FUNG MAN CHEE MAGGIE AND ANOTHER v. HONG KONG INSTITUTE OF CLINICAL PSYCHOLOGISTS LTD

HCAL 279/2020

[2021] HKCFI 2424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 279 OF 2020

________________________

________________________

____________________

J U D G M E N T

____________________

INTRODCUTION

1.  This is an application by the Applicants for judicial review of the relevant registration requirements (the “Impugned Registration Requirements”) promulgated by Hong Kong Institute of Clinical Psychologists Limited (the “Institute”) which preclude them from being able to apply for direct registration on the Register of Clinical Psychologists under the Long Term Arrangement.

BACKGROUND FACTS

(i)      The 1^st and 2^nd Applicants

2.  The 1^st and 2^nd Applicants are both practising clinical psychologists in Hong Kong.  The 1^st Applicant has been practising as a clinical psychologist at a local religious institution on a part-time basis since October 2019, while the 2^nd Applicant has been a clinical psychologist in private practice since August 2019.

(ii)     The CSPP Programme

3.  In 2007, the School of Continuing and Professional Education of the City University of Hong Kong (“CityU SCOPE”), in collaboration with the California School of Professional Psychology (“CSPP”) of Alliant International University (“AIU”), started to offer a program to educate and train doctoral-level clinical psychologists (the “CSPP Programme”) in Hong Kong.

4.  The CSPP Programme is a four-year, doctoral-level academic program in clinical psychology with a curriculum consisting of 120 credit units of coursework, two comprehensive examinations, at least 2,600 hours of supervised clinical training, a clinical proficiency progress review examination, and a dissertation project.  It is modelled after American Psychological Association (“APA”)’s accredited programmes in the United States.  The graduates of the CSPP Programme are awarded a Doctor of Psychology in Clinical Psychology degree (“the CSPP PsyD Degree”).

5.  The CSPP Programme is in compliance with the Non-local Higher and Professional Education Regulation Ordinance, Cap 493, and is accredited by three different organizations in the United States, specifically:

(1)  at the university level, the CSPP Programme is accredited by the Western Association of Schools and Colleges (WASC) Senior College and University Commission;

(2)  at the professional level, the CSPP Programme holds designation status as a Doctoral Programme in Clinical Psychology from the Association of State and Provincial Psychology Board / National Register (“ASPPB/NR”); and

(3)  at the clinical training level, the CSPP Programme is recognised by the California Psychology Internship Council.

6.  The last cohort of students of the CSPP Programme was admitted in 2015.  The total number of graduates from the CSPP Programme is around 120.  The 1^st Applicant was a graduate of the CSPP Programme in 2015, and the 2^nd Applicant in 2019.  Both Applicants are holders of the CSPP PsyD Degree.

(iii)    The Division of Clinical Psychology of Hong Kong Psychological Society (HKPS-DCP) and the Hong Kong Association of Doctors in Clinical Psychology (HKADCP)

7.  The Division of Clinical Psychology of Hong Kong Psychological Society (the “Society”) is a professional body of clinical psychologists founded in 1982.  As at September 2017, it had around 500 members, the majority of whom were graduates of the Master or Doctoral clinical psychology programmes offered by the University of Hong Kong or the Chinese University of Hong Kong.  A minority (about 16%) were graduates of overseas clinical psychology programmes that were accredited by the relevant professional bodies in, inter alia, the UK, US, Australia and Canada.

8.  The Hong Kong Association of Doctors in Clinical Psychology (the “Association”) is a later professional body of clinical psychologists with a doctoral degree established in 2012.  As at February 2020, it had 85 members, 84 of whom held a CSPP PsyD Degree.  The 1^st Applicant has been a member of the Association since 2016 and a board member since 2017, and the 2^nd Applicant has been a member of the Association since November 2019.

(iv)    The Scheme

9.  In Hong Kong, some healthcare professionals (such as doctors and dentists) are required to have their professional qualifications registered under the law before they can practise in Hong Kong. There are also some healthcare professionals (including clinical psychologists) who are not subject to statutory registration, and are “regulated” on their own, mostly through voluntary, society-based registration[1].

10.  Under society-based registration, a professional body administers a registration system and promulgates a list of its members for reference by the public when seeking relevant services.  Such professional bodies usually publish codes of practice to strengthen self-regulation and encourage their members to pursue continuing professional development, obtain qualifications as well as enhance their professional competency.  Some professional bodies also develop quality assurance and disciplinary mechanisms to better uphold the professional standards of their members.

11.  Following (i) the release of a report by the Ombudsman in 2014 on the Government’s control of healthcare professions not subject to statutory regulation, and (ii) a feasibility study carried out by the Jockey Club School of Public Health and Primary Care of the Chinese University of Hong Kong, the Government, in 2016, launched a pilot scheme of the Voluntary Accredited Registers Scheme for Healthcare Professions (the “Scheme”) for those healthcare professions which were not subject to statutory registration and regulation.  As stated in a paper for the Legislative Council Panel on Health Services (the “Panel”) titled “Voluntary Accredited Registers Scheme for Healthcare Personnel who are currently not subject to Statutory Regulation”, LC Paper No CB(2)1459/15-16(03), dated May 2016, at §6, the aim of the Scheme is to enhance the current society-based registration arrangement under the principle of professional autonomy, with a view to assuring the professional competence of healthcare professionals and providing more information for the public to make informed decisions.

