DR. MAO CHUN TING v. THE MEDICAL COUNCIL OF HONG KONG

IN THE COURT OF APPEAL

1995, No. 182

(Civil)

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J U D G M E N T

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Litton, V-P:

Introduction

1. The appellant is a registered medical practitioner. He appeals against an order made by the Medical Council on 19 July 1995 that his name be removed from the register for a period of three months and that such decision be published in the Gazette, the removal to take effect from the date of publication. The order was suspended to enable the appellant to exercise his right of appeal to this court under s26(1) of the Medical Registration Ordinance, Cap 161.

2. The two charges of misconduct proved against the appellant relate to his failure to keep proper records of dangerous drugs, as required under regulations 5 and 6 of the Dangerous Drugs Regulations at his two clinics, between 26 March and 10 May 1993. The addresses of the two clinics are 2/F, 247 Sha Tsui Road, Tsuen Wan and Shop 11, Block 4, Kwong Yuen Chuen Plaza, Kwong Yuen Estate, Shatin.

3. The drugs involved are methadone, dipipanone (sold under the brand name of Wellconal) and physeptone (a brand name under which methadone is sold). All three drugs are used for the treatment of heroin addicts.

4. Regulations 5 and 6 of the Dangerous Drugs Regulations make detailed requirements for the keeping of registers and other records by persons authorized or licensed under the Dangerous Drugs Ordinance to obtain and supply dangerous drugs. These requirements are complex and cover not only registered medical practitioners but others as well, such as pharmacists and nurses. Although regulation 5(1)(a) refers to a statutory form for the register which everyone authorised or licensed to supply dangerous drugs must keep, paragraph (2)(b) exempts registered medical practitioners from part of that requirement in these terms:

"(2)(b)So much of paragraph (1) as requires a person to enter in the register required to be kept under that paragraph particulars with respect to a dangerous drug supplied by him shall not apply to -

(i) a registered medical practitioner if he enters in a day book true particulars of every dangerous drug supplied by him to any person, together with the name and address of that person and the date of the supply, and enters in a separate book kept for the purposes of this regulation a proper reference to each entry in the day book which relates to the supply of a dangerous drug; or

(ii) ....

and if, in either case, sub-paragraphs (c) and (d) are complied with.

(c) References in the said separate book shall be made in chronological sequence and the book shall be kept in separate parts relating respectively to the several classes of dangerous drugs specified in and under sub-paragraph (b) of paragraph (1) and shall not be used for any purpose other than the purposes of this paragraph.

(d) ....

(e) In this paragraph, the expression 'a proper reference' means a reference which is entered in the said separate book under the same date as that on which the entry in the said day book ... was made and is otherwise such as to enable that entry to be easily identified."

5. Regulation 5(1) and (2) give to the medical practitioner quite a number of options. He can, for instance, maintain a series of registers to comply with paragraph (1) or he can keep records by the partial use of a register, supplemented by the day book and "separate book" as referred to in paragraph 2(b).

Brief history

6. The appellant's Shatin clinic is located in a housing estate. The appellant did not treat drug addicts at his Shatin clinic, so no drugs were supplied to patients there. However, he had taken over a clinic in Tsuen Wan from another doctor in May 1992. That clinic had many heroin addicts who required methadone treatment. When the appellant took over that clinic, he continued treating those patients. Because the Shatin clinic was more secure, the bulk of the drugs were stored there and transferred over to the Tsuen Wan clinic as the need arose from day to day.

7. The records kept by the appellant in relation to the drugs supplied to him, and in relation to the drugs prescribed by him to his patients, and the balance of stock in hand, were kept by the appellant on a daily basis. These records, although not in the statutory form, were true and accurate in every respect.

8. On 13 May 1992 officers from the Department of Health visited the Tsuen Wan clinic for the purpose of checking the records. A report was made afterwards. There is no suggestion that the officers found any deficiencies in those records. Another visit was made on 26 March 1993. Apart from noting that the patients' daily record book did not contain the addresses of the patients, no other deficiency in the appellant's record-keeping was found by the Department of Health officials.

9. On 10 May 1993 yet another inspection was conducted, at both the Shatin and Tsuen Wan clinics. A check was made of the stock of drugs against the records and every pill was accounted for. However, this time, a point was taken that the records failed to comply with the statutory requirements. This led to a letter dated 7 June 1993 in which the Director of Health warned the appellant of the need to comply with the law; a specimen of the form set out in the First Schedule to the Dangerous Drugs Regulations was supplied and the appellant was told that should he fail again to keep a register in accordance with the statutory provisions he would be prosecuted. But, the appellant was told, the Attorney-General's Chambers had, on that occasion, advised against prosecution.

10. From that time onwards, the appellant changed his form of record keeping and, on a subsequent inspection conducted on 7 September 1994 by the Department of Health, the appellant was found to have complied with the statutory requirements.

