E.T. INVESTMENT LTD (trading as OASIS NURSING HOME) v. DIRECTOR OF HEALTH

HCAL 13/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 13 OF 2015

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J U D G M E N T

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INTRODUCTION

1. Nursing homes are highly regulated in Hong Kong.  That is unsurprising.  Their residents are invariably elderly and infirm.  This case is all about such a home.  The Director of Health sent it a warning letter reminding it of the consequences of what was said to be its failure to comply with the requirements for assessing the medical condition of its residents.  It claims that the finding that it had failed to comply with those requirements was unjustified.  In this application for judicial review, it asks for the warning it received to be quashed, as well as a subsequent decision by the Director of Health confirming that the warning had been appropriate.  Subject to one qualification, leave to apply for judicial review was granted by Au J.

2. That qualification related to the delay in applying for leave to apply for judicial review.  Au J said that the grant of leave to apply for judicial review was without prejudice to the Director of Health’s right, if she so chose, to oppose the application on the basis that there was no good reason for extending the period within which the application for leave to apply for judicial review should have been made.  As it is, the Director of Health has opposed the application on that basis, and it has also been contended on her behalf that the decisions challenged are not amenable to judicial review as they were without substantive legal consequences.  It obviously makes sense for me to address those preliminary objections first, but to put those objections into their proper context, I must first set out the facts in such detail as is necessary for present purposes.

THE FACTS

The regulatory scheme

3. Anyone wishing to operate a nursing home must obtain prior approval to do so.  That approval is given by the Director of Health in the form of registration under the Hospitals, Nursing Homes and Maternity Homes Ordinance (Cap 165) (“the Ordinance”).  A Code of Practice has been issued by the Department of Health setting out the standards of good practice for nursing homes to adopt in order to provide quality care for their residents (“the Code”), and compliance with the Code is a condition for the registration and re‑registration of a nursing home.  The Code is enforced by the Director of Health’s Office for the Registration of Healthcare Institutions (“the ORHI”), and officers in the ORHI regularly make unannounced visits to institutions within their remit to monitor their compliance with the Code.  The protocol issued by the ORHI covering such inspections provides for a warning letter to be issued to the nursing home if the inspection reveals, among other things, non‑compliance with the requirements of the Code concerning staffing.

4. Although non‑compliance with the requirements of the Code may eventually lead to the cancellation of a nursing home’s registration, the issue of a warning letter is not a statutory requirement.  It merely notifies the nursing home of the respects in which it has failed to comply with the requirements of the Code, and requires the nursing home to remedy those deficiencies.  It also warns the nursing home that the cancellation of its registration may be considered if those deficiencies are not rectified. However, its registration may only be cancelled if the nursing home is served with a notice of the Director of Health’s intention to cancel its registration.  On being served with such a notice, the nursing home has the opportunity to show cause why its registration should not be cancelled.

The relevant provisions of the Code

5. Paragraph 8.2.1 of the Code provides that there has to be a registered medical practitioner in charge of each resident in a nursing home.  The resident doctor should perform that role, or if there is no resident doctor, the responsibility should be assumed by the visiting medical officer.  The resident doctor or visiting medical officer will be responsible for the care of each resident during his or her stay in the nursing home.  Paragraph 10.1 requires a contemporaneous and comprehensive medical record to be maintained for each resident.  Finally, para 28.1.4 requires elderly people living in nursing homes on a long‑term basis to be “regularly” assessed by medical practitioners and allied healthcare professionals, though it does not say that the assessments have to be carried out by the resident doctor or the visiting medical officer.  The unchallenged evidence of Dr Fung Ying, the Principal Medical and Health Officer of the Department of Health, is that this regular assessment is very important.  The residents of nursing homes, apart from being elderly, will invariably be infirm, and changes in their condition are not infrequent.  The timely and appropriate management of their care plan and treatment is required in order to minimise the risks of hospitalisation.  The frequency with which residents of nursing homes should be medically assessed has to be decided by the medical practitioner in charge of the resident, it has to take into account all the medical services available to them, and it should be properly documented in the resident’s medical record.

The nursing home

6. The nursing home to which this case relates is the Oasis Nursing Home.  It is operated by the applicant, E T Investments Ltd.  It is on the Tsz Lok Estate in Tsz Wan Shan.  It was first registered in 2008.  It does not have a resident doctor, and the role of the registered medical practitioner in charge of each resident is therefore carried out by its visiting medical officer.