12.  The Jockey Club School of Public Health and Primary Care of the Chinese University of Hong Kong has been appointed as the independent Accreditation Agent (“AA”) of the Scheme.  The roles of AA include setting the standards and developing the process of accreditation, carrying out the accreditation process, providing relevant training to healthcare professions, and handling complaints about accredited healthcare professional bodies where appropriate.

13.  The essential features of the Scheme are set out in a paper for the Panel titled “Accredited Registers Scheme for Healthcare Professions”, LC Paper No CB(2)1787/17-18(05), dated July 2018, as follows:

(1)  The Scheme operates under the principle of “one profession, one professional body, one register”.  The Department of Health (“DH”) will accredit the professional body meeting the prescribed standards for each profession based on the accreditation recommendation of the Accreditation Agent.  The accredited professional body shall be responsible for administering the register of its own profession.  The aim of this principle is to avoid confusion to the public and facilitate the public to make informed decision.

(2)  The Scheme requires the professional bodies to undertake a self-assessment and external peer review process, through which professional bodies as holders of registers should demonstrate their abilities to meet acceptable standards of quality, and commitment to take action when necessary to protect the public.  The standards include governance, operational effectiveness, risk management and quality improvement, standards for registrants, educational and training requirements, and management of the register.  These standards aim to safeguard the public by ensuring the governance of the professional bodies and professional competency of their members.  Professional bodies applying for the Scheme should demonstrate a broad representation of their profession and maintain a well-established operation of professional practice.

(3)  Depending on the extent of its fulfilment of the prescribed standards, the professional body will be awarded a three-year full accreditation, a one-year provisional accreditation or non-accreditation. For full accreditation with recommendations by the Accreditation Agent, the professional bodies accredited will be reviewed annually by the Accreditation Agent.  The professional bodies awarded with full accreditation have to apply for renewal at least six months prior to the expiry of the validity period.

(4)  Accredited professional bodies will be permitted by DH to use an Accreditation Mark on their websites and Certificates of Registration issued to their members for ease of identification by the public.  Members of the accredited professional bodies can also use a specified title on their name cards.  The public can look up the registers of healthcare professionals through the accredited bodies.

14.  AA has issued a document titled “Accredited Registers Scheme for Healthcare Professions (Pilot Scheme) - Guidance for Applicants” (December 2016, First Edition) (“the Guidance”) for healthcare professional organizations wishing to apply for accreditation under the Scheme.  The Guidance describes the framework of the Scheme, the application process and the standards for accreditation.  The Guidance also provides that all personnel of AA shall abide by a Code of Conduct which mandates them to, inter alia, act professionally at all times by demonstrating impartiality and independence in all actions and decision-making, and avoid and declare conflicts of interest (§2.3).

15.  Details of the Scheme are set out in Section 2 of Guidance.  At §2.5, it is stated that healthcare professional organizations holding registers of healthcare professions should have a broad representation of the corresponding profession and an established operation for a substantial period (including newly formed ones which have been set up from re-structuring or merging of other established associations/societies), and the accredited professional organizations will be charged with the following functions:

(1)  Standard setting - to set standards of practice for healthcare professionals in accordance with the essential elements required for standards for registrants, and issue guidance on how to achieve them;

(2)  Register function - (i) to only register practitioners whose competence and behaviour have been assessed to be suitable for practice in the profession; and (ii) to respond to complaints about practitioners and remove practitioners from the register when their practice constitutes harm to the public;

(3)  Professional education and development: (i) to encourage and facilitate practitioners to continue to develop their knowledge and skills, (ii) to set standards of education and training; and (iii) to improve and approve education and training courses where appropriate.

16.  It is further stated, at §2.6 of the Guidance, that the essential elements required for standards for registrants include:

(1)  Ethical framework - to provide the ethical standards and describe the principles to guide the behaviour of registrants;

(2)  Code of conduct - to express the practices and behaviour of persons which are required or restricted/prohibited as a condition for being recognized as a professional to become registered with the organization;

(3)  Entry level educational requirements; and

(4)  Requirements on professional behaviour and technical competence.

17.  The Guidance provides, in Section 3 thereof, for a 2-step application process for healthcare professional organizations applying for accreditation status under the Scheme.  Under Step 2 of the application process, an Accreditation Survey of an applicant would be carried out by an Accreditation Team of Surveyors (“the Survey Team”), with further review and final consideration of the application by the Accreditation Office and Accreditation Panel of AA.

18.  Section 4 of the Guidance sets out the “Principles of Standard Development” for the Scheme. §4.10 refers to six sets of standards to be met by professional organizations for accreditation, namely:

(1)  Governance;

(2)  Operational effectiveness;

(3)  Risk management and quality improvement;

(4)  Standards for registrants;

(5)  Educational and training requirements; and

(6)  Management of the register.

19.  In relation to the standard for “Educational and training requirements” (Standard 5), the Guidance states that the organization should set standards for education and training to enable its registrants to competently practise in the profession.  Two core criteria under Standard 5 provide that:

(1)  “The educational standards set by the organisation [should] aim at protecting the public and maintaining public confidence in the profession” (§5.1 under Standard 5); and

(2)  “The educational standards [should] ensure a set of minimum knowledge and skills in all registrants who assess the health needs of, and provide care to, service users” (§5.3 under Standard 5).

