-maker. The court need only look at the reasons to see whether or not the decision has been lawfully made.

(4) The duty of candour is an aspect of good government, and proper and transparent administration.

(5) From a practical point of view, the duty of candour is primarily relevant from an evidential point of view. The duty is placed on the decision-maker, as respondent to the judicial review challenge, to be full and frank to both the court and the applicant in disclosing all relevant facts and documents.

(6) The facts and documents may relate to the actual reasons for a decision or to any other aspect that is relevant in the judicial review proceedings.

(7) Nevertheless, the factual issues in a given judicial review case are often limited. Facts are often irrelevant because the focus of the proceedings is on the legality of the decision, or on questions of law.

(8) Ordinarily, the duty arises after leave has been obtained by the applicant to commence judicial review proceedings. The duty of candour is not a basis for ‘fishing’ for a case.

(9) The obligation to be full and frank in discharge of the duty of candour is not an open-ended or imprecise concept. What in any given case may constitute the fulfilment of that duty is entirely dependent on the issue or issues that are before the court.

(10) Whilst the court will be astute not to permit so-called ‘fishing’ expeditions, once the critical issue is identified and resolution of that issue requires the court to be provided with adequate material, the court will in principle be more, not less, inclined to make necessary orders for disclosure.

92.  Where the duty of candour arises, it is a duty placed on the decision-maker. In this case, that is the Panel as represented by the Medical Council as Putative Respondent to the intended judicial review challenge to the Decision.

H.5 Duty of Confidentiality of Closed-Door Deliberations

93.  There is obviously no dispute between the parties that there is a clear duty of confidentiality owed in relation to the closed-door deliberations of bodies such as the Panel. But it is important to understand why such a duty exists.

94.  In Roylance v The General Medical Council [1999] UKPC 3, it was held that public interest immunity attaches to in camera discussions of the General Medical Council (“GMC”). In refusing to order disclosure of the untranscribed shorthand notes of the relevant in camera deliberations, Lord Steyn stated at §4:

Their Lordships are satisfied that such an order would be inappropriate. It is acknowledged to be an unprecedented attempt to probe into in camera discussions. Counsel submits that the exceptional circumstances of the case warrant such an order. There Lordships are wholly unpersuaded that this case can be so categorised. If the submission were to be accepted it would seriously inhibit freedom of discussion during in camera sessions. It is ruled out in the present case by public interest immunity attaching to the in camera discussions of the Professional Conduct Committee. Their Lordships are not satisfied that there are any good or sufficient reasons for overwriting that immunity.

95.  The Roylance case was revisited, and the same question arose again in Roylance v The General Medical Council (No. 2) [2000] 1 AC 311, and in a passage at 323G-325D, which can usefully be quoted at some length:

The doctor sought to present a further argument levelled at the stage of the deliberations by the committee on their final determination. Prior to the hearing of the present appeal the doctor sought from the Board an interlocutory order to have the shorthand notes of the in camera deliberations of the committee disclosed. On 19 January 1999 their Lordships refused the application: Roylance v. General Medical Council, The Times, 27 January 1999. At the hearing of the appeal the doctor tendered an affidavit by a Professor Dunn dated 8 January 1999 which he wished to use to support an argument that there had been some unfairness in the course of the committee’s deliberations. Professor Dunn had written an article which was published in the British Medical Journal expressing a variety of concerns about the handling of the matter before the Professional Conduct Committee. That had evidently prompted a telephone call from someone who was understood by Professor Dunn to have reliable information about what had passed during the in camera deliberations by the committee. The identity of the informant was not disclosed to their Lordships. The affidavit set out some material which had been provided by this person to Professor Dunn.

Their Lordships accepted the affidavit de bene esse in order to understand more fully the substance of its contents, but having done so and heard argument upon its admission have come to a clear view that it should not be admitted. Some assistance can be obtained from the consideration of the corresponding problem which has on occasion arisen in connection with juries. In that context the refusal of the court to inquire into the processes of a jury’s determination was affirmed long ago in Straker v. Graham (1839) 4 M. & W. 721 and is now regarded as a settled rule of long standing: Reg. v. Miah [1997] 2 Cr.App.R 12. The same view was taken in Rex v. Brown (1907) 7 S.R.(N.S.W.). 290. Where a matter is raised which does not bear upon the process of deliberation or is not matter passing between the jurors outwith the presence or hearing of any third party, then it may be proper to investigate it, as where a clerk of assize entered into discussions with the jury: Rex v. Willmont (1914) 10 Cr.App.R 173; or where the verdict was delivered outwith the hearing of some of the members of the jury and did not accord with the totality of their view: Ellis v. Deheer [1922] 2 K.B. 113. The investigation of the use of a mobile phone by a juror unconnected with but during the course of the jury’s deliberations, as occurred in Reg. v. McCluskey (1993) 98 Cr.App.R. 216, is consistent with the principle. What passes in the mind of a judge or juryman in the exercise of their judicial functions is not a proper matter for inquiry: Reg. v. Gough [1993] A.C. 646, 672; and the same holds true of an arbitrator: Duke of Buccleuch v. Metropolitan Board of Works (1872) L.R. 5 H.L. 418. So also in the context of the making of any corporate judicial decision the detail of discussion and the manner by which the decision is reached ought normally to remain confidential. In such a context it is essential for there to be opportunity for a frank exchange of views so that doubts and anxieties can be freely aired, opinions exchanged in the course of discussion with no necessary commitment to any final position, and eventually a conclusion reached, whether or not unanimously, with the confidence which can come from a mature, open and thorough consideration. It could only be in quite exceptional circumstances, if ever, that an inquiry could be permitted into such in camera discussions.

