LAW YIU WAI RAY v. THE MEDICAL COUNCIL OF HONG KONG AND OTHERS

HCAL 46/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 46 OF 2015

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DECISION
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Introduction

1.  This is an application for leave to apply for judicial review of the joint decision of the Chairman and Deputy Chairman of the Preliminary Investigation Committee (the PIC) of the Medical Council of Hong Kong (the Council) dated 8 January 2015 dismissing the complaint filed by the applicant to the Council on 4 January 2013.

2.  The applicant brought this application on 2 April 2015, within three months from the date of the decision, and as soon as practicable upon the grant of legal aid on 26 March 2015.

Background

3.  The complaint was the second to the Council from the family of an infant boy who at the age of 14 months had to have his right index finger amputated arising from treatment he received from the doctor who is the subject of the complaint.  The applicant is the father of the boy who made this second complaint after the first complaint made by the mother had been rejected by the Council.

4.  In order to appreciate the basis of this application, it is necessary to give a brief chronology of the relevant events in this case.

5.  On 10 August 2009, the boy sustained a significant laceration to his right index finger.  His mother took him to a public hospital where the treating doctor suggested that the wound needed suturing under a general anaesthetic.  A second opinion was obtained from the doctor who recommended against a general anaesthetic because of the boy’s age and proposed to administer an oral analgesic and treat the wound by the application of some form of surgical or medical adhesive known as Dermabond.  The boy was admitted to a hospital where he stayed for four days after the application of Dermabond and a bandage.  The doctor saw the boy on several occasions after he was discharged from the hospital but did not open the bandage to inspect the progress of the wound for some days and when he did the finger had deteriorated and gangrene had started to develop. 

6.  On 21 August 2009, the boy was admitted to another hospital for assessment and treatment but it seems the infection had set in by then and on 30 September 2009 amputation of the distal phalanx and half the medial phalanx was carried out.

7.  The mother of the boy as his next friend instituted civil proceedings against the doctor for professional negligence.  The doctor conceded liability and the case proceeded on the assessment of damages. 

8.  On 20 November 2012, the judge handed down his judgment on the question of damages in which he provided an account of the medical treatment and eventual amputation of the boy’s finger, as well as a detailed description of the joint medical report of two orthopaedic surgeons dated 5 January 2011 submitted to the court by the parties. 

9.  The two surgeons made critical comments about the treatment administered to the boy by the doctor and concluded that it eventually caused the amputation of the finger.  In their joint report, the two surgeons explained that on 10 August 2009, the wound was sealed with Dermabond and the finger was dressed with gauze and crepe bandage.  They noted that the boy was kept in hospital until 13 August 2009 when he was discharged.  There were follow up consultations with the doctor on 15, 18 and 21 August 2009 but it seems during these consultations the finger was covered in additional gauze without being able to observe its circulation and colour.  It was not until the final consultation that the dressing was removed and that the gangrenous change of the finger was revealed.  The surgeons concluded that the boy’s condition was caused by incorrect and tight bandaging of the initial wound which resulted in arterial occlusion and eventually gangrene of the finger.  Both surgeons were critical of the treatment administered to the boy by the doctor.  One surgeon stated that the treatment rendered by the doctor eventually caused the amputation of the finger, not the initial cut wound.  The other surgeon stated that had the wound been inspected and redressed properly the subsequent ischemic injury could have been avoided.

10.  The judge described as “shortcomings” the assessment and treatment by the doctor which he stated was self-evident in an extremely obvious way.

11.  On 8 January 2010, the mother of the boy lodged a complaint against the doctor with the Council.

12.  On 13 September 2012 after a preliminary investigation by the PIC, the mother was notified by way of letter that it had been decided not to proceed with any further disciplinary proceedings against the doctor having found no evidence of professional misconduct by him.  It stated in the letter that the PIC held two meetings on 16 April and 13 August 2012 and it concluded that the medical treatment administered by the doctor was appropriate and that the eventual amputation of the boy’s finger was unrelated to the conduct and medical treatment administered by the doctor.  It concluded that as there was no evidence to demonstrate that the doctor had committed any professional misconduct the matter would not be referred to the Council for inquiry.  This decision was made prior to the handing down of the judgment in the civil proceedings on 20 November 2012 and without the joint medical report which had been submitted in those proceedings.

13.  On 4 January 2013, in consequence of the Council not having the judgment and the joint medical report, a second complaint, which was made by the father of the boy, was eventually dismissed after two years.

