YEUNG GEMMA KEIRA (formerly known as YEUNG WAI CHING) v. HOSPITAL AUTHORITY

HCAL 872/2019

[2021] HKCFI 2661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 872 OF 2019

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J U D G M E N T

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Introduction

1.  By a Form 86 issued on 29 March 2019, the applicant applies in person for leave for judicial review.  On 12 August 2019, having heard the parties, Hon Chow J (as Chow JA then was)  ordered, among other things, that the decision impugned in the applicant’s Form 86 be amended to “the Hospital Authority’s decision to refuse to reinstate the Applicant to the Nursing School of Caritas Medical Centre and compensate the Applicant as conveyed in Mayer Brown’s letter dated 27 February 2019 to the Applicant”.

Background

2.  The following matters are common grounds between the parties:-

(1)  The respondent, at all material times, controlled and managed the School of Nursing of the Caritas Medical Centre (“the Nursing School”).

(2)  In the 2017/18 academic year, the applicant enrolled as a year 1 student in the Nursing School’s Higher Diploma in Nursing programme (“the Programme”).  One of the core subjects she took was Foundations of Nursing Therapeutics (“FNT”).

(3)  On 20 July 2018, the applicant undertook an Objective Structured Clinical Assessment (“OSCA”)  in FNT. She failed the assessment (“the 1^st OSCA”).

(4)  On 10 August 2018, the applicant undertook another OSCA.  She failed again on this occasion (“the 2^nd OSCA”).

(5)  A third OSCA was arranged to take place for the applicant on 7 September 2018.

(6)  However, the applicant did not undertake the third OSCA.  Instead, she withdrew from the Programme on 22 August 2018. Her withdrawal was accepted by the Nursing School’s principal Mr Shiu Yui Fai on the same day.

The decision impugned

3.  Before she withdrew from the Programme, on about 16 August 2018, the applicant lodged a written complaint with the respondent about the 1^st and 2^nd OSCA results.

4.  In her complaint, she stated that she deserved to pass in both the 1^st and 2^nd OSCA but she was chosen to be failed.  She said she had upset some teachers in the past and her teachers, in particular Mr Yip Chin Wing, were forcing her to leave, and that OSCA is the tool to eliminate students they hate.  She also complained that, while the assessor announced her failure straight after the 2^nd OSCA, she was treated differently from other students in that the result was only communicated to her later.  Based on her complaint, she made demands to the respondent including a full compensation of tuition fees and a pass in OSCA.

5.  After her withdrawal from the Programme on 22 August 2018, she continued to pursue her complaint.  By this stage, it was further specified in her complaint that the programme co-ordinator Dr Annemarie Cheung had pressurized her to leave by an email, and she demanded a reinstatement of her studentship in the Nursing School or other nursing schools run by the respondent.  The complaints and demands were all rejected.

6.  On 28 November 2018, the applicant indicated her intention to apply for judicial review.  The respondent then became represented by solicitors, who undertook a course of correspondence with the applicant.  By a letter dated 27 February 2019 to the applicant, the respondent’s solicitors reiterated that the applicant’s demands for reinstatement and compensation were refused.  This letter is the Mayor Brown’s letter referred to in Hon Chow J’s order.

7.  The grounds advanced by the applicant in challenging the decision impugned were basically her complaints about the 1^st and 2^nd OSCA and other connected matters, including being forced to leave and treated differently by her teachers.

The applicant’s affirmations

8.  In addition to the affirmation filed on the same day as her Form 86[1], the applicant filed further affirmations to advance her case[2].  These affirmations and the exhibited materials can be summarised as follows:-

The 1^st OSCA

(1)  In the 1^st OSCA on 20 July 2018, the applicant was assessed on the procedure of “Starting an Intravenous Infusion”.

(i)  The assessment form produced by the respondent indicated that she failed critical item no.13, which was to “Ensure sterility of intravenous fluid throughout the procedure”. The assessor’s remark for this item was “spike in the wrong site of the IVF outlet and then spike in the correct site immediately (without disinfection)”.

