DR HUI YAT MING v. MEDICAL COUNCIL OF HONG KONG

CACV 418/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. NO. 418 OF 2001

(ON APPEAL FROM THE MEDICAL COUNCIL OF HONG KONG)

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J U D G M E N T

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Seagroatt, J: (giving the judgment of the Court)

1. This is an Appeal against an order of the Medical Council of Hong Kong on the 24 February 2001 when it made a finding against the Appellant of misconduct in a professional respect and ordered that his name be removed from the General Register for twelve months.

2. The charge laid against the Appellant following a complaint by one of his patients, a Ms Hung, was that between the 12 June and 4 September 1999, he prescribed for her the drug Dexamethasone which is a corticosteroid and used principally to treat, inter alia, severe allergies, and rheumatic and other inflammatory conditions. It is known to have a number of side-effects including muscle weakness, fluid retention and hormonal disturbances. The particulars of the charge are set out and identified by letters (a) to (e). It is relevant to set them out at this stage so as to see the ambit of the alleged misconduct and because some of the grounds of appeal advanced relate to certain of these specific particulars.

3. They are:

a) you caused long term use of the medicine for treatment of the patient's nasal allergy without proper justification;

b) you caused long term use of the medicine for treatment of the patient's allergy without proper monitoring of the side-effects of the medicine on the patient;

c) you failed to advise the patient the nature and the side-effects of the medicine;

d) you failed to properly label the medicine, failed to inform the patient the proper name of the medicine and failed to properly record the name of the medicine in the patient's medical record as "Dexamethasone"; and

e) you recorded your assessment of the patient in her medical records as "no discomfort after the drug" as at 13 July 1999 when in fact you have not seen or examined her on 13 July 1999.

4. It was indeed a simple issue. Did the Appellant prescribe Dexamethasone? He had entered in her records that he prescribed "Eurodane". Eurodane is not another name for Dexamethasone. Particular (d) could quite properly have been broken down into three discrete particulars. Particulars (a) to (c) relate to the treatment and advice. Particulars (d) & (e) relate to records, information and identification concerning the drug. It was not necessary for the Medical Council to prove all five particulars in order to bring home the allegation.

5. In the Amended Notice of Appeal are set out nine grounds. The first ground is subdivided into two aspects both of which concern the procedure adopted by the Medical Council. We propose to deal with all of them although Mr McCoy S.C. for the Appellant, developed only grounds 1, 2, 3, 5 and 8 in the course of oral submissions, relying upon his written skeleton agreement for the other grounds, a course which we approve as consistent with a proper use of such a document submitted for the court's assistance.

Ground 1A

6. The hearing lasted from 9.45 a.m. until 11.52 p.m. with breaks. Immediately we felt a degree of concern at that bare fact when we read the papers. In general, or as a matter of principle, courts or tribunals should not permit hearings of that extended nature and we will express our views more succinctly on the general position at the end of this judgment.

7. In viewing the picture more clearly we were aided by the hearing day's timetable as set out helpfully in a document attached to an affirmation by Miss Julienne Jen of the Applicant's solicitors.

8. The evidence concluded at 6.46 p.m. by which time there had been three breaks ranging in length from 10 minutes to 47 minutes. The evidence for the Appellant lasted from 3.10 p.m. until 6.46 p.m. Defence submissions took 55 minutes (against an estimate of "15 minutes or 20 minutes at the most"). The submissions of the Legal Officer in reply took 32 minutes (as against an estimate of 20-25 minutes.)

9. The Council retired for almost two hours, although this period included an evening meal, before returning their finding. After hearing a submission in mitigation of sentence by the Defence solicitor, the Council retired for a further 1 hour and 17 minutes.

10. Mr McCoy's argument is that a decision making body's decision must be flawed by reason of the duration of the hearing within one day. At the outset the Council indicated that it hoped to conclude the proceedings within the day and added "but if by late afternoon or evening we cannot finish them we have to adjourn".

11. At about 6.46 p.m. the Council asked for rough estimates of the likely duration of the submissions. Having received these and dealt with the order of addresses, the Chairman said that they would retire for "a late supper perhaps" and consider the verdict. "Is that agreeable?", the Chairman asked. No one demurred.

12. By that time the likely timetable was reasonably clear. It was certainly going to be well past normal court sitting hours.

13. No application was made by the Appellant's solicitor that the proceedings be adjourned before he made his submissions or at any time thereafter. In answer to the Chairman's question as to whether the proposed course was agreeable he said "I have no problem."

14. If indeed any members of the Council were tired and/or irritable, and were showing it, it was clearly not such as to cause an experienced solicitor advocate to seek to bring that day's proceedings to a close.