Not only is the doctor’s application contrary to that general principle of confidentiality but it is the more inappropriate in the particular content of the Professional Conduct Committee. Unlike a jury the committee has the benefit of a legal assessor who, under rule 48(3) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988, may retire with them. The assessor has an express duty under rule 3 of the General Medical Council (Legal Assessors) Rules 1980 not only to inform the committee of any irregularity in the conduct of proceedings before them which comes to his knowledge, but also to advise them of his own motion where it appears to him that there is a possibility of a mistake of law being made. That provision appears wide enough to cover improprieties in the process of discussion and determination of the issues before the committee. Furthermore, under rule 4 of the Rules of 1980 the parties are entitled to be informed of any advice tendered after the committee has begun to deliberate, so that in the circumstances of the present case the parties not only have reassurance that the committee has the opportunity for advice from the assessor, but have even the right to know what advice on matters of law has been given to them.

96.  The Duke of Buccleuch case referenced in the above quote has been considered in Hong Kong, for example in Cheung v Insider Dealing Tribunal [2000] 1 HKLRD 807, where the Court of Appeal held that it was contrary to public policy to admit evidence concerning the deliberations of the members of the tribunal, unless questions of misconduct on the part of an adjudicator in the decision-making process arose. The Court also held (at 814E) that it was inadmissible to question or seek evidence from the tribunal members for the purpose of identifying how the decision was arrived at, what items it included, or what meaning was intended at the time to be given to it.

97.  I agree with those propositions, and the logic for them.

98.  Similar principles of policy were espoused – albeit in the context of the deliberations of an arbitration tribunal – in P v Q [2017] 1 WLR 3800 at §§59-64. From those paragraphs, one might distil the following:

(1) All adjudicating functions need to be conducted in confidentiality from the sight of the parties, if they are to be carried out with the freedom which is necessary for what is typically an iterative process.

(2) Adjudicatory conclusions rarely emerge fully formed, and usually involve a process of consideration and deliberation in which reasoning and conclusions will or may shift.

(3) Where the decision-maker consists of more than one person, each of those persons’ reasoning and conclusions will or may shift.

(4) Where the decision-maker consists of more than one person, the process also requires discussion and openness to the views of others, including as they may themselves appear to shift.

(5) Decision-makers and members of a decision-making body must be free to explore and express lines of thought which may ultimately prove fruitless, if they are to have proper opportunity for more mature reflection of the sort most likely to produce the just result.

(6) Context is important, and what individuals say and think needs to be considered in proper context.

(7) But to require decision-makers to give evidence in satellite litigation, and potentially be subject to cross-examination, would distract them from their primary task, harm their dignity, act as a disincentive to membership of such decision-makers, act as a disincentive to expression of views in the decision-making process, and perhaps itself harm the appearance of impartiality and disinterest in the decision itself.

(8) It is the outcome of the process to which the parties are entitled to be given access.

(9) The process itself should be a private and confidential function in the interests of doing justice.

99.  A further useful statement can be found in Chairman and Governors of Amwell View School v Dogherty [2007] ICR 135, where the Employment Appeal Tribunal (“EAT”) refused to admit unauthorised recordings of the private deliberations of the employer’s disciplinary hearing panel, on the ground of public interest. It was noted (at §71) that there is an important public interest in the integrity of the private deliberations of a panel adjudicating on any matter of dispute, particularly where all parties to the dispute knew in advance that the adjudicating body would not only deliberate privately but would later promulgate a decision with reasons.

100.  These points were elaborated at §§72-73 as follows:

72. On this aspect, we are (not without hesitation on the apart of the majority) unanimously persuaded that the employers are right. Important as the public policy is that a party to proceedings should be able to avail themselves of any relevant evidence, it seems to us that there is in the instant case a contrary and superior public policy dimension that arises. Here, the panel members invited all parties and witnesses before them to withdraw, expressly so that they might deliberate privately. All parties – including the claimant and her representative – accepted that invitation without demur on the premise that by doing so they would disable themselves from having any record of what might be said. That will have been underscored by the requested absence of the clerk at that point, making it clear that no note of the deliberations was being made. Likewise, those participating in the deliberations will have done so on the premise that no one of their number would then disclose or publish what had occurred during the private deliberations. Had one of the parties, or a witness, returned to the hearing-room whilst deliberations were underway, everyone involved would have understood that they would have been asked to leave and that discussion would have stopped whilst they were present.