20.  The Scheme was open for application at the end of December 2016.  A total of 20 applications covering 15 professions, including the profession of clinical psychologists, were received by AA upon the close of application on 17 February 2017.

(v)     The granting of full accreditation status to the Institute

21.  In February 2017, both the Society and the Association applied for full accreditation status to administer the register of the profession of clinical psychologists under the Scheme.  In its application form dated 17 February 2017, the Society indicated that the name of the organization which would be holding and administering the register would be a company called “Hong Kong Council of Clinical Psychologists Limited”. Eventually, the Institute was formed by the Society on 18 September 2017 for the purpose of its application.

22.  By a letter dated 11 June 2018, AA informed the Society that it had been selected to proceed to the Accreditation Assessment first.  AA advised the Society that, to meet the Standards of Accreditation Assessment, it would be prudent for the Society to engage the other applicant, ie the Association, as well as other clinical psychologists in Hong Kong in the consideration and formulation of educational and training requirements of clinical psychologists for ensuring the appropriate and adequate professional competence to practice.  AA also reminded the Society that one of the assessment criteria that it would consider is whether the submission of the Society was able to demonstrate the inclusiveness through the use of reasonable criteria to admit professionals from different educational background and training, and the Society should conduct consultations with other key stakeholders such as relevant training institutions, services providers, parties representing and protecting the interests of patients and consumers.

23.  AA also sent a letter to the Association dated 11 June 2018 containing, essentially, the same information.

24.  In order to satisfy the aforesaid assessment criteria, the Society/Institute held three rounds of public consultation between October 2017 and October 2018 (including 40 group meetings, of which 12 were with the Association/AIU-SCOPE, 8 with work partners and patient group representatives and 14 with LegCo members, as well as conferences, open forums and survey/online survey), and attended three Accreditation Assessment Training Sessions conducted by AA between June and August 2018.  The Society/Institute also held an additional round of open consultation between February and March 2019 upon the suggestion of the Survey Team.  The Society/Institute submitted Consultations Reports to AA at various stages of the consultation process to justify their proposals and to demonstrate their efforts on inclusiveness, transparency and reasonableness in formulating their proposals in relation to educational and training requirements of clinical psychologists.  The Accreditation Survey of the Institute was conducted on 7 and 8 January 2019, during which the Survey Team assessed whether the Institute fulfilled the requirements of the Scheme.

25.  During the accreditation process, the Society/Institute put forward five proposals regarding the education and registration requirements for clinical psychologists in light of the feedbacks received from the consultation exercises, but serious disagreement remained between, inter alia, the Society/Institute and the Association on the relevant requirements.  One of the complaints levelled against the Society/Institute was that their proposed accreditation standards were biased, in that they were specifically tailor-made for graduates of the Chinese University of Hong Kong and University of Hong Kong.  It is not necessary to set out the full details of the disagreement between the two professional bodies in this judgment, which have been summarised in §§29-52 of the Form 86. The disagreement led to the Association and other parties (including Accredited Register Scheme (Clinical Psychologist) Concern Group, International Psychologists Concern Group, and PsyD Alumni Association) boycotting the consultation proposed by the Society in March 2019.

26.  Various versions of (i) “Membership Registration and Handling Policy of Hong Kong Institute of Clinical Psychologists Limited” (“the Registration Policy”), and (ii) “Education Standards of Clinical Psychology in Hong Kong” (“the Education Standards”) were produced by the Institute and submitted to AA for its review during the accreditation process. On 27 May 2019, the Institute submitted revised drafts of the Registration Policy and Education Standards, being the 5^th proposal, to the Survey Team in response to the latter’s comments and recommendations.

27.  On 31 July 2019, the Institute published the final versions of Registration Policy and Education Standards (which were identical to those submitted to the Survey Team on 27 May 2019):

(1)  the Registration Policy spells out “the standards required for registration as a clinical psychologist under the [Scheme], and the pathways and processes for such registration”; and

(2)  the Education Standards prescribes “the education standards necessary for the practice of clinical psychology in Hong Kong to ensure that all registrants of HKICP have acquired the academic knowledge and clinical skills necessary for reliable service provision”.

The Impugned Registration Requirements are found in those documents, which I shall come back to later in this judgment.

28.  On 31 October 2019, DH announced that:

(1)  It had accepted the recommendation of AA to grant the Institute full accreditation status for administering the register of clinical psychologists (“the Register of Clinical Psychologists”) under the Scheme.

(2)  According to the assessment of AA, the Institute had met the accreditation standards covering governance, operational effectiveness, risk management and quality improvement, standards for registrants, education and training requirements, and management of the register.

(3)  As the accredited healthcare professional body, the Institute would be permitted to use the Accreditation Mark on its website and Certificates of Registration issued to their members for ease of identification by the public.  Members of the Institute could also use the title “Member of Register of Clinical Psychologists accredited by Department of Health” on their name cards.

29.  As an accreditation body under the Scheme, the Institute is subject to the “Terms and Conditions for Accredited Bodies”, which require the Institute to conform to the accreditation standards at all times and prove its continued compliance with each of the accreditation standards and the relevant criteria in order to maintain/renew the accreditation (§5.2). Failure to comply with the accreditation standards and criteria may result in the suspension or termination of its accreditation status (§6.4).

