呂念迦 v. 香港護士管理局初步調查小組主席

HCAL 1566/2023

[2024] HKCFI 146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1566 OF 2023

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D E C I S I O N

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A.  Introduction

1.  By her Form 86 dated 4 September 2023, the Applicant seeks leave to apply for judicial review so as to challenge a decision of the Chairman (“Chairman”) of the Preliminary Investigation Committee (“PIC”) of the Nursing Council of Hong Kong, by which the Chairman decided that the Applicant’s complaint should not proceed further.

2.  The Form 86 names the Chairman as the Putative Respondent. But it also names Dr Yeung Sai Dat Richard (“Dr Yeung”) as Putative Interested party.

3.  By my directions given on 6 October 2023, I gave leave to the Chairman and Dr Yeung to file an initial response to the application by 6 November 2023, and leave to the Applicant to file a reply to that initial response by 4 December 2023. My directions also indicated that I would then decide whether to deal with the application for leave to apply for judicial review on paper, and if so that I would proceed to do so without further notice to the parties.

4.  Both initial responses were served: (1) by Ms Sanyi Shum, Senior Government Counsel and Ms Analeigh Chan, Government Counsel for the Chairman; and (2) by Mayer Brown, solicitors for Dr Yeung. In short, the Chairman’s position is that leave to apply for judicial review should be refused on various bases (which I shall traverse below), and Dr Yeung’s position is that he should not have been joined as a putative interested party at all.

5.  The Applicant filed a reply.

6.  Having considered the materials, I am satisfied that I can appropriately deal with the application on the papers.

7.  This is my Decision.

B.  Background

8.  The Applicant underwent complete thyroidectomy surgery in North District Hospital on 21 April 2008 (notably, a date approaching 14 years earlier than the 1^st Complaint: see below). She was discharged home on 24 April 2008. Staples were used to close the Applicant’s wound after the surgery, and those staples were removed on 26 April 2008 at the Tai Po Jockey Club Clinic (“Clinic”).

9.  After the surgery, the Applicant made various data access requests to the Alice Ho Miu Ling Nethersole Hospital (“Hospital”), the hospital which manages the Clinic, seeking (amongst other things) wound care progress documentation in relation to the removal of the staples at the Clinic on 26 April 2008. Two data access requests were made in 2011 and 2016 respectively. Subsequently, two further requests were made in 2019 (“2019 Requests”) for copies of the Applicant’s own data access request form received by Hospital in 2011 and the wound care progress documentation.

10.  Apparently, the documents in relation to the Applicant’s requests in 2011 and 2016 (except the data access request form received by Hospital in 2011) had already been discarded in accordance with the relevant guidelines. However, replies were sent in response to the 2019 Requests.

11.  The relevant letters of reply were signed by Dr Yeung, in his role as the Coordinator of Clinical Service of Hospital, with responsibility for signing the official documents as regards data access requests, on behalf of the Hospital Chief Executive.

12.  Hence, Dr Yeung’s involvement in replying to the Applicant’s data access request arose from his administrative responsibilities. He was not involved in the clinical management of the Applicant at any time. Further, Dr Yeung is obviously not a nurse, and he is not subject to any regulation of disciplinary oversight by the Nursing Council.

13.  On 30 December 2021, the Nursing Council received a complaint from the Applicant (“1^st Complaint”), alleging that a registered nurse Miss Lee Yuen Yee Virginia (“Miss Lee”) had intentionally signed an untruthful document.

14.  The basis of the 1^st Complaint was that the Applicant found that the Discharge Summary and the Discharge Caring Summary, which stated that she was to remove the stitches, were inconsistent with the Operation Record, which stated that her skin was stapled (instead of closed using stitches). The Discharge Caring Summary was signed by Miss Lee, and the spaces of her name, rank and date were left blank.

15.  The 1^st Complaint was considered by Mr Lee Kam-man, the former Chairman of the PIC.

16.  The consideration was in line with the disciplinary regime of nurses in Hong Kong, as provided for in the Nurses Registration Ordinance Cap 164 (“Ordinance”) and the Nurses (Registration and Disciplinary Procedure) Regulations 164A (“Regulations”). That regime establishes a three-stage process for the Nursing Council to determine whether a registered nurse is guilty of unprofessional conduct.

