DR Q v. THE HEALTH COMMITTEE OF THE MEDICAL COUNCIL OF HONG KONG

HCAL32/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 32 OF 2010

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J U D G M E N T

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INTRODUCTION

1.  This is an application for judicial review by the applicant, who is the subject of certain proceedings before the respondent (“the Health Committee”) concerning his fitness to practice medicine.  Under the scheme of legislation in place, the applicant is not entitled to legal representation in the proceedings before the Health Committee.  The applicant seeks to challenge the constitutionality of that prohibition and the lawfulness of the proceedings in respect of him before the Health Committee so far.

BACKGROUND FACTS

2.  For the purposes of these proceedings, the applicant has been referred to as Dr Q.  That is not his real name but this abbreviation has been used to protect his identity, given the nature of the ongoing proceedings before the Health Committee, which meets in private, and the subject matter of that hearing.

3.  Dr Q is a registered medical practitioner under Part I of the General Register kept under section 6 of the Medical Registration Ordinance, Cap.161, (“the MRO”).  Dr Q was employed as a Resident in the Intensive Care Unit of Princess Margaret Hospital and, from 1 July 2008, he was posted on rotation from that hospital to the Department of Anaesthesiology, Pain Medicine and Operating Services of the United Christian Hospital.

4.  On 4 November 2008, Dr Q was on day duty from 8.30 a.m. to 4.30 p.m. under the supervision of a specialist.  His duties were to see patients before surgery and to anaethetise patients for emergency operations. At around 9.15 a.m., Dr Q was found semi-conscious in the male changing room of the operating suite at the United Christian Hospital.  He had injected himself intravenously with the drug, propofol.  Propofol is a commonly used parenteral anaesthetic agent and is administered intravenously by an anaethetist to induce unconsciousness at the commencement of anaethesia.  It has a hypnotic effect and also has powerful anxiolytic, sedative and headache relieving properties.  However, it is not a Schedule I, Part I dangerous drug under the Dangerous Drugs Ordinance, Cap.134.

5.  The Hospital Chief Executive of Princess Margaret Hospital informed the Secretary of the Medical Council of Hong Kong (“the Council”) by a letter dated 6 March 2009 concerning the incident involving Dr Q on 4 November 2008.

6.  On 30 July 2009, the Secretary of the Council wrote to Dr Q giving him notice that he had received information which might raise a question over whether Dr Q had been guilty of misconduct in a professional respect and inviting Dr Q to submit a written explanation of his conduct in respect of the incident in question for a meeting of the Preliminary Investigation Committee (“PIC”) which the Chairman of the PIC had directed be held in September 2009.  That letter informed Dr Q, amongst other things, of the following :

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

       I must emphasise that the duty of the Preliminary Investigation Committee is only to decide whether an inquiry by the Medical Council should be held.  The Committee is not empowered to pass judgment or sentence.  If the information is referred to the Council you will be entitled to present your explanation and adduce evidence in support of your case either in person or by your solicitor or counsel before the Council and it is only then that a decision is made as to your guilt or innocence of unprofessional conduct and the appropriate punishment, if any, is adjudged.”

7.  The hearing was adjourned to 9 November 2009 and, on that day, the PIC met and considered that there appeared to be a question as to whether Dr Q’s fitness to practise medicine was impaired by reason of a physical or mental condition.  By a letter of the same date, Dr Q’s solicitors, Messrs Richards Butler, wrote to the Council to request the PIC to refer the matter to the Health Committee pursuant to section 20T of the MRO. Enclosed with that letter was a psychiatric report in respect of Dr Q.  In the psychiatric report, Dr Q was described as having suffered from a depressive disorder since 2004 which tended to be exacerbated when he changed his working environment and as having developed a dependence on propofol which he had initially used to overcome insomnia.

8.  The PIC referred the matter to the Health Committee to determine what recommendation to make to the Council under section 20V of the MRO.  By a letter from the Secretary of the Council to Dr Q dated 23 December 2009, notice of a hearing before the Health Committee on 26 January 2010 was issued and Dr Q was notified of this and invited to attend the Health Committee by a letter dated 23 December 2009.  In that letter he was informed that assistance by counsel or solicitor was not allowed at the hearing.  A further letter dated 4 January 2010 was sent by the Secretary of the Council to Dr Q to remind him of the hearing before the Health Committee and to invite him to attend but informing him that assistance by counsel or solicitor was not allowed at the hearing, and to seek confirmation of his attendance.

9.  The prohibition against legal representation at a hearing before the Health Committee is contained in section 24(2) of the Medical Registration Ordinance, Cap.161 (“the MRO”) and section 35(1)(c) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, Cap.161E (“the Regulation”), which are set out below.

10.  At the hearing on 26 January 2010, the Chairman of the PIC was invited to present the case to the Health Committee, composed of seven doctors and one lay member.  The Legal Advisor to the Council explained to Dr Q that he had the right either to remain silent or to give evidence, but that if he chose to give evidence, he would have to do so under oath and questions would be put to him by the chairman of the PIC and members of the Health Committee.  After a short adjournment in which he consulted his solicitors who were in attendance outside the hearing room, Dr Q then sought to present his case and offered himself for questioning.  The Chairman of the PIC proceeded to question Dr Q in what has been described in the Form 86A as “unnecessarily robust cross-examination”.

11.  The hearing before the Health Committee was not concluded on 26 January 2010 and the matter was therefore adjourned to a hearing fixed for 22 March 2010.  Dr Q was warned by the Legal Advisor to the Health Committee not to discuss his evidence with his legal representatives. The Legal Advisor also advised the Health Committee that it was not concerned with the legality or propriety of how Dr Q obtained the propofol with which he had injected himself, although they could take that into consideration in assessing the extent of his dependence on the drug in order to determine his fitness to practise medicine.

12.  On 12 February 2010, Richards Butler wrote to the Health Committee to inform it that they would meet Dr Q to discuss certain procedural matters.  On 11 March 2010, Richards Butler again wrote to the Health Committee requesting confirmation that Dr Q be allowed legal assistance at the resumption of the adjourned Health Committee hearing on 22 March 2010 and seeking confirmation that evidence already adduced be strictly confidential and only used for the purposes of assessing Dr Q’s fitness to practise and not be available for use in any subsequent disciplinary hearing.

13.  The requested confirmations not being given by the Health Committee, Richards Butler issued an application for judicial review on behalf of Dr Q by notice dated 19 March 2010.

14.  By an ex parte summons dated 22 March 2010, Dr Q applied for a stay of the proceedings of the Health Committee that had been commenced in respect of him on 26 January 2010.  An order to this effect until the determination of the application for leave to apply for judicial review was granted by Sakhrani J on 22 March 2010.

15.  On 26 March 2010, leave was granted to Dr Q to apply for judicial review.  The order granting leave included a stay of the proceedings of the Health Committee commenced on 26 January 2010 pending the determination of the judicial review.

THE RELIEF SOUGHT IN THIS JUDICIAL REVIEW

16.  The substantive relief sought by this application for judicial review is as follows :

(1)     A declaration that section 24(2) of the MRO and section 35(1)(c) of the Regulation are unconstitutional in that they prohibit legal assistance at a hearing of the Health Committee.

(2)     An order of mandamus directing the Health Committee to allow the applicant to be legally represented at the resumption of the Health Committee hearing in respect of the applicant’s fitness to practise.

(3)     A declaration that the proceedings of the Health Committee to date in respect of the applicant’s fitness to practise are unlawful and of no effect having taken place in breach of the applicant’s constitutional and other civil rights.

THE RELEVANT LEGISLATION

17.  In order to put the challenged provisions into their proper context, it is necessary to identify and summarise various provisions in the MRO and the Regulation.

(1)     The MRO

18.  The short title to the MRO provides that it is an ordinance :

“To consolidate and amend the law by making more comprehensive provisions regulating the registration of practitioners in medicine and surgery.”

19.  The Council is established by section 3(1) of the MRO.  For the better performance of its duties and exercise of its powers, the Council is empowered, by section 20BA(1) of the MRO, to establish committees.  By section 20BA(2), two such committees that the Council is empowered to establish, in accordance with and having such functions as are assigned to them by the MRO or delegated to them by the Council, are the PIC and the Health Committee. 

20.  Broadly, the PIC and the Health Committee have been established in order to enable the Council to exercise its powers in relation to, amongst other things, disciplinary matters and the question of a registered medical practitioner’s fitness to practise.  The distinction between these two types of powers is highlighted by the structure of the legislation: the Council’s disciplinary powers are defined in section 21 of the MRO, whilst the Council’s powers in relation to the fitness to practise of medical practitioners are defined in section 21A of the MRO.