30.  On 26 November 2019, the Association lodged an appeal to the Appeal Board, Accredited Registers Scheme for Healthcare Professions, against the aforesaid accreditation decision of DH pursuant to §§3.11-3.14 of the Guidance.  The appeal has not, I am told, yet been determined.

(vi)    The Impugned Registration Requirements

31.  Upon the Institute being granted full accreditation status for administering the Register of Clinical Psychologists on 31 October 2019, the Registration Policy and Education Standards came into force.  The Registration Policy sets out two routes for registration on the Register of Clinical Psychologists, namely, (i) “Long Term Arrangement”, and (ii) “Alternative Qualifying Requirements - Transitional Arrangements”.

32.  For clinical psychologists wishing to be registered on the Register of Clinical Psychologists under the Long Term Arrangement, the relevant qualifications are set out in §5 of the Registration Policy, which, so far as relevant, provides as follows:

“5.1 Preamble

5.1.1 The AR for clinical psychologists is standard-based. Applicant is required to meet the education and training standard to be qualified to become a registrant of HKICP (i.e., member of Register of Clinical Psychologists accredited by Department of Health).

5.1.2 The qualifications and standard are:

5.1.2.1 Possess a Bachelor’s degree major in psychology or an equivalent pre-requisite qualification for post-graduate study in clinical psychology (Appendix 1), and

5.1.2.2 A Master (at least 2-year full-time study) or Doctoral (at least 3-year full-time study) degree in Clinical Psychology recognized by HKICP, which is conferred by local universities fulfilling the requirements of Education Standard for Registrants (refer to the document on Education Standards (HKICP-CPD-PO-002)). Applicants possessing other qualifications deemed comparable will be assessed according to the set standard.

5.2 Registration Requirements

5.2.1 The education and training requirements for accredited clinical psychologists are stipulated in the document on Education Standards (HKICP-CPD-PO-002). These include: (i) academic components, (ii) clinical placement with adequate coverage and onsite supervision by qualified clinical psychologist who works in the placement setting, and (iii) thesis or dissertation.

5.2.1.1 For local qualifications, applicants who have fulfilled the undergraduate requirement and with a Master (at least 2-year full-time) or Doctoral degree in Clinical Psychology (at least 3-year full-time) recognized by HKICP, which is conferred by local universities fulfilling the requirements under Education Standard for Registrants can apply to be registered directly (refer to the list of local programmes recognized by HKICP at Appendix 1).

5.2.1.2 For overseas qualifications, applicants who have fulfilled the undergraduate requirement and graduated from a post-graduate clinical psychology training programme (at least 2-year full-time for a Master degree, or at least 3-year full-time for a Doctoral degree) accredited in the country where the degree is conferred and fulfilling the requirements under Education Standard for Registrants can apply to be registered directly. The list of accreditation bodies recognized by HKICP for post-graduate clinical psychology degrees conferred in Australia, Canada, UK, or USA is at Appendix 1.”

33.  The Education Standards prescribes the education standards which the Institute considers to be necessary for the practice of clinical psychology in Hong Kong to ensure that all registrants of the Institute have acquired the academic knowledge and clinical skills necessary for reliable service provision.

(1)  §5 of the Education Standards sets out the requirements in respect of the “Coverage of a recognized programme in clinical psychology” in three areas: (i) academic training, (ii) clinical training, and (iii) research training.  In respect of clinical training, §5.2 states as follows:

“5.2 Clinical training

To ensure a registrant with adequate clinical competence, the registrant shall have clinical experience gained from working in different settings and systems and with client populations across life span and of wide range of psychological problems.

5.2.2.   Clinical placements must be provided via on-site supervision by qualified clinical psychologists who have at least 3-year full-time post-qualification experience, and who work in the placement setting.”

(2)  §8 of the Education Standards sets out the standards for accreditation of clinical placement setting for clinical psychology training.  In respect of the “qualifications of supervisors”, §8.4.2 states as follows:

“The supervisor should be employed as clinical psychologist in the setting and be able to provide on-site supervision in the unit in which the work is carried out.”

34.  The qualification of the CSPP PsyD Degree is not amongst the local qualifications listed in Appendix 1 to the Registration Policy for the purpose of §5.2.1.1.  It is also not an overseas qualification accredited in the country in which the degree is conferred for the purpose of §5.2.1.2.  Accordingly, holders of the CSPP PsyD Degree such as the 1^st and 2^nd Applicants do not meet the qualification requirements under either §5.2.1.1 or §5.2.1.2 of the Registration Policy for direct registration under the Long Term Arrangement.

35.  In passing, it may be noted that if a clinical psychologist is not qualified to be registered on the Register of Clinical Psychologists under the Long Term Arrangement, he/she may apply to be registered under the Alternative Qualifying Requirements - Transitional Arrangements.  For those who have been practising as clinical psychologists in the public sectors, universities, established NGOs or other settings in Hong Kong continuously for less than 2 years full-time immediately before 31 October 2019 (applicable to the situation of the 1^st and 2^nd Applicants), the relevant qualifications are set out in §6.3 of the Registration Policy:

“6.3.1 attend a Clinical Competency Assessment (Appendix 5); and

6.3.2 complete a local Top-up Training Programme in clinical psychology with at least 1-year of full-time study.