15. Mr McCoy submits that the onus is upon the Council to make its own decision as to whether it could be in the interest of fairness for the proceedings to continue and that whatever the solicitor may or may not have done is irrelevant. We cannot accept that argument. The Chairman clearly gave the advocates the opportunity to state whether or not the hearing should proceed to a conclusion that night. The argument ignores the fact that a lawyer is expected to have in mind his client's interests. Some disciplinary tribunals do sit late or for long hours. It is sometimes of benefit to the person who is the subject of such proceedings to get the matter over in the day. Lawyers are often faced with a value judgment as to which course is in their client's interest. We do not know, and should not know, whether there had been any discussion between lawyer and client as to what course should be adopted. We are however satisfied that there must have been, by an experienced solicitor, a decision to the effect that, at least, the continuation of the hearing that evening would not prejudice his client. This is a wholly material aspect of the proceedings.

16. Despite the length of time involved overall, the issue was a straightforward one. We think it is more than likely that the length of the consideration was taken up with what particulars were proved to their satisfaction, once they had been satisfied that Dexamethasone had been supplied. The first four particulars were easily made out. Discussion may well have been concerned with (e) which called for an explanation by the Appellant. His explanation put forward in his detailed letter to the Council was that he made the entry on the 29 July, not the 13 July and the reason was, that he concluded on the 29 July that when Ms Hung saw the nurse on the 13 July for a repeat prescription, she had not experienced discomfort by that stage. That needed a good deal of consideration by the Council, of which eight members were sitting on this hearing. Several had questioned the Appellant in some detail, and no doubt with more than a little puzzlement as to why this entry and his records in particular were so inconsistent with the factual position.

17. The evidence in support of the charge was overwhelming. We do not think that the duration of the hearing in any way affected the consideration of the evidence or the rationale of the decision.

Ground 1B

18. The short argument here is that the Chairman did not correctly follow the procedure laid down by Regulation 25(1)(e) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations Cap. 161 which enabled the Defendant in proceedings to make an address in person or by his legal representative in reply to the address to the Council by the Secretary, if he wished. It is argued that the Council limited the defence to a closing speech at the end of the defence case, thus denying it the right of reply to the Secretary's address. For this argument Mr McCoy relies on an extract from the transcript at page 268. The Chairman said:

" - we would have the address from Defence Counsel and reply from the Legal Officer. After all these, and then the Council will retire for a late supper perhaps, and then during that time the Council will of course consider .....is that agreeable?"

19. We do not construe those words as excluding any right of reply by the Defence to the Legal Officer's submissions. In the light of the answer given by the Solicitor to the Chairman's question - "I have no problem, I am in the Council's hands" - it appears that he did not regard his right of reply as being excluded. Moreover, it is clear from the Chairman's question after the Legal Officer's submissions at page 317 of the transcript, that the Defence was being asked if there was any further reply - "Any further reply - no, no further reply?" There was in fact no answer to that question which means that some indication other than an oral one must have been given to indicate that the Defence did not wish to make a further reply. Notwithstanding this Mr McCoy submitted that even though the question was probably posed to the Defence it could not be safely relied upon as an indication that the Council was properly applying the procedural rules in giving the Defence the right of reply. In the absence of any evidence from the Solicitor concerned we do not think that this submission has the essential basis and Mr McCoy realistically conceded this in effect. In our view there was no such procedural defect.

Ground 2

20. This ground relates to particular (e). It is alleged that (e) ought to have constituted a single charge, that all five particulars ought to have formed separate charges and that the actual single charge in encompassing five separate particulars or allegations is void for duplicity. We have some difficulty in following the basis of this contention. The single charge is one of misconduct in a professional respect and the particulars in (a) to (e) are no more than specific instances illustrating that. None of them constitutes a separate charge although during the course of the hearing the word "charge" was on several occasions loosely used to refer to a particular under (a) to (e). Nothing should be read into that.

21. A consideration of section 21(1) of the Medical Registration Ordinance Cap. 161 makes the position unequivocal:

"If after due inquiry into any case referred to it ..... the Council is satisfied that any registered medical practitioner .....

(b) has been guilty of misconduct in any professional respect..... the Council may, in its discretion -

(ii) order the name of the registered medical practitioner to be removed from the General Register for such period as it may think fit."

22. The form of the charge is as provided for by law. No doubt as a matter of good practice and fairness, particulars are given of the alleged misconduct in a professional respect. They do not constitute separate charges. In so far as Regulation 24(1) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations has any pertinence to the point advanced, it is clear from the reply of the Appellant's Solicitor at page 6 line 1 to the question posed by the Chairman at page 5 lines 32 to 34:

"May I ask the defendant whether he has any objection to the charge on a point of law?"

