YOUSAF AKBAR v. THE REGISTRAR OF THE HIGH COURT

HCAL 18/2023

[2023] HKCFI 575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 18 OF 2023

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J U D G M E N T

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A.  Introduction

1.  By Form 86 dated 5 January 2023, the Applicant seeks leave to apply for judicial review of the decision dated 10 October 2022 (“Decision”) made by the Deputy Registrar of the High Court (“Master”) dismissing the Applicant’s appeal against the Director of Legal Aid’s refusal of his legal aid application made in the context of his claim in HCPI 409/2020 (“PI Action”).

2.  The PI Action is a personal injury claim, commenced by generally endorsed writ on 7 October 2020, and brought against the Hospital Authority in respect of the allegedly negligent medical treatment provided to the Applicant between 8 October 2017 and 23 November 2018. There is as yet no filed statement of claim.

3.  The Director refused the application for legal aid on 28 January 2022. The Master dismissed the appeal on 10 October 2022.

4.  I gave directions to bring this matter to a hearing on 22 February 2023, including that the Director should provide an Initial Response to the application, and that the Applicant might provide a Reply. Both documents were helpfully provided. Further, at the hearing the parties agreed with my suggestion that the matter be treated as a ‘rolled-up’ hearing of the application for leave and any substantive judicial review application.

5.  The Applicant was represented by Mr Damian Wong and Mr Jeffrey Tam of Counsel (both appearing on a pro bono basis, instructed by solicitors acting on the same basis). The attendance of the Master as putative respondent was excused. The Director, as putative interested party, was represented by Mr Patrick Siu of Counsel.

6.  At the conclusion of the hearing, I reserved my decision. This is my Judgment.

B.  Correct Approach

7.  The proper approaches (1) in a legal aid appeal and (2) in considering an application for leave to apply for judicial review of a decision to dismiss a legal aid appeal are well-settled, and need no reference to authority.

8.  A legal aid appeal to the Master takes the form of a de novo hearing, and it falls to the Master to decide whether, in his view of the materials before him, legal aid should be granted. In making that decision, the Master will apply the criterion provided in section 10(3) of the Legal Aid Ordinance Cap 91, namely that a person shall not be granted a legal aid certificate in connection with any proceedings unless he shows that he has reasonable grounds for taking, defending, opposing or continuing such proceedings. The Court does not have to be satisfied that it is more probable than not that the issue will be decided in the appellant’s favour. But it has to be satisfied that the appellant has shown that there is a reasonable, as opposed to a fanciful, chance of the Court at trial deciding that issue in his favour.

9.  In deciding whether or not to grant legal aid, the Court has to and can only assess the merits of the intended claim by looking at the evidence materials available at that time as a whole; the credibility of the applicant’s allegations and the inherent probabilities and improbabilities can be taken into account, and it is not correct as a general proposition that whenever an applicant for legal aid intends to make a claim based on his or her own assertions, legal aid should be granted simply because there is as yet no evidence coming from the other side to explain the matter otherwise. The merits of each individual case must be assessed based on the available materials and evidence specific to that case.

10.  But on any ensuing application for judicial review, the question for the Court is not whether the applicant has a reasonable chance of success in the intended underlying action, but whether the intended application for judicial review of the Master’s decision is reasonably arguable and has a realistic prospect of success. The Court does not sit as a further tier of appeal, and does not re-examine the Master’s decision afresh, or consider whether it would have granted legal aid to the applicant. The Court’s function is confined to a review of the legality, rationality and fairness of the process adopted by the Master on the appeal.

C.  Background Facts

11.  The necessary background facts can be stated with some economy, and I do not think it necessary to set out the level of detail as is provided in the Form 86.

12.  In short, from 8 October 2017 onwards, the Applicant was admitted to and/or treated at the Pamela Youde Nethersole Eastern Hospital (“Hospital”) for various complaints including severe back pain and contractions and weakness in both legs. The Applicant underwent various tests, including MRI. On 14 October 2017, the Hospital fitted a sternal occipital mandibular immobiliser (“SOMI”) brace to immobilise and protect the Applicant’s upper thoracic spine. But the Applicant subsequently complained of discomfort and refused to use it.

13.  On 31 October 2017, it was recorded that the Applicant indicated he was not keen for operation. On 2 November 2017, surgical treatment was suggested after reassessment. On 4 November 2017, the Applicant refused surgery and various treatments. On 6 November 2017, the Applicant again refused surgery – albeit at a time that the Applicant says he was very drowsy from the various medications, and in circumstances where he only has a primary level education and his English and Chinese proficiency is not that high.