6.3.2.4   Proof of supervised clinical practice upon renewal of membership for 2 consecutive years after completion of the Top-up Training Programme and become registered are required.”

Since the focus of the present application is not on the Alternative Qualifying Requirements - Transitional Arrangements, it is not necessary to further discuss the Applicants’ criticism of them in this judgment.

36.  The requirements contained in §5.2 of the Registration Policy (read together with Appendix 1 thereto and §5.2.2 of the Education Standards) constitute the Impugned Registration Requirements challenged by the Applicants in this application for judicial review.

APPLICATION FOR JUDICIAL REVIEW

37.  On 12 February 2020, the Applicants applied for leave to apply for judicial review of the Impugned Registration Requirements. Three grounds of review are advanced in the Form 86:

(1)  apparent bias;

(2)  irrationality, in that they are predicated upon factual errors and/or findings of fact which are unsupported by evidence; and/or

(3)  irrationality, in that no reasonable accreditation professional body could have come to the conclusion that the CSPP PsyD Degree is not an equivalent qualification to those recognised qualifications under the Registration Policy.

38.  On 3 November 2020, the court granted the Applicants leave to apply for judicial review.

GROUND (1): APPARENT BIAS

39.  In the Form 86, the Applicants rely on three matters in support of the contention that the Impugned Registration Requirements are tainted by apparent bias:

(1)  The Institute/Society were in a relevant, current and heated dispute and disagreement with the Association during the application process under the Scheme.  They were competitors with each other. The two bodies were holding vastly divergent views on the standards to be adopted for the education and training requirements of clinical psychologists. The specific incidents relied upon by the Applicant are detailed in §69(1) to (7) of the Form 86.

(2)  Apart from the competition for accreditation status under the Scheme, most of the members of the Institute/Society were direct competitors in the profession of clinical psychologists with graduates of the CSPP Programme, who are mostly members of the Association.  The Impugned Registration Requirements were objectively advantageous to the members of the Institute/Society given that they could expand their market share by not permitting graduates of the CSPP Programme to be registered on the Register of Clinical Psychologists.  In this regard, it is worth noting that the Impugned Registration Requirements largely reflect the training requirement and clinical placement of the Society (§70 of the Form 86).

(3)  There was an appearance of predetermination by the Institute/Society that the CSPP PsyD Degree was not an equivalent qualification.  The specific incidents relied upon by the Applicant are detailed in §71(1) to (4) of the Form 86.

40.  It is not in dispute that the Impugned Registration Requirements promulgated by the Institute may be challenged on the ground of apparent bias.  The test for apparent bias, as approved by the Court of Final Appeal in Deacons v White & Case LLP (2003) 6 HKCFAR 322, at §20, is the “reasonable apprehension of bias test”, viz:

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the [decision-maker] was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the [decision-maker] was biased.”

41.  For the purpose of the reasonable apprehension of bias test, the qualities of a “fair-minded” and “informed” observer were explained by Lord Hope in Helow v Secretary of State for the Home Department [2008] 1 WLR 2416:

“[2] The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The ‘real possibility’ test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.

[3] Then there is the attribute that the observer is ‘informed’. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”

42.  The essential attributes of a fair-minded and informed observer were summarised by Reyes J in PCCW-HKT Telephone Ltd v Telecommunication Authority [2007] 2 HKLRD 536, at §46:

“The observer is taken to be a reasonable person, who adopts a balanced approach and is neither complacent nor unduly sensitive or suspicious. In arriving at any conclusion of bias or the absence of it, the observer is assumed to be fully informed of all facts capable of being known to the general public in relation to the relevant decision-making process.”

43.  The first step in the application of the reasonable apprehension of bias test is to ascertain all relevant circumstances, including the nature and context of the decision, which have a bearing on the suggestion that the decision-maker was biased.  In the present case, the following circumstances are, in my view, relevant:

(1)  The decision in question concerns the setting of relevant education and training requirements for any person wishing to be registered on a public Register of Clinical Psychologists, the purpose of which is to assure the professional competence of practising clinical psychologists in Hong Kong and provide more information for the public to make informed decisions when seeking their services.  Such decision plainly calls for the exercise by the accreditation body of its professional knowledge, experience and expertise.  The mere fact that the accreditation body has formed a strong view, and/or maintained or persisted with that view, on what education and training requirements must be satisfied before a person may be permitted to be registered does not necessarily indicate a failure to keep an open mind or bias against those who do not satisfy the relevant requirements, but may merely reflect its conviction of the necessary or appropriate education and training requirements to be satisfied by any prospective registrant. 

(2)  One of the assessment criteria adopted by AA when considering whether to grant accreditation status to the Society/Institute was whether its submission was able to demonstrate inclusiveness through the use of reasonable criteria to admit professionals from different educational background and training.  There is no evidence before the court to show that such criterion was not applied by AA when it made the decision to recommend to DH that the Institute should be granted full accreditation status for administering the Register of Clinical Psychologists.  On the other hand, there is evidence that AA did specifically query the Society on the reasons why holders of the CSPP PsyD Degree would not be able to be registered under the Long Term Arrangement.  Apparently, the Society addressed AA’s queries to its satisfaction[2].

