DR TO CHUN FUNG, ALBERT v. THE MEDICAL COUNCIL OF HONG KONG

CACV 206/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 206 OF 2000

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL OF HONG KONG MADE ON 22 MAY 2000 AND DATED 23 MAY 2000)

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J U D G M E N T

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Hon Le Pichon JA:

1. This is an appeal by Dr To Chun Fun against the finding by the Medical Council ("the Council") of professional misconduct pursuant to section 21(1)(b) of the Medical Registration Ordinance, Cap 161 ("the Ordinance").

2. The Council first received letters of complaint from Madam Yiu in October and November 1997. Under the provisions of the Ordinance, preliminary investigations were to be carried out by the Preliminary Investigation Committee and recommendations made as to whether or not there should be an inquiry under section 21. On 27 May 1999, the Council gave formal notice to the appellant that an inquiry would be held into the following charge:

"That on 17 February 1997 you, being a registered medical practitioner, disregarded your professional responsibility to treat or care for your patient, Madam YIU Wing-ki, or otherwise neglected your professional duties in that you performed an unnecessary or inappropriate total hysterectomy and right salpingoophrectomy (sic) to Madam YIU who was pregnant at that time. In relation to the facts alleged, you have been guilty of misconduct in a professional respect."

Further particulars of the charge were requested. These were supplied on 26 July 1999 as follows:

"in the circumstances as revealed by the examination conducted at Dr To's clinic or in the course of the operation on 17th February, 1997, there was no justification for the removal of the fibroid together with the uterus, the right fallopian tube and the right ovary of Madam Yiu for the purpose of and/or incidental to the management of the fibroid in question, in particular, knowing that Madam Yiu was pregnant at the material times."

3. Madam Yiu's evidence may be summarised as follows. She went to consult the appellant for the first time in the late afternoon of 17 February 1997. A day or two before, she had felt a 'mass' in her lower abdomen accompanied by dull pain. At that time, she also suspected that she was pregnant. In giving her medical history, Madam Yiu was asked how many children she had. She told the appellant that she had two daughters aged seven and nine but did not volunteer that they were children from her previous marriage. The appellant carried out a scan. He told Madam Yiu that she had a big tumour that had deteriorated and that surgery should be carried out as soon as possible. Madam Yiu was also informed that the tumour was so big and bleeding that it might not be good for the baby to be borne which advice Madam Yiu accepted. When she inquired as to what the operation would involve, the appellant explained that the alternatives were either to remove the uterus together with the tumour or just to remove the tumour. He explained that if only the tumour were removed, it might recur and subsequent surgery would be required. He said it would be better to remove the uterus. Since Madam Yiu was almost forty years old and the uterus would soon become useless. Madam Yiu asked if it was possible to retain the uterus. The appellant said that that would be decided when he had a chance to assess the condition at the operation. Madam Yiu also said that she was told that the operation had to take place the same evening. After her consultation with the appellant, Madam Yiu was asked to sign an admission of notification by one of the nurses. The notification had written on it TOP (termination of pregnancy) BTL (bilateral tubal ligation) and myectomy. These terms were never explained to her.

4. At the hospital, shortly before the operation, Madam Yiu was asked to sign a consent form which was in Chinese. She initially refused to do because she saw that it referred to a total hysterectomy. She was told by the nurse that hospital procedures required the form to be signed. Madam Yiu signed because she understood that the uterus would only be removed if, during the operation, this proved necessary.

5. The appellant's evidence was different in material respects. His evidence was that when Madam Yiu first consulted him, she told him that she had a tumour, that there was a pain, that she suspected that she was pregnant and asked for an abortion as well as a bilateral tubal ligation. She explained that she was forty and already had two children and was practising contraception at the time. The pregnancy was accidental. She did not want to have more children.