"We have no objection on the point of law".

that the Solicitor concerned saw no defect in the charge or the particulars. We think that he was entirely correct.

23. In Gee v. General Medical Council [1987] 1 WLR 564 at page 575 Lord Mackay of Clashfern stated that:

"In my opinion, there is no unfairness in which a number of allegations of fact are set out in one charge and it is alleged against a medical practitioner that these matters of fact, if established, render him guilty of serious professional misconduct provided that he has fair notice in time to prepare his defence of the nature to be led in support of these allegations ....."

Whilst this was said in the context of the Medical Act 1983 of the United Kingdom which contains different mechanisms in dealing with medical misconduct complaints, we are of the view that the judgment of Lord Mackay is apposite to the present case. The Appellant obviously had notice of the nature of the charge against him and was able to respond to it. Accordingly this ground falls away.

Ground 3

24. This argument also relates to particular (e) of the charge; a number of other grounds are concerned with this particular. It is not necessary to repeat the particular which is set out earlier in this judgment with the other particulars. It is clear however that the particular was concerned with the accuracy of the entry in the patient's record for that date viz. 13 July 1999. The Appellant in his letter to the Council had stated that he had not made that entry on the 13 July but on the 29 July as a retrospective statement of what he understood to be the position. It was not necessary for the particular to contain anything more than an allegation of inaccuracy in the record. By implication it was a misleading entry whether made accidentally, carelessnessly or deliberately. The evidence, if and when it emerged fully, would determine whether it was so.

25. The Appellant's Counsel contended that this particular had been "wrongly transformed" into an allegation of fraud, dishonesty, forgery or an attempt to pervert the course of justice and that none of these had been charged. Of the four expressions used we need concern ourselves with only the term 'dishonesty' because none of the other three expressions was used in the Council's findings as delivered by the Chairman. It is material to repeat that part:

"Concerning (e) the Council has always stressed the importance of accurate and contemporaneous recording of medical notes. It was unacceptable to put down any finding against a particular date when in fact no such finding was made on that date. In the context of this case such action is considered dishonest and misleading."

26. We have underlined the last sentence because we regard it as significant and an entirely proper and careful evaluation of all the evidence.

27. As it transpired, and as stated by the Appellant before the hearing, it was an inaccurate entry (whether made on the 13 July or the 29 July). He had not seen the patient and therefore no such entry was justified on either date. But the Council was faced with an assertion by the Appellant that he made it retrospectively (i.e. on the 29 July) and for the purposes of their fact finding exercise they did not need to go behind his statement that it was not contemporaneous. Although the explanation from the Appellant was that he had deliberately left the first line of the record card opposite the date 13 July 1999 clear, an examination of that point and of the form of the record card must have been puzzling for them, and we have refrained from further forensic exercise in that regard because it is unnecessary.

28. Given all the evidence they had heard about the prescribing of Dexamethasone, the recording of such prescription as "Eurodane" and the other findings of fact which they had made, it was entirely open to them to conclude that the entry for the 13 July 1999 was made dishonestly. That is in effect the reason for the inaccurate entry. The professional misconduct was clearly made out on the strength of the entry and the evidence in relation to it. The fact that the Council concluded that it had been made dishonestly was an aggravating feature. It put the professional misconduct into sharper focus. It would be relevant to the penalty imposed. There are many instances both in disciplinary and criminal proceedings where the evidence, during a hearing or trial makes the offence worse, and that aggravation is reflected in the sentence imposed.

29. The Appellant was thoroughly questioned about the nature of and reasons for this entry. He had ample opportunity to explain it. He knew the accuracy or veracity of his records was under scrutiny. He was certainly not denied due inquiry.

30. There was no requirement for the particular ( or the charge as laid) to allege dishonesty. There is and was in this case, always a risk that such actions or omissions would be regarded as dishonest. But an allegation of dishonesty (or any alternative) was not a pre-requisite to the charge or the particular. That is a misconception as to the ambit of proceedings such as these.

Ground 4

31. This is really no more than an extension of the point raised under ground 3. Exception is taken on behalf of the Appellant to questioning by Council members in respect of that part of his record which featured in particular (e). However long it lasted, and such questioning was not confined to that specific part of his record, this questioning was by reputable and experienced members who were obviously concerned about a vital aspect of practice of a member of their profession. They knew what was to be expected of a responsible practitioner in his duty to his patients and to the maintenance of the standards of the profession. The questioning was entirely relevant and no exception can be taken to it. There is a particular passage at page 241 in which Dr Lam, in dealing with a later record, and the Appellant's prescribing of the drug (without seeing her) even though Ms Hung a few days earlier had complained of facial swelling and the Appellant says he called her twice to come in and see him, appears incredulous at his reply. We share his reaction.

