DR LAM KUI CHUN v. THE MEDICAL COUNCIL OF HONG KONG

cacv 56/2007

in the high court of the

hong kong special administrative region

court of appeal

(on appeal from THE ORDER OF THE MEDICAL COUNCIL
OF hONG kONG MADE ON 3^rd FEBRUARY 2007)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from an order of the Medical Council of Hong Kong made on 3 February 2007.  The Council was satisfied that the appellant was guilty of misconduct in a professional respect in that he

“	disregarded his professional responsibility to treat or care for his patient, the late Mr Lo Tai in that:
	(a)	without adequate or proper training, he performed the radio frequency ablation procedure on the patient;
	(b)	he induced the patient into believing that he had the expertise to perform the radio frequency ablation procedure on the patient.

The Council made the following orders:

	(a)	in respect of charge (a), the name of the appellant was to be removed from the General Register for a period of 6 months;
	(b)	In respect of charge (b), the name of the appellant be removed from the General Register for a period of 1 month, such removal to run concurrently with the order on charge (a).”

2.  The orders were to be suspended for a period of 2 years subject to the condition that during the suspension the appellant should not perform radio frequency ablation treatment for liver tumour patients without supervision, until he had produced evidence to prove to the satisfaction of the Medical Council that he had undergone appropriate hands-on training for the procedure under supervision.

3.  At the conclusion of the hearing of this appeal, judgment was reserved which we now give.

Background

4.  In June 2001 Mr Lo, who was 67 years old, was diagnosed at the Queen Elizabeth Hospital as having liver cancer.  He was told that he could have a liver resection and that there were other options available including transarterial chemoemolisation and local ablation such as percutaneous alcohol injections.  Mr Lo and his family were apparently cautious about the idea of an operation because of his age.  In consequence within a few days they consulted the appellant.  It was at that stage that they first learnt of radio frequency ablation (“RFA”), which was then a new treatment, at least in Hong Kong.  The Council found that the appellant told Mr Lo and his family that the procedure was safer than a liver resection and could be repeated if there were a relapse.  The appellant told them that he had attended many conferences on RFA and that he was confident about being able to perform the procedure.

5.  In consequence, within a few days arrangements were made for Mr Lo to undergo RFA at the private hospital recommended by the appellant (the “first hospital”).  Unknown to Mr Lo’s family the RFA procedure was not performed by the appellant.  The first hospital would not allow the appellant to operate the equipment because he was not an interventional radiologist.  A consultant radiologist of that hospital carried out that procedure.

6.  Unfortunately the procedure did not fully eradicate the cancer.  It was discovered that Mr Lo still had cancer of the liver and in October 2001 it was suggested that there should be a repeat treatment.  This time, the appellant suggested that the treatment be carried out at another private hospital where there was equipment in respect of which he had made an investment.  He assured Mr Lo and his family that he was confident to perform the procedure.

7.  The second RFA was thus performed by the appellant on 12 November 2001.  There, as the Council held, the appellant was assisted by an interventional radiologist.  Again according to the finding of the Council, the appellant had initially intended to insert the RFA needle himself on the basis that he would be able to use a guide-probe.  The guide-probe was not available and so he required the assistance of the interventional radiologist.

8.  There were particular difficulties in the procedure to be carried out.  In the first place the size of the tumour was large and at the high end of that which could be treated by RFA.  In the second place the location of the tumour in the liver caused some degree of difficulty in view of the proximity of what are called the hollow organs.  It was necessary to insert the probe using a subcostal approach, in other words under the ribs.

9.  The Council found that in 2001 RFA was a new procedure.  It had been introduced in Hong Kong in mid-2001.  The first hospital at which it was available to the public was the Prince of Wales Hospital where it was introduced on a trial basis around April 2001.  It was performed under a research protocol.  Later, in August 2001 RFA for unresectable liver tumours was approved by the Queen Mary Hospital under the Hospital Authority Mechanism for Safe Introduction of New Procedure (“HAMSINP”).  That document referred to RFA being an innovative and evolving technique that adds to the list of aggressive therapies and should be tested under trial conditions and not considered as an established therapy.