14.  What was or was not said in discussions between the Applicant and the doctors treating him is the substance of the dispute giving rise to the claim in the PI Action on whether or not there was “informed consent”. In particular, the main issue relating to consent is whether the doctors in fact told the Applicant of the risks and possible consequences of not having the surgery. It is on that issue of consent that the legal aid appeal was argued, and decided by the Master.

15.  In a draft witness statement of the Applicant prepared for the PI Action, it is stated (at §14):

About 5 November 2017, the attending doctor came to me and told me that I should undergo a surgery. I asked the doctor about the surgery and he told me that it was a very big and very risky surgery that would be done by cutting my chest open. The doctor said there was a chance that I might be completely paralysed. I asked the doctor what I should do and the doctor then suggested that it would be better not to perform the surgery. I was confused and scared. The doctor was discouraging me from doing the surgery so I followed the Doctor’s advice. I am a simple-minded person. I did not ask further questions and neither did the doctor elaborate further. He never told me that if I decided not to do the surgery, my legs would keep on contracting and that that time was a golden time for the surgery. At that time, I was scared of the surgery as I am a layman and I did not know that there was an option of doing the surgery from the back which was less risky and safe. I was never told by the doctor that the surgery could actually be done from the back and that there is a time limit or golden time for doing it. Now I know I made a mistake, and without thinking clearly, quickly said no but they did not bother to elaborate further to convince me that it would save my legs from contracting and that without surgery, I would be disabled for life. …

16.  The Applicant also says that no family member was contacted by the Hospital about the pros and cons of the surgery.

17.  It is common ground that the various medical records of the Applicant at the Hospital do not contain any notes as to what advice and explanations were given to the Applicant about either having or not having surgery, or any particular surgery. In essence, the medical records merely note the Applicant’s hesitancy as to, and then refusal of, surgery.

18.  The Applicant later underwent surgery in December 2019/January 2020. But his claim in the PI Action is apparently based on the allegation that the surgery then performed was too late, whereas earlier surgery would have been more beneficial.

19.  It is also helpful here to make reference to correspondence subsequent to the Applicant’s concerns arising. On 4 October 2018, the Society for Community Organisation wrote to the Chief Executive of the Hospital summarising the complaints it had received about the Hospital’s care provided to the Applicant. One matter summarised related to the question of informed consent to surgery, and the section of the letter reads (sic):

Doctor from Ward A9 suggested Mr Akbar to receiving operation. Since Mr Akbar is only a primary school graduate and is simpleminded person, he has very little education and understanding of his illness. He thought that he has not fractured or broken any bones. On top of that, doctors were also scaring him of the high risks and unsuccessful rate of the operation which made him feel that he should not be going for it. Doctors never told him what will happen if he doesn’t do it and they never bother to let the family or at least one close family member understand the risk and pros and cons of the surgery. Thus, Mr Akbar was not fully aware of the purpose of operation and not able to analyse the pros and cons of the operation. He refused the operation without serious consideration. Mr Akbar’s sister only learned from Doctor in terms but not medical officers that a risky surgery was under consideration and she was not invited to discuss the operation with the patient. She did took the initiative and try to meet face-to-face with the attending doctor several times the doctor just walked away after giving a very short answer. She only got a brief idea that the patient was suffering from inflammation but not a clue on spinal cord compression. The family did not have any chance to discuss the operation with the patient and the attending doctor.

Regarding this issue, please reply the following questions:

•  What is the operation suggested to Mr Akbar?

•  What is the purpose and risks of the operation?

•  Given Mr Akbar’s condition, is it better for Mr Akbar to receive the operation? If so, why did the doctor not persuade Mr Akbar or discuss with his family members?

•  Is there any record that during hospitalisation, medical offices discuss patient’s situation in details with the family? If there is what was discussed with the family?

•  A private doctor commented that, owing to spinal cord compression, a surgery should be conducted immediately after hospitalisation, do PYNEH agreed to this comment?

•  Why did the family not be informed about spinal cord compression from PYNEH?

20.  The Hospital’s reply came in a letter dated 7 December 2018 (“Letter”), signed by a Dr CW Lau (who was not one of the treating doctors). The letter began by stating that the Hospital had reviewed the case and would like to furnish the reply as followed. The particular paragraph most relevant to the matter of the issue of consent was as follows:

Patient’s second MRI on 2 November 2017 showed further collapse of T4, but the patient was not willing to wear brace. We had repeatedly discussed with him the pros and cons and the risk of surgery, that he might still have lower limbs paralysis with or without surgery, but the risk of paralysis would be higher if surgery was not performed, and that the surgery carried significant risk in his situation. After repeated discussion, he still refused surgical intervention and we had also discussed with his immediate family member over the phone on 6 November 2017.