(3)  The final versions of the Registration Policy and Education Standards, incorporating the Impugned Registration Requirements, were the result of extensive consultation with the public and stakeholders carried out by the Society/Institute, and had been reviewed and evaluated by an independent Survey Team/Accreditation Team/Accreditation Panel of AA under Step 2 of the application process under the Guidance.  The requirement on the part of AA to act professionally, impartially and independently is expressly spelt out in the Guidance.

(4)  The decision to confer accreditation status on the Institute was made by DH upon the recommendation of AA.  There is no suggestion that DH was biased against graduates of the CSPP Programme, or members of the Association.

44.  In respect of the first matter relied upon by the Applicants referred to in §39(1) above, I do not consider the mere fact that the Society/Institute were engaged in a current and heated dispute and disagreement with the Association during the application process under the Scheme is sufficient to establish apparent bias.  The two cases relied upon by Mr Hectar Pun, SC (for the Applicants), namely, (i) R (National Association of Memorial Masons) v Cardiff City Council [2011] EWHC 922 (Admin), and (ii) R (A1 Veg Ltd) v Hunslow London Borough Council [2004] LGR 536, cannot, in my view, be read as establishing a general proposition of law that whenever a decision-maker is in a current and heated disagreement with the person aggrieved by the relevant decision, such decision would be tainted by apparent bias.  Both cases were decisions on their particular facts.  In the former case, the head of the council which made the impugned decision was also the president/chairperson of the applicant’s rival organization which had just “a few days earlier” decided to “sever all contact and communication with the [applicant’s organization]” as a result of disputes relating to a national registration scheme for accredited masons of which both organizations were members, including a dispute on the control of the bank account of the national registration scheme.  In the latter case, the decision of a local authority on the suitability of the existing tenants of an old market for tenancies in a future new market (which would be smaller than the existing one and thus could not accommodate all existing tenants) was held to be tainted by apparent bias because when making its decision, the local authority had received and considered comments from members of a tenants’ association who were the claimants’ competitors and/or had a direct pecuniary and personal interest in securing limited tenancies for themselves in the new market, and the claimants were not informed of the content of such comments and did not have an opportunity to respond to them.

45.  In this case, the dispute or disagreement between the Society/Institute and the Association centred on the standards to be adopted for the education and training requirements of clinical psychologists.  The formulation of the appropriate education and training requirements was for the purpose of ensuring professional competence and protection of the public.  The fact that the two bodies held sharply divergent views on these matters did not necessarily indicate bias, or apparent bias, on the part of either party.  It was equally consistent with each party holding a strong conviction of the necessary or appropriate education and training requirements to be satisfied by a clinical psychologist before he/she might be permitted to be registered on the Register of Clinical Psychologists.  Further, it is relevant to take into account the fact that the Society/Institute and the Association were engaged in a competing process for the status of being the accreditation body of the Register of Clinical Psychologists under the principle of “One Profession, One Professional Body, One Register”.  Serious disputes or disagreement between the two competitors on matters concerning their accreditation proposals, including the professional qualifications required to be satisfied by registrants, while unfortunate, were not entirely unexpected.  For the avoidance of doubt, I should make it clear that the court is not expressing a view on whether the education and training requirements as set by the Institute are appropriate.  In an application for judicial review, the court is not concerned with the merits of the decision, but only with issues of legality, rationality and procedural propriety.

46.  In respect of the second matter relied upon by the Applicants referred to in §39(2) above, the fact that members of the Society and the Association may be viewed as competitors in the market of clinical psychologists in Hong Kong is undeniable.  It does not automatically follow, however, that the Society/Institute’s formulation of the education and training requirements to be satisfied by persons seeking to be registered on the Register of Clinical Psychologists would be tainted by bias or apparent bias.  That this is so is demonstrated by the fact that under the Impugned Registration Requirements, holders of post-graduate clinical psychology degrees conferred in Australia, Canada, UK and USA accredited by Australian Psychology Accreditation Council, Canadian Psychological Association, Health and Care Professional Council, and American Psychological Association respectively are qualified to be registered under the Long Term Arrangement.  Compared to the limited number of CSPP PsyD Degree holders (about 120, bearing in mind that the last cohort of students admitted to the CSPP Programme was in 2015), the potential competition from holders of the above overseas qualifications would plainly be more serious.

47.  Lastly, in respect of the third matter relied upon by the Applicants referred to in §39(3) above, the specific incidents referred to in §71(1) to (4) of the Form 86 are also not, in my view, sufficient to show an appearance of predetermination or make out a case of apparent bias.  In gist, those incidents show that the Society/Institute were consistently critical of the CSPP Programme in relation to matters such as whether the CSPP Programme was full time or part time, the need for the presence of an on-site clinical psychologist as supervisor at clinical training, the non-accreditation of the CSPP Programme by APA, etc.  As pointed out by Stock J (as he then was) in Tran Thang Lam v Director of Immigration, HCAL 80/1997, there is a cardinal difference between “predetermination or illegitimate predisposition” and “legitimate disposition”.  At pp 31-32 of the His Lordship’s judgment, the following was stated:

“The words ‘predetermination’ and ‘predisposition’ have in the present case been used freely and interchangeably. They should not have been. Care must be taken before attributing to the idea of predisposition a uniformly pejorative air. There are circumstances where a decision-making body possessed of thorough experience and background knowledge relevant to a task at hand may well be disposed to a view or a certain decision before it hears objections or representations from an interested party. But so long as it acts fairly and assesses the representations fairly, the fact that it was possessed of copious relevant information disposing it to a certain view and was skeptical about the representations which it knew it was about to receive, does not disqualify that body from taking a decision, even though one might say that there was a predisposition towards a certain decision (see, for example, R. v. Amber Valley District Council, ex p Jackson [1985] 1 WLR 298). If one were still actively looking through the eyes of the bystander and suggested that in such a situation someone other than the body with that experience and knowledge should take the decision, that bystander would, I think, say that that was an unrealistic, wasteful and artificial approach… The key point is whether the predisposition is connected or unconnected with the merits”.