10.  The Council observed that as it was not an urgent case the appellant could have waited for the arrival of a guide-probe and it was pointed out that that instrument was a commonly available piece of equipment.  Nevertheless, it was decided to proceed without the guide-probe and that necessitated the RFA needle being inserted by hand.  Because of that it would be necessary for the person inserting the needle to view the positioning of the needle in the body through ultrasound equipment.  As the appellant described in the course of his evidence at Mr Lo’s inquest:

“

One had to hold the ultrasound instrument by one hand and put the needle into the patient’s body by the other hand.  The ultrasound instrument of course enables one to see the locations.  However, how to coordinate both hands?  This requires experience.  One cannot do this properly unless he is adapted to the procedure.  I was not adapted to the bare-hand approach.  I could only conduct the procedure in another way.  However, at that time with the instruments available, one could only perform the procedure by the bare-hand approach.  Therefore I did not choose to do it myself.  Accordingly, I invited a doctor from the diagnostic-radiology department of (the hospital), (name of doctor), to put the needle into the patient's body.”

11.  According to the findings of the Council there was no difficulty in the initial location of the needle tip.  However, after ablation on the first site, the area was clouded owing to the generation of micro bubbles which obscured the ultrasound image.  Nevertheless, the Appellant decided to continue with the ablation.  The needle was withdrawn three times at approximately 1 cm intervals and further ablation given after each withdrawal or stop.  The whole procedure took 47 minutes.  Unfortunately, in the course of ablation there was thermal induced necrosis of both the gall bladder and the colon.  This led to Mr Lo’s death.

12.  In the course of giving evidence at Mr Lo’s inquest, the appellant expressed his dissatisfaction with the manner in which the procedure had been conducted at the first hospital.  He said that the procedure was conducted by the radiologists and that they were “rather conservative”.  It would appear that the radiologists at that hospital only performed each ablation for 15 minutes and raised the heat “quite slowly and conservatively”.  The reference to 15 minutes appears to have been in contrast to a reference earlier in his evidence where the appellant said:

“

At the beginning, you will use around 50 watts.  Then you will increase the voltage by 10 watts for every minute.  The voltage will be increased in this way continuously.  The instrument is a comparatively new machine.  Its advantage is that if the tissue becomes necrosed owing to the heat, the instrument will be turned off automatically.  According to its design, no excess treatment will be given.  Its design is this.  Its principle is that when you increase the heat continuously, the tissue will cause the electric resistance to increase.  When the tissue becomes necrosed, the resistance will be so high that the instrument will be turned off.  Therefore this should be a safe practice.”

13.  The appellant went on in his evidence about what happened at the first hospital to say:

“	After performing the procedure twice, the cancer cells had not solidified.  The objective of killing the cancer cells was not achieved.  Then they stopped the treatment.  Later the cancer recurred.”

14.  Although at the hearing before the Council the appellant put forward the case that it was the radiologist at the second hospital who conducted the procedure, the Council held that it was the appellant who was in overall charge of the procedure and he took the relevant decisions throughout the procedure.  The radiologist had had no training in RFA at all and he had relied upon the appellant for all necessary guidance to take the relevant decisions.  The appellant had made the calculations in respect of the ablation and was responsible for deciding whether to continue.  In those circumstances the appellant was held to have himself performed the RFA treatment.  Before this court that matter was not challenged.

15.  In respect of the finding by the Council that the appellant had conducted the procedure without adequate or proper training, the first point taken by Mr Huggins SC, who appeared on behalf of the appellant, was that the Council had not identified in relation to the appellant what would have constituted adequate or proper training.