21.  In section 21(1) of the MRO, it is provided that the Council, if satisfied after due inquiry into any case referred to it by the PIC, the Health Committee or the Education and Accreditation Committee (the latter being another of the committees referred to in section 20BA(2) of the MRO), that a registered medical practitioner has, amongst other things, been guilty of misconduct in any professional respect or is physically or mentally unfit to practise medicine, may in its discretion take certain steps which include sanctions in respect of the practitioner.

22.  In section 21A(1) of the MRO, it is provided that, upon a recommendation after a hearing by the Health Committee under section 20V(1)(c), the Council may, if it is satisfied that the registered medical practitioner concerned is, by reason of health, physically or mentally unfit to practise, in its discretion and without a hearing under section 21, make certain orders which include ordering the removal of the practitioner’s name from the General Register.

23.  The structure of the PIC is set out in section 20S of the MRO and the functions of the PIC and its chairman are defined in section 20T of the MRO.  One of the functions of the PIC is to make preliminary investigations into complaints or information touching any matter that may be inquired into by the Council or heard by the Health Committee and to give advice on the matter to any registered medical practitioner (section 20T(1)(a)).  Other functions include making recommendations to the Council for the holding of an inquiry under section 21 (section 20T(1)(b)) and making recommendations to the Health Committee for the conducting of a hearing (section 20T(1)(c)).  By section 20T(2), the question of whether such recommendations should be made shall first be considered by the chairman of the PIC or, in his absence, its deputy chairman.  By section 20T(3), the PIC and its chairman and deputy chairman are required to act in accordance with such regulations in relation to their procedure made under section 33.

24.  The structure of the Health Committee is set out in s.20U of the MRO and its functions are defined in section 20V of the MRO.  By section 20V(1)(a), one of its functions is to conduct a hearing into any case or matter concerning the health or physical or mental fitness to practise of any registered medical practitioner.  Another of its functions is to conduct a hearing into matters referred to it by the Council under section 21(1) (section 20V(1)(b)).  By section 20V(1)(c), the Health Committee may make recommendations to the Council, after a hearing conducted under section 20(V)(1)(a) or (b), that the name of a registered medical practitioner be removed from the General Register either permanently or for any period not exceeding 12 months.  Under section 20V(1)(d), the Health Committee may also recommend the extension, not exceeding 12 months, of a period of temporary removal of name under section 20V(1)(c).  By section 20V(2), the Heath Committee is required to act in accordance with the regulations made under section 33.

25.  Under section 20W(2) of the MRO, a registered medical practitioner has a right to appeal to the Council against a recommendation made by a Health Committee under section 20V(1)(c) or (d).  By section 20W(3) of the MRO, it is provided that :

“In determining an appeal under subsection (2), the Council may—

(a) invite the appellant to appear before it to give further submission;

(b)   allow counsel or solicitor to appear on behalf of the appellant.”

Upon the appeal, the Council may, by section 20W(4), affirm, vary or reverse the recommendation of the Health Committee appealed against.  And by section 20W(5), the decision of the Council under section 20W is final.

26.  The powers of the Council in regard to the obtaining of evidence and the conduct at an inquiry before it are set out in section 22(1) of the MRO. Those of the Health Committee in regard to the obtaining of evidence and the conduct of a hearing before it are set out in section 22(1A) of the MRO.

27.  By section 24 of the MRO it is provided that :

“(1) The complainant in any inquiry under section 21 and the person whose conduct is the subject of such inquiry shall be entitled to be represented by counsel or by a solicitor throughout the inquiry.

(2)   A person whose fitness to practise is the subject of a hearing by the Health Committee shall not be entitled to be assisted by counsel or by a solicitor at the hearing.”

28.  Under section 26 of the MRO, there is an avenue of appeal to the Court of Appeal against an order made in respect of a registered medical practitioner by the Council under, amongst other sections, sections 21 and 21A.  The practice on such an appeal is governed by the rules of court made under the High Court Ordinance, Cap.4, and therefore the registered medical practitioner is entitled to be represented by counsel and solicitors on such appeal.

29.  Thus, it can be seen that a registered medical practitioner is entitled to legal representation at an inquiry by the Council.  However, he is not entitled to be assisted by counsel or a solicitor at a hearing before the Health Committee.  On an appeal to the Council against a recommendation made by the Health Committee, the registered medical practitioner is entitled[1] to be represented by counsel or a solicitor.  On any further appeal to the Court of Appeal against an order made by the Council, whether following an inquiry by it or on the basis of a recommendation made to it by the Health Committee, the registered medical practitioner will also be entitled to legal representation.

(2)     The Regulation

30.  By section 33(4)(a) of the MRO, the Council may by regulation provide for, amongst other things: the submission of complaints and information to the PIC; the preliminary investigation of any complaint or information by the PIC; the reference to the Council by the PIC of cases arising out of complaints and information; the procedure to be followed in relation to inquiries held by the Council; and hearings by the Health Committee and references of cases to and by the Health Committee.

31.  Part III of the Regulation (sections 6 to 18) is headed “Proceedings Preparatory to Holding an Inquiry by Council or a Hearing by Health Committee”.

32.  There are three ways in which a matter may be referred to the Health Committee for a hearing.  The first is a reference by the chairman and deputy chairman of the PIC under section 6 of the Regulation.

(1)     By section 6(1) of the Regulation, where a complaint is made to or information is received by the Secretary of the Council that a registered medical practitioner has been guilty of misconduct in any professional respect or is physically or mentally unfit to practise medicine, surgery or midwifery, the Secretary shall submit the complaint, information or matter to the chairman, or in his absence the deputy chairman, of the PIC for his consideration of the case.

(2)     By section 6(2)(b) of the Regulation, if the chairman of the PIC considers that the information laid raises a question as to whether the fitness to practise of a registered medical practitioner is impaired by reason of his physical or mental condition and the question should be considered by the Health Committee direct, the chairman must consult with the deputy chairman of the PIC with a view to deciding whether the proposed course of action should be taken.

(3)     If both the chairman and deputy chairman of the PIC consider that the case raises a question as to whether the fitness to practise of a registered medical practitioner is impaired, they may refer the case to the Health Committee for consideration and recommend that a hearing be conducted (section 6(4)).

33.  By section 6(5) of the Regulation, if, after a hearing, the Health Committee certifies and reports back that the registered medical practitioner is physically and mentally fit to practise then the chairman or, in his absence, the deputy chairman may direct that the case be investigated further or be dismissed, as he thinks fit.

34.  The second way in which a matter may be referred to the Health Committee is a reference by the PIC under section 11(8) of the Regulation.  The PIC may come to make such a reference in one of two ways.

(1)     First, by section 9 of the Regulation, if a case received by the chairman or deputy chairman of the PIC under section 6 has not been dismissed or referred to the Health Committee under that section, the chairman or deputy chairman of the PIC shall direct that the case be referred to the PIC for its consideration and direct the Secretary of the Council to fix a date on which the PIC will meet to consider the case.  By section 9(2) of the Regulation, when fixing a date for the proposed meeting of the PIC, the Secretary of the Council is required, amongst other things: to notify the registered medical practitioner (referred to in this part of the Regulation as “the defendant”) of the receipt of the complaint, information or referral, and indicate any matters or allegations which may appear to raise a question whether the defendant has been guilty of misconduct in a professional respect; to provide him with a copy of the letter or complaint or information; to invite him to submit to the PIC in writing any explanation of his conduct or of any matter alleged in the complaint, information or referral which he may have to offer.  In the present case, the Secretary’s letter of 30 July 2009 to Dr Q was written pursuant to this provision.

(2)     Secondly, by section 10 of the Regulation, if, in a case received by the chairman or deputy chairman of the PIC under section 6 which has not been dismissed or referred to the Health Committee under that section, there has been raised a question as to whether the fitness to practise of a registered medical practitioner is impaired by reason of a physical or mental condition, the chairman or deputy chairman of the PIC shall direct the Secretary of the Council to write to the defendant indicating the nature of the alleged condition and invite him, under section 10(1)(b), to furnish evidence as to his fitness to practise for consideration by the PIC.

35.  Regardless of which way in which the case comes to be considered by the PIC, by section 11(8) of the Regulation, the PIC shall, having regard to any written explanation submitted by the defendant and all the materials put before it by the Secretary under section 11(2), consider the case and, subject to sections 11(5) and 11(7), may decide upon one of a number of courses of action.  These include deciding that no inquiry be held, with or without issuing a letter of advice to the defendant (sections 11(8)(a) and (b)), and deciding that the case, in whole or in part, be referred either to the Council for inquiry (section 11(8)(c)) or to the Health Committee for a hearing (section 11(8)(d)).  In the present case, the PIC decided that Dr Q’s case should be referred to the Health Committee for a hearing as disclosed in the Secretary of the Council’s letter to Dr Q dated 23 December 2009.