14.  In a short letter dated 8 January 2015 from the Secretary for the Council to the applicant it stated that the Chairman and Deputy Chairman of the PIC considered the information provided and the opinion of the lay member, and that they were of the view that the contents of the complaint had not provided new information which sufficiently proved that the doctor had committed professional misconduct and therefore they maintained the original decision and would not hold a disciplinary inquiry in relation to the case.  It was also stated that the complaint was considered in accordance with the requirements of section 6 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation of the Medical Registration Ordinance, Cap 161 (the Regulation).

Grounds of review

15.  Complaints against medical practitioners to the Council go through a two-stage filtering process before they are dealt with by the Council for inquiry.  The first stage is under section 6(3) of the Regulation which empowers the Chairman and the Deputy Chairman of the PIC to dismiss a complaint if they both consider the case is “frivolous, or groundless, and should not proceed further.”  This occurs upon receipt of a complaint which the Secretary for the Council refers to Chairman or Deputy Chairman for their consideration.  If the Chairman or Deputy Chairman is of the opinion that the complaint gives rise to a question as to whether a doctor has been guilty of professional misconduct he may request the complainant to provide further information or support the complaint by statutory declaration. 

16.  The case is then referred to the PIC for it to consider and this leads to the second stage under section 11 of the Regulation.  The PIC considers the case in private where the Secretary puts before it the complaint and related information and any written explanation submitted by the doctor and any other document or matter in the nature of evidence relevant to or in support of the complaint.  The PIC having regard to the information and material before it may decide that no inquiry shall be held or refer the case to the Council for inquiry. See Hong Kong Medical Association v Medical Council of Hong Kong [2014] 3 HKLRD 664 at paras 27 to 31 and 35 to 37.

17.  It is complained by the applicant that the letter failed to give any reasons why the complaint was dismissed in light of the new evidence and findings contained in the judgment and the joint medical report and also failed to explain why the adverse findings made against the doctor therein did not constitute new evidence supporting and/or substantiating the allegations of professional misconduct against the doctor and therefore warranting investigation by referral to the PIC and thereafter to the Council for inquiry.

18.  It is further complained that the findings and conclusions in the judgment and the joint medical report directly contradicted the conclusions reached by the PIC in its decision dismissing the first complaint.  It is pointed out by the applicant that in that decision it was stated that the medical treatment administered by the doctor was appropriate and that the eventual amputation of the boy’s finger was unrelated to the conduct and treatment administered by him.

19.  It is finally complained that it is not the role or function of the PIC or its Chairman and Deputy Chairman to weigh up and resolve conflicting evidence and contradictory findings, as this role and function belongs to the Council for inquiry.

20.  The applicant raises four grounds of review which can be couched in the following terms.  First, the decision was Wednesbury unreasonable and/or ultra vires.  Secondly, the decision is irrational for failure to take into account relevant information and documents.  Thirdly, the legitimate expectations of the applicant as a complainant have been materially denied.  Fourthly, the refusal to furnish the applicant with the documents and submissions submitted by the doctor the PIC is a denial of natural justice.

First ground

21.  As to the first ground of review, it is complained that the decision is unreasonable and contrary to the statutory requirements at this stage of the screening process of complaints against medical practitioners. 

22.  It is submitted that there is a two staged screening process to deal with complaints against medical practitioners before they proceed to an inquiry by the Council.  The first stage is under section 6(3) of the Regulation where the Chairman and Deputy Chairman of the PIC can decide that the case “should not proceed further” because it is frivolous or groundless.  The second stage is under section 11 of the Regulation where the PIC can, having regard to any written explanation submitted by the doctor or other materials put before it by the Secretary, decide that no inquiry should be held in relation to the case and therefore not refer it to the Council for inquiry. 

23.  It is further submitted that the role in screening a complaint in each of these stages is different.  In the first stage, it is argued that it is not the task of the Chairman and Deputy Chairman to decide whether the complaint ought to proceed further but whether the complaint should not proceed to the PIC.  The point is made that under the second stage of screening the PIC examines whether the complaint has any real prospect of being established and may conduct investigation for that purpose and in order to decide whether or not it should be referred to the Council for inquiry.  Even at this stage, it is argued that it is not the role of PIC to resolve substantial conflict of evidence for that is a function of the Council for inquiry.  The applicant refers to the following authority to support these propositions: R v General Medical Council, ex parte Toth [2000] 1 WLR 2209 at paras 10 and 14; Woods v GMC [2002] EWHC 1484 Admin at para 14; Li Wang Pong v The Medical Council of Hong Kong [2009] HKEC 17 at paras 37 to 39.

24.  It is argued that the Chairman and Deputy Chairman have misunderstood their role and function as first stage screeners who only decide whether the complaint need not proceed further in that it need not follow the normal course of referral to the PIC because it is frivolous or groundless and it is the PIC as the second stage screener which decides whether the complaint ought to proceed to the Council for inquiry, including an examination of whether there is a real prospect of the complaint being established. 