The inspections of the nursing home

7. Two unannounced inspections were made by officers of the ORHI on 21 February 2013 and 4 June 2013.  In the course of the first inspection, the Superintendent of the nursing home was asked to produce the medical records of several residents selected at random. Those records contained nothing which showed that these residents had been regularly assessed by the visiting medical officer.  Indeed, the Superintendent admitted that there were no arrangements in place at all for residents to be regularly assessed.  If a resident became ill or complained of symptoms which needed to be investigated, the visiting medical officer would be called in.  In the circumstances, the nursing home’s management team were told that all the residents should be assessed regularly, and that those assessments should be properly documented.

8. The second inspection revealed a not dissimilar picture.  Once again the nursing home was asked to produce the medical records of several residents selected at random.  Those records contained nothing which showed that these residents had been regularly assessed.  Indeed, the medical record of one resident showed no evidence of her having been assessed since May 2009, and no documents were produced to show that she had been assessed since then.  The nursing home’s Director of Care admitted that there was still no practice in place for residents to be regularly assessed.

The aftermath of the inspections

9. The ORHI wrote to the Chief Executive of the nursing home, Chan Chi Yuk, on 6 June 2013 setting out what had been discovered at the two inspections.  The ORHI required information to be provided to it by 13 June 2013 about the frequency of the visiting medical officer’s assessment of each resident of the nursing home even where the resident was asymptomatic, how the visiting medical officer documented those assessments, the role and responsibilities of the visiting medical officer as well as the number of hours a week he worked at the nursing home, and what the nursing home was proposing to do to remedy the deficiencies which had been noted.  Mr Chan replied on 14 June 2013.  He said that the visiting medical officer would “visit” the residents at least once a week.  On those occasions he would prescribe such medication as was necessary and deal with queries from the nursing staff.  Mr Chan added that it was impractical for the visiting medical officer to record those visits on each of the residents’ medical records, but he said that each resident’s care plan was assessed at least once a year by a multi‑disciplinary team including nurses and physiotherapists.  He also said that the residents were all assessed annually for the purposes of completing the form required by the Social Welfare Department for the medical examination of the elderly, and that medical officers and nurses from the Community Geriatric Assessment Team at a local hospital assessed the residents from time to time and treated them.

10. Mr Chan’s response was not regarded as satisfactory by the ORHI.  In the course of a telephone conversation on 19 June 2013 with a doctor in the ORHI, Mr Chan was told that the services provided by the Community Geriatric Assessment Team and the annual medical examination required by the Social Welfare Department did not meet the requirement in the Code for regular medical assessments, that the residents of other nursing homes were assessed every two to four weeks, and that the visiting medical officer was expected to assess residents on their admission to the nursing home and to decide on the frequency of their subsequent assessments based on their particular circumstances.  The visiting medical officer was also spoken to, and he confirmed that the fees paid to him were only sufficient for him to examine residents who became ill and provide prescriptions for them.  If he was to assess them regularly and document those assessments, he would have to charge the nursing home more.  Following these conversations, Mr Chan wrote to the ORHI on 24 June 2013.  He said that as a result of discussions with the visiting medical officer, it had been decided that, one way or another, all the nursing home’s residents, whether they were also being seen by the Community Geriatric Assessment Team or not, would be assessed by doctors and allied health professionals at least once every six months.

The warning letter

11. It was against this background that a warning letter of the kind provided for by the protocol issued by the ORHI was sent to the nursing home by Dr Fung.  It was dated 17 July 2013.  The decision to send this letter is the first of the decisions challenged on this application for judicial review.  It summarised what the two inspections of the nursing home had revealed.  It noted that when the nursing home had first applied for registration in 2008, it had said that each resident would be “visited” by a medical practitioner once a week.  It explained why the nursing home’s response of 14 June 2013 had been regarded as unsatisfactory.  It confirmed that it was for the visiting medical officer to decide how frequently elderly residents should be assessed in the light of their particular condition, and it requested the nursing home to take immediate action to ensure that all of its elderly residents were regularly assessed by medical practitioners, and that those assessments were documented.  It warned the nursing home that its registration could be cancelled if conditions relating to the staffing of the nursing home were considered to be unsatisfactory.

12. The nursing home did not accept that the warning letter was justified.  It was saying, as I read the correspondence, that it had always, and certainly since 24 June 2013, been complying with the spirit, if not the letter, of the requirements of the Code.  Mr Chan sought to argue that in correspondence with Dr Fung over the next few months — in particular in his letters of 5 August 2013 and 17 September 2013 — though on 8 November 2013 Mr Chan wrote to Dr Fung confirming what officials from the ORHI had been told when they had visited the nursing home once again on 9 October 2013, namely that the nursing home had recently engaged an additional visiting medical officer who would be assessing residents on a monthly basis, and that those assessments were being documented in accordance with the Code.  Mr Chan made the point, in effect, that this should not be treated as an admission on the part of the nursing home that it had failed to comply with the requirements of the Code in the past.  It was just that the nursing home was always “striv[ing] for improvements”.  In those circumstances, he asked for the warning letter to be withdrawn.  This request was not addressed in so many words in subsequent correspondence, but since the warning letter was not withdrawn, it is safe to assume, I think, that that it was not thought appropriate to withdraw it.  Dr Fung’s evidence was that monthly assessments of the elderly residents at the nursing home were sufficient, and that in those circumstances the requirement in para 28.1.4 of the Code for regular assessments was now being met.