(ii)  The applicant accepted that she initially inserted the spike in the wrong place, but she deposed that she had opened a new infusion set with which she completed the procedure.  This, the applicant deposed, was an acceptable response to ensure sterility and was in fact accepted at the time by the assessor Ms Chan Wai Fong Dorothy; but Ms Chan, having at first given her a pass, later falsified the assessment form and the result, changing it from a pass to fail.

(2)  The applicant deposed that, after the 1^st OSCA, she spoke to the FNT subject leader Ms Anna Law with a view to raise an appeal, but was told that the 3-day time limit had already expired and that her appeal had been immediately dismissed.

The 2^nd OSCA

(3)  In the 2^nd OSCA on 10 August 2018, the applicant was assessed on the procedure of “Nasogastric Tube Insertion”.

(i)  The assessment form produced by the respondent indicated that she failed 5 critical items including, for instance, critical item no.1, which was to “Identify right patient”. The assessor’s remark for critical item no.1 was “Did not verify patient identity with bracelet”.

(ii)  The applicant disputed the remarks by the assessor Ms Wong Yuen Yu. For instance, she deposed that she had identified the right patient; and that the assessment form was not the original assessment form, pointing out that it did not have her name chop.  She further deposed to discrepancies between the assessment form and the respondent’s first response rejecting her complaint, which referred only to her failing 3 instead of 5 critical items.

Forced to leave by teachers

(4)  The applicant deposed that, after the 2^nd OSCA, Mr Yip (her tutor)  had sent her numerous WhatsApp messages to pressurise her to leave the Programme.  She further deposed that Mr Yip had long behaved in an abusive and intimidating manner to her.

(5)  The applicant also deposed that Dr Cheung (the programme co-ordinator)  had deliberately failed her on the 1^st and 2^nd OSCA.

Different treatment: required to pay fees before the 3^rd OSCA result

(6)  Other students who failed the 2^nd OSCA were notified of their results on 13 August 2018, and their 3^rd OSCA was arranged to be held on 31 August 2018.  By contrast, the applicant’s result was formally sent to her on 17 August 2018, and her 3^rd OSCA was arranged to be held on 7 September 2018 (failing which would lead to her deregistration from the Programme).  As she had earlier been required to pay a non-refundable instalment of fees by 31 August 2018[3], the applicant complained that she was put into a disadvantageous position because, unlike other students, she could not wait until after passing her 3^rd OSCA result to pay the non-refundable fees.

WhatsApp messages, secret audio recordings and online comments

(7)  In support of her performance in the 1^st and 2^nd OSCA, the applicant deposed that Mr Yip (her tutor)  had confirmed with Ms Chan (the 1^st OSCA assessor)  that she did open a new infusion set.  The applicant produced WhatsApp messages and deposed that they were proof of Mr Yip’s confirmation with Ms Chan.  She also produced audio recordings (without transcription)  which she had made secretly in the 2^nd OSCA and deposed that they were proof that she had identified the right patient, and that the 2^nd OSCA assessment form produced by the respondent was thus a false one.

(8)  The applicant produced further audio recordings (without transcription)  which she had made secretly in an earlier workshop on wound dressing and deposed that they were proof of Mr Yip’s abusive and intimidating conduct.

(9)  Online comments were produced which, the applicant deposed, were made by Dr Cheung (the programme co-ordinator)  as proof that Dr Cheung had deliberately failed her in the 1^st and 2^nd OSCA.

Affirmations relied on by the respondent

9.  The respondent relied on an affirmation by Mr Yip (the applicant’s tutor), an affidavit by Ms Wong (the 2^nd OSCA assessor), and an affirmation by Mr Shiu (the principal).  The contents of which can be summarized as follows:-

The 1^st OSCA

(1)  Mr Shiu (the principal)  deposed that he had spoken to Ms Chan (the 1^st OSCA assessor).  She confirmed to him that, after inserting the spike in the wrong place, the applicant retrieved and immediately inserted it in the right place, without opening and using a new infusion set or disinfecting the contaminated spike.