"Last question, page 96, the medical record there, 4th September there, according to your evidence, presumably you hadn't seen the patient on that day, but you remember that a couple of days ago, she rang you about the facial swelling and you called her twice within a day to ask her to come back for a follow-up consultation, and then a couple of days later you didn't see her, and then you prescribed the same drug. Have I heard you wrong?

Dr. Hui: No, you haven't".

Ground 5

32. The Legal Officer's advice as to the standard of proof is dealt with at page 314 of the transcript from line 32:

"It is higher than the civil standard of balance of probability but it may not be as high as the criminal standard of beyond reasonable doubt."

33. At a later stage - page 318 - from line 17 - the Legal Officer referred to the Court of Appeal decision in Tse Lo Hong v. The Attorney General 1995 3 HKC p. 428 as authority for the proposition that the standard of proof must be commensurate with the gravity of the charge. (see Litton, V-P at page 440 D-E)

34. That decision went a little further than that as the judgment of Bokhary, J.A. made clear at page 442 D-E. The headnote of that case is not a wholly accurate reflection of the judgment apparently cited. What Bokhary J.A. actually said was:

"Where the events giving rise to such a disciplinary charge would also found serious criminal charges, then it may be appropriate to apply that standard."

35. He went on to deal with the particular circumstances of that case - the disciplinary charge against a police officer was in substance an allegation of indecent assault against the victim of a burglary which he was investigating - and in that context said:

"Any distinction between what it took to prove that allegation in a criminal court and what it took to prove in a disciplinary tribunal would .... have been only theoretical and not real. It would be too fine a distinction to put into practice."

36. In stating that, Bokhary J.A. had been considering the speech of Lord Jauncey of Tullichettle in McAllister v. General Medical Council 1993 AC 380 which at p. 399 contains a passage apposite to what we regard as the necessary approach to this case:

"The Committee (of the General Medical Council) is composed entirely of medical men and women learned in their profession and to require that every charge of professional misconduct has to be proved to them just as though they were a jury of laymen is, in their Lordships' view, neither necessary nor desirable."

37. We have already considered the position of particular (e) in the context of the charge concerned and do not need to repeat that.

38. The Defendant's Solicitor himself dealt with the standard of proof in terms entirely in accord with those of the Legal Officer. At page 271 line 12-14:

"The burden of proof in these cases is a high one,"

and at page 299 line 22-25

"You have got to be satisfied .... to a very high standard of proof ....."

39. We add quite simply that particular (e) was admitted. The Council's conclusion that the inaccurate record was dishonestly made, was reached on overwhelming evidence.

Grounds 6, 7 and 8

40. We propose to deal with these on a composite basis. There was overwhelming evidence that the Appellant prescribed Dexamethasone, that he prescribed it knowingly, and that the Dexamethasone which came into Ms Hung's possession at the clinic or surgery was dispensed from the clinic's stocks. The haematology analyses were not inconsistent with the prescription of Dexamethasone. Some of the tests did not reveal traces of the drug. That is simply a neutral fact in the circumstances of this case.

Ground 9

41. Having found nothing prejudicial to the Appellant in the length of hearing and procedure there is little in this ground remaining. The length of the time taken for deliberation may be explained in part by the need for a meal. On the evidence, and as indicated by the Chairman in his recorded findings, they can have encountered little difficulty in reaching their prime conclusion on the charge. The consideration or discussion, and given the ambit of the questions of several members of the Council, it is likely to have been extensive, was almost certainly given over to forming a picture of this Appellant's approach to his records. It was obviously a matter of some concern that he had supplied Ms Hung, not with what she asked i.e. her medical records or rather a photostat copy of them, but with what he described as a fair copy explaining that the existing record was not clear or clean or decent enough. We have seen the original medical record although the Council may have seen only a photostat copy of it. We have been able also to compare it with the photostat copy of what he prepared for her. We cannot see why he could not simply have photostated the record card. The clarity of the writing is good. The ink blots do not obscure anything material. In fact that record is a very clear and intelligible one in comparison with the records made by many doctors. The copy he made for her is certainly not a fair copy. It looks untidy. The entry which is the subject of particular (e) is oddly different from that on the medical record. It is not in a sequence but on the side and in brackets as if it were an afterthought. The comparison between the two obviously gave rise to a number of questions. One member at least thought the record card itself was fabricated. All these were curious aspects that troubled a group of eight professional medical men and in our view rightly so.