36.  By section 11(9) of the Regulation, if, after a hearing, the Health Committee certifies and reports back that the defendant is physically and mentally fit to practise, the PIC may proceed with the investigation of the case, take any other appropriate action under section 11(8), or dismiss the matter, as it thinks fit.

37.  Regardless of whether the case is referred to the Health Committee by the PIC under section 11(8) or by both the chairman and deputy chairman of the PIC under section 6(4), by section 14(1) of the Regulation, the chairman of the PIC shall notify the chairman of the Health Committee in writing, indicating the nature of the alleged condition by reason of which it appears to the PIC, or to the chairman and deputy chairman (as the case may be), that the registered medical practitioner concerned may be impaired.

38.  The third way in which a matter may be referred to the Health Committee is under section 33(1) of the Regulation which provides that, after a case has been referred to the Council for inquiry and it appears, either to the Chairman of the Council before the inquiry is opened or to the Council before the inquiry is concluded, that the registered medical practitioner may be physically or mentally unfit to practise, then the Chairman or Council (as the case may be) may direct that the inquiry be withheld or adjourned and the case referred to the Health Committee.

39.  Part IV of the Regulation (sections 19 to 34) deals with the proceedings at an inquiry of the Council.  As regards representation, section 21(1) of the Regulation provides that :

“Any party to an inquiry may be represented by a solicitor or counsel.”

This reflects the provisions of section 24(1) of the MRO as regards the registered medical practitioner’s entitlement to legal representation at an inquiry.

40.  Part V of the Regulation (sections 35 to 38) deals with the proceedings of the Health Committee.  By section 35(1) of the Regulation, as soon as practicable after a case has been referred to the Health Committee, the Secretary of the Council shall fix a date for a hearing by the Health Committee and shall serve on the registered medical practitioner notice of the hearing which, amongst other things, invites him to attend the hearing but informs him that assistance by counsel or solicitor is not allowed at the hearing (section 35(1)(c)).  This reflects the provisions of section 24(2) of the MRO as regards the prohibition of legal representation at a hearing before the Health Committee.  In the present case, the Secretary of the Council’s letter dated 23 December 2009 was duly written to notify Dr Q of the hearing fixed for 26 January 2010 to consider the case and to determine whether to make a recommendation to the Council under the provisions of section 20V of the MRO.  It also informed Dr Q that assistance by counsel or solicitor was not allowed at the hearing.  Such notice of the hearing was repeated in the Secretary of the Council’s letter to Dr Q dated 4 January 2010 which also contained express reference to section 35(1)(c) of the Regulation. 

41.  The order of procedure of the Health Committee is governed by section 37 of the Regulation and the findings that it may make are set out in section 38 of the Regulation.  If the Health Committee finds the registered medical practitioner physically or mentally unfit to practise, it shall proceed to make such recommendation to the Council under section 20V of the MRO as it thinks fit (section 38(4)).  If it finds the registered medical practitioner fit to practise, it shall certify its opinion and report back to the Council or the chairman of the PIC (section 38(6)).  This report will then trigger one or other of the consequences prescribed by section 6(5) or 11(9) of the Regulation (see above).

42.  In Part IX of the Regulation (sections 48 and 49), the procedure on appeals under section 20W(2) of the MRO is set out.  By section 49(2) of the Regulation, it is provided that the appellant may appear at the hearing of his appeal (against a decision of the Health Committee to the Council) by his solicitor or counsel.  This reflects[2] section 20W(3) of the MRO.

THE ISSUES

43.  It is the applicant’s case that section 24(2) of the MRO and section 35(1)(c) of the Regulation are unconstitutional in that they contravene Article 10 of the Hong Kong Bill of Rights (“Article 10” and “BOR” respectively).

44.  The first issue is therefore whether Article 10 is engaged in the context of this case.  If it is, the next issue is whether Article 10 has been contravened.

45.  Depending on the outcome of these two issues, the issue of appropriate relief may arise.  Specifically, assuming the challenged provisions are unconstitutional, it is then necessary to consider whether the applicant is entitled to the orders of mandamus and certiorari claimed in the notice of application.

(1)     Article 10 of the BOR

46.  Article 10 gives effect in Hong Kong to Article 14(1) of the International Covenant on Civil and Political Rights (“ICCPR”).  It is in terms identical to Article 14(1) of the ICCPR and provides :

“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

47.  Article 39(1) of the Basic Law gives constitutional force to Article 10 of the Bill of Rights, stipulating that the provisions of the ICCPR “as applied to Hong Kong” shall remain in force and “shall be implemented through the laws of the HKSAR”. Article 39(2) of the Basic Law further provides :

“The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”

48.  Article 10 is materially in substantially similar terms to Article 6(1) of the European Convention on Human Rights (“ECHR”) and, as such, it is appropriate to refer to the jurisprudence of the European Court of Human Rights (“the Strasbourg court”) and to accord substantial weight to that jurisprudence in deciding the scope and effect of Article 10 : see Tse Wai Chun Paul v Solicitors Disciplinary Tribunal & Anor [2002] 4 HKC 1 at §9,  Chow Shun Yung v Wei Pih & Anor (2003) 6 HKCFAR 299 at §§35-36, Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237 at §§61-62.  Similarly, the General Comments and published Communications of the Human Rights Committee (“HRC”) concerning Article 14(1) of the ICCPR give guidance to an understanding of Article 10 : see Lam Siu Po v Commissioner of Police at §59.

(2)     Is Article 10 engaged?

(a)     The application of Article 10 to administrative bodies and disciplinary tribunals

49.  In this context, the relevant wording of Article 10 is “In the determination of … his rights and obligations in a suit at law” (or, in the French version of Article 14(1) of the ICCPR, “… des contestations sur ses droits et obligations de caractère civil”, the same wording in English and French also being used in Article 6(1) of the ECHR).

50.  As Riberio PJ explained in Lam Siu Po v Commissioner of Police, at §§68 to 72, that wording in the text of the ICCPR, as duplicated in the EHCR, has given rise to a gap in the relevant protections afforded by Article 10 in respect of the determination of rights by administrative bodies.  However, as Ribeiro PJ went on to explain, ibid. at §§73 to 79, the Strasbourg court has gone some way towards filling that gap by extending the protections of Article 6(1) of the ECHR to administrative bodies and disciplinary tribunals.

51.  In Ringeisen v Austria (No.1) [1971] 1 EHRR 455, a criminal case in which, in respect of an issue concerning the regulation of land transfers by a District Land Transactions Commission, the Strasbourg court held that Article 6(1) of the ECHR was engaged and that it could intervene on the ground that the administrative decision was “decisive” for the enforceability of the private law contract for the sale of land.  In §94 of the Judgment, the Strasbourg court stated :

“94. For Article 6(1) to be applicable to a case (‘contestation’) it is not necessary that both parties to the proceedings should be private persons, which is the view of the majority of the Commission and of the Government. The wording of Article 6(1) is far wider; the French expression ‘contestations sur (des) droits et obligations de caratère civil’ covers all proceedings the result of which is decisive for private rights and obligations. The English text, ‘determination of … civil rights and obligations’, confirms this interpretation.

…

               In the present case, when Ringeisen purchased property from the Roth couple, he had a right to have the contract for sale which they had made with him approved if he fulfilled, as he claimed to do, the conditions laid down in the Act.  Although it was applying rules of administrative law, the Regional Commission’s decision was to be decisive for the relations in civil law (‘de character civil’) between Ringeisen and the Roth couple.  This is enough to make it necessary for the Court to decide whether or not the proceedings in this case complied with the requirements of Article 6(1) of the Convention.”

52.  It has also been held by the Strasbourg court that the right of a doctor to practise his profession constitutes a civil right within Article 6(1) of the ECHR : see Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1[3].  Similarly, in England, the House of Lords has held that the right to remain in the employment one currently holds is a civil right for the purposes of Article 6(1) of the ECHR : see R (Wright) v Secretary of State for Health [2009] 1 AC 739 at §19.

53.  Hence, Ribeiro PJ concluded, in Lam Siu Po v Commissioner of Police (see §§93 and 94), that Article 10 was clearly engaged in relation to the disciplinary proceedings in that case since the applicable Administrative Instructions made it clear that punishment for the disciplinary offence under the provision with which the appellant there was charged was “normally terminatory”.