11. Nevertheless, on 9 November 1994, the Secretary to the Medical Council wrote to the appellant complaining that, during the period 26 March 1993 to 10 May 1993, at his two clinics, he had failed to keep records in accordance with the law. This eventually led to the disciplinary proceedings resulting in the order of the Medical Council against which the appellant now appeals.

12. He does not say that the finding of misconduct made against him is wrong. What he does say is that the punishment of removal from the register for three months is excessive and out of all proportion to the gravity of the offence: So out of tune with the evidence before the Council that this court should interfere.

The case against the appellant as particularised

13. The case against the appellant is particularised in a letter dated 17 January 1995 which reads:

"The record kept at 'Tsuen Wan Clinic and Shatin Clinic' were improper in that they did not comply with the requirements under regulation 5 of the Dangerous Drugs Regulations (the Regulations). In particular:-

(a) in relation to the records kept at 'Tsuen Wan Clinic':-

(i) the day books kept by Dr Mao did not record the address of the person to whom dangerous drug was supplied.

(ii) no separate book was kept as required by the Regulations.

(iii) no register in the form specified in the First Schedule of the Regulations was kept.

(b) In so far as the records kept at 'Shatin Clinic' are concerned, they failed to comply in form and in substance with the requirements under regulation 5 of the Regulations, in particular, they did not record the name and address of the person or firm from whom the drug was obtained or to whom the drug was supplied."

14. As mentioned earlier, the Shatin clinic was never used by the appellant for the treatment of drug addicts and no drugs were supplied to others at that clinic. It was merely used as a secure place for the storage of the drugs used at the Tsuen Wan clinic. In essence, therefore, the complaint upon which the finding of misconduct was based focussed upon three deficiencies:

(i) The day books failed to record the addresses of the persons to whom the drugs were supplied;

(ii) No "separate book" was kept as required by regulation 5(2)(b); and

(iii) There was no register or registers in the statutory form.

The appellant's case

15. The effect of the appellant's testimony before the Council was that all the information required by law to be recorded was, in fact, contained in the records he kept. Firstly, there were therecord books kept at the two clinics for the receipt of drugs. Secondly, there was the patients' daily record book recording each patient's name and quantity of drugs prescribed. A separate book was maintained for methadone, Wellconal and physeptone. Thirdly, there was the daily balance record book recording the daily quantity of drugs received, the quantity supplied and the daily balance. Again separate books were kept for each of the three drugs. Fourthly, there was the DD patients' registration book recording the name, sex, age, identity card, address and telephone number of each of the heroin addict patients. Lastly, each patient had a medical history card recording the patient's personal particulars, medical condition and the drugs supplied.

16. As mentioned earlier, the complaint against the appellant, as particularised, focussed on three deficiencies. If the appellant had kept a register in the statutory form, it would have contained the names and addresses of the suppliers and the patients. The DD patients' registration book in fact contained full particulars of each patient: not only the address but also the identity card number and the telephone number. The real deficiency was in the names and addresses of the suppliers: but since all three drugs were extremely well-known it is difficult to regard this as a serious deficiency. The evidence before the Council was that all the suppliers' invoices were available for inspection.

17. The remaining complaint, as particularised in the letter dated 17 January 1995, relates to the "separate book" required by regulation 5(2)(b). However, to comply with this requirement, all that was needed was a book relating to each of the three drugs with the dates (in chronological order) and the particulars of the patients to whom the drugs were supplied: information which was in fact recorded chronologically in the appellant's daily patients' record book except that the addresses of the patients cannot be found in that book. This was, perhaps, more than a technical deficiency: It would not have been easy for a Department of Health Inspector to attempt to trace the addresses of the patients recorded in that book by reference to the DD patients' registration book (where full particulars were given) because the information in the latter was not recorded chronologically. There is no suggestion however that the information in the two books could not have been collated.

18. What can be fairly said is that the appellant's form of record-keeping did not make the information as readily available to a health inspector as the records kept in the statutory form. On the other hand, there is no suggestion that the appellant did not, in the end, keep full and accurate records during the period covered by the charge.

The Medical Council's reasons for punishment

19. In pronouncing the order removing the appellant's name from the register for three months the Chairman of the Council said this:

"The Dangerous Drugs Ordinance gives to medical practitioners a special privilege in handling dangerous drugs within their practices. It is a position of trust which doctors enjoy. In turn the legislation places certain obligations on all doctors. The Ordinance and Regulations are designed to ensure that doctors who keep and dispense dangerous drugs keep records in a manner prescribed by law. The Regulations set out quite clearly the form in which records are to be kept. Failure to keep proper records is not simply some technicality. It is a breach of trust. The Council takes a most serious view of the conduct of doctors who keep records in their own way, not in accordance with the prescribed form. We do not accept the excuse or mitigation that such information claims to be found in other documents within the practice. That is manifestly inadequate and goes nowhere near the precise requirements of the Regulations to keep all that information in one place. Those requirements are in place to ensure that doctors keep contemporaneous records within a set of registers or books of the receipt and supply of all drugs. The registers are subject to random inspection and such audits cannot be properly carried out unless the Regulations are complied with to the letter, not just the spirit as the Defence Counsel has argued.

