KOO KWOK HO v. THE MEDICAL COUNCIL OF HONG KONG

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J U D G M E N T

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Cons, V.-P.:

1. This is the judgment of the Court.

2. On the 7th January the name of Dr. Koo Kwok Ho was ordered by the Medical Council, acting under Section of the Medical Registration Ordinance Cap. 161, to be removed from the Register of medical practitioners for a period of three months on the ground that he had been guilty of misconduct in a professional respect. On the 22nd March we dismissed his appeal to this Court saying that we would give our reasons later. This we now do.

3. In the Notice of Inquiry which initiated the proceedings against the Doctor, the Secretary to the Council laid six charges. Five of the charges were dismissed at the hearing before the Council, following a submission of no case to answer by counsel for the doctor. The 5th charge, on which the Doctor was convicted, was that he did -

"fail to exercise effective personal supervision over a nurse in your employ, namely Madam Tsui Chui-ying, contrary to Section 14 of the Warning "Notice of the Hong Kong Medical Council, ..."

4. Section 14 of the Warning Notice is headed "Covering improper delegation of medical duties to unregistered persons". The relevant portion reads -

"...the proper employment of nurses, midwives and other persons trained to perform specialized functions relevant or supplementary to medicine is entirely acceptable provided the medical practitioner concerned exercises effective personal supervision over any persons so employed..."

5. We may say at once that this cannot possibly impose an absolute duty upon a doctor and make him, as it were, an insurer of the conduct of his staff. But the choice of the word "effective" indicates that the Council intended to place a heavy responsibility upon doctors in this respect.

6. The evidence placed by the Secretary before the Council was, apart from formal matters, in the form of a statement of "Admitted Facts". These disclosed that on the afternoon of the 28th November 1986 a police constable in plain clothes paid a visit to the clinic where Dr. Koo practised. He approached one of three nurses behind the "reception and, telling her that he had been previously registered at the clinic, asked for ten tablets of Physeptone. The nurse, being unable to find a registration card in the name of the constable, filled up a new card and then, having written a prescription in her own hand, took ten tablets of Physeptone from an unlocked drawer and sold them to the constable for $60.

7. That was the basic substance of the Admitted Facts. In addition, they recorded that nothing irregular was found in respect of the storage and record keeping of dangerous drugs. Attached to them was the copy of a statement made by the Doctor to the police later the same evening. In it he explained that his main stock of restricted drugs was kept locked in a cabinet to which he alone had the key, but every morning he would place one to two hundred pills in a small drawer to which one of the other nurses had the hey. These would be dispensed during the day on his advice and in the evening the stock would be checked against those issued. He denied any knowledge of the sale by the first nurse.

8. The main substance of the appeal, and a crucial element in all the grounds set out under paragraphs 1 and 3 of the Notice of Appeal, is the contention that the mere fact that the nurse in question did on one particular occasion sell the restricted drug without a valid prescription is not in itself sufficient proof of lack of supervison on the part of the Doctor. It was urged upon us that professional misconduct cannot be constituted by an isolated act of careless or inadvertence; that professional misconduct is something, whether an act or an admission, which is reasonably regarded as disgraceful or dishonourable; that it must be grave misconduct; and that where it is alleged as a failure to take supervision, it must be a failure which involves an act of deliberate or reckless behaviour, or at the very least, an element. of irresponsibility.

9. It must be conceded at once that on the admitted Facts this was an isolated incident. That was accepted at the hearing by counsel for the Secretary. But we do not accept that it cannot, for that reason alone, amount to professional misconduct. We think that counsel for the Doctor ultimately came to agree and urged instead that the solitary nature of the incident was enough to preclude it from being sufficiently grave to found a charge of misconduct.

10. Doughty v. General Dental Council(l) was an appeal by a dentist against a finding by the Professional Conduct Committee of the General Dental Council that he had been guilty of "serious professional misconduct", a phrase which had been introduced a few years earlier in place of "infamous or disgraceful conduct". In giving the judgment of their Lordships, Lord Mackay said⁽²⁾ that -

"..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."

11. Save to observe that the Hong Kong ordinance does not require the element of seriousness, the relevant words being "misconduct in any professional respect", we would respectfully adopt their Lordships' comments with respect to inquiries under Section 21 of Cap. 161.

12. It is unnecessary then to consider the application of emotive adjectives. The test is simply whether the doctor's conduct has fallen short of the standard expected amongst doctors. The best judges of that are the doctors themselves. The responsibility of this Court, as Lord Mackay continued to observe, is -

"On an appeal to this Board, the board has the responsibility of deciding whether the committee were entitled to take the view that the evidence established that there had been a falling short of these standards..."

13. It was contended that the Council were not so entitled, in that the Admitted Facts did not identify any particular step or steps which the Doctor ought to have taken in the circumstances, or in other words, what was the nature of his failure. It was suggested that the Council were misled into an improper application of what amongst lawyers would be known as Res Ipsa Loquitur, a latin tag sometimes useful in actions based on negligence, meaning that the incident speaks for itself.

14. We do not think the Council were misled. Res Ipsa Loquitur is an approach permissible where the circumstances of the alleged negligence are not known. In the present instance the circumstances of the sale were well known. They were fully set out in the Admitted Facts. What was not known to the Council was what, if anything, the doctor had done to forestall the possibility that his nurse would abuse the gust placed in her. That was something peculiarly within the Doctor's own knowledge. It was not something which the Secretary could prove, nor in our view that he needed to. 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. Indeed counsel for the doctor accepted that at the hearing. He said -

"... 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.''

15. In our view that was a correct approach to suggest. We see no reason to think that the Council did not follow it.

16. It is not the policy of the Council to give reasons for its decision, and we therefore do not know how specifically the Doctor was thought to have failed to meet the expectations of his professional brethren. It is not for us to speculate what they may have been, although it is not difficult to envisage precautions which would have lessened the opportunity for abuse. It would not be surprising, in vies of the situation in Hong Kong, if doctors expected high standards to be maintained where drugs of this nature are concerned. It is very much a matter for them and their professional judgment. We can only interfere if the standards set are so high as to be unreasonable. We are not persuaded that in the present instance they must have been.

17. That disposes of paragraphs 1 and 3 of the appeal. Paragraph 2 suggests that the decision was inconsistent with the findings of no case to answer on the other five charges. This ground was not pursued in relation to charges No. 1, 2 and 4.

18. Charge No. 3 was that the Doctor improperly delegated to the nurse his responsibility for the treatment of a patient. Charge No. 6 was that the doctor had failed to retain personal responsibility for the treatment of patients in his surgery.

19. A. charge of the first nature requires proof of something active on the part of the doctor.

20. As to the second, counsel suggested below that this would involve an abdication of the Doctor's responsibility, a handing over of what he should be doing himself to one of his staff. That is again something active. There was, quite clearly in the Admitted Facts, no evidence of anything active at all on the part of the doctor and it was no doubt, for that reason, that the Council found no case to answer on both of these two charges. That however is not inconsistent with a conviction of failing to exercise effective supervision, the very essence of which is lack of activity.

21. It was for these reasons that we came to our decision to dismiss the appeal.

(1) [1987] 3 W.L.R. 769

(2) ibid. at 774