17.  The three stages are as follows:

(1)  Stage 1: consideration of the complaint by the Chairman of the PIC pursuant to Regulation 18 of the Regulations. Where a complaint is submitted to the Chairman, the Chairman shall, unless it appears to him that the complaint is frivolous or groundless and should not proceed further, direct that the complaint be referred to the PIC for its consideration.

(2)  Stage 2: consideration of the complaint by the PIC pursuant to Regulation 19 of the Regulations. The PIC shall consider the complaint, having regard to any explanation made by the defendant, and shall determine whether (a) that no inquiry shall be held, or (b) that the complaint shall in whole or in part be referred to inquiry.

(3)  Stage 3: full consideration by an inquiry panel with disciplinary powers under section 17 of the Ordinance.

18.  Dealing with the matter at Stage 1, Mr Lee (as the then Chairman of the PIC) considered the 1^st Complaint to be frivolous and groundless and that it should not proceed further. On 25 April 2022, the Nursing Council’s Secretariat issued a letter to the Applicant informing her of the Chairman’s decision (“1^st Decision”).

19.  On 31 May 2022, the Applicant provided supplementary information and alleged that Miss Lee deliberately concealed the truth that it was staples that were removed, and requested the Chairman to re-consider the 1^st Complaint (“2^nd Complaint”). Having considered the supplementary information and re-considered the 1^st Complaint, Mr Lee (as the then chairman of the PIC) considered that there was insufficient evidence showing unprofessional conduct of Miss Lee and that the case should not proceed further. On 13 December 2022, the Nursing Council’s Secretariat issued a letter to the Applicant informing her of the Chairman’s decision (“2^nd Decision”).

20.  On 11 January 2023, the Applicant wrote to the Nursing Council to express her discontent about the Chairman’s decisions not to follow up on her complaints, and repeated her complaints against Miss Lee without providing new information in support (“3^rd Complaint”). Having re-considered the 1^st Complaint and the 2^nd Complaint, Ms Iris Lo, the current Chairman of the PIC, agreed that the case should not proceed further. On 5 June 2023, the Nursing Council’s Secretariat issued a letter to the Applicant informing her of the Chairman’s decision (“3^rd Decision”).

21.  It is the 3^rd Decision which is the intended subject of judicial review in these proceedings.

C.  The Application

22.  The Applicant’s Form 86 was handwritten in Chinese. In English translation, the section on ‘Relief Sought’ states:

Dissatisfied with the ruling of the Chairman of the PIC on 5 June 2023, I believe the Chairman of the PIC has the responsibility to seek the truth based on all the evidence holding an inquiry. I believe the Chairman of the PIC has the responsibility to safeguard public interests and uphold justice, and therefore should carry out (a) the order of mandamus and (d) declaration sought.

23.  Her affirmation stated as follows, in English translation (and where words in italics were in English in the original):

1. Since I discovered that the two documents provided by the hospital (Northern Hospital) on the day of discharge contained inaccurate and erroneous information, I have repeatedly sought recourse from the hospital, but to no avail, so I filed a complaint with the then Chief Executive of the Hospital Authority (“HA”) via another channel. It was not until 7 August 2017 did the hospital altered the information and signed to confirm that the staples instead of the sutures were removed on the fifth day after the operation (off staples day 5) (attachment). However, the hospital only updated the information in the English version (Discharge Summary) without doing the same directly in the Chinese version of the patient’s discharge summary. Neither did it provide any clarification or apology for the incident.

2. Facts have proved that when the female healthcare personnel submitted the patient’s discharge summary on the day of discharge, she specifically pointed at the Date for “Removal of Sutures” to remind me of the same. This already suggests something misleading. While there is no evidence to prove whether she knew the truth, how could Lee Yuen-yee (Lee Yuen Yee Virginia), the Registered Nurse who signed in confirmation of the document stay out of the matter? Based on the surgical records and hospitalization records, she should reasonably have known that the information in the patient’s discharge summary was inaccurate and erroneous (attachment), but she still chose to sign in confirmation of the document, misleading me into believing it to be true and causing me to miss the opportunity to take a photo of myself, and therefore lose an important piece of evidence. Later, I happened to discover that my wound was different, to a large extent, from the wounds of other patients shown in their self-taken photos (attachment). This has a significant connection with medical mishaps.