(2)  Mr Shiu understood from Ms Chan that, because the applicant had been able to tell her immediately after the assessment that opening and using a new infusion set could prevent contamination, she initially marked a pass on the assessment form. But, as Mr Shiu deposed, Ms Chan decided upon reflection that the applicant should fail because she did not in fact take any step to ensure sterility.  Accordingly, Ms Chan made amendments on the form.  Later the same day, after a review with Ms Law (the FNT subject leader), Ms Chan further elaborated on her amendments by putting the words in brackets on the form.

(3)  Mr Shiu understood from Ms Law that the applicant asked her about the 1^st OSCA result.  Mr Shiu deposed that Ms Law had told the applicant that Ms Chan had confirmed to her that the applicant did not open a new infusion set.  Ms Law also told the applicant that she could consider raising an appeal and further explained the rules on appeal.  But the applicant indicated that she would not consider an appeal.

The 2^nd OSCA

(4)  Ms Wong (the 2^nd OSCA assessor)  deposed that the applicant had failed 5 critical items[4]. With reference to the secret audio recordings made by the applicant in the 2^nd OSCA, which was transcribed and exhibited in Ms Wong’s affidavit, she gave a detailed account of the 2^nd OSCA and all the items for which the applicant had failed.  For instance, for critical item no.1, Ms Wong deposed that the applicant only looked at the patient’s chart and spoke the name and hospital number, without checking the patient’s bracelet.

(5)  Ms Wong deposed that, since her handwritten comments on the original assessment form were difficult to read, Ms Law (the FNT subject leader)  in a subsequent review suggested transcribing the original assessment form onto a new form to facilitate the applicant’s debriefing by her tutor.  Accordingly, Ms Law transcribed the applicant’s name and other details onto a new form, and Ms Wong transcribed her markings and comments.  Ms Wong understood from Ms Law that the original assessment form was later discarded.

Teachers did not force her to leave

(6)  Mr Yip (the applicant’s tutor)  deposed that he had never said anything or sent any messages to the applicant to pressurise her to withdraw from the Programme.  He had spoken to Ms Chan (the 1^st OSCA assessor)  who had told him that the applicant did not open and use a new infusion set.  He then offered the applicant feedback, advice and support through WhatsApp messages.  The messages did not mean that Ms Chan had confirmed to him that the applicant had opened and used a new infusion set.  They only meant that he had checked and discussed with Ms Chan.

(7)  Mr Yip deposed that he was informed by Ms Law (the FNT subject leader)  that the applicant was contemplating an appeal.  He offered support to the applicant through WhatsApp.  The applicant responded that she decided not to lodge an appeal after speaking to Ms Law.

(8)  With reference to the secret audio recordings made by the applicant relating to his conduct, which was transcribed and exhibited in Mr Yip’s affirmation, he deposed that he believed it related to a remedial workshop in preparation of the 2^nd OSCA, and that he did not yell or intimidate the applicant, but was only asking her how she would manage a given scenario, as well as giving her feedback on checking the colour and precipitation of fluid in a container.

(9)  Regarding Dr Cheung, Mr Shiu produced the respondent’s first rejection of the applicant’s complaint, which stated that, upon a review of the relevant email exchange between the applicant and Dr Cheung, there was no evidence to substantiate the allegations that Dr Cheung was pressurizing her to leave the Programme.

Equal treatment: required to pay fees before the 3^rd OSCA result

(10)  Mr Shiu deposed that, all year 1 and year 2 students in the Programme had been notified earlier to pay the non-refundable tuition and administration fees for the next academic year by 31 August 2018.

(11)  Mr Shiu deposed that, after the 2^nd OSCA on 10 August 2018, the applicant did not turn up for class, and her teachers and other students could not reach her and were concerned about her.

(12)  While other students were notified of their 2^nd OSCA results by email on 13 August 2018, there was still no news of the applicant.  Dr Cheung (the programme co-ordinator), concerned that the applicant might be too upset to formally receive the result, decided instead to send her an email on the same day inviting her to turn up to the Nursing School or discuss her result on the telephone[5]. 