(b)     The need for the relevant tribunal’s determination to be decisive

54.  The above propositions were not controversial between the parties.  However, what was contended on behalf of the Health Committee in the present case was that, given the legislative framework under the MRO and the Regulation, the Health Committee makes no determination of the applicant’s right to practise his profession.  The functions of the Health Committee are set out in section 20V of the MRO and the relevant function is only to conduct a hearing (section 20V(1)(a)) and either to make a recommendation that the name of the registered medical practitioner be removed if it finds him to be physically or mentally unfit to practise (section 20V(1)(c) of the MRO and section 38(4) of the Regulation) or to certify and report to the Council or Chairman of the PIC if it finds him to be physically and mentally fit to practise (section 38(6) of the Regulation).  Any decision to remove the name of the registered medical practitioner from the General Register, and thereby to remove his right to practise, is to be reached by the Council itself under section 21A of the MRO upon a recommendation of the Health Committee that the name of the registered medical practitioner be removed from the register or under section 21 of the MRO after an inquiry. 

55.  Thus, it was submitted by Mr Godfrey Lam SC (appearing with Ms Abigail Wong) for the Health Committee that a recommendation by the Health Committee is not by itself a “determination” of any “rights and obligations in a suit at law” since to be a determination the result of the proceedings must be “decisive” of such a right.[4]

56.  Mr Lam relied on a number of authorities to support this contention. First, he relied on Ringeisen v Austria (No.1) at §94, the material part of which is set out above.

57.  In Le Compte, Van Leuven and De Meyere v Belgium, the Strasbourg court stated :

“46. In addition, it must be shown that the ‘contestation’ (dispute) related to ‘civil rights and obligations’, in other words that the ‘result of the proceedings’ was ‘decisive’ for such a right. …

47.          As regards the question whether the dispute related to the above-mentioned right, the Court considers that a tenuous connection or remote consequences do not suffice for Article 6(1), in either of its official versions (‘contestation sur’; ‘determination of’): civil rights and obligations must be the object – or one of the objects – of the contestation (dispute); the result of the proceedings must be directly decisive for such a right.”

58.  Reliance was also placed on Albert and Le Compte v Belgium [1983] 5 EHRR 533 where the Strasbourg court stated :

“28. In addition, it must be shown that the ‘contestation’ (dispute) related to ‘civil rights and obligations’, in other words that the ‘result of the proceedings’ was ‘decisive’ for such a right …

(a)          On the first point (direct relationship between the ‘contestation’ (dispute) and a right), the Court would recall that a tenuous connection or remote consequences do not suffice for Article 6(1): a right must be the object – or one of the objects – of the ‘contestation’ (dispute). ”

59.  Finally, in this context, Mr Lam relied on Chow Shun Yung v Wei Pih at §37.2, where the Appeal Committee of the Court of Final Appeal held :

“The right to a hearing arises under art.6(1) only in relation to ‘the determination of [a person’s] civil rights and obligations’, the equivalent BOR 10 words being ‘in the determination of his rights and obligations in a suit at law’. The right is therefore engaged only where the rules and proceedings in question are decisive of the substantive rights of the person in question, and has no application to merely interlocutory or case management issues …”.

60.  It was submitted that a recommendation by the Health Committee does not operate to remove the right of the registered medical practitioner to practise, even on an interim basis.  That decision rests with the Council and, unless and until the Council is satisfied that the registered medical practitioner is unfit to practise and makes a decision to remove his registration, the recommendation has no effect upon the registered medical practitioner so far as his right to practise is concerned.[5]

61.  Mr Lam therefore submitted that the Health Committee proceedings must be seen in the context of the overall process of the determination of civil rights under the legislative framework. In paragraph 21 of the Respondent’s Skeleton Argument, it was submitted :

“It follows that Article 10 is engaged in relation to [the Health Committee] proceedings but only as part of a larger process which together leads to a determination of civil rights such as to attract the protection of Article 10.”

62.  Given Mr Lam’s acceptance that Article 10 is engaged in relation to the Health Committee proceedings, it is not necessary to address the issue of the circumstances in which, where there are different phases of a process or different aspects of a multiple process, Article 10 applies to any particular phase or aspect of that process.  However, for the reasons set out in the following section, I consider that the respondent was right to accept that Article 10 is engaged in relation to the present proceedings before the Health Committee notwithstanding that a recommendation of that committee (under section 20V(1)(c) of the MRO) is not the final determining decision to remove the name of a registered medical practitioner from the General Register and that such a decision is finally made by the Council pursuant to section 21A of the MRO.

(c)     The application of Article 10 to different aspects of a multiple process

63.  This issue was recently examined in some detail by the Court of Appeal in England in R (on the application of G) v Governors of X School [2010] 2 All ER 555.  That case involved a challenge to a decision by school governors not to allow a teacher legal representation at a disciplinary hearing, or at a future appeal hearing.  Those disciplinary proceedings would expose him to statutory procedures which would prevent him working with children.  The statutory procedure involved a referral to the Secretary of State to determine whether to place the teacher on a register of persons prohibited from working with children.  In the event, the case would have fallen to be dealt with by another body, the Independent Safeguarding Authority, who would review the disciplinary decision to establish the facts on a balance of probabilities and then decide whether to put the teacher on a “barred list”.  If he was put on the barred list, he would have the right of appeal to an Upper Tribunal in respect of a mistake of law or fact.  After the disciplinary hearing and before any appeal, the teacher brought judicial review proceedings in relation to the decision of the governors not to allow him legal representation at the disciplinary hearing or the appeal.  He contended that the disciplinary proceedings and the referral to the Secretary of State constituted a single procedure, which constituted a criminal charge within Article 6(1) of the ECHR.

64.  At first instance, the judge held that the disciplinary proceedings and referral to the Secretary of State constituted a single procedure for the purposes of Article 6(1) of the ECHR but that the proceedings were not in respect of a criminal charge.  He held instead that the teacher was entitled to the procedural protection of legal representation under Article 6(1) of the ECHR as it applied to the determination of his civil rights before the disciplinary committee and the appeal committee.  On the governors’ appeal, the issues considered by the Court of Appeal were (i) whether the disciplinary proceedings were a determinant of the teacher’s civil right generally to practise his profession for the purposes of Article 6(1) and, if so, (ii) whether Article 6(1) in the circumstances required that the teacher be allowed the opportunity of legal representation in the disciplinary proceedings.

65.  The leading judgment in the Court of Appeal was delivered by Laws LJ.  He referred to Ringeisen at §94 and then Albert and Le Compte v Belgium at §28 (both of which I have set out above) and held :

“32. This suggests to my mind that the use of the term ‘decisive’ in Ringeisen v Austria needs to be read carefully. In my view the sense is not that the proceedings – in the present case, that is of course the disciplinary process before the governors – must finally conclude all issues relating to the right in question (here, as in Albert v Belgium, the right to practise one’s profession). To summarise in short form what I shall say below as to the principle of the thing, I consider that the Ringeisen v Austria approach is likely to be met where the decision in the relevant proceedings has a substantial influence or effect on the later vindication or denial of the claimant’s convention right. …”

66.  Laws LJ supported his approach by reference to two decisions of the Strasbourg court emanating from Spain, Ruiz-Mateos v Spain [1993] 16 EHRR 505 and Lizarraga v Spain [2007] 45 EHRR 1031, which in his view (see §34) were :

“… authority for the importance of a pragmatic connection between different aspects of a multiple process for the purpose of ascertaining whether art 6 rights attach to any particular aspect”.

67.  At §§37 and 38, Laws LJ stated :

“37. In my view the effect of the learning … is that where an individual is subject to two or more sets of proceedings (or two or more phases of a single proceeding), and a ‘civil right or obligation’ enjoyed or owed by him will be determined in one of them, he may (not necessarily will) by force of art 6 enjoy appropriate procedural rights in relation to any of the others if the outcome of that other will have a substantial influence or effect on the determination of the civil right or obligation. I do not mean any influence or effect which is more than de minimis: it must play a major Part In the civil right’s determination. I do not intend a hard and fast rule. Principles developed by the Strasbourg court for the interpretation and application of the convention tend not to have sharp edges; as I have said, the jurisprudence is generally pragmatic and fact-sensitive. The nature of the right in question may make a difference. So may the relative authority of the courts, tribunals or other bodies playing their respective parts in a case, such as the present, where connected processes touch a convention right.

38.          I apprehend that the approach I have outlined bears comparison with the reference in Ocalan v Turkey (2005) 18 BHRC 293 (para 131), to ‘a situation where the rights of defence might well be irretrievably prejudiced’, noted by the deputy judge below (at [56]).  Thus it may be useful here to consider whether the claimant’s right to practise his profession, which is directly at stake in the barred list procedure, may be irretrievably prejudiced by the disciplinary proceedings.  … If the convention’s guarantees are to be practical and effective (and they are worth nothing otherwise), the fact that one proceeding may irretrievably prejudice a civil right directly at stake in another proceeding must at least raise the question whether the protection of art 6 should attend the first proceeding.”