6. The appellant carried out a scan and confirmed that Madam Yiu was indeed pregnant but that he was uncertain about the viability of the foetus. He also diagnosed that she had a uterine fibroid which he believed was benign, but could only be a 100 per cent sure by removing it for examination. Madam Yiu insisted on an immediate operation. The appellant told her that he also detected a number of smaller fibroids and that he could not rule out the possibility of other diseases. There was also a chance of the fibroids recurring but he did not mention the recurrence rate. He said that a hysterectomy was one possible method of ensuring that this would not happen. Madam Yiu expressed concern about possible hormonal changes. The appellant then told her that the ovary and not the uterus produces hormones and if she chose to do the hysterectomy, he would "surely preserve at least one ovary for her." At the consultation the appellant never mentioned his suspicion of carcinoma of the ovary.

7. At the end of the consultation which lasted no more than 15 minutes, Madam Yiu was told to think about the options. She went out to the waiting room to make calls and later returned to inform the appellant of her final decision which was to have a myomectomy instead of a hysterectomy. It was later at the hospital that she changed her mind. The appellant received a telephone call at his surgery from the nurse at the hospital to that effect. The appellant's notes contained no reference to a hysterectomy either being offered as an option or reflecting Madam Yiu's altered decision.

8. As to the actual operation itself, the tumour which in his view was a uterine fibroid was removed first. The appellant then carried out the hysterectomy because "that was the operation requested by the patient" who was afraid of a relapse of the fibroid. In the appellant's view, the uterus was "irregular" or "enlarged" and was not worth retaining. There were hardened areas and the appellant was unable to say if there was a tumour inside. In addition to the uterus, the appellant also removed the right fallopian tube because it was hydrosalpinx (i.e. distended with fluid) as well as the right ovary because the blood supply to it had been damaged during the operation. The hysterectomy and salpingo-o?phorectomy were performed together.

9. Dr Tse who was the pathologist gave evidence to the effect that the uterus was normal with no lesions or lacerations, ulcerations or surgical cuts on the serosa. Its surface was smooth and there was no distortion of the inner part of the uterus. There was no evidence of a tumour having been removed from part of the uterus. While Dr Tse could not rule out the possibility that the fibroid was located in a ligamented position, he was certain that it was not intrauterine. As to the right ovary and the right fallopian tube, these he found attached to the uterus. Dr Tse did not recall seeing any sign of hydrosalpinx which in accordance with his usual practice would have been noted in his report. He was not in a position to say whether the blood supply to the right ovary had been damaged during the operation since in the absence of a specific request, a pathologist would not be expected to look for any signs of damage to the blood supply. As to the fibroid itself, it was intact and a free standing nodule.

10. Experts testified on behalf of each of the parties. In addition, the appellant's nurse also gave evidence.

11. At the conclusion of the hearing, the Council said this:

"The Council considers that the patient was not given appropriate advice and guidance before the operation in that, firstly, bilateral tubal ligation was not properly discussed with the patient and, secondly, the alternative options other than myomectomy or hysterectomy were not properly explained nor made available in obtaining consent of the patient for operation. The Council therefore considers that the operation of total hysterectomy right salpingoophrectomy (sic) was inappropriate and unnecessary and this amounts to misconduct in a professional respect. The Council finds therefore that the facts alleged against Dr To Chun Fung in the Notice of Inquiry have been proved to its satisfaction and that he is guilty of the offence charged."

The Council then ordered that a warning letter be served on the appellant.

12. Leading counsel for the appellant sought to impugn the Council's decision on three separate grounds. These are considered below and I propose to deal first with the third ground.

Meaning of "misconduct in a professional respect"

13. This ground of appeal turns on the meaning to be attributed to the phrase "misconduct in any professional respect" to be found in section 21(1)(b) of Cap. 161. This was considered by the Court of Appeal In Koo Kwok Ho v The Medical Council of Hong Kong, (unreported), Civil Appeal No. 23 of 1988. In that case, the court adopted the approach of the Judicial Committee in Doughty v General Dental Council [1987] 3 WLR 769 where the relevant provision that had to be construed was "serious professional misconduct" in the Dentists Act 1984. Lord Mackay in delivering the judgment of the Board held:

"... what is now required is that the General Dental Council should establish conduct connected with his profession in which the dentist concerned has fallen short, by omission or commission, of the standards of conduct expected among dentists and that such falling short as is established should be serious."