16.  There was no challenge to the finding of fact by the Council that the appellant had only undergone training in the form of conferences, workshops, observations and experimenting on an isolated pig liver.  He had had no supervised hands-on training in the percutaneous approach.  Although between August and November 2001, the appellant together with the radiologist had performed three other RFA procedures on other patients at the second hospital those appear to have been relatively straightforward cases.  The Council considered that Mr Lo's case was significantly more difficult given the size of the tumour and its proximity to the other hollow organs.  One of the matters which were referred to in the decision of the Council was that the appellant and the radiologist were concerned with the correct position of the needle on its first insertion but, it was said, they had not considered the possibility of needle migration and had made no attempt to stabilise the needle by holding it after each withdrawal.  The Council went on:

“	That reflects the appellant's inexperience in and lack of exposure to the more difficult cases.”

17.  In paragraph 18 of the decision the Council said:

“	In the circumstances, we are satisfied that the Appellant did not have adequate or proper training in RFA sufficient for him to deal with the challenging case of the deceased patient on 12 November 2001.”

18.  In relation to the question of the lack of training being available in Hong Kong the Council stated quite clearly that the lack of training opportunity was not an excuse for proceeding with the procedure without due regard to the safety of the patient.  As the Council observed there were a number of options other than percutaneous RFA.

19.  Referring to the primary point taken on behalf of the appellant, that the Council did not identify the training that was necessary, having been shown sections of the evidence, it is quite clear that what training would be necessary for the RFA treatment to be undertaken would depend, first of all, upon the knowledge which the particular practitioner had and, secondly, upon the particular case that was involved.  One matter which appeared clear was that the operation was, as happened in the first hospital, something which an interventional radiologist would be best equipped to perform.  Indeed, the passage quoted from the appellant’s evidence at the inquest would tend to confirm that as well.  What further training an interventional radiologist might require might be very different from that of a physician, such as the appellant himself, who was not experienced in interventional radiology.  In the second place the degree of difficulty associated with treating the particular case must be highly important.

20.  These are all matters to which the Council is uniquely in a position to assess.  The advice in the case of Libman v General Medical Council [1972] AC 270, and decisions in cases which follow it, referred to the court on an appeal from a Disciplinary Council only interfering with decisions of this nature if it can be shown that the Council has made a clear error.  In other circumstances deference is given to the decisions of the Council.  Quite apart from those authorities, it seems to me that in this case, on the basis of the evidence before it, the Council was justified in its conclusion that the appellant, albeit with his undoubted experience as a physician, was not in a position to undertake RFA procedures in a particularly difficult case without having undergone considerable training.  In that respect it was not sufficient for him to enlist the assistance of a radiologist.  As Mr Grossman SC put it in the course of argument, the cooperation of two persons who have different skills which are not complete for the procedure in question cannot constitute the accumulation of the necessary skill.

21.  Emphasis was also placed on the proposition that new procedures could not be pioneered without a doctor going beyond what he had hitherto practised.  That is not an issue in this case.  Obviously new procedures and treatments require the practitioner concerned to develop his skills.  But that is not to say that in doing that the practitioner can go beyond his or her competence.  Whatever is undertaken has to involve steps which are within the practitioner’s competence.  Patients are to be treated, not to be experimented on.  When the Council said that the appellant rushed into the treatment it was referring to the undue haste with which the appellant attempted to undertake the new procedure without sufficient preparation and foundation work.

22.  In summary, I regret that in this case it cannot be said that the findings of the Council were out of tune with the evidence to indicate that on any level that the evidence had been misunderstood.  Nor can it be said that the Council failed to give sufficient reasons for its decision.

23.  Turning to the second charge in respect of which the appellant was found guilty, namely that he induced the patient into believing that he had the expertise to perform the radio frequency ablation procedure on the patient, here the evidence given by the deceased’s family is fundamental.  Mr Huggins’ main point was that the appellant conscientiously believed that he did, indeed, have the necessary skill to carry out the operation.  But, assuming that to be so, it cannot constitute a defence that somebody did not appreciate that he did not have the necessary skill to carry out a procedure.  It is his duty, as a professional, not to undertake work that he is not competent to perform.  That duty was even referred to in the Hippocratic oath.  Quite simply if the practitioner did not appreciate his own limitations, that in itself is a ground for complaint.