73. In our judgment there is an important public interest in parties before disciplinary and appeal proceedings complying with the “ground rules” upon which the proceedings in question are based. No ground rule could be more essential to ensuring a full and frank exchange of views between members of the adjudicating body (in their attempt to reach the “right” decision) than the understanding that their deliberations would be conducted in private and remain private. How, otherwise, could a member of that body confidently expose for discussion a doubt concerning some evidence about which he or she was unsure? The failure to maintain respect for the privacy of “private deliberations” in this context would have the important consequences of (1) inhibiting open discussion between those engaged in the task of adjudicating and (2) giving rise to a good deal of potential satellite litigation based on “leaks” by particular members of the adjudicating body or from the clandestine or unauthorised recordings of such proceedings.

101.  Further as to balancing the duty of confidentiality of private deliberations against other duties, reference can be made to another EAT case, Fleming v East of England Ambulance Service NHS Trust (unreported, UKEAT/0054/17/BA, 28 November 2017) at §17. Whilst noting the important factors that the case was concerned with an internal grievance/disciplinary panel in the employment context – rather than with a statutory panel of inquiry – and that the relevant private deliberations were not final deliberations, it can nevertheless be pointed out that the EAT (amongst other aspects) considered that:

(1) There is an important public interest in preserving the privacy of private deliberations of an internal panel. Otherwise, full and open discussion may be inhibited and the integrity of the outcome may be undermined.

(2) When a party seeks to rely on such evidence, a balance must be struck between that public interest and the public interest in litigants being able to avail themselves of any relevant evidence.

(3) The balance must be struck having regard to the particular circumstances of the case, which may involve a consideration of the nature and quality of the deliberations on the one hand and the value and weight of the evidence on the other.

102.  The decision in R v Poole Borough Council, ex parte Beebee [1991] 2 PLR 27, is also helpful as to the underlying rationale. There it was stated (at 31):

Mr Ryan QC, who appeared for the applicants, was faced with an unmotivated decision, unacceptable on its face. He did not allege bad faith or corruption or that the decision was on its face so wildly surprising that one’s instinctive reaction would be that something must have gone wrong. No. He took me instead on a trawl of a considerable amount of pre-decision documentation, from letters written to an objector by an officer in the planning department via the report prepared by an assistant planning officer, upon which that officer elaborated in committee to various affidavits setting out who said what in committee. There is undoubted precedent for carrying out this sort of exercise without protest by the court, and indeed at times the courts have criticised authorities for not filing affidavits. So I criticise no one for having embarked on this exercised. If it is going to be done at all, it would be difficult for it to be done more expeditiously or elegantly than Mr Ryan did it.

However, for my part, I have grave reservations about the usefulness of this sort of exercise when there is no allegation of bad faith. These reservations, in part, arise out of the theoretical difficulties of establishing the reasoning process of a corporate body which acts by resolution. All one knows is that at the second that the resolution was passed the majority were prepared to vote for it. Even in the case of an individual who expressly gave his reasons in council half an hour before, he may well have changed them because of what was said subsequently in debate. It is that type of consideration, coupled with the fact that many of those who vote on a resolution may give no utterance in debate, which has led our courts not to permit references to Parliamentary debates when arguing about the meaning of a statute.

103.  I also share these grave reservations about the usefulness of this sort of exercise when there is no allegation of bad faith, and the concerns as to the theoretical difficulties in establishing the reasoning process of a body which acts by majority decision.

104.  Ms Ho places great reliance on the case of R (on the application of Young) v Oxford City Council [2002] EWCA Civ 990, as showing that any potential dispute as to the content of the Confidential Information should not preclude the Court from receiving it in evidence. She submits the case is clear authority of a case in which further evidence was admitted from the members of the decision-making body to explain why they made the decision subject to the challenge.

105.  However, in my view, that misunderstands the case. In fact, the case was not concerned with why a decision was made but rather with what decision was made (there being two different possibilities, with different potential public law consequences). This is clear from §§5-6, which stated:

5. The issue of substance in this case is whether planning permission was granted because the development of the mews houses was acceptable in its own right, or whether it was granted on the basis that it was a proposal which would not otherwise obtain consent, but that consent was justified in return for a benefit funded from the value added to the land by that consent.

6. It is common ground that the policy statement was not considered by the council’s planning committee when dealing with the planning application. If the permission for the mews houses was acceptable in its own right, reference to the policy statement was unnecessary. If it was “enabling development”, reference to the policy statement was necessary. …

106.  The following warning was given in the case at §§20-21:

20. While I understand the wish of Ouseley J [the first instance judge] for “a witness statement or material from the City Council”, I see dangers in permitting a planning authority, whether by its committee chairman or a planning officer, providing an explanatory statement. The danger is that, even acting in good faith, the witness may attempt to rationalise a decision in such a way as to meet a question which has arisen upon the effect of the decision. Moreover, it will usually be impossible to assess the reasoning process of individual members and there are obvious dangers in speculating about them. It is therefore important that the decision-making process is made clear in the recorded decisions of the committee, together with the officers’ report to committee and any record of the committee’s decisions. Decisions recorded in the minutes should speak for themselves.