68.  Laws LJ concluded at §43 :

“I propose, then, to apply the approach I have described. That being so it is unnecessary to decide, as the judge did, whether or not the disciplinary process and the barred list procedures formed ‘part of one and the same proceedings for the purpose of art 6’. That is (as I have indicated) all too formalistic a process. The true question is whether there is a sufficiently close nexus between these processes. Such a nexus is in my judgment established if the test of substantial influence or effect, as I have described it, is met.”

69.  Although R (on the application of G) v Governors of X School is not binding on me, it is persuasive authority on the interpretation of a provision of Article 6 of the ECHR, which, as I have noted above, is materially in substantially similar terms to Article 10.  I consider that the approach propounded by Laws LJ in that case, namely the test of substantial influence or effect, provides the correct basis for determining whether the present proceedings before the Health Committee are a determinant of Dr Q’s right to practise his profession for the purposes of Article 10.

70.  Applying the test of substantial influence or effect in the present case, I consider that a recommendation by the Health Committee under section 20V(1)(c) of the MRO that the name of Dr Q be removed from the General Register would be a decisive determination of his right to practise his profession for the purposes of Article 10.  It is the case, in my view, that a recommendation arrived at by the Health Committee following a hearing would have “a profound influence”[6] on the Council’s decision-making process whether to order his name to be removed from the General Register under section 21A of the MRO, or would have a “substantial effect”[7] on the outcome of that process.  Putting the matter in a slightly different way, it is clear that Dr Q’s right to practice his profession would be “directly at stake” in the decision to be made by the Council under section 21A and would be “irretrievably prejudiced” by the recommendation of the Health Committee.[8]

(3)     Is Article 10 infringed?

71.  This was the main issue between the parties before me.  In resolving this issue, it will be convenient to address the following matters: first, the nature of the right to legal representation under Article 10; secondly, the nature of the prohibition on legal representation in the challenged provisions; thirdly, the context of the issue as one of constitutional challenge to primary legislation; fourthly, the need to look at the entire process when considering whether the provisions of Article 10 are complied with; fifthly, whether, as an entire process, there is no breach of Article 10 by reason of the prohibition on legal representation in the hearing before the Health Committee.

(a)     The right to legal representation under Article 10

72.  In Lam Siu Po v Commissioner of Police, Ribeiro PJ held (at §137) that, as regards what is required in terms of legal representation at disciplinary proceedings, the requirements of a fair hearing under Article 10 are those identified by the well-developed common law principles of procedural fairness.  As Ribeiro PJ stated :

“An arrangement which satisfies the requirements of the common law will almost certainlyconform with the fairness requirements of Article 10.”

73.  In Stock Exchange of Hong Kong v New World Development Co. Ltd (2006) 9 HKCFAR 234, the Court of Final Appeal held that at common law there is no absolute right to legal representation at disciplinary proceedings and that this was a matter to be dealt with in the particular tribunal’s discretion in accordance with the principles of fairness.  Various factors are to be taken into account in deciding whether fairness requires such representation to be permitted including: the seriousness of the charge and potential penalty; whether any points of law are likely to arise; the capacity of the individual to present his own case; procedural difficulties; the need for reasonable speed in making the adjudication; and the need for fairness among the individuals concerned.  The Court of Final Appeal recognized that no list of factors could be exhaustive and that the common law principles of fairness operate flexibly, requiring the tribunal in question to respond reasonably to the requirements of fairness arising in each case, balancing any competing interests and considering what, if any, limits may proportionately be imposed on legal representation in consequence.[9]

(b)     The prohibition on legal representation in the challenged provisions

74.  In the present case, regardless of the common law position, the clear effect of section 24(2) of the MRO and section 35(1)(c) of the Regulation is that the Health Committee has no discretion whether to permit legal representation of the registered medical practitioner whose fitness to practise is being considered in a hearing before it.  It is similar therefore to the blanket restriction on professional legal representation that was under challenge in Lam Siu Po v Commissioner of Police, although Mr Lam rightly pointed out that the challenged provisions in this case do not preclude the registered medical practitioner having the assistance of someone other than counsel or a solicitor.  This is arguably slightly less restrictive than the position under Regulations 9(11) and 9(12) of the Police (Discipline) Regulations, Cap.232A, which restrict the representation a defaulter may have to either an inspector or other junior police officer of any other police officer who is qualified as a barrister or solicitor, i.e. the representative has to be another police officer.  Here, the challenged provisions only preclude a registered medical practitioner from having counsel or a solicitor represent him at the hearing before the Health Committee and do not preclude him having the assistance of any other person, such as a medical professional who is treating him.  However, in my view, nothing turns on this difference and the relevant prohibition on legal representation in the present case is a blanket one so far as the hearing before the Health Committee is concerned.

(c)     The context of a constitutional challenge to primary legislation

75.  Mr Lam submitted that a number of points flowed from the fact that this was a constitutional challenge to primary legislation.  First, in such a case, the Court is concerned with minimum standards.  Since the challenged provisions arise from primary legislation, the Court is only empowered to impugn the Legislature’s decision embodied in the enacted legislation if it is incompatible with the constitution.  Here, that would be so only if the law in question contravenes the minimum standards prescribed by Article 10.

76.  Secondly, Mr Lam relied on the principle that a law should, wherever possible, be interpreted ut res magis valeat quam pereat (that the thing may rather have effect than be destroyed), i.e. the Court should strive to see whether the law can reasonably bear a construction which renders it valid : Re C (a bankrupt) [2006] 4 HKC 582 at 599A (§35).  In the context of this case, it was submitted on behalf of the Health Committee that the rights of appeal in disciplinary cases should not be read down and that effect should be given to legislation in a way compatible with Convention rights : Preiss v General Dental Council [2001] 1 WLR 1926 at §27.  Relying on these principles, it was Mr Lam’s submission in the present case (as will be seen below) that section 20W of the MRO provides a full hearing de novo and this must be taken into account when considering compliance with Article 10.

77.  Thirdly, Mr Lam submitted that if practical problems have arisen, the Court must look to see if it is because of the operation of the legislation and not simply because of the particular facts of an individual case: see R v Lift Contractors’ Disciplinary Board, ex p Otis Elevator Co. (HK) Ltd [1995] 5 HKPLR 78 at 84G.

78.  On behalf of Dr Q, Mr McCoy SC (appearing with Mr Douglas Jones), did not take issue with these propositions advanced by Mr Lam and I accept that they must guide the Court as general principles in deciding whether, in the present case, the constitutional challenge mounted by Dr Q is made out.

(d)     The need to look to the entire process

79.  Where Article 10 is engaged, the person concerned is entitled to “a fair and public hearing by a competent independent and impartial tribunal established by law”, but this does not mean that every element of the protections conferred have to be present at every stage of the determination of a person’s rights and obligations.  What the Article requires is that such protection should be effective when the determination is viewed as an entire process, including as part of that process such appeals or judicial review as may be available : see Lam Siu Po v Commissioner of Police at §§109 to 115.  As the Strasbourg court held in Le Compte, Van Leuven and De Meyere v Belgium at §51(a) :

“Whilst Article 6(1) embodies the ‘right to a court’ …, it nevertheless does not oblige the Contracting States to submit ‘contestations’ (disputes) over ‘civil rights and obligations’ to a procedure conducted at each of its stages before ‘tribunals’ meeting the Article’s various requirements. Demands of flexibility and efficiency, which are fully compatible with the protection of human rights, may justify the prior intervention of administrative or professional bodies and, a fortiori, of judicial bodies which do not satisfy the said requirements in every respect; the legal tradition of many member States of the Council of Europe may be invoked in support of such a system.”

80.  Thus, in Albert and Le Compte v Belgium, in holding that a professional association’s exercise of power of determining the right of a member to practise medicine was compatible with Article 6(1) of the ECHR if suitable judicial supervision was in place, the Strasbourg court stated (at §29) :

“… the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1).”

81.  The above passages were cited by Ribeiro PJ in Lam Siu Po v Commissioner of Police at §§110 and 111 and there was no dispute between the parties that this is the appropriate approach to a consideration of whether the provisions of Article 10 have been complied with in the present case. Mr Lam identified the relevant question as being whether, when the determination of Dr Q’s right to practise his profession under the relevant statutory provisions is viewed as an entire process, including as part of that process such appeals or judicial review as may be available, the minimum requirements of fairness under Article 10 are met.

