O TING YUEN v. THE MEDICAL COUNCIL OF HONG KONG

CACV 820/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 820 OF 2000

(ON APPEAL FROM THE MEDICAL COUNCIL OF HONG KONG
PURSUANT TO THE MEDICAL REGISTRATION ORDINANCE)

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J U D G M E N T

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Keith JA:

Introduction

1. The appellant, Dr O Ting Yuen, is a medical practitioner. He is now 64 years old. After practising in the Mainland, he became registered in Hong Kong in 1987, and has worked in his wife's practice in Fanling. Last year, he faced 12 charges of professional misconduct. Following a disciplinary hearing, the Medical Council ("the Council") found all charges proved, and ordered that his name be removed from the Register of Medical Practitioners for a period of 12 months. He now appeals to the Court of Appeal against both the findings of guilt and the penalty imposed.

The facts

2. The charges which Dr O faced related to sick leave certificates. Nine of the charges related to a patient who it is unnecessary to identify by name ("L"). The other three charges related to two undercover ICAC officers ("Tse" and "Li"). The nine charges relating to L (charges (a)-(i)) and one of the two charges relating to Li (charge (k)) alleged that on various occasions Dr O had issued to L and Li sick leave certificates without examining L and Li on the dates of those certificates. If the certificates had been issued on the dates on which L and Li had been examined by Dr O, the certificates should have been dated with the dates of the examination. What was alleged was that the dates on the certificates were not the dates on which they were examined by Dr O.

3. The details of the ten charges can be seen from the following schedule:

Charge	Patient	Date of patient's visit to Dr O's surgery (i.e. date on which certificate was issued) according to contemporaneous notes made by Dr O	Date on certificate	Dates for which certificates recommended sick leave
(a)	L	25/8/97	24/8/97	24/8 and 25/8/97
(b)	L	12/9/97	11/9/97	11/9 and 12/9/97
(c)	L	14/9/97	13/9/97	13/9 and 14/9/97
(d)	L	19/9/97	17/9/97	17/9 and 18/9/97
(e)	L	Not known	30/9/97	30/9/97
(f)	L	Not known	1/10/97	1/10 and 2/10/97
(g)	L	6/10/97	5/10/97	5/10 and 6/10/97
(h)	L	Not known	11/10/97	11/10 and 12/10/97
(i)	L	16/10/97	15/10/97	15/10 and 16/10/97
(k)	Li	11/8/98	10/8/98	10/8 and 11/8/98

Thus, to take charge (a) as an example, L visited Dr O's surgery on 25 August 1997. That was therefore the date on which the certificate was issued. But although it was issued on 25 August 1997, it was in fact dated 24 August 1997, i.e. the date of the certificate was not the date on which L visited Dr O's surgery.

4. In relation to three of those ten charges, the contemporaneous notes made by Dr O did not record any visits to Dr O's surgery on the occasions to which the certificates in those charges related. However, immigration records relating to the dates and times when L left and returned to Hong Kong show that he was not in Hong Kong on either 30 September 1997 or 11 October 1997, being the dates of the certificates to which charges (e) and (h) related. Having said that, L was in Hong Kong between 9.23 a.m. and 12.41 p.m. on 1 October 1997, which was the date of the certificate to which charge (f) related. Since he had come into Hong Kong and left Hong Kong by Lo Wu, and since Dr O's surgery was in Fanling, he could have visited Dr O's surgery on 1 October 1997, but for the absence of a reference to such a visit in Dr O's contemporaneous notes.

5. The other two charges, i.e. charges (j) and (l), were more serious. They alleged that Dr O had issued Tse and Li with sick leave certificates which Dr O knew to be untrue. Their conversations with Dr O when they had visited his surgery had been secretly recorded and were subsequently transcribed. The facts relating to those charges as revealed by the transcripts were as follows:

(i) Charge (j). Tse visited Dr O's surgery on 11 August 1998. The transcript of his conversation with Dr O on that occasion shows that he complained of a headache, a blocked nose and lack of sleep. He said that he had not been to work that day. However, he asked for a "doctor's certificate" not merely for that day, but for 12 and 13 August as well because he was thinking of leaving his present job and might have to go to job interviews on those two days. The upshot was that Dr O issued Tse with a sick leave certificate to the effect that Tse was suffering from "influenza (fever)" and recommended three days' sick leave from 11-13 August.