The Court of Appeal, after noting that the Hong Kong Ordinance did not require the element of seriousness, the relevant words being "misconduct in any professional respect" followed Doughty and held that the test was simply:

"whether the doctor's conduct has fallen short of the standard expected amongst doctors."

14. Leading counsel for the appellant no longer challenges the correctness of the decision in Koo's case . Instead, Mr Huggins SC submitted that the true legal position is that although as a matter of law misconduct does have to be connected with the profession and has to fall short of the standard expected amongst doctors, it is still for the Council to determine what sort and degree of falling short will be regarded as worthy of condemnation and punishment by the Council, and the Council has, as a matter of policy, determined and pronounced that such conduct must have the ingredients of being 'disgraceful, unethical or dishonourable.' This, Mr Huggins labelled as 'the litmus test'. Pausing here, it is to be noted that Mr Huggins's submission was predicated on the assumption that although the appellant's conduct fell short of the standard expected amongst doctors, it was neither 'disgraceful, unethical or dishonourable' and he was disadvantaged inasmuch as the proper test had not been applied when considering whether the appellant had been guilty of professional misconduct. For present purposes, I am prepared to proceed on that footing although in so doing, I am not to be taken as expressing any view as to the correctness of the assumption that the appellant's conduct was free from those ingredients.

15. The Medical Registration Ordinance dates back to 1957. In 1971, the phrase "misconduct in any professional respect" replaced the original phrase "infamous conduct in any professional respect." In its Warning Notice issued to members of the profession prior to Koo's case, the Council drew attention to the amendment (erroneously stated in the Warning Notice to have been introduced in 1966) replacing "infamous conduct" with "misconduct" and the meaning that had been ascribed to the phrase "infamous conduct" in the United Kingdom, viz. conduct reasonably regarded as disgraceful or dishonourable by the profession. The Council went on to state that:

"the Medical Council ... in substituting the term 'misconduct in any professional respect' for 'infamous conduct in any professional respect' intends that both these phrases should have the same significance."

16. It would appear that the stance taken by the Council was akin to that taken by the General Medical Council in England when parallel English legislation was changed by substituting "serious professional misconduct" for the phrase "infamous conduct in a professional respect". See the passage from its booklet entitled Professional Conduct and Discipline: Fitness to Practise (April 1985) reproduced in Doughty's case (at 774D). Whether the change in language was intended to effect a change in substance lay at the heart of the Doughty decision. It was urged upon the Board in Doughty that the amendment did not introduce a change of substance and that to constitute serious professional misconduct, the conduct had to be infamous or disgraceful. It is to be noted that the General Medical Council's intentions did not have the effect of precluding the Board from considering whether Parliament intended to make a change of substance by the change of wording. The amendment was a legislative amendment. Accordingly, the meaning of the phrase was a matter of statutory interpretation. In reaching its conclusion, the Board took into consideration the fact that in addition to the change in wording, there was in close conjunction with it the additional and much less severe penalty of suspension for a period not exceeding 12 months.

17. In following the approach in Doughty, the Court of Appeal in Koo's case plainly regarded the change as one of substance. It is to be noted that in 1974, long before Koo's case, the Ordinance was further amended by the addition of the issuance of a warning letter to the range of options open to the Council when misconduct is established.

18. Leading counsel for the appellant made reference to the 1996 edition of the Professional Code and Conduct issued to registered medical practitioners by the Council. Under the rubric of Meaning Of "Misconduct in a Professional Respect" in Part I, it was stated that:

" The definition of 'misconduct in a professional respect' can be broadly defined as 'If a medical practitioner in the pursuit of his/her profession has done something which will be reasonably regarded as disgraceful, unethical or dishonourable by his/her professional colleagues of good repute and competency, then it is open to the Medical Council of Hong Kong, if that be shown, to say that he/she has been guilty of professional misconduct'.

The seriousness of misconduct will be judged by the rules, be they written or unwritten, of the profession itself."