The “review” of the warning letter

13. On 9 January 2014 Mr Chan wrote to the Director of Health asking for a “review” of the warning letter.  He contended, as he had done before, that annual assessments by the visiting medical officer, when coupled with visits by the Community Geriatric Assessment Team and other medical practitioners, were sufficient to satisfy the requirement for regular assessments in para 28.1.4 of the Code.  In a subsequent letter of 18 February 2014, he complained that the nursing home’s records had not been properly inspected by officials from the ORHI, that the proposals in his letter of 24 June 2013 had been based on the visiting medical officer’s assessment of how frequent the assessments needed to be, and that even if those proposals had been regarded as unsatisfactory, it had been premature for the warning letter to be issued.  The ORHI, it was said, should have informed the nursing home what additional remedial action needed to be taken.

14. There is nothing in the protocol issued by the ORHI providing for a review of the warning letter. Mr Chan’s representations were nevertheless considered, but by a letter dated 21 March 2014 he was informed that the decision of the ORHI to issue the warning letter had been upheld.  That is the second decision challenged on this application for judicial review.  The letter said in effect that the warning letter had been justified for the reasons given by the ORHI.  It reminded Mr Chan that when the nursing home had applied for registration in 2008, it had said that the residents would be visited by medical practitioners weekly, though it noted that that had been reduced to monthly visits when towards the end of 2013 the nursing home amended its application for re‑registration for 2013, no doubt because of the decision taken prior to the inspection on 9 October 2013 for the residents to be seen by the visiting medical officer monthly.  It did not in terms address the point that the warning letter had been premature in the light of the proposals in Mr Chan’s letter of 24 June 2013, but it said that the nursing home had been given every opportunity to show that its residents were being regularly assessed before the warning letter had been issued.

Subsequent events

15. The rest of the history can be recounted relatively briefly.  On 17 April 2014, Mr Chan wrote to the Secretary for Food and Health purporting to appeal against the decision of the Director of Health on the “review”.  Like the “review”, an appeal to the Secretary of Food and Health is not a procedure provided for in any ordinance or statement of policy.  Mr Chan’s representations were nevertheless considered by the Secretary for Food and Health, but on 26 September 2014 Mr Chan was informed that the view of the Secretary for Food and Health was that, in issuing the warning letter, the Director of Health had acted in accordance with the Ordinance, the Code, the findings made as a result of the inspections and the subsequent investigations.  He did not spell out his reasons for that view.

16. On 7 October 2014, Mr Chan again wrote to the Secretary for Food and Health.  He did not ask the Secretary for Food and Health in so many words to reverse his previous decision.  What he was asking for was a detailed response to the points he had made in his letter of 17 April 2014.  The Secretary of Food and Health replied on 28 October 2014.  It is unclear whether he was acknowledging that his previous letter should have addressed all the matters which Mr Chan had raised, but he went on to say that unless any new information came to light, the warning letter had to stand.  The decisions in the Secretary for Food and Health’s letters of 26 September 2014 and 28 October 2014 were the third and fourth decisions challenged in the notice of application for leave to apply for judicial review, but the skeleton argument of Mr Tim Wong, who has tenaciously represented the nursing home, did not refer to those decisions, and at the hearing he told me that those challenges were not being pursued.  As it was, it would not have been possible for them to be pursued since the Secretary for Food and Health had not been named as a respondent to the application.  At all events, the nursing home’s solicitors sent a letter before action to the Director of Health on 2 December 2014.  The ORHI responded on 5 January 2015, and the notice of application for leave to apply for judicial review was filed on 19 January 2015.

DELAY

17. As practitioners in the field know only too well, applications for leave to apply for judicial review have to “be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made”:  Order 53, rule 4(1) of the Rules of the High Court.  The notice of application for leave to apply for judicial review in the present case was filed over 18 months after the warning letter, and almost 10 months after the decision on the “review” of the warning letter.  At first blush, therefore, the question is whether there are grounds for extending the period during which the application should have been filed.