25.  The applicant complains that the decision as contained in the letter dated 8 January 2015 involved the Chairman and the Deputy Chairman improperly deciding whether there was any further evidence to disturb or alter the decision reached in the previous decision of the PIC and that no reasons were given to support the approach taken or the decision made.  The applicant further complains that it was not for the Chairman and Deputy Chairman to resolve any substantial conflict of evidence and findings and that no indication was given whether any steps were taken to refer the matter to the PIC for reconsideration of its previous decision.

26.  In any event, the applicant argues that on the information he submitted there is a strong prima facie case of professional misconduct on the part of the doctor, and given that the source of the information is a judgment of the court, where the doctor has conceded he was negligent, and the expert opinion of two orthopaedic surgeons, it is difficult to fathom how the complaint could be dismissed on the ground that it was frivolous or groundless. 

27.  It is submitted that the Chairman and Deputy Chairman have misunderstood their role and function in accordance with their statutory duties and obligations under the first stage screening process, and therefore they have exceeded their jurisdiction under section 6 of the Regulation.  It is also submitted that they have made a decision that the complaint is frivolous or groundless which no reasonable person in their positions could have made in light of the information and evidence submitted by the applicant.

Second ground

28.  As to the second ground of review, it is complained that the Chairman and Deputy Chairman have not taken into account all relevant factors and information when making their decision. 

29.  It is argued that they dismissed the complaint on the basis that there was no new information or evidence demonstrating that the doctor had committed professional misconduct but this clearly involved them either not considering or wrongly rejecting the new information and evidence that had been submitted by the applicant.  The applicant relies on the judgment in the civil proceedings and the joint medical report and the findings made therein, which he argues clearly contradict the findings of the PIC as contained in its letter dismissing the first complaint and brings into question the explanation by the doctor and the other materials previously put before the PIC. 

30.  It is also argued that the failure to provide reasons means that the applicant cannot ascertain on what basis the new information and evidence was considered, if at all, and rejected. 

Third ground

31.  As to the third ground of review, the applicant relies on Ex parte Toth that there is a legitimate expectation that complaints in the absence of some special and sufficient reason will proceed through the first stage to the second stage where serious professional misconduct is alleged and that they will be fully investigated and dealt with promptly without delay. 

32.  It is argued that on the basis of the new information and evidence, the complaint should have been referred to the PIC for consideration afresh pursuant to section 11 of the Regulation and then to the Council for inquiry. 

33.  It is also complained that there has been inordinate and unjustified delay in the handling of the complaint.  It is well settled that unjustified and unexplained delay is a species of maladministration.  The applicant complains that the two year delay in dismissing his case by rejecting the new information and evidence out of hand cannot justify the two years it took to do so.  This is a matter that requires a chronology of relevant events and an explanation from the relevant parties for the delay occasioned by this matter. 

Fourth ground

34.  As to the fourth ground of review, it concerns the refusal by the Secretary for the Council to provide access to or copies of the information and material submitted to the PIC by the doctor in relation to the first complaint. 

35.  It is apparent from the first letter from the Council dated 13 September 2012 that information and material had been submitted by the doctor to the PIC on which it relied on in arriving at its decision to dismiss the complaint.  A request was made for this information and material and the applicant argues that without it he is unable to address it and have his complaint fairly considered. 

36.  Under section 12(2) of the Regulation no party to a complaint has any right of access to any information or document relating to the case submitted to the PIC if it decides that no inquiry is to be held in respect of the case.  Whilst there is no right of access to such information or document by a party to the complaint, the question arises whether the PIC has the discretion to grant such access if it thinks fit.

37.  The applicant refers to the practice by the Medical Council in the United Kingdom which provides that material submitted by the doctor to the screener is copied to the complainant unless the screener considers that there are exceptional circumstances which ought properly to preclude this from happening.  It is also provided that even if exceptional circumstances arise disclosure may be allowed if accompanied by an appropriate undertaking or if it is done on a partial or edited basis. 

38.  The applicant has indicated his willingness to provide an undertaking of confidentiality, limiting the use and disclosure of any of the information and material requested.  It is argued that this is a matter of fairness, and is consistent with the statutory duties and obligations of the PIC, in particular the Chairman and Deputy Chairman, in dealing with the complaint.

Conclusion

39.  At this stage I have to be satisfied that the application for judicial review is reasonably arguable which enjoys realistic prospects of success.  I am so satisfied with the grounds advanced in the application.  On the basis of the papers before me, I therefore grant leave to the applicant to apply for judicial review of the decision of the Chairman and the Deputy Chairman of the PIC as contained in the letter from the Council dated 8 January 2015.