82.  Mr Lam submitted that Article 10 is complied with where a court of full jurisdiction was able to deal with the case in one of two ways as explained by Ribeiro PJ in Lam Siu Po v Commissioner of Police at §118 :

“A court of full jurisdiction may deal with the case in the manner required in at least two different ways. It may do so by supplying one or more of the protections mandated by Article 10 which were missing below, for instance, by assuming the role of the necessary independent tribunal or by giving the individual concerned the needed public hearing. Or it may do so by exercising its supervisory jurisdiction so as to correct or quash some non-compliant aspect of the determination by the authority or tribunal concerned, for instance, where there has been a want of impartiality or some unfairness in the original process. If in assuming such a role, the court is armed with full jurisdiction to deal with the case as the nature of the challenged decision requires, there is compliance with Article 10’s requirements.”

83.  As to when a court can be said to have full jurisdiction so that Article 10 is complied with by that court’s review of an earlier administrative decision, Lord Hoffmann said, in R (Alconbury Developments) Ltd v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 at §87 :

“The reference to ‘full jurisdiction’ has been frequently cited in subsequent cases and sometimes relied upon in argument as if it were authority for saying that a policy decision affecting civil rights by an administrator who does not comply with art.6(1) has to be re-viewable on its merits by an independent and impartial tribunal. … But subsequent European authority shows that ‘full jurisdiction’ does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires.”

84.  Thus, where a particular protection was lacking before a tribunal, that protection might be provided on an appeal process from the original decision either to another tribunal or the court or on a judicial review of the decision by the court exercising its jurisdiction under RHC Order 53.  And if that protection was then supplied by one of those two means, the provisions of Article 10 would be complied with.

85.  Mr Lam therefore relied on examples of cases, involving an original procedure that did not satisfy all the requirements of Article 10 (or its equivalent), where the presence of an opportunity of appeal by way of rehearing which was itself compliant with Article 10 was held to satisfy those requirements : see Preiss v General Dental Council [2001] 1 WLR 1926 at §9; R v Lift Contractors’ Disciplinary Board, ex parte Otis Elevator Co. (HK) Ltd [1995] 5 HKPLR 78 at 87G to 88G; Le Compte, Van Leuven and De Meyere v Belgium at §51(a) and Tse Wai Chun Paul v Solicitors Disciplinary Tribunal [2002] 4 HKC 1 at §§9 and 10.

86.  Preiss v General Dental Council was a case in which, although there was an apparent lack of independence and impartiality of a preliminary screener who also chaired a subsequent Professional Conduct Committee hearing into the particular complaint of professional misconduct, compliance with Article 6(1) of the ECHR was secured by way of appeal to the Privy Council under section 29 of the Dentists Act 1984 which was a complete rehearing of the matter.  Similarly, ex parte Otis Elevator Co. (HK) Ltd, was a case in which, although there was an accepted lack of independence and impartiality in the prosecutor and tribunal inquiring into alleged negligence in the maintenance of a lift, there was no breach of Article 10 since there was an appeal by way of rehearing under the relevant statutory scheme.  Le Compte, Van Leuven and De Meyere v Belgium was also a case concerning a complaint of lack of impartiality on the original tribunal that was held to be cured by the subsequent appeal being to bodies that were sufficiently independent (see §§54 to 58).

87.  The case of Tse Wai Chun Paul v Solicitors Disciplinary Tribunal dealt with a different aspect of Article 10, namely the provision of a public hearing.  In that case, the statutory requirement that a Solicitors Disciplinary Tribunal sit in camera was held not to be inconsistent with the right to a public hearing under Article 10 since there was a right to appeal to the Court of Appeal against the findings of the tribunal and the appeal would be heard in public.

88.  As will be apparent, the nature of the departure from the guarantees of Article 10 (or its equivalent) in these cases relied upon by Mr Lam did not relate to legal representation.  The three cases referred to in paragraph 85 above concerned lack of independence and impartiality.  Tse Wai Chun Paul v Solicitors Disciplinary Tribunal concerned the lack of a public hearing.  There were only two cases cited by Mr Lam which concerned legal representation.  The first was Sutherland-Fisher v Law Society of Scotland [2003] SC 562 and the second was Hinds v AG of Barbados [2002] 1 AC 854.

89.  Sutherland-Fisher v Law Society of Scotland was an appeal by a solicitor against a decision of the Scottish Solicitors’ Discipline Tribunal to dismiss a preliminary objection by the solicitor to disciplinary proceedings on the grounds that he would be prejudiced if not provided with legal representation.  He complained that this was a breach of Article 6(1) of the ECHR.  The Court of Session concluded that the test of indispensability was the appropriate test for the provision of legal representation and that the solicitor did not demonstrate that legal representation was indispensable to his obtaining a fair hearing before the tribunal.  The Court went on to hold that, even if the tribunal proceedings did not comply with the requirements of Article 6(1), they were subject to the subsequent control of a judicial body, the Court of Session, under the relevant statutory scheme.  At §22, the Court said :

“It is clear that in the event of an appeal to the Court of Session the petitioner would be eligible for legal aid and the services of counsel. The court can deal with disputed issues of fact and law, and a transcript of the proceedings before the tribunal would be available. Further, the court has power to remit to any person to make further inquiry into the facts, or to take further evidence and to report to the court. In this connection the proceedings before the tribunal cannot be viewed in isolation, and in the circumstances we are certainly not in a position to say that the proceedings taken as a whole, and including the full right of appeal, would not be art 6 compliant.”

90.  It is pertinent to highlight one particular argument advanced by counsel for the solicitor in Sutherland-Fisher v Law Society of Scotland, namely (at §13) :

“Counsel then turned to consider whether the existence of legal representation for the petitioner at the stage of an appeal to the Court of Session would be sufficient to meet the requirements of art 6(1). In relation to the question whether the petitioner would receive a fair hearing, the proper establishment of the facts was essential. The facts had to be established and considered by the tribunal and, if they were not properly established because the petitioner was not legally represented, then the existence of the appeal procedure would not meet the art 6 requirements. The damage would have been done before the hearing of the appeal and could not be remedied by the appeal process. If there was a lack of effective cross-examination at the tribunal hearing, it would be difficult for the appeal court to say what the position might have been if the cross-examination had been carried out effectively. Further, the members of the tribunal had expertise and experience in this particular field, making it necessary that there should be a fair hearing before the tribunal. While the Act gave wide powers to the court on appeal, those powers could not be regarded as a substitute for a fair hearing before the tribunal ... While there was authority that an appeal procedure could cure procedural irregularities or a lack of impartiality in the lower court or tribunal, the position was different in a case where lack of legal representation at the tribunal resulted in the facts not being properly elicited ... In those circumstances the right of appeal would not satisfy the requirements of art 6.”

It will be necessary to consider a similar argument advanced by Mr McCoy in the present case.

91.  Hinds v AG of Barbados was a case where a defendant’s application for state-funded legal representation was refused by the trial judge.  He was then convicted after trial.  On appeal, where he was represented by counsel, the Court of Appeal of Barbados held that his constitutional right to a fair hearing was not infringed by the denial of legal aid at his trial.  The defendant then applied to the High Court of Barbados for, in effect, judicial review of the trial judge’s decision.  The application was refused and an appeal to the Court of Appeal dismissed.  On further appeal to the Privy Council, the appeal was dismissed.  At §19, Lord Bingham, delivering the judgment of the Privy Council, said :

“… the Board is not hearing an appeal against the Court of Appeal’s dismissal on 14 October 1992 of the applicant’s appeal against conviction. It is concerned only with his claim that his constitutional right to a fair hearing was infringed by the denial of legal aid at trial. For purposes of that determination, account must be taken not only of the trial but of the appeal. At the hearing of his appeal the applicant was represented by counsel, through whom he had the opportunity to argue any points reasonably open to him. The Court of Appeal had power under section 4 of the Criminal Appeal Act (c 113A) to allow an appeal, and under section 15 to order a retrial if it appeared to the court that the interests of justice so required. If dissatisfied with the Court of Appeal, the applicant’s right to appeal to Her Majesty in Council was preserved by section 37 of the Act, however great in practice the difficulty of exercising that right. The ordinary processes of appeal offered the applicant an adequate opportunity to vindicate his constitutional right.”

92.  Each of the cases cited by Mr Lam was an example of a subsequent appeal supplying the want of any particular protection under Article 10 (or its equivalent).  As noted above, however, such want could also be supplied by the Court exercising its supervisory jurisdiction of judicial review under RHC Order 53 : see Lam Siu Po v Commissioner of Police at §128.  Lam Siu Po v Commissioner of Police was not in fact such a case because, as the Court of Final Appeal noted, the statutory prohibition on legal representation in the Police (Discipline) Regulations precluded the reviewing court from exercising the status of a court of full jurisdiction and deprived it of the power necessary to deal with the case as the nature of the decision (involving an unfair refusal of legal representation) required : see §§126 and 140 to 141.