18. Mr Wong argued otherwise.  He pointed to the fact that the application was filed within three months of the decision of the Secretary for Food and Health not to reverse his previous decision that the issue of the warning letter had been justified.  I cannot go along with that at all. It amounts to a contention that the grounds for challenging the warning letter and the decision on the “review” first arose when the Secretary for Food and Health said that the warning letter had to stand unless any new facts came to light.  That is unarguable.  It ignores the fact that the “appeal” to the Secretary for Food and Health was dismissed on 26 September 2014, more than three months before the notice of application was filed.  As Saunders J said in Martin Tao Ming Lee v Secretary for the Civil Service (HCAL 82/2010), the court “will not permit an applicant to ‘resurrect’ an old decision, simply by asking the decision maker to reconsider the application, and thereby artificially bring himself within time, by relying upon the reconsideration decision”.  All the more so in a case such as this where the Secretary for Food and Health was simply asked to give detailed reasons for his decision.  In any event, leaving aside the fact that the decisions of the Secretary for Food and Health are no longer challenged, the grounds for challenging the decisions of the Director of Health first arose when those decisions were made.  It may be that you will want to exhaust all your other remedies before you make an application for judicial review, but that goes only to whether your time for doing so should be extended, not to whether you made your application in time in the first place. 

19. I turn, then, to whether there are indeed grounds for extending the period within which the application should have been filed.  The argument advanced on the nursing home’s behalf is that it wanted to resolve its dispute over whether the warning letter had been justified without resorting to litigation.  It is acknowledged that the nursing home was not permitted to delay bringing its claim simply because it was trying to persuade the Director of Health to change her mind, and failing that to persuade the Secretary for Food and Health to overrule her decision.  But it is contended that the “negotiations” upon which it was engaged justified its decision to defer bringing the claim until it was plain that a negotiated settlement could not be reached.  This reflects what Moses J (as he then was) said in R (on the application of British Aggregates Associates) v Her Majesty’s Treasury [2002] EuLR 394 at [155]:

“It is trite to observe that claimants cannot delay making claims merely because they are seeking to persuade the decision maker to change its mind. But such negotiations are a relevant factor.”

20. A potential difficulty with this argument is that there is no evidence to support it.  By that I mean that there is no evidence that this was indeed why the making of the application was delayed.  I have not overlooked that Mr Chan affirmed the accuracy of the factual assertions in the grounds attached to the notice of application, but the only passage in the grounds which is relevant to why the making of the application was delayed is as follows:

“… the Applicant submits that … it is necessary and prudent to exhaust all possible review/appeal channels within the Administration before resorting to judicial intervention.”

However, that is just a statement of sensible practice.  It is not an assertion that Mr Chan was thinking of resorting to litigation within three months of receiving the warning letter, and only refrained from doing so because he was hoping to get the warning letter withdrawn in one way or another.  For all I know, Mr Chan never intended to resort to litigation, and it was only when he knew that the warning letter was going to stand that he got in touch with solicitors to find out what his options were.  Indeed, he never referred to resorting to litigation in any of his correspondence with either the Director of Health or the Secretary for Food and Health.  On the contrary: in the final letter he wrote to the Secretary for Food and Health before the nursing home’s solicitors’ letter before action, Mr Chan was threatening to refer the case only to the Ombudsman (although that may simply have been a reference to the fact that no reasons had been given for upholding the warning letter in the Secretary for Food and Health’s letter of 26 September 2014).

21. Having said that, I do not want the nursing home’s claim to flounder on the rocks of what might have been inadequate drafting in failing to spell out clearly why it had not resorted to litigation earlier.  Moreover, the Director of Health has not taken this point against the nursing home, although the point about the Ombudsman was taken on her behalf.  In the circumstances, I have decided — some people might say rather benevolently to the nursing home — to proceed on the assumption that the only reason why it did not mount this claim earlier was because it was hoping to obtain the outcome it wanted by negotiation.

22. There is some support in the authorities for the nursing home’s argument.  As Balcombe LJ said in R v Customs and Excise Commissioners ex p Eurotunnel Plc [1995] CLC 392 at p 402D, “… an attempt to resolve one’s problems by extra‑judicial activity may amount to sensible and reasonable behavior and give grounds for extending the period”.  It will, of course, be necessary for the applicant to get on with that extra‑judicial activity promptly.  As Sedley J (as he then was) said in R v University College, London ex p Riniker [1995] ELR 213 at p 215: “… the discretion to enlarge time … will be sympathetically approached by the court where the applicant in the meantime has not been sleeping on her rights but has been attempting to canvass them by other legitimate means.”  Indeed, it is not just a matter of maintaining the momentum.  Much will depend on what the extra‑judicial activity is likely to achieve.  As the English Court of Appeal said in R v Hammersmith and Fulham London Borough Council ex p Burkett [2001] EnvLR 39 at [14]:

“Judicial review is in principle a remedy of last resort. It follows, as it always does when a potential applicant for judicial review expeditiously seeks a reasonable way of resolving the issue without litigation, that the court will lean against penalizing him for the passage of time and will where appropriate enlarge time if the alternative expedient fails.” (Emphasis supplied)

There must, in other words, as the court said in R v London Borough of Harrow ex p Carter (1994) 26 HLR 32, “appear … to be some prospect that the matter [will] be resolved.”