(13)  It was not until 15 August 2018 that Dr Cheung received an email from the applicant that she had been ill and required further sick leave.  Thereafter, the Nursing School by letter dated 17 August 2018, formally informed the applicant of her 2^nd OSCA result, and that her 3^rd OSCA was arranged to be held on 7 September 2018.  Mr Shiu deposed that the reason for arranging the applicant’s 3^rd OSCA to be held later than other students (31 August 2018)  was to give her the same amount of preparation time.

(14)  Mr Shiu deposed that, since other students were to be told of their 3^rd OSCA results on 3 September 2018, they would also have to pay fees on 31 August 2018, which was before knowing their results just like the applicant, and were not in a better position.

(15)  Mr Shiu also deposed that, if the applicant had concerns about paying the fees by 31 August 2018, she could have asked for a deferment as she had done earlier (in respect of the instalment due before 28 February 2018).  There was no intention to prohibit the applicant from taking the 3^rd OSCA if she had not settled the fees by 31 August 2018.

The respondent’s grounds in opposing leave

10.  Mr Suen SC, counsel for the respondent, put forward, inter alia, the following grounds in opposition to the leave application:

(1)  the applicant’s relationship with the respondent was contractual and hence unamenable to judicial review; and

(2)  the applicant’s case is not reasonably arguable on the merits;

Discussion

11.  In my judgment, the applicant’s leave application shall be refused in the light of grounds (1)  and/or (2)  above. 

Ground (1)

12.  As submitted by Mr Suen, the legal relationship between the applicant and the respondent was basically a contractual one.  By a Letter of Admittance[6]issued by the respondent to the applicant and a Letter of Acceptance[7] signed by the applicant, a contract was made between the parties. 

13.  The terms set out in the Letter of Admittance, which incorporated the terms in the “Student Handbook” and “Programme Definitive Document”, governed the legal obligations of the applicant and respondent respectively as student and education provider.  The contract was a private contract between the applicant and the respondent and the decision impugned was a decision made pursuant to the terms of the contract.  There was no public element involved.

14.  A decision made based on private contract, not involving a sufficient public element or the exercise of a statutory power, are not amenable to judicial review[8].

15.  Insofar as there might have been a breach of contract by the respondent in performing its duties or exercising its rights under the contract, it should be pursued through a civil action rather than by judicial review.   The matters complained of by the applicant were therefore not amenable to judicial review.

Ground (2)

16.  Regarding the merits of the applicant’s case.  For the 1^st OSCA, her account of opening a new infusion set was contrary to the assessment form and the affirmations of Mr Yip and Mr Shiu.

17.  As for the 2^nd OSCA, the secret recordings, as transcribed and explained by Ms Wong (the 2^nd OSCA assessor)  in her affidavit, demonstrated that the applicant did fail 5 critical items.  In view of the explanation that the original assessment form was discarded after the contents had been transcribed onto a new form, the allegation of document falsification was misconceived and that there was insufficient evidence to make good this grave allegation. 

18.  In respect of the requirement to pay fees on 31 August 2018, on the basis that other students would be told of their 3^rd OSCA results on 3 September 2018, it means that everyone had to pay fees before the 3^rd OSCA result and the applicant was treated equally with other students.

19.  I am of the view that the applicant’s complaints could not satisfy the test of reasonable arguability[9].  In any event, the applicant’s challenge on the facts did not fall within the supervisory jurisdiction of judicial review, as it is not the function of the court to assume a fact-finding role in exercising this jurisdiction. 

20.  Regarding the applicant’s allegations against the teachers’ prejudicial treatment to her, they were unsubstantiated and lack of particulars.  Furthermore, the allegations were contradicted by the applicant’s own emails to the respondent asking for reinstatement, as she had stated that the decision to withdraw was made under the influence of medication and that both her tutor (Mr Yip)  and the programme co-ordinator (Dr Cheung)  had been “incredibly helpful” and had “tried her best to help” respectively. 

21.  The applicant has failed to make good her case on merits.

22.  With my above findings, it would not be necessary for me to go into the other grounds[10] relied on by Mr Suen. 

Disposition

23.  The applicant’s leave application is therefore refused.

24.  I make a costs order nisi that costs of the application be to the respondent to be taxed if not agreed.  This costs order nisi shall become absolute upon the expiry of 14 days from the date of this judgment.