These statements were repeated in the November 2000 edition of the Code. In short, the appellant's argument ran like this. The advice tendered to the Council by the legal adviser was that the Council should apply the 'falling short of standards' formula set out in Koo's case and that the litmus test was irrelevant. That approach was wrong: even where there has been a falling short of standards, that is insufficient to constitute professional misconduct unless such conduct was also 'disgraceful, unethical, or dishonourable'.

19. The burden of Mr Huggins's submission was that whilst the ruling in Koo's case was not incorrect insofar as it goes, there had to be room and there was a room for the application of the litmus test, namely, conduct that is 'disgraceful, unethical or dishonourable'. It was also submitted that there was judicial recognition of the litmus test in Dr Cheung Sau Yi v The Medical Council of Hong Kong [1998] 2 HKLRD 890. However, that is neither an accurate nor fair reading of what Stock J (as he then was) said at 908J:

"But accepting for the purpose of this point that professional misconduct requires something which would be viewed by medical professional colleagues as 'disgraceful, unethical or dishonourable,' I cannot say that the conduct alleged is not capable of being so categorised."

The judge was there accepting for the purposes of argument only that professional misconduct means satisfying the litmus test as Mr Huggins would have it. He did not decide that the proposition was correct as a matter of law.

20. It is to be noted that in the post-Koo editions of the Code, "misconduct" is no longer equated with "infamous conduct". Nor does the Code seeks to define "misconduct" by reference to the litmus test. All it sought to do was to "broadly define" misconduct. The 'definition' proffered was not meant to be exhaustive. That is apparent from the Introduction to Part I of the Code where it is specifically stated that the Code:

"is only a guide and is by no means exhaustive ... It is not a legal document."

21. In my judgment, the correct test for "misconduct in a professional respect" is that laid out in Koo's case. There is misconduct within section 21(1)(b) if it can be established that there has been a 'falling short of standards'. As Cons VP observed, "[t]he best judges of that are the doctors themselves" since "what was expected of a doctor in the given circumstances was something which the doctors of the Council would know from their own professional experience." There is no room for the application of the litmus test with its overtones of moral stigma or turpitude. That ceased to be of relevance when the legislation was amended. As stated above, the change in language was intended to effect a change in substance. To qualify the formula in Koo's case by superimposing the litmus test as suggested is tantamount to rewriting the Ordinance. That is a matter for the legislature and not the courts. The appellant's submission that the Council erred in law in not applying the litmus test was misconceived and must be rejected.

Sufficiency of the charge

22. The main thrust of the first ground of appeal was that the charge did not extend to or include the basis upon which the Council found the appellant guilty and that the appellant was disadvantaged in not being in a position to prepare for his defence. It was submitted that:

(i) the Council's decision was inconsistent with the terms of the charge as laid and particularized;

(ii) it was inconsistent with express statements made by the chairman during the hearing as to what was and what was not relevant to the charges laid;

(iii) it had not been put to the appellant in cross-examination;

(iv) it had not been identified prior to the hearing to enable the appellant to prepare to meet by, inter alia, calling expert evidence to address it; and

(v) it remained wholly unparticularized.

23. Before dealing with the appellant's submissions, it might be helpful to make certain preliminary observations. It is important not to lose sight of the fact that we are here dealing with quasi-judicial proceedings of a domestic tribunal where the proceedings can be said to be 'informal' in contradistinction to the formality of judicial proceeding. The tribunal consisted of six members: four registered medical practitioners and two lay members. A seventh member who was present on the first day of the hearing (11 November 1999) was absent at subsequent hearings on 19 January and 22 May 2000 although nothing turns on this. The preponderance of the members of the tribunal were thus in the same profession as the appellant whose professional conduct was the subject matter of the inquiry. It would further appear that the members were not legally qualified. This is the backdrop against which the appellant's submission that the charge was insufficient in that the 'findings' made by the Council were findings of a case not made against him must be viewed.