23. One of the problems for the nursing home is that there were some periods of inactivity on its part.  It took almost a month for the nursing home to “appeal” against the decision on the “review”, and the solicitors’ letter before action was not sent until over a month had elapsed from the decision of the Secretary for Food and Health of 28 October 2014 to maintain his previous decision on the “appeal”.  These periods of inactivity have been unexplained.  More importantly, it took some time for the nursing home to ask for the withdrawal of the warning letter.  Although Mr Chan argued in his letters of 5 August 2013 and 17 September 2013 that the issue of the warning letter had not been justified, he did not at that stage ask for its withdrawal.  He only did that in his letter of 8 November 2013, more than three months after it had been issued.

24. The critical point, in my opinion, is that Mr Chan should have realised that there was very little prospect, if any, that the issue would be resolved in a way which satisfied the nursing home.  He should have understood that the chances of persuading the Director of Health to withdraw the warning letter were very remote.  Even taking into account the annual assessment for the purposes of completing the form required by the Social Welfare Department for the medical examination of the elderly, and the assessment of those of the residents who were seen from time to time by the Community Geriatric Assessment Team, Mr Chan should have appreciated that it was always going to be difficult to persuade the Director of Health that the nursing home’s elderly residents had been regularly assessed in the past, especially when there was no formal mechanism in place to challenge her view.  Similarly, he should have realised that it was going to be even more difficult to persuade the Secretary for Food and Health that the warning letter should be withdrawn on the basis that there had been regular assessments in the past, particularly because the Secretary for Food and Health had no statutory, or any, function in respect of warning letters of the kind sent to the nursing home or any role as an appellate authority in respect of decisions of the Director of Health.  Everything suggests that Mr Chan should have realised that the energy with which he was pursuing his complaint about the warning letter, especially with the Secretary for Food and Health from April 2014 onwards, was being expended more in hope than in expectation of a successful outcome. 

25. Two further matters should be noted.  First, Mr Wong pointed out that no third party interests would be affected by an extension of time.  That may be so, but as Chu J (as she then was) said in Magapower Garments Ltd v Director‑General of Trade and Industry (HCAL 3199/2001) at [26]:

“Unless and until the applicant has shown good reasons for the delay, the question of prejudice or detriment to good administration does not arise for consideration.”

Secondly, a course which might have been open to the nursing home to take was to file its notice of application within the time limit, and then ask the court to stay any further proceedings on it while the negotiations took place.  That presupposes, of course, that Mr Chan knew that the only form of litigation which could be used to challenge the warning letter was an application for judicial review, and that he knew about the time limit for bringing such an application.  I do not know whether Mr Chan knew either of those things, and I therefore proceed on the assumption that he could not have been expected to take this course of action.  However, for the other reasons I have given, I do not believe that there is good reason for extending the period within which this application should have been made, and I decline to extend the nursing home’s time for doing so.

AMENABILITY TO JUDICIAL REVIEW

26. The Director of Health’s counsel, Mr Suen Sze Yick, to whom I am grateful for his exceptionally comprehensive written submissions, argued that the decisions challenged are not amenable to judicial review because the issue of the warning letter did not have any significant legal ramifications for the nursing home.  At first sight, there is real merit in that argument.  The law is plain.  As Carnwath LJ (as he then was) said in R (on the application of Shrewsbury and Atcham Borough Council) v Secretary of State for Communities and Local Government [2008] 3 All ER 548 at [32]:

“Judicial review, generally, is concerned with actions or other events which have, or will have, substantive legal consequences …”

This statement of principle has been applied in Hong Kong: see the judgments of Johnson Lam J (as he then was) in Asia Television Ltd v Chief Executive in Council [2012] 3 HKLRD 1 at [18] and of Au J in Television Broadcasts Ltd v Communications Authority [2013] 5 HKC 593 at [22].  The warning letter was not a necessary step in the process which might lead to the cancellation of the nursing home’s registration.  There are circumstances other than the failure to comply with a warning letter which might lead to its cancellation.  They are set out in section 4 of the Ordinance.  Nor did it necessarily follow from the issue of the warning notice that its registration as a nursing home was at risk.  If it complied with the requirements of the Code, there would be no adverse consequences for the nursing home.  In the event, the warning letter did not in fact have an adverse impact on the nursing home’s future.  Once it had agreed to monthly assessments of its elderly residents, it was regarded as complying with the requirements of the Code.  That echoes the well‑known comments made by Bokhary PJ in Financial Secretary v Wong (2003) 6 HKCFAR 476 at [14] that judicial review “is not meant for the purpose of micro‑managing the activities of … administrative decision‑makers”.  The context in which that was said was that it “should hardly ever be exercised to review decisions that go only to procedure rather than to the end result”.  In other words, where a decision is just one element in a chain of decisions, judicial review should normally be reserved for the final decision in the chain.  As Bokhary PJ went on to say, “it often happens that the effect of questionable decisions made at an intermediate stage of a process are dissipated or overtaken by subsequent developments and turn out to have little or no impact by the time the final stage is reached.”