(e)     Whether the entire process in the present case is Article 10 compliant?

93.  Applying the principles identified above, I shall now address the question of whether the statutory scheme in the present case is such that the entire process secures compliance with the protections afforded by Article 10.  Before doing so, however, I would pause to add that in looking at whether the protections of Article 10 have been met when the entire determination process is viewed, it is important, in my view, to recognise that Article 10 provides various elements of protection and that it is necessary to identify the particular quality or aspect of the fair hearing that may be missing at an earlier stage in order to determine if, looking at the entire process, the fair hearing requirement of Article 10 is duly met.  As Ribeiro PJ held, giving the ruling of the Appeal Committee of the Court of Final Appeal, in Chow Shun Yung v Wei Pih & Anor (2003) 6 HKCFAR 299 at §37.5 :

“Whether proceedings on appeal are consistent with the protected right is judged by asking whether the purposes of the Article have substantially been met, taking into account not merely the appeal, but the entirety of the proceedings, looking realistically at what the court’s powers were and how the applicant’s interests were presented and protected before the court …”.

94.  It was submitted on behalf of the respondent that the entire process in the present case was such that there was no breach of Article 10 despite the prohibition of legal representation at the Health Committee hearing under section 20V(1)(a) of the MRO.  Mr Lam referred to the following further constituent parts of the entire process :

(1)     First, the registered medical practitioner against whom a recommendation of unfitness to practise was made by the Health Committee has a right to appeal to the Council against the finding of unfitness under the appeal procedure laid down by section 20W of the MRO and the Council cannot make a decision under section 21A of the MRO until after the time for such an appeal has expired or there is no appeal.  On such an appeal, the appellant is entitled to appear and be heard by his counsel or solicitor (section 20W(3)(b) read with section 49(2) of the Regulation).  The Council has the power to affirm, vary or reverse the recommendation of the Health Committee (section 20W(4) of the MRO).  The parties to the appeal both have the right to make opening statements, to call witnesses, to cross-examine any witnesses called by the other party and to address the Council (section 49(6) of the Regulation). The Council has further powers to summon persons to appear as witnesses and to admit materials (sections 49(10) and 49(11) of the Regulation).

(2)     Secondly, even if there is no section 20W appeal, the Council has to be satisfied that the registered medical practitioner is unfit to practise before it can exercise its discretion under section 21A of the MRO to remove the registered medical practitioner from the General Register without an inquiry under section 21.  The decision is that of the full Council and it would appear from section 6(1) of the Medical Registration (Miscellaneous Provisions) Regulation (Cap.161D) that a meeting of the Council is necessary for this purpose.  No procedures have been laid down but, submitted Mr Lam, there is no reason to suppose that the Council cannot allow representations to be made by or on behalf of the registered medical practitioner at such a meeting.

(3)     Thirdly, under section 26 of the MRO, a registered medical practitioner who is aggrieved by any order made under, amongst other provisions, section 21 or 21A of the MRO may appeal to the Court of Appeal which may affirm, reverse or vary the order appealed against or remit the case to the Council for an, or another, inquiry.

95.  For these reasons, Mr Lam submitted that the section 20W appeal and actual determination by the Council under section 21A of the MRO meant, in the language of Albert and Le Compte v Belgium that “the jurisdictional organs themselves comply with the requirements” of Article 10.  Further, he submitted that the full appeal on the merits to the Court of Appeal under section 26 of the MRO meant that the jurisdictional organs “are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees” of Article 10.

96.  Thus, submitted Mr Lam, the present case is entirely distinguishable from Lam Siu Po v Commissioner of Police since, although there was an appeal to the Commissioner by petition under section 15(1) of the Police (Discipline) Regulations, there was no right to an oral hearing, and no right to legal or other representation on appeal.  Here, in the overall scheme of determining a registered medical practitioner’s fitness to practise, section 24(2) of the MRO did not impose a blanket restriction on legal representation in relation to all proceedings concerning his fitness to practise, but only in relation to a hearing before the Health Committee.  There is an internal appeal from the Health Committee to the Council capable of operating by way of a hearing de novo where the registered medical practitioner was entitled to be legally represented.  Thereafter, there is the further stage in which the Council decides how to act (section 21A of the MRO) and a further appeal to the Court of Appeal from any adverse order actually made (section 26 of the MRO).

97.  Finally, Mr Lam also submitted that, in addition to the above three further stages of the internal process, there was always the possibility of a judicial review of the eventual decision made in the internal process.  This judicial review provides a further external process whereby the protections of Article 10 could be provided to the registered medical practitioner.

98.  I accept that the section 20W appeal operates as a de novo hearing before the Council.  Mr McCoy pointed to the fact that the quorum for the Council hearing a section 20W appeal is five (see section 49(1) of the Regulation), the same number as constitutes a forum of the Health Committee under section 20V(1)(a) of the MRO (see section 20U(3)).  But it must be remembered that this is a minimum number of persons who must sit on the respective bodies and this does not inexorably mean that the same number of persons will sit on each.  In any event, the character of the hearing is not determined by the number of persons hearing it but rather by the statutory functions of the respective bodies.  I accept that the Council hearing a section 20W appeal is conducting a de novo hearing with the procedural features identified in §94(1) above.

99.  I am not persuaded, however, by Mr Lam’s argument that the Council and Court of Appeal provide a full second and third stage of review beyond the section 20W appeal.  Under section 20W(5) of the MRO, the decision of the Council under section 20W is final.  In my view, properly construed, section 20W(5) precludes any further challenge to the Council’s decision under section 20W(4) which is to affirm, vary or reverse a recommendation by the Health Committee under section 20V(1)(c) or (d) (i.e. to recommend the removal of the registered medical practitioner’s name from the General Register either permanently or for a temporary period, or to extend a temporary removal).  Once the Council has decided to affirm such a recommendation by the Health Committee, any further consideration by the Council or Court of Appeal will not re-open the premise on which the Health Committee’s recommendation was made, namely that the registered medical practitioner is unfit to practise by reason of his physical or mental health. Thus, when the Council is considering the matter under section 21A of the MRO, it is determining in the exercise of its discretion whether to make one of the orders specified.  In the light of the finality provision of section 20W(5), I do not consider that there is scope for the Council to revisit under section 21A the underlying finding of fitness to practise made by the Health Committee and affirmed by the Council on the section 20W appeal.  What the Council may do is decide the appropriate sanction that flows from that underlying finding.  For the same reason, it is difficult to see any scope for the Court of Appeal to reverse that finding on an appeal under section 26 of the MRO.  It would make little practical sense for the legislation to provide the registered medical practitioner with a second and third bite of the cherry in respect of the underlying decision of unfitness to practise (rather than any recommendation based on that decision) since this would be unwieldy, repetitive and expensive and, in my judgment, section 20W(5) of the MRO precludes this.

100.  But given that the section 20W appeal is a de novo hearing and, even assuming (contrary to my conclusion in the preceding paragraph) that the section 21A stage before the Council and section 26 appeal to the Court of Appeal provide a second and third process of review of the finding of unfitness to practise, it is necessary to determine whether these internal and external subsequent processes cure the unfairness that may arise from the prohibition of legal representation at the first stage before the Health Committee. 

101.  In my judgment, the unfairness to the registered medical practitioner in being exposed to potentially prejudicial questioning under oath before the Health Committee in the absence of legal representation is not cured by the subsequent processes.  I emphasised above (see §93) the need to consider the particular aspect of Article 10 protection that was involved in any case.  Here, it is the unfairness that arises from a lack of legal representation before the Health Committee.  In my opinion, unfairness due to the lack of legal representation, unlike a lack of independence or impartiality or the denial of a public hearing, is an aspect of Article 10 protection that is less readily remedied by a subsequent process.  That is because by its very nature, the protection of legal representation is a protection that exists at the beginning, and lasts throughout, a particular process.  I do not say that it can never be remedied by a subsequent process, but, in the context of the present case, I do not think it is so remedied.

