WAN HUNG CHING AARON v. PHYSIOTHERAPISTS BOARD HONG KONG

HCAL 30/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 30 OF 2007

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D E C I S I O N

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1.  The applicant Wan Ching Hung Aaron applied for leave for judicial review under Order 53, rule 3, RHC against the Physiotherapists Board of Hong Kong on the ground that “the ruling of not referring the case to the Physiotherapists Board for disciplinary inquiry on the allegations against Mr. To Yiu-kowk by the Preliminary Investigation Committee of the Board is not justified”.  This is an ex parte hearing for the application.

Background

2.  Both the applicant and Mr. To are registered physiotherapists under the Physiotherapists (Registration and Disciplinary Procedure) Regulation (Sub-leg J) (“the Regulation”) made under the Supplementary Medical Professions Ordinance (Cap.359). 

3.  On 16 October 2006, the applicant made a complaint to the Secretary of the Physiotherapists Board against Mr. To arising from an opinion expressed by Mr. To in an article in the Apple Daily on 8 October 2006.  The relevant parts of the article are:

“Registered physiotherapist To Yiu-kwok indicated, … … , one of the causes of scoliosis is due to some parents using the baby walker prematurely when the baby is only 8 to 9 months old and the load bearing capability has not yet been formed.

… …

Generally speaking, when the spinal curve magnitude exceeds 20°, the body is noticeable slanted.  Once it exceeds 40°, remedial operation must be undertaken.”

4.  Scoliosis is defined as a side-to-side deviation from the normal frontal axis of the body.

5.  In the letter of complaint, the applicant cited information from the web site of the American Academy of Orthopaedic Surgeons, inter alia:

“The vast majority of scoliosis is “idiopathic”, meaning its cause is unknown …

Scoliosis can occur at any age.  Adolescent idiopathic scoliosis occurs after the age of 10.  It is the most common type.  Infantile scoliosis occurs in children less than 3 years old.  It may result from a birth defect, disease of the nerves and muscles (such as muscular dystrophy or cerebral palsy), injury, infection or tumor…”

6.  The applicant wrote that he had reason to believe that premature use of the baby walker and scoliosis had no obvious cause-effect relationship.  The accuracy of the information provided by Mr. To to the Apple Daily is potentially doubtful.  Mr. To also authoritatively stated that “once it exceeds 40°, remedial operation must be undertaken” and it was plainly beyond the scope of the profession.  The applicant said he had a professional obligation to file the complaint against Mr. To.

7.  Under the Regulation, a complaint in respect of a registered physiotherapist shall be referred to the Preliminary Investigation Committee (“the Committee”) (section 18).  The Committee shall consider document and matter put before it and shall determine either – (a) that no inquiry shall be held; or (b) that the complaint shall in whole or in part be referred to the Physiotherapy Board for inquiry (section 21).

8.  On 12 February 2007, the Secretary to the Physiotherapists Board wrote to the applicant stating that the Committee decided that the case should not be referred to the Physiotherapists Board for disciplinary inquiry.  The complaint would not be proceeded with further and the Physiotherapists Board’s action had been concluded.

Discussion

9.  In the affirmation in support of the application for leave, the applicant stated that the 2 counts of allegation were: (a) providing inaccurate information to the public; and (b) providing comment beyond the scope of the profession to the public.  He alleged that the acts by Mr. To clearly violated the Code of Practice (1988) of the Physiotherapists Board:

“Part I (5) states that ‘A registered physiotherapist shall recognize the extent and limitation of his professional expertise and provide services that are within his competence.’

Part III (12) states that ‘It must be appreciated by every physiotherapist that it is the duty of every professional person who practices their profession to maintain a proper level of competence throughout their professional life as well as maintaining a proper standard of behaviour.  Preservation of such a level of competence is primarily the responsibility of the individual professional person.’”

10.  The applicant also submitted various publications and articles on the subject of scoliosis.  The following can be gleaned from the literatures.  In more than 80% of the cases of scoliosis, a specific cause is not found and they are termed idiopathic, i.e. undetermined cause.  Scoliosis does not come from carrying heavy things, athletic involvement, sleeping/standing postures or minor lower limb length inequality (website of Scoliosis Research Society, Milwaukee).  The true etiology of idiopathic scoliosis remains unknown; however it appears to be multifactorial (Etiology of Idiopathic Scoliosis: Current Trends in Research, Lowe et. al., The Journal of Bone and Joint Surgery Vol. 82-A, 8 August 2000).  In a clinical opinion, idiopathic scoliosis is thought to be a multigene dominant condition with variable phenotypic expression (Reamy et. al., Adolescent Idiopathic Scoliosis: Review and Current Concepts, American Family Physician, Vol. 64, No. 1, 1 July 2001).  Skeletal maturity is an important factor in scoliosis because progression will slow or end (unless scoliosis is severe) when vertebrae become fused (Killan, et. al., Current Concepts in Adolescent Idiopathic Scoliosis, Pediatric Annals 28, 12 December 1999).

11.  Surgery for idiopathic scoliosis is suggested when the curvature magnitude is 50° (website of Scoliosis Research Society, Milwaukee), or 40° to 50° in growing adolescents (Killan, et. al., ob. cit.).

12.  I note that there is at yet no determinative cause(s) on idiopathic scoliosis, and the subject is susceptible to clinical opinions.  On the materials submitted by the applicant himself, it is seen that injury and skeletal maturity may be possible factors relevant to the cause of scoliosis.  Mr. To’s opinion on premature use of baby walker seems to suggest causes related to injury and skeletal maturity.  I cannot see that it can determinatively be held to be inaccurate.

13.  As to the need for surgery, the matter will no doubt be further explored by medical professionals upon referral.  It cannot be said that referral to medical professionals by supplementary medical professional is a matter beyond the scope of the profession of the latter.  Mr. To is not proclaiming to provide any service beyond the limitation of his professional expertise.

14.  In the circumstances, I cannot see that the decision of the Committee is one such that no sensible authority acting with due appreciation of its responsibility would have decided to adopt. 

15.  Hence, the application for leave for judicial review is refused.