Generally

42. As Mr Michael Lunn S.C. for the Respondent Council set out in his succinct and direct written and oral submissions, the issues were quite straightforward and the Council made unequivocal findings of fact. They believed Ms Hung and they did not believe the Appellant. In the course of her evidence when dealing with her request for a copy of her medical record she said the process became "very convoluted" (Transcript page 39 line 14/15). Initially he gave her two hand-written pages which she knew was not her medical record.

"I want the card that you write my symptoms on."

He replied :

"No that's all I have." (Transcript page 40)

43. She then wrote formally for her medical record. Again he asserted that what he gave her was her medical record. She requested the proper record yet again. He then said that the record had been stored away. It clearly had not otherwise he would have been unable to make a "fair" copy. The Council had no difficulty in accepting her evidence. Why, they must have asked themselves, was he lying to avoid giving her a photostat copy of the actual medical record? Why did he go to the elaborate course of making a hand-written copy? Did he in fact make any notes at the material times? Or if he did, were they those which purport to be for the most part, a contemporaneous record?

44. The Council made its findings having fully considered the documentary evidence and the oral evidence of the two principal witnesses. At the end of the hearing when the Chairman announced the penalty he made the following comment"

"Doctors should exercise great care in supplying systemic steroids to patients and should monitor for side effects. To conceal the supply of such systemic steroids by dishonest and misleading recording is considered a very serious matter."

45. Despite our clear finding that no prejudice, injustice or illegality resulted from the Council deciding to sit late to conclude the proceedings, we wish to express our concern if such a course is adopted on a routine basis. There are of course pressures upon the Disciplinary Council to reach a decision without imposing upon a Defendant an extended period of uncertainty until the same members of the Council can be reconvened for an adjourned hearing.

46. Sometimes a Defendant's legal adviser will encourage an extended hearing because he judges that it will be in his client's interest to have the matter determined at the earliest opportunity and/or that he thinks he knows "which way the wind is blowing" and has made a tactical decision.

47. As a general rule, unless the parties agree - which means in practice unless the Defendant agrees - we do not think a Disciplinary Tribunal which starts at or about 9:30 a.m. should sit beyond 6 p.m. save in exceptional circumstances.

48. We have already concluded that this Council's long and late sitting occasioned no injustice and constituted no breach. We are far from saying that such an extended hearing beyond the somewhat arbitrary limit of 6 p.m. which we have mentioned, necessarily involves an implication of prejudice. It may of course work to the Defendant's advantage but that in itself involves the risk of prejudice. It is very much a matter for the professional tribunal's judgment in the circumstances of the particular proceedings. Justice must of course be seen to be done and whatever the pressures may be to reach a decision within the confines of a single day, even a tribunal of professionals may not do justice to itself after a substantial period of concentration. It should, in general, eschew acceding to encouragement to sit late.

49. Again it should not be overlooked that even after the decision had been given by the Chairman at about 10:25 p.m., the Defendant's Solicitor did not apply for an adjournment to consider mitigation material so that the matter of the penalty could be considered freshly on another day. In our view that judgment was vindicated. The penalty imposed was a mere 12 months suspension. It follows from that that we reject the implied argument in ground 4 that there was a finding of "mere neglect of professional duties" for which removal from the Register for 12 months was unfairly severe.

50. The Council had found Dexamethasone had been prescribed. It had been recorded on several occasions as "Eurodane". It had never been recorded as Dexamethasone. The lack of information to the patient, the failure to monitor her progress, the entry in the record which was wholly misleading since he did not see her on that occasion, and the fact that the offending drug was prescribed without seeing her even after she had indicated she was suffering facial swelling and he had told her twice to see him, all indicate at the very least, gross negligence. Dexamethasone was a drug with properties that called for sustained and responsible professional medical care.

51. It seems to us that a doctor who so neglects his patient and is grossly negligent in the respects so proved is unfit to practice medicine. For the protection of the public whose health is at risk and who are utterly dependent for its well-being upon a profession which holds itself out as dedicated to its care and as exercising high levels of judgment and responsibility, there must be a high degree of discipline and the penalties must properly reflect failure on the part of the practitioner. On this basis removal of an incompetent and grossly negligent practitioner from the Register for a mere 12 months is inadequate.

52. This practitioner was found to have been not simply negligent in his care but dishonest and misleading in the records he kept. His gross misconduct put the patient at risk. On this basis a short term removal from the Register is entirely inappropriate.

53. We are not, of course concerned with an appeal against sentence, but we feel bound to state that the public deserves better protection than the penalty imposed affords them.