48.  In R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139 at 151, Simon Brown LJ said:

“Injustice will have occurred as a result of bias if ‘the decision-maker unfairly regarded with disfavour the case of a party to the issue under consideration by him’. I take ‘unfairly regarded with disfavour’ to mean ‘was pre-disposed or prejudiced against one party’s case for reasons unconnected with the merits of the issue’.”

In short, predisposition connected with the merits is not, of itself, illegitimate.

49.  The evidence shows that the Society/Institute did engage in consultation and discussion with the Association/AIU-SCOPE, and sought to address some concerns and issues raised by them by amending the Registration Policy/Education Standards[3].  The fact that the Society/Institute held, and persisted with, strong views about some other perceived inadequacies of the CSPP Programme even after the consultation and discussion is not sufficient to show bias, or apparent bias, on their part.

50.  Taking into account the relevant background circumstances mentioned in §43 above and looking at the matters relied upon by the Applicants (whether singly or cumulatively), I am unable to conclude that a fair-minded and informed observer would come to the view that there was a real possibility, or a real danger, that the Institute was biased against holders of the CSPP PsyD Degree or members of the Association in their formulation of the Impugned Registration Requirements.

51.  In his Skeleton Arguments dated 18 March 2021 and/or oral submissions, Mr Pun relies on various other matters in support of Ground (1).  Those matters have not, however, been pleaded in the Form 86 and the Applicants are not entitled to rely on them.  I do not therefore propose to deal with them in detail in this judgment, save to make the following brief comments:

(1)  The letter dated 30 November 2006 from Dr Anita C Leung, Chairperson of the Society, to the President of Hong Kong Psychological Society was written some 10 years prior to the launching of the Scheme.  That letter expressed “grave concerns” over various perceived inadequacies in the quality of the CSPP Programme (which was due to begin its recruitment in February 2007) and provided some justification for those concerns.  It is beyond the proper scope of the court’s supervisory jurisdiction in an application for judicial review to enter into a debate on the merits of those concerns.  However, the mere fact that the Society expressed concerns, even in strong terms, about the quality of the CSPP Programme should not be regarded as proof of apparent bias on the part of the Society.

(2)  In so far as the allegation that the Society had voiced its opposition to Dr Alex Leung (Programme Director) against the CSPP Programme on the ground of oversupply of clinical psychologists in the market (see the letter from Mr Charles Wong, Director of CityU SCOPE, to Dr Anita C Leung dated 11 December 2006) is concerned, such allegation was expressly denied in Dr Anita Leung’s reply letter to Mr Charles Wong dated 6 January 2007.  This dispute of fact in respect of an alleged communication which took place many years ago plainly cannot be resolved on the basis of the affidavit evidence before the court in this application for judicial review.

(3)  In respect of Sing Tao Daily’s report dated 19 July 2018, I accept that the comment made by Dr Poon Mak Sui Man, Chairperson of the Society and Director of the Institute, which described holders of the CSPP PsyD Degree as “劣幣” (bad coins), is insulting and offensive, and unjustified. Nevertheless, it would seem from reading the said news report as a whole that Dr Poon’s basic objection was still on the perceived inadequacies in the CSPP Programme and her concerns were on the professional standards of clinical psychologists and the needs or interests of the public.

(4)  As for the “Employers’ Guide to Recruiting Clinical Psychologists in Hong Kong” issued by Hong Kong Clinical Psychologists Association (a trade union) in association with the Society dated 20 July 2015, it did not make any reference to CSPP PsyD Degree at all, and is, I consider, more in the nature of a business-promotional document.

(5)  Finally, the allegation that the Institute adopted a “double standard” when assessing the CSPP Programme is not well-founded.  The Institute was not criticising the inadequate placement coverage of the CSPP Programme just because its training of students took place “mainly with NGOs” (see p 24 of the PowerPoint slides titled “HKADCP’s claims vs Fact Check” prepared by the Society for AA’s information dated 15 August 2017[4]).  The concern that was raised was that, because the training under the CSPP Programme was mainly with NGOs, there was a lack of diversity and limitation of exposure to different populations in Hong Kong.  The point about lack of diversity (“AIU-SCOPE Program’s Practicum / Internship Arrangement has no requirement on the diversity of placement exposures”) was emphasised on p 26 of the said PowerPoint slides[5].

In all, the additional matters relied upon by Mr Pun do not alter my conclusion that the Applicants have failed to establish apparent bias in this case.