21. The problem has arisen in this case because, as the parties agree, adherence to planning policies required that the decision-making process potentially involved two stages. The committee should first have considered whether the mews development was acceptable in planning terms on its own merits. If so, permission should have been granted. If not, the committee should have gone on to consider whether permission should be granted to the project as enabling development within the meaning of the policy statement. That would involve a consideration of the policy statement and its application to the facts of the case. The committee should have been invited by the officers to approach the application in that way. There would be no difficulty in recording in the minutes the basis upon which permission was granted.

107.  It was also added at §25:

25. I would expect statements of committee members to be admissible only rarely in circumstances such as the present. In any event it will not normally be necessary, or even helpful, to seek evidence if the documentation of the planning authority is sufficient for the circumstances of the decision.

108.  Ultimately, the Court allowed the materials to be adduced as being relevant and admissible essentially because – and only because – the relevant procedure had not been followed by the decision-maker, and it was impossible to know with certainty the basis upon which the decision to grant planning permission was made, namely which power had been used and what decision had been made.

109.  As will be seen below, that is not the position in this case, and so the Oxford CC case does not assist L’s position, but – as Mr Parker submits – is instead against it.

H.6 Judicial Privilege or Judicial Immunity

110.  Mr Ismail also sought to place some reliance on the principle of judicial privilege or judicial immunity. That principle is that anything said or done by anybody in the course of judicial proceedings is protected by absolute privilege.

111.  The foundation of the principle is well known. The rationale is one of public policy, to protect the integrity and effectiveness of the judicial system and thereby the public interest. It is based upon the idea that judges must be able to exercise their functions free from any danger that they might be called to account for any words spoken as judges. The doctrine has, of course, been extended to tribunal’s exercising functions equivalent to those of an established court of justice.

112.  Though settled, I do not think this particular principle need be considered further in the context of the Intervention Summons. In my view, it is essentially either irrelevant or neutral to the necessary analysis for present purposes.

I. Is the Confidential Information Relevant?

113.  I have already indicated why Ms Ho submits that the Confidential Information is relevant to Ground 1, and why it will assist in identifying the right interpretation of the Panel’s approach to the Questions.

114.  Mr Parker submits that the approach taken for L is based on a misapprehension of the proper scope of the issues that were live before the Panel, and hence the scope of the issues that will be material in the judicial review application. As might be summarised by me, he pointed out:

(1) The Charges proffered against the Doctor were that he should not have prescribed Colchicine and Methotrexate because they were contraindicated in light of the Patient’s known state of end renal failure and requirement for dialysis.

(2) The framing of the Charges was plainly on the basis of and which corresponded with Dr Shum’s Conclusions.

(3) Doctor Shum’s other Comments did not flow into his Conclusion on which the Charges were plainly based.

(4) The Charges did not allege that the Doctor had no proper basis for forming a clinical suspicion and diagnosis of gouty attacks and/or psoriatic arthropathy. In other words, the case against the Doctor did not involve an allegation that there was no clinical indication to justify the prescription of the two drugs at all.

(5) The Inquiry required the Panel to examine the case on the basis of the Charges, and not to stray into other ‘uncharged’ conduct.

(6) Whether or not the Patient exhibited sufficient clinical signs or symptoms of psoriatic arthropathy to warrant the prescription was not an issue in the Inquiry, and was not within the scope of the Charges.

(7) Therefore, the Questions identified by L were not in fact questions or issues before the Panel.

115.  I tend strongly to agree with those submissions. However, it is probably not necessary or appropriate for me to reach a final conclusion on them. This is because I agree with Mr Parker’s further submission that the matters considered by the Panel, and the reasons for reaching its views, can (and must) be ascertained from the written Decision. The proposed evidence from L is not relevant for that purpose. Secondly, nothing raised by the Legal Adviser during the Inquiry could have bound the Panel, which is the decision-maker entitled to attribute the weight and materiality to any particular matter which it thinks fit.

116.  But, even more importantly, the thrust of Ground 1 is the alleged failure to have addressed and answered the Questions, including if necessary by seeking further evidential material. But, there is no dispute as to what evidence was before the Panel, and that which was not. There is, and there can be, no dispute as to whether the Panel sought further evidential material not already before them. Further, the thrust of the complaint itself is based on the averment that one can see from the Decision itself that the Questions were not addressed and answered. If that was a breach of some public law principle, that can be identified.

117.  An issue has also been raised as to whether there is a difference between materials used in proof of the charge, and those used for the purposes of sentencing. This has also been traversed in the context of whether the Panel in this case was entitled to go outside the basis of the Charges, when coming to considering sentence after the finding of professional misconduct on those Charges.