3. The complainant had applied multiple times to Alice Ho Miu Ling Nethersole Hospital (“Hospital”) in Tai Po for sutures removal record. For the first application, the hospital indicated that it could provide the relevant information, so (the complainant) paid the application fee of $70 immediately (receipt number RB1F014924) (issue date: 01/12/2011) (attachment), and later received a notice from Dr YEUNG Sai Dat, Richard of the hospital, confirming that the required information would be provided within 40 days (file number: AHN/805/HOSPITAL/MRD/PD(P)O/11)(attachment). But all along, the complainant was unable to obtain the sutures removal record). It was not until the last application that the hospital issued a medical certificate claiming [Documentation of wound care progress is the clinical Management System was started in July 2011] (attachment), and that was why the Tai Po Jockey Club General Out-patient Clinic did not have a system for sutures removal record back in April 2008. This raises questions as to why it was stated during the first application that there was a record of sutures removal but it wasn’t provided subsequently. Further, it took place within the period for claiming compensation. This suggests some kind of concealment and deception.

4. After the period for claiming compensation for medical negligence expired, and after sparing no efforts, resources, money and time, I came to realize that the Registered Nurse LEE Yuen-yee (Lee Yuen Yee Virginia) actually noted down in her own handwriting “referral to GOPD for off slips” (attachment) on page 9 (against the entry of) 11 o’clock of the hospitalization record on the same day. Surprisingly, she wrote down the fact about the removal of staples, but on the other hand, signed to confirm the document about the removal of sutures. What was the motive behind what she did? Since she was the one who signed the confirmation document, of course she has to bear the consequences, whether she was negligent or intentionally concealed the fact that the staples (skin staples) were removed. Yet, it happened during the period for claiming compensation. This shows that someone wanted to conceal through deception. Therefore, the complainant considered that the Nursing Council should immediately hold an inquiry to find out the truth in response to the three complaint letters (attachment) respectively issued on 30 December 2021, 31 May 2022 and 11 January 2023, which gradually listed the evidence of Registered Nurse LEE Yuen-yee (Lee Yuen Yee Virginia)’s breach of professional conduct. In the Council’s replies on 25 April 2022, 13 December 2022 and 5 June 2023 (attachment), the person in charge was of the view that there was insufficient evidence to prove that the nurse being complained had been guilty of unprofessional conduct in the incident, and decided not to follow up on the relevant complaints without offering any reasonable grounds and explanations. I think the Chairman of the Preliminary Investigation Committee (PIC) made the inappropriate decision possibly because he had not fully grasped all the evidence. Since the person involved in the incident was a public officer and had, by means of deception, prejudiced the patient’s interests, it is a blatant breach of trust. For the reason that she is a public officer, it is a matter of public interest. If it is a matter of public interest, how can the truth not be sought?

5. Having learned that a claim for application fee can be filed with the Small Claims Tribunal, the complainant filed a complaint (claim number: SCTC01230) (attachment) on 26 May 2022, in order to recover the cost incurred from applying for the sutures removal record in Hospital.

6. At the hearing, I was given to understand that I could not answer questions by way of writing when testifying in court, so I applied to the Adjudicator for leave to be accompanied by a relative as my interpreter (attachment). At that time, I received a notice giving me directions and permission (attachment) on the grounds that I had not been able to speak normally since the surgery.

7. The case was scheduled to be heard on 1 November 2022 at Court 22 of the Small Claims Tribunal, West Kowloon Law Courts Building (claim number: SCT012310/22) (attachment).

8. After the Small Claims Tribunal hearing, the complainant continued to seek other legal advice and happened to discover something new. When Dr YEUNG Sai Dat, Richard knew that he could provide ultrasound record by issuing a written notice in accordance with the Privacy Ordinance (Personal Data (Privacy) Ordinance (Important Notice to Requestor 1.(19(1)a on Data Access Request Form)(attachment), then why did he not issue a written notice in accordance with the Privacy Ordinance: Important Notice to Requestor 1.(19(1)b stating the required sutures removal record could not be provided(?) Accordingly, as long as it can be established that the hospital indicated at first it had sutures removal record but failed to provide one subsequently, it can be regarded as fraud.