27. All of that applies to warnings.  In R (on the application of Davies) v Financial Services Authority) [2004] 1 WLR 185, the claimants were issued with notices warning them that the Financial Services Authority was proposing to make orders prohibiting them from performing certain functions relating to regulated activities.  It was contended that permission to proceed with the claim should be refused as, standing alone, the notices had no legal effect or adverse consequences for the claimants.  The only reason why permission was not refused on that ground alone was because it was reasonable to suppose that the giving of the warning notices was likely to be followed by the making of prohibition orders.  That is to be contrasted with this case.  The issue of the warning letter would not lead to the cancellation of the nursing homes’ registration if the nursing home complied with the requirement for its elderly patients to be regularly assessed. 

28. I did not understand Mr Wong seriously to dispute any of that.  The basis on which it is said that the warning letter had adverse legal consequences in the present case was not that it had an impact on the nursing home’s future, but on the applicant’s ability to tender for other contracts on a level playing field.  When considering tenders for the provision of services to elderly people, the Social Welfare Department allocates points to each tenderer based on a standardised system.  2.5 points are deducted when a tenderer has been issued with a warning letter of the type which the nursing home received.  That deduction will continue to be made for every tender made by the tenderer for 36 months from the date of the issue of the warning letter.  The evidence at the time of the hearing was that there had been five occasions on which the applicant had tendered for such services since receiving the warning letter.  The tendering process for four of those occasions had concluded, and although the applicant’s tender had been unsuccessful on each of those occasions, the evidence was that the tenders would still have been unsuccessful if 2.5 points had not been deducted. 

29. However, that left the fifth tender, as well as any further tenders submitted by the applicant prior to 17 July 2016 when the 36 months expires.  It is here that the evidence at the time of the hearing does not tell the whole story.  I have been informed since the hearing that the applicant’s fifth tender has been successful, despite 2.5 points having been deducted from the overall score.  The consequence of that is that although the warning letter had the potential to affect adversely the success of that tender, it did not in fact do so.  That leaves only such tenders as the applicant chooses to submit prior to 17 July 2016.  In respect of those tenders, the existence of the warning letter could have an adverse effect on the applicant’s overall business, even if the warning letter has no impact on the future of the nursing home, though whether it does have such an effect will depend on the other points the applicant is awarded and the points awarded to other tenderers.  In my opinion, the potential which the warning letter has for rendering the applicant’s future tenders unsuccessful is capable of rendering the decision to issue the warning letter amenable to judicial review.

30. Mr Suen contended that despite that the decision to issue the warning letter is not amenable to judicial review.  He relied on the ruling of Reyes J when refusing leave to apply for judicial review in Gurung Tika Maya v The Commissioner of Police (HCAL 143/2008).  The applicant had sought judicial review of the refusal of the police to withdraw two warning letters relating to the applicant’s breach of licensing conditions by selling and supplying liquor.  The two grounds on which leave was refused which are relevant for present purposes are, first, that the appropriate occasion for the warning letters to be challenged was in the course of any proceedings in which the police sought to rely on the warning letters, and secondly, whether, how and with what effect the warning letters were to be used in the future was a matter of speculation.  In my opinion, this case is distinguishable from the present one.  First, there is no other occasion on which the applicant will be able to challenge the warning letter issued to it.  If its fifth and future tenders are unsuccessful, it will not know whether the deduction of 2.5 points was decisive, and therefore it will not know whether there is a basis for challenging its failure on the tender by litigation.  Secondly, there is nothing speculative about how and when the warning letter will be used in the future.  It will be used in determining the number of points to be awarded to the applicant on the fifth and future tenders.  Obviously, we do not know what effect its use will have because that depends, as I have said, on the other points the applicant is awarded and the points awarded to other tenderers.  But that is not a sufficient basis for saying that the impact of the warning letter is too speculative for a challenge to it not to be amenable to judicial review. In the circumstances, had I been prepared to extend the nursing home’s period within which it had to file its notice of application, I would have held that the decision to issue the warning letter was amenable to judicial review.