D.  The Master’s Decision

21.  In the Brief Reasons for his Decision, and following some background and identification of legal principle, the Master began his consideration by reference to the medical notes. He expressly acknowledged that there is no dispute that the medical notes provided by the Hospital made no mention about the contents of the discussion between the doctors and the Applicant in relation to the pros and cons of surgical intervention and conservative treatment, the expected benefits and risks and the likelihood of those benefits and risks occurring.

22.  Nevertheless, he then pointed to various entries in the medical notes (16 of them), including entries recording the Applicant’s refusal to have surgical intervention.

23.  The Master also took into account the content of the Letter, particularly that part which stated that the Hospital had repeatedly discussed with the Applicant the pros and cons and risk of surgery, that he might still have lower limbs paralysis with or without surgery, but the risk of paralysis would be higher if surgery was not performed, and that the surgery carried significant risk in his situation. He also referred to the fact that the Letter further stated that, after repeated discussion, the Applicant still refused surgical intervention and that the Hospital had discussed with his immediate family member over the phone on 6 November 2017.

24.  The Master rejected the argument put forward for the Applicant that because the writer of the letter was not involved in the treatment and care of the Applicant, it is unclear on what basis the writer could state that the treating doctors had repeatedly discussed with the Applicant the pros and cons and risk of surgery.

25.  The Master also referred to the draft witness statement, and to the expert report from a doctor Dr NV Todd, a consultant neurosurgeon and spinal surgeon in the United Kingdom, put forward on behalf of the Applicant. The Master noted that §104 of that report stated that:

… if the Court accepts that Mr Akbar was offered surgery and probably the surgery that I have described above then the Court could find that Mr Akbar turned surgery down in the light of a full explanation of the risks, benefits and alternatives to treatment in which case there was no breach of duty of care on the part of the treating doctors. The Court might find that Mr Akbar was not given a proper explanation of the risks benefits and alternatives to surgery in which case there may have been a breach of duty of care in relation to consent.

26.  Though not referred to by the Master in his brief reasons, it is convenient to set out here the content of the immediately preceding §103 of the report, which stated that:

On 31.10.17 the notes record that Mr Akbar was “not keen for operation”. Unfortunately the notes do not record what operation was being discussed with Mr Akbar nor does it tell us the indication for surgery, the benefits, risks and/or any reasonable alternatives to surgery i.e. we do not know what [the Applicant] was told. There is only very limited information in Mr Akbar’s Witness Statement. What seems likely is that the treating doctors were aware of partial treatment failure with recurrent fever and a rising CRP despite appropriate antibiotics with mild deterioration of motor power and what appears to be increasing spasticity. On the very limited evidence that I have seen Mr Akbar was offered an operation and the only operation that I think could reasonably have been recommended was bilateral posterior lateral (costotransversectomy) the compressions of the anterior infected collection that was compressing the spinal cord which was, in part, the operation that was carried out in December 2019. Mr Akbar declined surgery.

27.  The Master held that it is necessary to look at the issue in context and with regard to the whole medical notes in their entirety. As he put it in §15:

We are not dealing with situation where there was no mention of a patient’s decision to go for surgical intervention at all in the medical notes. From the notes provided by the Hospital, it was clear that various entries of Mr Akbar’s refusal to have surgical intervention had been entered in the notes by different doctors at [different] times. In this connection, I agree with Ms Lau’s advice that it would not be reasonable to expect that all the doctors failed to explain to Mr Akbar about the risk involved or the likely consequences if he was not to take it. I further agree with Ms Lau that while the notes did not record any details about the discussions exchanged between Mr Akbar and the doctors, it is reasonable to assume that the doctors must have asked him as to whether or not he would like to undertake surgery before the entry especially where more than one doctor had been involved. Further, it defies logic for doctors to make the entry when they have not explained the pros and cons of the surgical intervention.

28.  The Master went on to point out certain inconsistencies between the Applicant’s evidence and the medical notes. He then stated that in considering whether there is a reasonable, as opposed to fanciful, chance of the Court at trial deciding the issues in the Applicant’s favour, one has to consider all the circumstances and the medical notes in question as a whole. The question cannot be determined simply because there was no mention in the medical notes of what discussions were made between the doctors and Mr Akbar in relation to the pros and cons of the surgical intervention. By reason also of the inconsistencies, and having considered all the circumstances, the Master was not persuaded that there is any reasonable chance of success in the applicant’s case.