9. Why did Hospital in Tai Po conceal the sutures removal record for a full thyroidectomy performed in the Northern Hospital(?) A nurse and a doctor, both being public officers, turned out to have engaged in deception and delusion one after the other because of a patient’s sutures removal record. In particular, Registered (Nurse) LEE Yuen-yee (Lee Yuen Yee Virginia) was the head culprit. The Hospital Authority and the Northern Hospital have all along failed to give any clarification or explanation for the incident, trying to settle the matter by leaving the matter unsettled. Upon the expiry of the time limit for claiming compensation, the legal right to file a lawsuit has lapsed. And not being able to get a surgical expert to prepare a written opinion means it’s difficult to prove that the staples removed were not the skin staples as alleged in the surgical records. Therefore, it raised doubts that the whole incident was a planned and intentional scam. The complainant considered that the Nursing Council should hold an inquiry as soon as possible in order to find out the whole story from beginning to end. It should serve the purpose of speaking up for the public interest as well as seeking justice for the complainant.

10. I have applied to the Legal Aid Department (Legal Aid) for judicial review (case number: LA/MJR/00376/2023). In August, I received a notice from the Legal Aid Department dated the 14^th and learned that I had to apply to the court for leave first. For this purpose, I filled out Form 86 and filed it (attachment).

24.  In her reply to the initial responses, the Applicant stated, amongst other things, that:

(1)  she was aware at the time of their removal that it was staples not stitches which were removed, hence her complaint is essentially about the discrepancy in documentation, and why that might have occurred;

(2)  the correction of the information from removal of stitches to removal of staples led to two “major doubts”, being (a) why the Hospital and the HA acquiesced to inaccurate information being stored in the patient’s medical history, and (b) why the HA failed to clarify and apologise for the signatures of two doctors and a registered nurse confirming to inaccurate documents and failed to seek opinions from an expert in surgery because the change from removal of stitches to removal of staples is within the area of expertise in surgery;

(3)  it still cannot be proven that what was removed was skin staples, raising a suspicion of concealing the use of staples;

(4)  it might not have been appropriate to use staples on the wound;

(5)  the staples she saw looked like typical staples, rather than ones she has found in online images, so might not have been surgical staples;

(6)  she made the various applications for the stitch removal record, and paid the various application fees, because she was not given the required information, and she does not necessarily accept that the relevant earlier records had been destroyed;

(7)  the input and role of Dr Yeung in replying to the Applicant is not clear;

(8)  Dr Yeung’s inability to give an explanation for his actions is an indirect admission that there was an intention of deception;

(9)  facts speak louder than words and cannot be described as serious accusations;

(10)  the stitch removal record is the core issue of the entire case and proves that Miss Lee signed and verified the Patient Discharge Summary with the intention of deception.

D.  Dr Yeung

25.  It is convenient first to deal with the position of Dr Yeung, who has been named by the Applicant as the putative Interested Party to these proceedings.

26.  Plainly, he should not have been named in that capacity. Dr Yeung never had any involvement in the clinical management of the Applicant, and had only an administrative responsibility in replying to the Applicant’s data access requests.

27.  As has been pointed out by his solicitors, pursuant to RHC Order 53 rule 1A, an “interested party, in relation to an application for judicial review, means any person (other than the applicant and respondent) who is directly affected by the application”. On the Applicant’s Form 86, her intended challenge concerns the decision of the Chairman of the PIC of the Nursing Council to dismiss her complaint against a registered nurse, Miss Lee. It is therefore obvious that Dr Yeung, a registered medical practitioner, is not affected by the Chairman’s or PIC’s decision, and will not be affected by the outcome of the application made in these proceedings.

28.  I also agree that the Applicant’s allegations of “fraud” and “deception” against Dr Yeung in her affirmation – apparently freely bandied about – are groundless, and essentially irrelevant to the intended challenge actually made in these proceedings. In her reply, the Applicant even suggested that Dr Yeung exercised his authority to “frame the patient”, which with respect makes no sense on the documents. Contrary to the Applicant’s suggestion, a serious accusation does not cease to be a serious application merely because the maker of the accusation says the accusation merely records facts – and merely stating that they are facts does not make them facts.

29.  Therefore, if leave to apply for judicial review were to be granted to the Applicant, I would nevertheless accede to Dr Yeung’s request and I would order the Form 86 to be amended to remove the name and description of Dr Yeung as the putative interested party.

30.  I also agree that the groundless and irrelevant allegations made against Dr Yeung made it wholly justifiable, and probably necessary, for Dr Yeung to file the initial response at the Court’s invitation.

E.  The Application Proper

31.  On behalf of the Chairman, Ms Shum submits that the Applicant’s application for leave to apply for judicial review should be rejected on three grounds, namely that: (1) the Applicant fails to identify any specific grounds of review in the Form 86; (2) in any event, any purported ground of review (if any is advanced) is not reasonably arguable with any realistic prospect of success; and (3) the application for leave was made out of time.