(ii) Charge (l). The schedule set out above shows that Li visited Dr O's surgery on 11 August 1998. However, he visited Dr O's surgery again on 15 September 1998. The transcript of his conversation with Dr O on that occasion shows that he told Dr O that he was feeling OK. He went on to say that he had gone to the Mainland two days previously, and had only come back that morning. He therefore wanted a "medical chit" for that day and the previous day. Dr O asked him whether he should put flu down on the certificate. Li told Dr O that it was up to Dr O and it did not matter what he wrote. The upshot was that Dr O issued Li with a sick leave certificate to the effect that Li was suffering from "influenza (fever)" and recommended two days' sick leave from 14-15 September.

6. These facts were not disputed by Dr O at the disciplinary hearing. In relation to the nine charges relating to L, Dr O said at the hearing that he had "made a mistake in terms of dating back the sick leave certificates, sometimes one day or two days". In relation to charge (j), he said:

"In the case of Mr Tse, I gave him two days of sick leave. Mr Tse asked for tomorrow and the day following and I had no option but to offer him two additional sick leave days."

In relation to charge (l), he said:

"On [Li's] second visit I asked him whether he was suffering from influenza and he said yes but whatever the case you can issue a sick leave certificate, I'm alright. I could not examine him, he simply instructed me or guided me to issue a sick leave certificate. Of course I did not have to issue a sick leave certificate and so I asked that he was sick and so he had to take medicine."

It should be pointed out that Dr O's claim that he had asked Li whether he was suffering from influenza and that Li had said that he was is not borne out by the transcript, but it may be that Dr O was confusing this visit with Li's previous visit a month or so earlier.

The incorrectly dated certificates

7. It is important to understand the gravamen of the complaint relating to the ten certificates which were alleged to have been incorrectly dated. The complaint was not that Dr O had issued L and Li with those certificates without examining them at all. Apart from the three occasions when the visits were not referred to in Dr O's contemporaneous notes, there was nothing to suggest that he had not examined them on the dates when they attended his surgery, even if those dates were not the dates of the certificates. Nor was the complaint that Dr O was not entitled to issue sick leave certificates to cover dates prior to the dates on which such certificates were issued. For example, if a patient visits a doctor on Tuesday, complaining of a condition which has kept him from going to work on Monday, there is nothing to prevent a doctor - provided that he is satisfied that the patient had indeed been unfit for work on Monday - from issuing on Tuesday a certificate to the effect that the patient had been unfit for work on Monday. Thus, in this example, there would be nothing to prevent the doctor from issuing such a certificate, provided that he makes it clear that the certificate is being issued on Tuesday. He would do that by giving Tuesday's date as the date of the certificate.

8. However, what a doctor must not do is to backdate the certificate. Thus, in this example, what the doctor must not do is to give Monday's date as the date of the certificate. And why must a doctor not do that? The answer is that the effect of doing that would be that those persons to whom the certificate would be shown might think that the patient visited the surgery on a date earlier than he actually did. That might affect their view as to how long the patient really had been suffering from the symptoms of which he was complaining. In that respect, it could be said that the certificates contained untruths.

9. The Council is best placed to decide what standards are required of doctors and what conduct should constitute professional misconduct. In my view, it was open to the Council to conclude that a doctor who deliberately backdates a sick leave certificate, so that the patient appears to have visited his surgery on a date other than the true date of the visit, is "guilty of misconduct in [a] professional respect", to use the language of section 21(1)(b) of the Medical Registration Ordinance (Cap. 161). After all, para. 13 of the Warning Notice issued by the Council on Professional Discipline for the guidance of registered medical practitioners provides (so far as is material):

"Medical practitioners are required to issue certificates for a variety of purposes, (e.g. ... incapacity to work through illness ... certificates etc.) on the assumption that the truth of the certificates can be accepted without question. In some cases the certificates are required to include a statement that a patient has been examined on a particular date. Medical practitioners are expected to exercise care in issuing certificates ... Any medical practitioner who in his professional capacity gives any certificate ... containing statements which are untrue, misleading or otherwise improper, renders himself liable to disciplinary proceedings ..."