29.  The Master was also not persuaded that legal aid should be granted, but then leaving it open to the Director at any time to review the decision to grant legal aid if appropriate after more evidence and information was revealed after discovery and exchange of witness statements.

30.  The Master’s conclusion at §20 states:

In conclusion, this case should not be determined by the simple question of the absence of any record as to the alleged discussion between the Appellant and the doctors about the risks of not undergoing the operation alone. We have to consider the entire medical notes and all the circumstances. Having done that, I do not agree that the Appellant’s case as a reasonable chance of success. The Appeal is dismissed.

E.  Grounds of Review

31.  In the Form 86, the two grounds of review out forward are headed (1) ‘Illegality: Material Error of Facts’, and (2) ‘Illegality: The Master failed to take into account material relevant materials and took into account irrelevant materials to dismiss the Applicant’s case’ (sic).

32.  Under the first ground, reference was made to the principle that if a decision-maker makes a material error of fact then that error may vitiate the decision if there is a real likelihood that, if the truth had been known, a different decision would or might have been reached. The Form 86 makes the specific suggestion that the Master made an unsustainable conclusion of fact without evidential foundation which was material to the Decision. The inferences or conclusions made by the Master which are criticised are:

(1)  the Master’s assumption that the failure of all doctors to explain to the Applicant about the risk involved and the likely consequence if he did not undergo any surgery would be unreasonable,

(2)  the Master’s reliance on the Letter, and

(3)  the Master’s reliance on the inconsistency between the Applicant’s evidence and the medical notes regarding the removal of the SOMI brace.

33.  As to the assumption made, it is asserted that the Master filled in the factual void by assuming that “it would not be reasonable to expect that all the doctors failed to explain to [the Applicant] about the risk involved”, and that the Master also ignored other evidence in support of the Applicant’s case (which evidence was not mentioned in the Brief Reasons for the Decision).

34.  As to the Letter, it is asserted that even if the weight given to the Letter is elevated to the highest, what the Letter asserts the doctors said and did would not in any event be sufficient to discharge the duty of the doctors by reference to the well-known test relating to matters of informed consent, as set out in the case of Montgomery v Lanarkshire Health Board [2015] AC 1430 at §§ 49, 89-91.

35.  As to the second ground, the Form 86 draws particular attention to the case of Nguyen Trong Son v Director of Legal Aid (unreported, HCAA 20/1999, 15 December 2000) on the basis that it is a ‘close parallel’ with the present case, which should be handled in a similar way. Again, criticism is made of the Master’s assumption, supported by no evidence, that it must not be the case that all the doctors failed to explain to the Applicant about the risk involved if he was not to have surgery. It is also said to be irrelevant to have taken into account, when assessing the Applicant’s credibility, the inconsistencies between other points in the Applicant’s statement and the medical notes.

36.  With the benefit of the Applicant’s reply and the oral argument in particular, it became clear that the two grounds of review set out in the Form 86 are essentially closely related and, despite the stated headings, the criticism of the Master’s Decision essentially boils down to one of perversity or irrationality. For example, specific reference was made to the passage in Begum v Tower Hamlets LBC [2003] 2 AC 430 at §99, which states that a decision may be quashed:

if it is based on a finding of fact or inference from the facts which is perverse or irrational; or there was no evidence to support it, or if it was made by reference to irrelevant factors or without regard to relevant factors. It is not necessary to identify a specific error of law; if the decision cannot be supported the court will infer that the decision-making authority misunderstood or overlooked relevant evidence or misdirected itself in law.

37.  I will consider the Grounds on the basis apparently argued.

F.  Whether Grounds for Review Established

38.  Mr Siu accepts as settled law that if a decision-maker makes a material error of fact then that error may vitiate the decision if there is a real likelihood that, if the truth had been known, a different decision would or might been reached. But, he points out that there is no real criticism of most of the facts mentioned by the Master, except for the complaint under Ground 1 that the Master made an unsustainable conclusion of fact that there must have been some doctors who explained to the Applicant the risk involved in surgery and the likely consequences if he was not to take it.