24. It is of course accepted that the charge must be sufficiently stated to enable the person alleged to have been guilty of professional misconduct to prepare his defence. The charge itself was hardly ambiguous: it was that the total hysterectomy and right salpingo-o?phorectomy performed by the appellant on 17 February 1997 on Madam Yiu who was pregnant at the time was "unnecessary or inappropriate". Read together with the particulars supplied, what was being alleged was that there was no justification for the removal of the fibroid together with the uterus, the right fallopian tube and the right ovary for the purpose of and/or incidental to the management of the fibroid in question in the circumstances as revealed by the examination conducted at the clinic or in the course of the operation. The necessity or appropriateness of the removal of the organs specified had thus to be viewed in the context of the management of the fibroid in question.

25. The Council heard evidence from Madam Yiu, the appellant, the appellant's nurse, Dr Tse the pathologist, and three medical experts, namely, Dr So for Madam Yiu and Dr Tang and Dr Lee for the appellant. They were cross-examined by counsel and questioned by members of the Council. It will have become apparent that many disputed issues of fact arose on the evidence. The only insight into the Council's view on the disputed facts is that it accepted the appellant's evidence that Madam Yiu did ask for a bilateral tubal ligation at the consultation on 17 February and Mr Bleach SC so concedes. However, that was but one of many disputed facts and exactly what other findings of primary fact were made are not known since it is not the Council's practice in disciplinary hearings to state such findings. Despite the one factual finding, it is not permissible either to infer from the Council's acceptance of the appellant's evidence on that single issue that it must have preferred the appellant's evidence whenever it conflicted with the evidence of the other witnesses, in particular that of Madam Yiu and Dr Tse, or to speculate as to what findings of primary fact on the other disputed issues the Council must have made.

26. The conclusion reached by the Council was that the operation of total hysterectomy and right salpingo-o?phorectomy was inappropriate and unnecessary and amounted to misconduct in a professional respect. That was a finding made as a result of the evidence. It was the appellant's evidence that, amongst other things, the patient had signed her consent to the operation. It is unnecessary to go into the question as to whether consent given following proper and full advice would have absolved the appellant from responsibility for what would otherwise have been an inappropriate and unnecessary operation. If the consent were given following incomplete and unsatisfactory advice, that consent could be no defence to the charge. The reference by the Council to the failure to give appropriate advice and guidance was as a direct result of the defence of consent raised by the appellant. What this meant was that in the Council's view, the 'falling short of standards' test adumbrated in Koo's case had been met. In fact, the Council went on to articulate its reasons for stating that appropriate advice and guidance had not been given, namely, that

(1) bilateral tubal ligation had not been properly discussed with the patient; and

(2) alternative options other than myomectomy or hysterectomy had not been properly explained or made available in obtaining the consent of the patient for the operation.

27. Central to the appellant's submission was that "examination" meant what the appellant could see from his examination of the patient at the consultation and from what he could see in the course of the operation itself. Nothing beyond clinical findings could be taken into account. In other words, advice given before the operation did not form part of the charge. Mr Huggins SC relied heavily on the following statements made by the chairman in the course of the hearing at pp. 32, 118, 191 and 210 of Bundle A:

"... the area that is going to be inquired into is a very narrow area. It has to do with appropriateness of the operation itself ...

...

The issue here is the operation that was performed by the Defendant doctor.

...

I think the charge is really on the operation per se and therefore what the patient has been told or whether there has been adequate explanation is not exactly relevant to the charges.

...

Well, the Council discussed this issue and the Council had decided that the Defence request be rejected. However, this was not construed that it would become part of the charge, but it would be taken into consideration depending on Defence Counsel's further cross-examination and the development of the case as the expert witnesses are being called."

He submitted that those statements were clear and unequivocal, that the appellant was entitled to rely on them and it was therefore not open to the Council to come to the 'findings' that it did.

28. For my part, I cannot accept that "examination" has the limited meaning suggested. What we are here dealing with is a charge that the doctor carried out an operation on his patient that was unnecessary or inappropriate. "Examination" of a patient must encompass all matters incidental thereto such as exchanges passing between doctor and patient leading up to or during the course of the examination, all that being very much part and parcel of the examination itself. It would thus encompass advice and guidance given prior to the operation culminating in the patient's 'consent' to the procedures. The patient's consent may conceivably be a defence to the charge, but a pre-requisite is that such consent has to be real or true; in other words, it has to be informed consent.