118.  In Dr Wong Tak Lun v Medical Council of Hong Kong (unreported, CACV 57/2013, 21 February 2014), the Court of Appeal considered a case in which the major complaint of the appellant was that he went to a disciplinary hearing expecting to face, and to admit, a regulatory offence arising through a failure to exercise due care, but came away from the hearing having been punished for misconduct in a way which revealed bad faith or dishonesty. One of the issues arising was whether it was open to the Medical Council when dealing with the conviction of failing to exercise due care to punish the offender on a basis of dishonesty. At §48, it was stated:

In respect of the second issue of whether the respondent could, in effect, punish the appellant for something he was not charged with, we are of the view it could not. The words “failed to exercise due care” are not an element of the offence and do not need to be included in the pleading of the offence. But, when they are included, they indicate to the offender that his prosecution is based upon his misconduct having been committed through, essentially, neglect, rather than an intent characterised by mala fides, such as dishonesty. Punishing him for such an intent cannot be done without amending the charge, such as by deleting from it the words “failed to exercise due care”, and replacing them with simply a bear allegation of a failure to comply with section 26.4 of the Code of Professional Conduct. Such an amendment would then have the effect of alerting the offender to the fact that the respondent was allowing for the possibility of making findings other than that the misconduct was a consequence of a failure to exercise due care.

119.  Reference can also be made to the case of Dr Wu Daniel Yiang v Medical Council of Hong Kong (unreported, CACV 162/2013, 15 December 2014) at §§38-41, where the Court of Appeal considered a case in which it was suggested that the doctor had been convicted on a different basis from that with which he was charged. It pointed out the 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 interest to the detriment of his patient. At §§40-41, it said:

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 emphasise 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.

120.  This point was addressed by Ms Ho, in particular in her reply submissions. She refers to the case of Moody v General Osteopathic Council [2008] EWCA Civ 513, which raised what was described as an important issue of principle or practice: the admissibility, in relation to the proper sanction for professional misconduct, of evidential matters going not to the proven charges but to the generality of the practitioner’s work. In the case, it was held that:

9. In my judgment there is a distinction to be drawn between the terms of an accusation to which, on first principles, the incorporating evidence has to be restricted and the determination of appropriate sanctions where the accusation is held to have been made out. When the latter point is reached, it remains axiomatic that the individual may be penalised only for the offence which has been found proved. But this alone cannot determine the degree of seriousness of the offence. Of many possible scenarios, the present case illustrates one. The misconduct of which the practitioner has been found guilty might have been a single lapse with a single patient which was unlikely to be repeated; or it might have been part of chronic bad practice. The appropriate sanction would have to differ depending on which it was. Arguably, although it does not arise here, it will be necessary for the adjudicative body to decide, if need be on further evidence, which of these things it is. The reason why it does not arise here is that it was part of the appellant’s own case that the way he had treated SW was no different from the way he treated the generality of his patients. That was a legitimate defence provided it could be shown (as the appellant had, however, failed to show those brackets that the practice was professionally acceptable. But if the defence fails, as the appellant’s did, the tribunal is left with his un-controverted assertion that what had gone wrong was not an aberration but an example of his day-to-day practice. A body responsible for protecting the public cannot possibly ignore such evidence in deciding what sanctions to impose, any more than it could ignore evidence that a breach of professional standards had been a momentary lapse. To take it into account, moreover, is in no sense to ambush their practitioner; it is to discharge the tribunal’s duty on the practitioner’s own evidence, so long of course as the evidence is accepted, as here it plainly was.

10. In my judgment therefore the principle of fair notice of the charges was properly observed in this case. Accepting even so that this does not permit either party to ambush the other in relation to sanction, I consider that nothing taken into account by the PCC on sanction can have taken the appellant by surprise. He himself had raised the issue, and substantial parts of the evidence, both his own and that elicited in cross-examination from the expert witness, were directed to it.

121.  Ms Ho also refers to Gomez on ‘The Regulation of Healthcare Professionals: Law, Principal and Process’ 2^nd Ed at §29-015, which references the Moody case. That text also refers to a subsequent appeal in Roomi v General Medical Council [2009] EWHC 2188 (Admin) where the appeal was allowed because the fitness to practice panel’s finding of impairment by reason of Deficient Professional Performance was based on findings that went beyond the allegations in the notice of hearing. The particular failure was not part of the charges, so the panel could not properly rely on it for that reason.

122.  My provisional view is that that, in the present proceedings, we are likely in Roomi territory and not Moody territory. But final resolution of that point can await proper argument in the underlying judicial review proceedings. The real point for present purposes is, though, that the evidence which was and which was not before the Panel is clear, what was said at the Inquiry is clear, and the Panel’s reasoning for the Decision and Sentence is on the face of the written Decision.

123.  This leads to a connected point, though not exactly the same as the duty of confidentiality – namely the principle in judicial review proceedings that contemporaneous written reasons of the Decision Maker must speak for themselves. Therefore, parol evidence is admitted only exceptionally, and for the limited purpose of clarifying ambiguities in the original decision.