39.  Further, Mr Siu submits that the inference drawn by the Master was not actually a finding or conclusion of fact. All that the Master had to do was to consider whether he was satisfied that the Applicant had shown a reasonable, as opposed to fanciful, chance of the Court at trial deciding the relevant issue of fact in his favour. He says that the Master has not made a factual finding on the informed consent issue one way or the other, and has merely decided after evaluating all circumstances that the chance of success on the Applicant’s factual allegations was not reasonable (see the Master’s conclusion paragraph).

40.  Mr Siu submits that, properly analysed, the Applicant is not alleging material factual errors, but is attacking the assessment of the Applicant’s chance of success as being Wednesbury unreasonable. As can be seen from the above, I tend to agree with that analysis. The real criticism of the Master’s Decision is that it was one made perversely or irrationally on the materials to be assessed when considering the chance of success in the underlying PI Action.

41.  Of course, the Master can take into account all evidential materials, as well as the apparent credibility of a particular assertion and the inherent probabilities or improbabilities. It may also not be perverse to prefer the evidence of A over B where they are in conflict. But, it seems to me that presupposes that the evidence in question is properly capable of such an assessment and such preference by reference to the nature of that evidence.

42.  In this case, the Master plainly put considerable weight on the Letter, and what it appeared positively to state as to the discussions had with the Applicant. But, with respect, it seems to me that at this stage of the evidential gathering of materials, the Letter is incapable of bearing such weight in the overall assessment. The Applicant says that the relevant discussions (necessary to satisfy the Montgomery test) did not happen. The medical notes either support the Applicant’s case, or at the very least do not contradict it. In so far as the Letter asserts a different version of events, Mr Wong is correct in saying that it fails to identify its proper evidential basis. The Letter asserts more than is apparent from the medical notes, and in effect seeks to fill in what is missing from those notes. If the filling in comes from a different source, that source is not identified and its potential evidential weight is therefore impossible to determine for any proper assessment against other materials. At least, it seems to me that it would be perverse or irrational for the content of the Letter as cannot be found in the medical notes to be given any such weight in any process of assessment.

43.  There is also some force in Mr Wong’s submission that, even taken at face value, the content of the Letter may not identify compliance with the Montgomery test relating to informed consent. It is also clear that the Letter did not actually provide clear and direct answers to the questions posed in the letter to which it was a reply, which was a point not taken into account by the Master.

44.  Further, the Master also seems to have been influenced by the content of the Letter when also reaching his view that it would not be reasonable to expect that all the doctors failed to explain to the Applicant about the risk involved or likely consequences of not having the surgery. I note that that might be described as an assessment of inherent probabilities, but that assessment was coloured by the content of the Letter. Absent the content of the Letter, there was simply the fact that none of the doctors recorded in the medical notes having had the relevant discussions. Absent the content of the Letter, therefore, it seems to me to be at least equally reasonable to form the view that none of the doctors gave the necessary explanation (perhaps because each one relied upon another having done so).

45.  For the Master to have formed the view that the doctors “must have” asked the Applicant as to whether or not he would like to undertake surgery before the entries put in the notes, especially when more than one doctor had been involved, so that it “defies logic” for doctors to make the entries when they have not explained the pros and cons of the surgical intervention, is coming at least close to the making of a factual conclusion on the very issue raised by the PI Action. This was a step which the Master need not have taken, and should not have taken.

46.  As importantly, whether or not any doctor properly gave the relevant explanations and advice is the core issue to be decided in the PI Action, and it seems to me to be perverse or irrational to form the view on the current materials that there is not at least a reasonable chance (and not a fanciful one) of the Applicant succeeding on that issue at a trial.

47.  The perversity or irrationality in forming the view formed by the Master is not altered by the fact that the Master took into account, as he was plainly entitled to, matters of credibility. As is settled law, credibility is best assessed overall (rather than on only some of the materials), and extreme caution should be taken at any preliminary stage in finding that doubts as to credibility on one matter should lead to a conclusion as to likely incredibility on another matter.

48.  In that light, I do not think it necessary to consider whether or not the fact patterns in the Nguyen Trong Son case and the PI Action are “strikingly similar”. The relevant thing to take from the former case is the principle for which that case is authority. Applying that principle to the materials available in this case, it seems to me with respect that the Master made an error – a public law error – in reaching his conclusion.

49.  Demonstrating that error is not merely reasonably arguable with a realistic prospect of success, as justifies the grant of leave to apply for judicial review. It also seems to me to have been established, so as to justify substantive relief on the substantive application for review.

50.  The relevant relief is to quash the decision of the Master, and for the matter to be remitted for reconsideration in light of the above. I see no need to grant any declaration as was sought in the Form 86.

51.  I make no order as to costs.