THE MERITS OF THE APPLICATION

31. My decision not to extend the nursing home’s time for filing its application makes it unnecessary for me to deal with the merits of the application.  However, in case another view is taken elsewhere of my decision not to extend that period, and because I was addressed at some length on the merits of the application, I propose to give my conclusions on the grounds, and to explain briefly my reasons for them.  It is no longer alleged that the issue of the warning letter was tainted with the procedural unfairness said to have been inherent in issuing it without having given the nursing home the opportunity to put things right if the proposals in the letter of 24 June 2013 were regarded as unsatisfactory.  The initial decision to issue the warning letter, and the subsequent decision not to withdraw it, are now challenged on three grounds only, and I shall deal with each of them separately.

Ground (1): Regular assessment

32. In this ground, the nursing home challenges the Director of Health’s view that the nursing home failed to comply with the requirement in para 28.1.4 of the Code for the regular assessment of its elderly residents.  This contention has two elements.  First, the Director of Health is said to have failed to take into account the assessment of these residents by (a) the visiting medical officer when he completed the annual medical assessment form required by the Social Welfare Department for the elderly, (b) the visiting medical officer on those occasions when he authorised the use of restraints, (c) medical staff employed by the Hospital Authority, for example members of the Community Geriatric Assessment Team, and (d) doctors in private practice.  Secondly, in relying on the medical records of the resident who had apparently not been assessed since May 2009, the Director of Health had failed to take into account other evidence which showed that she had been assessed regularly since then.

33. As for (a), the annual medical assessment form required by the Social Welfare Department for the elderly serves a very different function from the regular assessments required by para 28.1.4 of the Code.  The form was for residents in a care and attention home for the elderly registered with the Social Welfare Department.  The care needs of elderly people in such homes are generally lower than those of elderly people in nursing homes.  Care and attention homes are for elderly people whose level of impairment is assessed as “moderate”, whereas nursing homes are for elderly people whose level of impairment is assessed as “severe”.  That is reflected in the different requirements for staffing levels.  There must be either a registered medical practitioner or a registered nurse in a nursing home at all times.  On the other hand, there must be either one nurse for every 60 residents or one health worker for every 30 residents in a care and attention home between 7.00 am and 6.00 pm. 

34. As for (b), the visiting medical officer has, of course, to assess a resident if the use of a restraint is being contemplated.  Mr Chan’s evidence is that an assessment for that purpose takes place every six months. I am sceptical about that, even though there is no evidence challenging Mr Chan’s assertion.  I would have thought that such an assessment, by its very nature, is only made when the need arises.  But even if such an assessment takes place every six months, it can hardly be relied on as contributing to the regular assessment of the nursing home’s elderly residents. 

35. As for (c), the Community Geriatric Assessment Team provides its services to a very limited category of elderly patients.  Dr Fung’s evidence (which I have no reason to doubt) is that the services provided by such a team are no substitute for the regular assessments required by the Code.  Such a team provides only “a form of medical consultation to residents discharged from [Hospital Authority] hospitals as opposed to all residents in a nursing home”.  And as for (d), it may well be the case that some elderly residents see doctors in private practice, but it is not suggested that those consultations take place as a matter of routine.  They occur when the need to see a doctor arises, and the resident or their family chooses to pay for such a consultation privately.

36. In the circumstances, the Director of Health’s decision not to regard these four considerations as cumulatively amounting to the regular assessment of the nursing home’s elderly residents was, in my opinion, one which was reasonably open to him. For the assessment of the elderly residents to be properly regarded as regular, it was reasonably open to the Director of Health to conclude that what was required was the periodic assessment of the residents as a matter of routine at sufficient intervals to ensure that they received timely and appropriate treatment for any condition they may have.  As I have said, that assessment did not actually have to be carried out by the resident doctor or the visiting medical officer if there was no resident doctor, but he was the obvious person to do it. 

37. I turn to the occasions on which Mr Chan says the elderly resident whose medical record was inspected on the second inspection was assessed.  In his letter to Dr Fung of 5 August 2013, Mr Chan listed 23 occasions between 26 October 2008 and 2 June 2013 when he claimed the resident had been seen by a doctor or some other medical professional:

(1)  five occasions when she had been seen for the purpose of completing the medical examination form required by the Social Welfare Department for the elderly;

(2)  nine occasions when she had been seen by the Community Geriatric Assessment Team;

(3)  six occasions when she had had a “[r]egular check” at a public hospital;

(4)  four occasions when she had been seen by the visiting medical officer;

(5)  six occasions when she had been treated at a private clinic; and

(6)  two occasions when she had been hospitalised. 

Those were the occasions which it is alleged the Director of Health failed to take into account in concluding that she had not been regularly assessed.