124.  In essence, where written reasons are given and they are clear and unambiguous, it is not open to individual members of the decision-maker (whether one or all of them) to give evidence to add to, vary or contradict the reasons which have been given on behalf of all of them: see, for example, Breen v Amalgamated Engineering Union [1971] 2 QB 175 at 192H. This is based on the principle that where a tribunal has given a decision and expressed it in language from which a court can ascertain what the decision was, the court will not accept evidence to say that the tribunal meant something else. Indeed, it is settled that a court exercising its supervisory judicial review jurisdiction will be astute to prevent any attempt by the decision-maker to provide material which may comprise reasoning after the event, or alteration or contradiction of what is otherwise apparent from the written decision.

125.  The primary source for identifying the reasons for a decision must be found in the written decision itself. Where there is any ambiguity in the reasons, that ambiguity can be resolved by reference to evidence, provided that that evidence is credible and authoritative. However, this makes it inherently unlikely that evidence of the relevant debate or discussion would normally be admissible: see R (on the application of P Richards & G Richards) v Pembrokeshire County Council [2004] EWCA Civ 1000 at §58. As also pointed out in that paragraph, reasons which could have been, but were not, in the decision-makers’ minds are immaterial, and it would require exceptional circumstances before the court would be prepared to entertain evidence of any other nature to enable reasons to be given for a decision.

126.  The complaint in the intended judicial review challenge to the Decision and the Sentence is that, although a particular matter was raised for discussion during the Inquiry, the Panel made no further inquiry into that particular matter and gave a written Decision which on its face identifies that what is said to be the relevant Questions were not addressed and answered.

127.  The Confidential Information is not relevant to the resolution of Ground 1 as suggested. For that reason alone, the Intervention Summons falls to be dismissed.

J. Balancing the Duties

128.  However, even if the Confidential Information were to be regarded as relevant, there would still need to be performed the balancing exercise by reference to the various public interest duties.

129.  Ms Ho submits that balancing the nature and quality of the Confidential Information against the public interest of preserving the privacy of closed-door deliberation, the Court should exercise its discretion to allow disclosure of the Confidential Information. She says (a) it is directly relevant to whether the Panel properly discharged its duty to make “due inquiry” under section 21 of the MRO, (b) it is highly probative, and (c) it would fill “the gap in the evidence on the Inquiry Panel’s decision-making/reasoning process” with regard to the Questions, being information absent from the Decision.

130.  But, in my view already stated, there is no relevant gap in the evidence, as it is perfectly clear what matters were before the Panel and what they say they took into account in making the Decision and passing the Sentence. Once the proper scope of the duty of “due inquiry” is shown, nothing else is necessary to understand whether the Panel properly discharged that duty.

131.  Ms Ho also points to the fact that the accuracy of the Confidential Information is not being challenged. However, first, I think that jumps the gun, where the application is being objected to as a matter of principle and the Medical Council has understandably not so far addressed the accuracy or otherwise of the Confidential Information. Secondly, the Panel is independent and separate from the Secretary to the Medical Council, who conducts this litigation in a different capacity than that of the Panel. Thirdly, the submission also raises the spectre that, in addition to the satellite litigation relating to intervention, there may even be ‘satellite satellite’ litigation relating to the accuracy or otherwise of materials sought to be put in by the proposed intervener.

132.  As to Ms Ho’s submission that the scope of the Confidential Information is confined, because L is not seeking to disclose the content of the entire closed-door deliberation, but rather only “certain episodes during the deliberations” which he says are directly relevant to the Questions, I think that submission itself identifies part of the flaw of the argument. There seems to me to be little likely probative value in receiving evidence about part of what might have been said by some of the members of the Panel, when (a) that might not be properly understood out of context as to what those members have said at different times, or what other members have said at different times, and (b) where some members may not have expressed all of their own thinking or any development of their own thinking during the deliberations and decision-making process. This is essentially the point made in the Beebee case (see above), with which I am in total agreement.

133.  I also reject Ms Ho’s submission that allowing disclosure of the Confidential Information in the present case would not open any floodgate. As I pointed out during the hearing, the word “floodgate” has two elements comprising (a) the flood and (b) the gate. Allowing the Confidential Information in the present case seems to me almost certain to unleash a flood of similar applications, potentially from both any individual members of decision-making bodies as well as from other persons seeking to challenge the decisions of those bodies, whether patients or their relatives or doctors.

134.  With respect, it is naive to think that allowing disclosure of the Confidential Information in this case would have no repercussions beyond the case. Whilst it might be correct that the Court would (where apt) be able to close the gate on an individual application, that would not necessarily stop the flood. History teaches us that the mere fact that a Court says something will be permitted only in exceptional circumstances does not prevent a raft of applicants arguing – often with the benefit of the ingenuity of their lawyers – that their case is one of the exceptional ones.