24.  In the circumstances, I consider this appeal must be dismissed.  I would make an order nisi of costs in favour of the respondent.

Hon Le Pichon JA:

25.  I agree.

Hon Lunn J

26.  This was an appeal by Dr Lam Kui Chun against the judgment of the Medical Council of Hong Kong (“the Council”) in which he was found guilty of two charges of misconduct in a professional respect.   In addition, he appealed against the consequential orders that the Council made.   Those charges and the consequential orders are set out in paragraphs 1 and 2 of the judgment of the Vice President.

27.  I agree with the reasons set out in the judgment of the Vice President for dismissing the appeal and with the order that he proposes in respect of costs.   However, in respect of the appeal against the determination of the Council in respect of Charge (d) and in respect of the consequential orders made in the ‘sentencing’ process I wish to add some observations of my own.

Charge (d)

28.  The nub of the challenge mounted by Mr Huggins SC to the determination by the Council that Dr Lam was guilty of Charge (d), namely that he had induced the patient into believing that he had the expertise to perform radiofrequency ablation (“RFA”) on the tumour on the patient’s liver, was that the Council erred in failing to appreciate that a necessary ingredient of the charge of which proof was required was that the appellant was possessed of an intention to induce the patient into believing that he had the requisite expertise to perform the procedure, knowing that in fact he did not have such expertise.  No issue was taken with the Council’s finding that the appellant had induced the patient to believe that he had the requisite expertise to perform the RFA procedure on the patient.   The issue was the contention that there must be proof of an intention in the appellant to induce a false or unfounded belief in the patient, the appellant knowing that such a belief is false or unfounded.  It is said that there was no such evidence.  On the contrary, Mr Huggins SCpointed to the fact that in imposing sentence upon the appellant the Council had said at paragraph 32 :

“	… The Defendant’s misconduct in this case arose from his failure to realise that it was a complicated case, given the size, location and close proximity of the tumour to the gallbladder.
	33.	On the other hand, there is no evidence that the defendant’s competence in other aspect is in question.”

29.  In support of this ground of appeal Mr Huggins SC draws an analogy with the ingredients of various offences in the criminal law.  Of section 22 (1) of the Sexual Offences Act 1956, which provides that it is an offence for a person “(a) to procure a woman to become … a common prostitute”, he submits that it must be proved not only that the woman was not a common prostitute at the time but that the defendant believed that to be the case.  He cites the judgment of the Court of Appeal of England and Wales in R v. Brown [1984] 3 All ER 1013 as supporting that proposition.  There, an undercover female police officer conducted herself in the streets in a way designed to attract the attention of men seeking to exercise control over or to approach women for purposes of prostitution.  The appellant had offered to obtain clients for the undercover police officer and to provide her with a flat.  After male police officers had intervened and arrested the appellant he had agreed with the assertion put to him that he had thought that the woman police officer was indeed a prostitute.  The appellant pleaded guilty to a charge of attempting to procure a woman to become a common prostitute after the Recorder had rejected a submission of ‘No case’ at the conclusion of the prosecution case, ruling that the appellant’s belief as to whether or not the woman was already a prostitute was irrelevant to the offence.

30.  Glidewell J, in the judgment of the Court of Appeal, said (page 1015h–j) :

“

The question in issue here is: what is the state of mind that a man must have in order to procure or attempt to procure a woman to become a prostitute?  In order to become a prostitute the woman has to start by not being a prostitute.  Whether a man genuinely believes that the woman is not a prostitute, is of course a question for the jury.  But if he does genuinely believe that she is, and has reasonable grounds for that belief, then it is difficult to see how he can be said to be trying to procure to become that which he already believes she is.”