In this case the evidence has shown that not only did Dr Mao fail to keep proper records, he was handling extremely large quantities of dangerous drugs and those drugs were highly addictive. In these circumstances we expect meticulous compliance with the Regulations."

20. The Council is, of course, perfectly entitled to take the view that the regulations should be meticulously observed. Equally, the Council is entitled to conclude that failure to keep proper records is not simply a technicality: it can amount to professional misconduct, as in fact occurred in this case.

The appellant's grievance

21. The appellant's grievance, as expressed by his counsel in this court, is not over the finding of misconduct. That is accepted. His grievance is over the Council's failure to properly weigh the gravity of the offence, by taking the "hard line view" that the least failure to comply with the regulations "to the letter" would warrant the removal of the offender's name from the register for a period of time: Without considering what the consequences might be to the offender himself, his practice of medicine and his livelihood.

22. Is this complaint justified and what is the role of this court if this were made out?

Jurisdiction of this court

23. The jurisdiction of this court in dealing with appeals against orders of the Council is cast in wide terms. Under section 26(1) of the Medical Registration Ordinance this court has power to "affirm, reverse or vary the order appealed against". The fact that the appeal to this court is final puts upon us a peculiarly high responsibility.

24. In general terms, it can be said that where the Council has exercised its powers of sentence, it would require a very strong case for this court to intervene. The members of the Council have been entrusted by the legislature in the first place with the responsibility of judging the gravity of the misconduct; a majority of them are registered medical practitioners and to that extent are the appellant's "peers": see section 3(1) of the Ordinance. Accordingly, the policy of this court laid down in repeated cases has been this: Unless it can be shown that the sentence imposed by the Council is out of tune with the evidence or is in some way wrong in principle, this court will not interfere with the Council's exercise of judgment.

25. On the other hand, there is this to be said: This court's supervisory responsibility over the exercise of disciplinary powers by professional bodies generally is very wide. It is spread over many other professions apart from that of medical practitioners. This court therefore has the advantage, denied to the Medical Council, of evaluating the gravity of professional misconduct generally over a much wider field and in that sense is in a position to exercise finer judgment than the Medical Council.

26. When the Council said in this case that failure to keep proper records was not simply some technicality, this is a reflection of this court's views in Ng Mei-sin v. Medical Council (1995) 1 HKC 242 at 246E where Mortimer JA said:

"Any breach of those regulations must be treated seriously. They seek to ensure that drugs legitimately supplied to doctors are fully and carefully controlled so that the risk of those drugs falling into the wrong hands is minimised. This is a matter of concern not only to the public but also to the medical profession itself. Lack of control of drugs by doctors and suggestions that consequently drugs may go into the market or on the street bring the profession seriously into disrepute."

27. That having been said, there is still the task of the proper evaluation of the gravity of the offence. It is here that the reasoning of the Council in this case appears deficient.

The gravity of the misconduct

28. Having regard to the laborious record-keeping of the appellant, and the accuracy of those records, the only reasonable inference to be drawn is that he has failed to comply with the requirements of regulations 5 and 6 out of ignorance. It appears from what we were told by counsel at the hearing that it was only in June this year that the Hong Kong Medical Association sent to its members a specimen of the register set out in the First Schedule to the Dangerous Drugs Regulations. Prior to that, as far as we can ascertain, doctors have been given no assistance regarding the "register", "day book" and "separate book" as referred to in regulation 5, though they may have been alerted to the existence of those regulations.

29. It is plain from the evidence that the appellant remained in ignorance of the strict requirements of the statute for some considerable time. After the visit at his Tsuen Wan clinic by the Department of Health officials in May 1992 he continued the system of record-keeping as in the past: assuming, in good faith, that those records were adequate because no criticism of any kind was voiced nor any warning given to him that his system was defective.

30. In these circumstances, is an order of removal from the register for three months justified?

31. The implications of such removal must be considered. In terms of actual monetary loss, it would, as Mr Michael Thomas QC points out, amount to many times over the maximum fine which might be imposed under regulation 5(7) for breach of the provisions of regulation 5(1). And, of course, the damage to the appellant's practices at his two clinics would be very considerable. Once he is suspended, it may take him years to regain the trust and confidence of his patients: particularly at his Shatin clinic where the patients go to him with a variety of ailments. His lease at the housing estate could be jeopardised. Being removed from the register, his licence to possess drugs would automatically cease and to make arrangements with "locums" to carry on his Tsuen Wan practice might prove impossible.