32.  I have set out above the Applicant’s position as contained in her Form 86, and in her affirmation. I agree that the Form 86 does not contain any specific public law grounds of intended review. That is in breach of RHC Order 53 rule 3(2)(a), which mandates that a Form 86 should contain a statement of the relief sought and the grounds on which it is sought. It is trite that a failure to articulate any specific or proper grounds of review will ordinarily lead to the application being dismissed on that basis. It is not the Court’s role to identify any grounds of review for the Applicant.

33.  In any event, there is no discernible reasonably arguable public law error in the 3^rd Decision, the intended subject of judicial review.

34.  As set out above, the 3^rd Decision was reached at Stage 1 of the statutory three-stage process for determining whether a registered nurse is guilty of unprofessional conduct. At that stage, it fell to the Chairman (and this was applicable both to the former Chairman and the current Chairman) to consider whether the case is frivolous or groundless and should not proceed further.

35.  That necessitated consideration of whether the allegation of “unprofessional conduct” as made by the Applicant was frivolous or groundless and should not proceed further, where “unprofessional conduct” is defined by section 17(3) of the Ordinance to mean “an act or omission by a registered nurse or an enrolled nurse which could be reasonably regarded as disgraceful or dishonourable by registered nurses or enrolled nurses of good repute and competency”.

36.  Other than that the Applicant does not like the decisions, there is no basis for considering that any of them – including the 3^rd Decision, the subject of the intended challenge – was in any way tainted by illegality, Wednesbury unreasonableness, or procedural unfairness. The Applicant’s Complaints were handled properly in accordance with the established procedures, by reference to the information provided by the Applicant in support of the Complaints. All documents submitted by her were referred to the Chairman, who then considered them.

37.  Further, though it does not strictly fall to the Court to consider the merits of the Chairman’s decision – a decision of a senior professional within the context of a complaint of unprofessional conduct made against a member of that profession – the decisions, including the 3^rd Decision, seem to me very far from being irrational or Wednesbury unreasonable.

38.  There is also considerable force in Ms Shum’s submission that the challenge made in the Form 86 is considerably out of time. This is because the challenge is to the 3^rd Decision, which was made in response to the 3^rd Complaint, but that complaint was essentially the same as the 1^st Complaint and the 2^nd Complaint. The 1^st Complaint was dealt with by the 1^st Decision given on 25 April 2022. The 2^nd Complaint was dealt with by the 2^nd Decision given on 13 December 2022.

39.  It is a requirement of RHC Order 53 rule 4(1) that applications for leave to apply for judicial review should be made promptly and in any event within three months from the date when the grounds for an application first arose (unless the Court considers that there is a good reason for extending time). It is also settled law that an applicant cannot get around the time requirement by the device of asking the decision-maker to “reconsider” the decision, particularly where the same arguments are repeated or the same information is relied upon as were previously advanced in support of the original application.

40.  That is an additional reason to reject the application for leave to apply for judicial review in this case.

41.  I would point out that even had there been an arguable public law basis for seeking to challenge the 3^rd Decision, I would not have granted leave, on the basis that I would not have exercised my discretion to grant any relief, where the underlying matters related to an operative procedure which took place, and the relevant documents said to give rise to the complaint were generated, more than 15 years ago.

42.  Lastly, judicial review proceedings are obviously not the correct place to make complaints about potential medical negligence and or to pursue allegations of concealment.

F.  Result

43.  The Applicant’s application for leave to apply for judicial review is refused.

44.  As to costs, on the basis of the matters I have canvassed above, I order that Dr Yeung’s costs be payable by the Applicant, to be summarily assessed by me on paper. Dr Yeung should provide a Statement of Costs for Summary Assessment by 14 February 2024, and the Applicant has leave to file Objections to that Statement, if any, by 28 February 2024. I will then proceed to the summary assessment.

45.  As to the costs of the Chairman of the PIC, i.e. the Putative Respondent to the application, I also see no reason why costs should not follow the event, and so I order the Chairman’s costs be payable by the Applicant, to be summarily assessed by me on paper. The Chairman should provide a Statement of Costs for Summary Assessment by 14 February 2024, and the Applicant has leave to file Objections to that Statement, if any, by 28 February 2024. I will then proceed to the summary assessment.