31.  In allowing the appeal and quashing the conviction, the court held that the Recorder had erred in his ruling and noted that in consequence the issue of the appellant’s alleged belief that the woman police officer was a common prostitute had never gone to the jury for its determination.

32.  By way of a second illustration of the point that he sought to make Mr Huggins SC pointed to the criminal offences that arise from the use of false documents that are proffered to others who are induced to accept them as being genuine.  He contends that if the defendant believed the document to be genuine he could not be said to have acted wrongly in inducing another to believe it to be genuine.  Section 73 of the Crimes Ordinance, Cap. 200 provides for the offence of using a false instrument.  However, the section provides, in terms, that an ingredient of the offence is knowledge or belief in the defendant that the instrument is false :

“	A person who uses an instrument which is, and which he knows or believes to be, false with the intention of inducing another to accepted as genuine … commits an offence…”

33.  With respect to Mr Huggins SC, in my judgment it is not helpful to have regard to specific statutory provisions creating particular criminal offences in determining the ambit or ingredients of Charge (d).  The language of the two charges is perfectly simple and clear.  The immediate context of the Council’s consideration of Charge (d) was their determination that the appellant was guilty of Charge (a), namely that “without adequate or proper training, he performed the radio frequency ablation procedure on the patient”.  No doubt, that explains the sequence in which the Council set out its relevant findings in respect of the second limb of Charge (d), it having determined that the first limb of the charge was not proved, (see paragraphs 26 and 27) :

“	… As to the second limb, we are satisfied that the defendant’s repeated assurances to the patient and the family members in June and October 2001 that he was confident to perform the procedure were intended to induce them into believing that he had the expertise to perform the procedure on the patient.  And such assurances had achieved that intended effect.
	27.	There is nothing wrong for a doctor to tell a patient that he has the expertise to perform a procedure, if that is true.  However, given our findings that the defendant was an inexperienced operator of RFA with only limited experience in straightforward cases and was not properly equipped for the complicated case of the patient, that assurance was untrue.”

34.  In my judgment, in making the findings quoted about the Council made findings satisfying proof of all of the ingredients of the second limb of Charge (d).  The nub of the misconduct lay in inducing the patient to accept that he, the appellant, had the expertise to perform the RFA procedure on the patient when he did not have that expertise.  On the evidence the Council was entitled to find that he did not have that expertise and that a claim to the contrary was untrue.  The issue of whether or not the appellant believed himself to be possessed of that expertise and whether or not it was reasonable to have that belief were not ingredients of that charge.  However, those issues may well have been relevant to mitigation of penalty.  Indeed, clearly that is the approach the Council took, as is evidenced by what was said in the sentencing process (see paragraphs 32 and 33) :

“	… The training required for performing an invasive procedure depends on the complexity of the case.  A more complicated case will require much more training.  Adequate training in an invasive procedure also means the ability to realise the complexity of the case, so that the doctor can properly judge whether he is sufficiently trained to handle the case and will not perform treatment exceeding his limitation.  The defendant’s misconduct in this case arose from his failure to realise that it was a complicated case, given the size, location and close proximity of the tumour to the gallbladder.
	33.	On the other hand, there is no evidence that the defendant’s competence in other aspect is in question.”

The appeal in respect of the Council’s orders as to ‘sentence’

35.  In the Notice of Appeal it was contended on behalf of the appellant that in light of the findings by the Council quoted above “the removal from the Register for six months (or indeed for any period) was manifestly harsh and inappropriate”. 

36.  Of course, as Mr Huggins SC acknowledged in oral submissions the order in respect of removal from the General Register was not of immediate effect, it having been suspended for two years.  In the course of those submissions, Mr Huggins SC indicated that he did not wish to proceed with this ground of appeal.  In my judgment that was both realistic and sensible.  The consequential orders made by the Council in the sentencing process were lenient, but more understandable when viewed in light of the mitigating factors which they accepted, although it is probable that many members of the public would regard those orders as extremely lenient having regard to the misconduct.