10. Of the ten charges which related to incorrectly dated certificates, seven of them (i.e. charges (a), (b), (c), (d), (g), (i) and (k)) referred to the certificates as having been retrospective, i.e. to have been backdated. For the reasons I have given, I would uphold the findings of guilt in relation to those charges. The other three charges (i.e. charges (e), (f) and (h)) did not refer to the certificates as having been retrospective because it was not known when L had visited Dr O's surgery since there had been no reference to visits to which those certificates related in Dr O's contemporaneous notes. In relation to these charges, it could have been argued that L had not visited Dr O's surgery at all on the occasions to which the certificates in those charges related. However, in the light of the immigration records, the certificates to which charges (e) and (h) related were at the very least incorrectly dated, if not backdated: Dr O could not have examined the patients on the dates of those certificates. The consequence of incorrectly dating those certificates would again be that L's employer might have thought that L had visited the surgery on dates other than when he had actually done. In my view, the findings of guilt in respect of those two charges must be upheld as well.

11. The same is true of charge (f). The fact that there was no contemporaneous note of a visit by L on 1 October 1997 might have entitled the Council to conclude that L had not visited Dr O's surgery at all on the occasion to which the certificate in that charge related, but the Council was entitled to conclude at the very least that the date on that certificate as well had been inaccurate, especially as Dr O did not contend otherwise at the hearing.

12. In the interests of completeness, I should add that in my view there is no obligation on a doctor in every case to conduct a physical examination of a patient before issuing a sick leave certificate. Many minor conditions are incapable of detection on a physical examination. The doctor can only go on what the patient tells him. Indeed, in some cases, it may even not be inappropriate for the doctor to issue a sick leave certificate without having seen a patient at all, provided that he has either spoken to the patient on the telephone or is satisfied in some other way that the patient is indeed suffering from a condition which justifies the issue of a sick leave certificate. The Council treated the reference in the ten charges to Dr O not having examined L or Li on the dates of the certificates as referring to the fact that L and Li had not visited Dr O's surgery on the dates of the certificates, and therefore the dates on the certificates were not the dates on which Dr O had formed the view that they were unfit for work.

The untruthful certificates

13. The fact that Dr O deliberately issued the certificates to which charges (j) and (l) related knowing that they contained untruths was never disputed. On the occasion to which charge (j) related, Dr O issued a certificate for three days' sick leave when he knew that the condition of which Tse had complained justified a certificate for one day only. On the occasion to which charge (l) related, Dr O issued a certificate for two days' sick leave when he knew that Li was not sick at all. Although there may have been a strong element of entrapment about those charges, Mr Desmond Keane SC for Dr O did not contend that it was not open to the Council to conclude that Dr O's issue of these two certificates amounted to professional misconduct.

The penalty

14. It has often been said that the Council is a better judge of the appropriate penalty than the court. Its members are much more likely to have a better feel for the professional implications of a doctor's misconduct. Although the court has the power to substitute a different penalty for that imposed by the Council, it should only do so when the penalty imposed by the Council is plainly inappropriate. We have been provided with a list of disciplinary cases considered by the Council over the last ten years or so relating to sick leave certificates. The penalties have ranged from warnings and reprimands to removal from the register for periods of six months and one year. However, since the charges for the most part do not identify whether the certificates were untrue or simply misleading, improper or retrospective, it is not all that easy to compare their relative gravity with the case of Dr O.

15. However, the Warning Notice issued by the Council to practitioners shows how important accuracy as well as honesty in the preparation of sick leave certificates is regarded. The Council in this case was faced with ten instances of inaccurate dating of certificates, which had the effect of giving the impression that the patients concerned had sought the certificates earlier than they had actually done. In addition, the Council was faced with two instances of certificates being issued when one should not have been issued at all and the other should not have been issued for the period which it covered. Doctors may sometimes find it difficult to resist going along with a patient's wishes, but if to comply with what the patient wants involves allowing an untruthful certificate to leave one's surgery, that is a temptation which doctors must resist. Having considered the matter with care, I cannot say that the penalty imposed by the Council was plainly inappropriate.

Conclusion

16. For these reasons, I would dismiss this appeal.

Woo JA:

17. I agree. The Chairman of the Disciplinary Inquiry at the conclusion of the proceedings before the Inquiry said:

"Medical practitioners are required to issue reports and certificates on the assumption that the truth of the certificates can be accepted without question. The Council always considers issuing untrue certificates a serious offence."

This underlines the importance of medical certificates viewed by members of the public, all walks of life and also this court. Issuing such certificates containing untrue statements are serious offences and aptly considered as such by the Disciplinary Inquiry, which could lead to serious consequences. The findings were made and the penalty meted out by a specialist tribunal who were dealing with a member of their own profession, and I see no ground to intervene. I agree that the appeal should be dismissed.

Chu J:

18. For the reasons that my Lord, Keith JA and my Lord, Woo JA have given, I, too, would agree that this appeal should be dismissed.