102.  In the legislative scheme under consideration here, there is an inter-relationship of the health issues with which the Health Committee is concerned and the disciplinary and misconduct issues with which the PIC is concerned.  Although a question of fitness to practise by reason of physical or mental health may be exclusively a medical issue, the matter may come before the Health Committee via the PIC arising from a complaint of professional misconduct.  That was in fact what happened in the present case.  Dr Q’s employer referred the matter, by way of complaint, to the Secretary of the Council.  The Secretary’s letter of 30 July 2009 noted he had received information which might raise a question as to whether Dr Q was guilty of misconduct in a professional respect.  In the event the Health Committee were to find Dr Q fit to practise (and, since the proceedings have yet to be concluded, this is a determination that must remain open to it), then under section 6(5) or 11(9) of the Regulation, the PIC may proceed with the investigation of the case and take other appropriate action, which includes referring the case to the Council for an inquiry.  Such an inquiry would be a disciplinary inquiry under section 21 of the MRO.  However, at that stage, the registered medical practitioner may have given evidence under oath before the Health Committee without the benefit of legal representation and may have severely prejudiced his position in respect of the subsequent investigation by the PIC or inquiry by the Council.  In other words, the section 20W appeal does not cure the unfairness flowing to the registered medical practitioner from the lack of legal representation before the Health Committee since the matter may never proceed by way of section 20W appeal but may instead proceed by inquiry into professional misconduct.[10]

103.  Thus, although the character of the hearing before the Health Committee may be health-related, the possibility exists of the matter reverting to the PIC looking to the culpability of the registered medical practitioner in terms of disciplinary offences.  The Health Committee has a potential dual function in this respect.  Aspects of physical or mental health may very well involve elements of addiction to drugs (as was the case here) and Mr McCoy gave various examples of the criminal and disciplinary issues that might arise in the course of his submissions.  I accept that it is a realistic possibility that a Health Committee inquiring into the fitness of a registered medical practitioner to practise medicine by reason of his physical or mental health may well be concerned to investigate matters that involve potential professional misconduct or even criminal actions on the part of the registered medical practitioner.  It is clear from the terms of the proviso in section 23 of the MRO that the legislation contemplates that a registered medical practitioner may be subjected to questioning which might expose him to giving self-incriminating answers.  But, although the registered medical practitioner is entitled to protection against self-incrimination, he is not entitled to the benefit of legal representation before the Health Committee to assist him on this important legal issue.

104.  Mr Lam submitted that the proceedings before the Health Committee were health-related and the hearing was akin to taking a history from a patient. However, in my opinion, this submission is demonstrably undermined by the transcript in the present case.  I acknowledge again that the constitutionality of primary legislation is to be judged by reference to the operation of the legislation itself and not on the facts of an individual case.  However, the events that transpired at Dr Q’s hearing before the Health Committee do provide, in my view, a useful working example of how the legislation may operate in a way which is clearly unfair.  Thus, in the Form 86A Notice, a number of instances were identified in support of the contention that Dr Q was exposed to an unnecessarily robust cross-examination (see §30 at p.9).  I do not propose to set those instances out separately in this judgment.  They show that the Chairman of the PIC questioned Dr Q vigorously in respect of how he acquired the propofol with which he injected himself.  It is clear from a reading of the transcript that, had Dr Q been represented by a lawyer, a number of the questions that were asked would have been objected to: some questions exposed Dr Q to a risk of self-incrimination; some were based on a false premise that propofol is a dangerous drug under the Dangerous Drugs Ordinance; some were questions that should have been put to medical experts treating him and not to Dr Q himself.  This is not to criticise the cross-examination conducted by the Chairman of the PIC but simply to demonstrate a real prejudice to Dr Q arising from the lack of legal representation before the Health Committee.

105.  A further point that I consider relevant in this context is the submission by Mr McCoy that a case will only come to a hearing before the Health Committee where there is already some evidence that the registered medical practitioner is health-handicapped.  In some cases of physical handicap, this will not necessarily affect a registered medical practitioner’s ability to represent himself before a Health Committee.  But in case where the mental health is in question, the registered medical practitioner may be very vulnerable and therefore it may be questionable whether he is able to represent himself adequately.  Under section 37 of the Regulation, the registered medical practitioner is entitled to cross-examine witnesses and to give evidence and call witnesses on his behalf.  Some of these witnesses may be testifying to the mental health of the registered medical practitioner and I agree with Mr McCoy that this places him in a difficult position.  One particular example Mr McCoy gave was the issue of the definition of a current impairment within section 38(2) of the Regulation.  I accept that this does give rise to medico-legal issues which may be quite complicated on the facts or which might be affected by the registered medical practitioner’s lack of insight by reason of his inability to bring independence to bear on the issues.

106.  There was no argument advanced by the respondent to justify the prohibition on legal representation before the Health Committee as being rational or to contend that the scheme would not work if lawyers were permitted to assist a registered medical practitioner appearing before a Health Committee.  The respondent argued that the separation of functions between the Health Committee and the PIC was so that the former could focus on the health status of a registered medical practitioner and was fundamental and historically the rationale for section 24(2) of the MRO when it was introduced by amendment in 1996.  The answer to this submission, however, is that when the Health Committee was introduced into the MRO, the Council’s opposition to any of its lay members forming part of the Health Committee was rejected by the Legislature in enacting sections 20U(1)(g) and (3) of the MRO which included lay representation on the Health Committee.  Given that a lay member will be present on the Health Committee, there is no logical reason why a legal representative should not address that committee and assist a registered medical practitioner appearing before it.

107.  Mr Lam referred to the fact that the Legal Advisor to the Council was present and intervened on occasion during Dr Q’s cross-examination to assist him.  He also gave certain advice to Dr Q in respect of the procedures before the Health Committee.  The transcript supports this but, and again without criticism of the Legal Advisor, it is clear that he did not intervene on every occasion on which Dr Q might have benefited from the intervention of his own lawyer and the general advice he gave Dr Q did not, in my view, approach the level of advice Dr Q would have received from his own lawyer.

108.  I referred above (see §90) to an argument that did not prevail before the Court of Session in Sutherland-Fisher v Law Society of Scotland. That argument is similar to the argument advanced by Mr McCoy in the present case that there was irretrievable prejudice to Dr Q by reason of the transcript from his cross-examination before the Health Committee, which contained answers which are prima facie self-incriminatory.  Although the argument was rejected in Sutherland-Fisher v Law Society of Scotland, I do not think Mr McCoy’s argument here should be similarly rejected. 

109.  There are clearly distinguishing features between that case and this: this case concerns the denial of legal representation to a registered medical practitioner, whereas the Court of Session was considering the position of a lawyer who was denied state-funded legal representation.  I consider that there is irretrievable prejudice to Dr Q arising from the existence of the transcript of his evidence given under oath.  Mr Lam’s answer to the existence of the transcript was to submit, relying on HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 at §116(7), that the question of what evidence might be adduced in other potential proceedings depends on the fairness of such other proceedings.  However, I do not think this meets the fundamental complaint that Dr Q has already been exposed to unfairness by reason of the Health Committee’s absence of discretion to permit legal representation.

110.  Finally, in respect of the external process of judicial review, the position here is no different from that in Lam Siu Po v Commissioner of Police since the challenged provisions are contained in the legislation and preclude the reviewing court from dealing the case as the nature of the decision requires.  The reviewing court would not be entitled to quash the decision on the Health Committee on the grounds of unfairness by reason of the refusal of legal representation, since the refusal of legal representation would be sanctioned by the legislation : see Lam Siu Po v Commissioner of Police at §§140 to 141.

111.  For all these reasons, I conclude that the fact that a registered medical practitioner is entitled to legal representation on a section 20W appeal, or at the section 21A stage before the Council and section 26 appeal to the Court of Appeal, or in a judicial review, does not cure the fundamental unfairness that arises from the blanket denial of legal representation before the Health Committee.

(4) The consequences of infringement of Article 10

112.  I therefore conclude that Article 10 is infringed in respect of the hearing before the Health Committee since the challenged provisions gave no discretion to that committee to permit legal representation to Dr Q regardless of whether, as a matter of common law, the principle of fairness would have led to the conclusion that he should be entitled to such representation.

113.  The Health Committee ought, therefore, to have had discretion to allow legal representation for Dr Q if that conclusion was warranted applying the relevant discretionary factors.  However, as Ribeiro PJ held in Lam Siu Po v Commissioner of Police at §145, it is not necessary for a reviewing court in these circumstances to undertake the exercise of applying those factors in order to decide whether it would, in the tribunal’s position, have exercised the discretion in favour of permitting legal representation. Mr McCoy rightly acknowledged this and indicated that he did not therefore seek an order of mandamus requiring the Health Committee to permit Dr Q to have legal representation at the resumed hearing.

114.  The proceedings before the Health Committee having taken place in breach of Dr Q’s rights under Article 10, it must follow that they are unlawful and of no effect.

DISPOSITION AND COSTS

115.  I therefore grant the declarations sought by Dr Q as set out in §16(1) and (3) above but decline to make the order of mandamus set out in §16(2) above.

116.  I see no reason why costs should not follow the event and I make an order nisi that the costs of this judicial review should be paid by the respondent to Dr Q to be taxed, if not agreed.