135.  As to Ms Ho’s submission that the disclosure would not cause any chilling effect to deter volunteers from serving on inquiry panels of the Medical Council, I disagree. I think it would naturally dampen panel members’ openness in discussions, not least in light of the legitimate concern that each utterance – including of still inchoate thoughts and developing reasoning – might later be minutely parsed and pored over by lawyers and courts. Indeed, this chilling effect has been specifically identified in previous authorities, to some which I have already referred.

136.  Further, in so far as Ms Ho suggests disclosure would remind future inquiry panels that they should explain their decision-making/reasons properly and adequately in the written decision, that is already a settled feature of public law – and if there is a relevant failure to give proper and adequate reasons in any individual case, that can be addressed.

137.  Of course, I accept Ms Ho’s submission that there is a distinction between “elucidation” and “alteration”, and the danger which is to be guarded against is one where originally faulty reasons are sought to be cured by later evidence, or where the later evidence exhibits a significant or fundamental shift of ground from the reasons given at the time.

138.  But, in this particular case, there is no ambiguity in the reasons given, as are set out in the written Decision. The criticism is based upon the evident fact that those reasons do not address and answer the Questions, which the Applicant says should have happened. To my mind, if it can be established that it should have happened but it is known that it did not happen, the appropriate legal consequences can flow, and it is irrelevant as to why it did not happen and any attempt to explain why it did not happen is almost certainly to offend the underlying rationale for excluding extrinsic evidence as to reasoning.

139.  I do not accept the submission that the Confidential Information does not seek to alter the effect of the Sentence, but simply to elucidate and explain the reason why the Panel came to the Decision and Sentence. But, for reasons I have explained, I also think that material is simply unnecessary.

140.  Further, in any event, I am absolutely certain that on any balancing exercise in this case, the balance is firmly in favour of maintaining the confidentiality and privacy of the closed-door deliberations of the Panel.

141.  Ultimately, in the absence of any suggestion of fraud or bias or other form of bad faith, whatever the material in the Confidential Information, it is not based on any criticism of sufficient gravity to justify the step of enquiring into the iterative workings and deliberations of the Panel.

142.  Having reached that view on the balance, no question of confidentiality undertakings or any other form of protection relevant to mitigating the breach of confidentiality needs to be further considered.

K. Is L a ‘Proper Person’?

143.  Looking at the five ‘primary’ considerations identified in the QT case:

(1) The point of law of general public importance limb is inapplicable, because L is not seeking to raise or contribute to the Court’s consideration of any such matter of law. I accept that an issue which arises in the underlying judicial review is the proper extent of the Medical Council’s duty to make "due inquiry" under section 21 of the MRO. But the extent or scope of duty is a question of law, and even in this case it does not give rise to any systemic challenge. L’s intended intervention is to place evidence of factual matters before the court.

(2) L’s knowledge is not such as would enable him to provide the Court with a “more rounded picture” than the Court would otherwise obtain. The position is clear as to what evidential material was before the Panel at the Inquiry, what was said at the Inquiry, and what were the reasons given for the Decision and the Sentence.

(3) Whilst it might be said that L would not be merely repeating points that an existing party will be making (now that he has made clear that he does now not wish to make representations), this factor is relevant only if L’s provision of the Confidential Information is likely to be helpful and appears justified.

(4) However, not only is the proposed intervention not likely to be helpful, it is actually unjustified.

(5) The intervention would cause prejudice to the existing parties and to the Court. It would also be seriously damaging to the public interest generally in undermining the proper functioning of the Medical Council’s disciplinary process, including its confidential deliberations and voting structure.

144.  Enlarging on that last point, L was a member of the decision-making body whose Decision is impugned in these proceedings. First, he is bound by the Decision. Secondly, in being a party to the Decision, he performed a quasi-judicial function. Thirdly, therefore, he has no legitimate interest in the outcome of the judicial review to challenge the Decision: see, for example, Nattrass v Attorney General [1996] 1 HKC 480 at 489B-G.

145.  In that case, it was held that a judge did not fall into the category of a ‘proper person’ to be heard on a challenge to his decision. Keith J thought the notion of a judge being able to be heard by Counsel to justify a ruling which he has given in an inferior court to be “bizarre”. It was wholly inappropriate and unseemly for any attempt to be made for the judge who made the ruling to seek to justify the stance he took. That logic would, in my view, apply equally to a minority member of a decision-making panel. But, more importantly, it was also held that where reasons have been given for the ruling, the words should speak for themselves. I agree.

146.  Both those main points were also made in Orrico Philippe v Municipal Services Appeals Board [2015] 4 HKLRD 111 at §§23-24, where Lam VP (as Lam PJ then was) said:

23. Generally, it is advisable for such appeal board or tribunal to adopt the usual practice as stated in Dato Tan Leong Min v Insider Dealing Tribunal, supra and leave the protagonists in the proceedings before it to contest the challenge. In Nattrass v Attorney General [1996] 1 HKC 480 at [18] to [22], Keith J discussed why it was inappropriate for a judicial Ofc to appear as a party in proceedings in which his decision was challenged. We think similar considerations apply in respect of a quasi-judicial appeal board or tribunal.