38. I do not think that these considerations help the nursing home. First, this information was only given to the Director of Health after the issue of the warning letter.  Secondly, the Director of Health was not provided with any evidence confirming that the resident had indeed been seen by a medical practitioner on those occasions.  Some medical records relating to this resident were exhibited to Mr Chan’s 1^st affirmation filed in support of the application for judicial review, but they had not been sent to the Director of Health before then, and in any event they did not relate to any of the occasions referred to in Mr Chan’s letter of 5 August 2013.  They related only to the period from 10 September 2013.  Thirdly, even if the resident had been seen by a medical practitioner on the occasions and in the circumstances referred to in Mr Chan’s letter of 5 August 2013, the Director of Health would, no doubt, have concluded that those occasions could not have amounted to the regular assessment of the resident of the kind envisaged by para 28.1.4 of the Code.  Such a conclusion would have been reasonably open to him.  Fourthly, Mr Chan himself acknowledged that the nursing home would not have been provided with the records of the Community Geriatric Assessment Team or the hospitals or the private clinics at which she had been seen by medical practitioners.  If the nursing home did not know what those medical practitioners had said about the resident, those assessments of the resident could not have contributed to the nursing home’s own assessment of the resident, let alone its regular assessment of the resident.

Ground (2): The statements on registration and re‑registration

39. It will be recalled that both in the warning letter and in the letter informing Mr Chan of the decision on the “review” of the warning letter, Mr Chan had been reminded that when the nursing home had applied for registration in 2008, it had said that the residents would be “visited” weekly.  The letter informing Mr Chan of the decision on the “review” of the warning letter also referred to the amendment by the nursing home of what it had said when it applied for re‑registration for 2013, namely that residents would be seen monthly. It is argued that what the nursing home said on those occasions was irrelevant.  The nursing home had to apply every year for its re‑registration.  It is said that since the warning letter was issued following inspections in 2013, only the statement which the nursing home had made in its application for re‑registration for that year could be taken into account, and before the form had been amended, the nursing home had not answered the question about the frequency with which each resident would be “visited” by a medical practitioner.

40. I cannot go along with this argument either.  The warning letter was not issued because the residents were being assessed less frequently than the nursing home had specified in 2008.  It was issued because the two inspections and the subsequent correspondence had shown that the elderly residents were not being assessed regularly.  In any event, what the nursing home had said in 2008 and 2013 about the frequency with which residents would be “visited” by a medical practitioner was at least an indication of what the nursing home had then thought would constitute the regular assessment of its residents.  That is not to say that what it had said before the answer had been amended was not also relevant.  The fact that the nursing home had originally not answered the question for 2013 could be regarded as indicating a desire on its part to conceal the regularity with which residents were being “visited”, because it was appreciated that if the question was answered accurately, the Director of Health may take the view that residents were not being assessed sufficiently regularly.

Ground (3): The opinion of the visiting medical officer

41. The contention here is that it is up to the resident doctor — or if there is not one, the visiting medical officer — to decide how frequently elderly residents needed to be assessed if the requirement of regular assessment was to be complied with.  It is argued that the Director of Health completely ignored the visiting medical officer’s opinion about that, and adopted his own unpublicised view that the requirement for regular assessments meant assessments occurring at least once a month.

42. The only evidence about what the visiting medical officer thought regular assessments entailed was the assertion in Mr Chan’s letter of 5 August 2013 that the visiting medical officer thought that “an annual regular assessment undertaken by [him] of residents who are [Community Geriatric Assessment Team] clients would satisfy” para 28.1.4 of the Code. However, even if that was the visiting medical officer’s view, it did not apply to all the nursing home’s elderly residents.  It applied only to those who were assessed by the Community Geriatric Assessment Team.  That left at least some elderly residents in respect of whom the visiting medical officer had expressed no view at all about the frequency with which they should be assessed.  In any event, I think that it was reasonably open to the Director of Health to conclude that even if all the elderly residents were assessed annually by the Community Geriatric Assessment Team, that would not amount to regular assessment of the kind contemplated by para 28.1.4 of the Code.  It was, as I have previously said, reasonably open to the Director of Health to conclude that regular assessment in that context involves periodic assessments as a matter of routine at sufficient intervals to ensure that the residents received timely and appropriate treatment for such conditions as they may have had.

CONCLUSION

43. For these reasons, this application for judicial review must be refused on the basis that the application was filed out of time, and there are not sufficient grounds to justify extending the period during which it should have been filed.  However, even if the nursing home’s time for filing its application had been extended, the application would still have been refused on its merits.  At present, I see no reason why the nursing home should not pay the Director of Health’s costs of resisting the application, and the order nisi which I make is that the applicant must pay the Director of Health’s costs of the application, to be taxed if not agreed.