32. Section 21(1) of the Medical Registration Ordinance gives to the Council a range of powers: erasure and removal from the register stand at one end of the spectrum and reprimand and a warning letter stand at the other end. Was this the type of case which justified the use of the more extreme powers? And has the Council erred in principle in its approach? Looking beyond the misconduct of doctors and viewing, say, the profession of solicitors, we see that the courts have a tendency to treat offences of "moral turpitude" much more seriously than those of technical breaches of regulations. See, for instance, A Solicitor v. Law Society of Hong Kong (1995) 2 HKC 125 where an order of suspension from practice for six months (deferred for two years, to lapse if no further disciplinary complaint was proved) was set aside because the finding of gross recklessness by the disciplinary tribunal was held by this court to have been unjustified. At p132-A Penlington JA considered that where there was no finding of dishonesty, an order of suspension could only be justified where the misconduct was very serious.

33. That said, the comparison with solicitors should be approached with some caution because, under the Legal Practitioners Ordinance, the powers of the solicitors' disciplinary tribunals are wider than those of the Medical Council: they include a substantial fine: a power which the Medical Council does not have under the Medical Registration Ordinance.

34. Under section 21(1) of the Medical Registration Ordinance, the "interface" between the powers of erasure and removal on the one hand, and the powers of reprimand and warning on the other hand is in effect the power given to the Council under s21(1)(d)(iv): to order that the removal from the register be suspended for a period.

The Council's approach in this case

35. The key to the Council's consideration of this case lies, in my view, in this statement in its reasons:

"The Council takes a most serious view of the conduct of doctors who keep records in their own way, not in accordance with the prescribed form. We do not accept the excuse or mitigation that such information claims to be found in other documents within the practice. That is manifestly inadequate and goes nowhere near the precise requirements of the Regulations to keep all that information in one place".

36. This, as it seems to me, is tantamount to saying that condign punishment must necessarily ensue once a failure to observe the regulations has been proved: the Medical Council will brook no explanation or excuse.

37. This, in my judgment, is not a proper exercise of the Council's powers in the circumstances of this case, having regard to the time of the offence - 26 March to 10 May 1993 - and its history. At that time the governing body of the medical profession in Hong Kong had not, as far as I can judge, brought to the attention of medical practitioners the precise formal requirements of the regulations, though they must be assumed to be aware of its terms in general. I note that in the Hong Kong Medical Association newsletter of June 1995 where a specimen of the register was provided, the article begins with the statement: "You are again reminded to be cautious about the handling of dangerous drugs". There is no suggestion of any lack of caution on the appellant's part in the handling of drugs in this case. The article goes on to say: "Although the subject has repeatedly been mentioned in this newsletter since 1991, some practitioners still find it difficult to strictly adhere to the law, in particular the part on record keeping". No evidence has been put before us as to what steps the Medical Association took to help practitioners to understand and comply with the regulations better; from what counsel has told us in court, it would appear that nothing concrete was done until June 1995.

38. I can understand and sympathise with the Medical Council's broad approach: That there must be strict compliance with the regulations. And if the requirements of the regulations had been clearly brought to the notice of the appellant prior to March 1993 there would indeed have been no "excuse or mitigation" when he was found on 10 May 1993 to have contravened the statutory requirements: Likewise, if the appellant had, on the visit made by the health inspector on 7 September 1994, been found still to contravene. Where this is not so, it seems to me that the broad brush approach of the Medical Council - treating in effect all offenders alike - is wrong in principle. In effect, the appellant is dealt with as an example, to ensure strict compliance by other medical practitioners, without regard to the circumstances of his case, in particular the time of the offence.

Conclusion

39. The situation as it prevails now is somewhat different from that in 1993 when the "offences" in this case were committed. Much publicity has been given in the press to the Medical Council's approach to similar cases in the meanwhile. The statutory forms have been publicised by the Hong Kong Medical Association.

40. Our attention was drawn in the course of argument to the decisions of this court in Ng Mei-sin v. Medical Council [supra] (decided in January 1995, relating to an offence on 10 May 1993) and Leung Kan Pui v. Medical Council [1995]2 HKC 15 (decided in March 1995, relating to offences in June and July 1989). Considerable publicity was given to those cases after their conclusion. It seems to me that the medical profession must, as a whole, be now fully aware of the requirements of regulations 5 and 6 and their importance. The decision of this court, dealing with an offence in 1993, is not meant to set the standards for today.

41. In my judgment this court should vary the Council's order of 19 July 1995 by ordering that the removal from the register be suspended for a period of two years subject to the appellant not being found guilty of misconduct in a professional respect during that period.

Godfrey, JA:

42. I agree.

Ryan J:

43. I also agree.