24. In our judgment, the rationale for this general rule is that an appeal board or a tribunal discharging quasi-judicial function should not compromise its impartiality by taking a stance in court proceedings to support its own decisions. To do so is to enter into the arena, as such inconsistent with the appearance of an impartial decision-maker in an adversarial setting. Such a course could well be perceived as siding with one of the protagonists and, in the eyes of the party challenging its decision, submissions on behalf of the tribunal may readily be regarded as manifestation of a bias which had been harboured by the tribunal when it made its own decision. Further, the record of the proceedings before the tribunal (including the record of its decision) should have sufficiently explained the reasons for its decision. It would not be right for a tribunal to instruct counsel to appear at the judicial review to make submissions to support its decision which may be at variance or supplemental to what had already been set out in the records. The active participation of an appeal board or tribunal in the judicial review against its decision would necessarily involve Counsel acting on its behalf advancing submissions adverse to the contentions of one of the protagonists.

147.  Perhaps another way to test the question is as follows. Assuming the present proceedings had not been commenced by the Applicant, it might be asked whether L would have been able to commence any proceedings arising (at a minimum, in part) from his apparent dissatisfaction with being in the minority element of the Panel making the Decision and passing the Sentence – and to do so by seeking to place the Confidential Information before the Court. Absent any suggestion of fraud, bias or other bad faith, such proceedings – in effect a challenge to the Decision of the Panel by part of the Panel itself – seems to me to be inconceivable. It is difficult to think that intervention in someone else’s challenge should allow something to occur indirectly which it is inconceivable might be permitted directly.

148.  In short, I do not think Order 53 rule 5B is intended to be a means for a dissenting minority voter of a decision-making body to intervene and “assist” in a judicial review application that seeks to quash the final decision of the majority voters which is binding on him. That is especially so, when the intervention is solely to seek to put in evidence the closed-door deliberations which led to the majority, and binding, decision of the decision-making body (here the Panel).

149.  There is also the point that every participant in the Inquiry must be taken to have understood the rules and procedures under which that Inquiry would be undertaken. Those rules included that: (1) the Panel’s deliberations as to findings of professional misconduct and any relevant imposition of sentence would be conducted in private behind closed doors; (2) in contrast to the position of the remainder of the Inquiry, no notes or transcript would be made of the closed-door discussions; and (3) the only aspect of the closed-door deliberations which would ever be disclosed would be, as required, notification of any legal advice provided to the Panel by the Legal Adviser.

150.  Not only did every participant know those rules in advance, and conduct the Inquiry on the basis of them, they are the rules set by the statutory regime.

151.  It would take something truly exceptional to depart from those rules and the basis upon which the Inquiry was knowingly conducted. The circumstances of this case are very far from such a position.

152.  L is not a proper person to make this application on the Intervention Summons.

L. Whether L has acted Promptly

153.  In light of my other conclusions, it is probably unnecessary to deal with the question whether L has acted promptly in seeking to intervene in these proceedings.

154.  It probably suffices to point out that I doubt I would have refused the application on its timing alone.

M. Conclusion

155.  The Intervention Summons is dismissed.

156.  For the avoidance of doubt, though I have read the Confidential Information de bene esse for the purposes of dealing with this application, I confirm that no part of that material will be taken into account in the underlying judicial review challenge. I also direct that the Confidential Information shall not be provided in form or substance either to the Doctor or the Applicant.

N. Costs

157.  The event of the application is clear, but as there are numerous parties that may complicate the question of costs. Therefore, though I might give a costs order nisi, I think it is preferable to permit the parties to review this Decision, and for me simply to reserve the question of costs to be dealt with on paper submissions.

158.  Submissions should be provided by the Medical Council, the Doctor and the Applicant by 5pm on 14 April 2022, and by L by 5pm on 22 April 2022.

159.  Any application for summary assessment of costs should accompany the costs submissions, with any relevant Statement of Costs attached. Any opposition to such an assessment should be with opposing submissions and any relevant List of Objections.

160.  Unless I require any further submissions, which I shall then direct, I will then proceed to deal with the question of the incidence of costs, and the assessment of costs, on paper.

O. Future Conduct

161.  I propose to re-fix the previously vacated ‘rolled-up’ hearing. For that purpose, I invite the parties to suggest any suitable procedural directions, including by reference to those potential directions identified in PD 26.1.

162.  Obviously, L will not be a party to any part of the future proceedings. But I would invite the Doctor to indicate whether he now wishes to continue to be an active party or return to the position adopted by him before the Intervention Summons, namely that he be excused from further attendance.

[Post-Decision Note: The proceedings were ultimately resolved on agreed terms offered in a consent summons and accepted by the Court on 22 July 2024, that the application for leave to apply for judicial review be withdrawn with no order as to costs.]