29. What is important to note is that the statements relied on were part of exchanges that took place between the chairman of the Council and defence counsel during the course of the hearing which was informal, when legal objections of one kind or another were raised. Rulings had in fact been made at various stages (see, for example at pp. 193 and 200 of Bundle A) and, it has to be noted, by a body that did not consist of lawyers. It would be wrong to treat the statements as if they had been pronouncements by a judge in judicial proceedings. Moreover, the statements cannot be read in isolation, devoid of context. Read in their proper context, it is difficult to conclude that the statements were unequivocal as suggested by the appellant or that the appellant had been misled in any way. It is significant that notwithstanding the statements relied on by the appellant, advice given and the "modalities of treatment" were very much live issues throughout the proceedings. The fact remains that the charge and findings are coincident. The reference to lack of appropriate advice and guidance became relevant because of the defence raised.

30. The appellant also sought to dissect the so-called 'findings' and subject each element to microscopic scrutiny as if they were elements of the charge which had to be established when they were not. In my judgment, in considering the sufficiency of the charge, the relevant yardstick is overall fairness to the person against whom misconduct is alleged:

"... he should be given a fair opportunity of hearing what is alleged against him and of presenting his own case".

See per Lord Diplock in O'Reilly v Mackman [1982] 3 All ER 1124, 1127. It seems to me that the correct approach is whether, reading the evidence as a whole, there is reason to believe that the appellant was genuinely disadvantaged which could have rendered the hearing 'unfair' to the appellant.

31. The issue before the Council was the necessity or appropriateness of the total hysterectomy and right salpingo-o?phorectomy for the purpose of and/or incidental in the management of the fibroid of the patient. The approach which the court in Koo's case endorsed (at p. 6) was this:

"... all I would ask you to do is decide what steps you feel he should have taken which he did not take and once you answer that in your mind, if you can think of any which you think he should have taken but you feel he cannot have taken then that's the only basis upon which you can convict him."

That the Council sought to do and concluded that the appellant had fallen short of the standard expected amongst his peers in the manner in which he treated or cared for his patient, specifically, that the patient had not been given appropriate advice and guidance before the operation.

32. Having reviewed the transcript, I am unable to conclude that the appellant was not given a fair opportunity of hearing what was alleged against him and of presenting his own case. In my judgment, the submission that the charge as particularized was insufficient to enable the appellant to properly defend himself has no merit and falls to be rejected.

33. Allied to the first ground of appeal was a further or alternative ground, namely that the express basis for the Council's finding of professional misconduct was irrational in that a "failure to give appropriate advice and guidance before an operation" cannot render such operation "inappropriate and unnecessary". This submission can be dealt with briefly.

34. Here was a patient whose medical condition certainly did not require immediate surgery for a total hysterectomy and right salpingo-o?phorectomy. Yet, within the space of several hours upon first consulting the appellant, those procedures had been performed with the patient's 'consent'. The absence of appropriate advice and guidance would necessarily have negatived that consent rendering those procedures, at the very least, inappropriate. On the medical evidence before the Council, it was open to the Council to conclude that the procedures were also unnecessary. In my view, this additional ground also has no merit.

35. I would add this observation. Having found the appellant guilty of the charge, the Council issued a warning letter, that being the most lenient of the penalties it could have imposed. The appropriateness of the penalty does not arise in this appeal. It is therefore not the function of the court to substitute what it would regard as an appropriate penalty for the decision of the Council. In the circumstances, the appellant should consider himself fortunate to have been the recipient of nothing more than a warning letter when, in my view, the 'falling short' can hardly be considered a technical aberration.

Conclusion

36. For the reasons stated I would dismiss the appeal. I would further propose that there be an order nisi for costs in favour of the Council.

Hon Yeung J:

37. I agree.

Hon Mayo VP:

38. I agree. There is nothing that I can usefully add.