52.  Ground (1) of judicial review is rejected.

GROUND (2): IRRATIONALITY - FACTUAL ERRORS

53.  Under Ground (2), the Applicants argue that the Impugned Registration Requirements are predicated upon factual errors or findings of fact which are unsupported by evidence (see §§78-85 of the Form 86).  In his Skeleton Arguments for the Applicants dated 18 March 2021, Mr Pun identifies 4 errors of fact allegedly committed by the Institute:

(1)  the CSPP Programme is a part-time program;

(2)  the CSPP Programme lacks recognition;

(3)  the CSPP Programme lacks regulation on clinical training; and

(4)  the clinical training under the CSPP Programme lacks “on-site” supervision.

54.  Both Mr Pun and Mr Johannes Chan, SC (for the Institute) rely on the judgment of Mr Justice Ng in Dr Chan Sze Jacqueline v Dental Council of Hong Kong [2014] 1 HKLRD 77 as correctly setting out the applicable principles for “mistake of fact” as a ground of judicial review.  In that judgment, the learned Judge stated the following:

“[23] The court in judicial review proceedings is not a court of appeal: an application for judicial review is not a procedure for advocating some form of disguised appeal. It is not for the court to evaluate the evidence or make disputed findings of fact: So Chung v Commissioner of Correctional Services, unrep. HCAL 2438 of 2000, 31 January 2001, at pp. 18 - 19 (per Hartmann J as he then was).

[24] The court may and often do judicially review a public body’s decisions predicated upon factual errors. In so doing, the court is exercising its supervisory, rather than appellate, jurisdiction over the body entrusted by statute with the decision-making power: De Smith’s Judicial Review 6^th Ed. paras. 11-047, 11-048 & 11-052; Incorporated Owners of Wah Kai Industrial Centre v Secretary for Justice [2000] 2 HKLRD 458 at 469 (per Peter Cheung J as he then was).

[26] For the present purpose, errors of fact mean there is no evidence for a particular finding upon which a decision depends or where the evidence taken as a whole is not reasonably capable of supporting the finding of fact. As the editors of Wade and Forsyth Administrative Law 10^th Ed. p 229 put it:

‘No evidence does not mean only a total dearth of evidence. It extends to any case where the evidence, taken as whole, is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence.’

[27] The court should exercise proper judicial restraint when the decision of a public body is criticised for its conclusion of fact or fact and degree. The court cannot and should not substitute its own findings of fact for those of the decision-maker if there is evidence to support the findings - questions as to the weight to be given to a particular piece of evidence are for the decision-making body and not the court: R v Director General of Telecommunications ex parte Cellcom Ltd. [1999] ECC 314 at para. 26 (per Lightman J); Runa Begum v Tower Hamlets LBC [2003] 2 AC 430 at para. 99 (per Lord Millet).

[28] The court should give appropriate weight and measure of respect to the fact that a specialist tribunal is entitled to apply its own knowledge and expertise when considering the evidence and making factual findings: R v Director General of Telecommunications ex parte Cellcom Ltd. [1999] ECC 314 at para. 26 (per Lightman J); Dr To Chun Fung Albert v The Medical Council of Hong Kong, unrep, CACV 23 of 2011, 22 December 2011 at para. 26 (per Tang VP, as he then was).

[29] Findings of facts involving a broad spectrum ranging from the obvious to the debatable to the just conceivable are best left to the public body to whom statute has entrusted the decision-making power, save in a case where it is obvious that the public body, consciously or unconsciously, is acting perversely: R v Hillingdon London Borough Council, ex parte Pulhoffer [1986] 1 AC 484, 518 (per Lord Brightman).”

55.  The first factual error allegedly committed by the Institute is that it considered the CSPP Programme to be a part-time program.  According to Mr Pun, the fact that the CSPP Programme is a full-time doctoral level program is beyond dispute.  He relies on, amongst other matters, the following:

(1)  In CityU SCOPE’s submission prepared by the Program Director of the CSPP Programme (Dr Tien Liang) to the Panel dated October 2017 (the “Program Director’s Submission”), it is stated that the CSPP Programme is a “full time professional program”.

(2)  The curriculum of the CSPP Programme is a 120-credit bearing course designed to be finished in 4 years with a norm of 3 credits per course.  The workload suggests that the CSPP Programme is designed for full-time study.

(3)  On the webpage of the CSPP Programme, it is stated that “[t]he program is designed to be completed in four years with full-time study, but may be extended to a maximum of eight years”.

(4)  The student identity cards of the CSPP Programme issued by CityU SCOPE in 2015 and 2016 state the following: “Doctor of Psychology in Clinical Psychology, Alliant International University Full Time”.

(5)  Mr Daniel Wong and Dr Louis Ma, Programme Director / Director of CityU SCOPE respectively, have confirmed to the Applicants or their solicitors that the CSPP Programme is “a full time, 120-credit doctoral-level program” / “a full time professional program with 120 credit units of course work”.

56.  On the other hand, the Society/Institute rely on the following matters to come to the view that the CSPP Programme is a part-time degree course:

(1)  A student identity card of the CSPP Programme issued by CityU SCOPE states the following: “Doctor of Psychology in Clinical Psychology, Alliant International University Part Time”.

(2)  The “CityU SCOPE Programme Portfolio (Updated as at 30 November 2019)” on the website of CityU SCOPE describes the CSPP Programme as “Part time”.

(3)  An article published by CityU Scope titled “Press Room - 課程特寫” dated February 2013 appearing on the website of CityU SCOPE describes the CSPP Programme as: “此課程為期四年 以兼讀形式進行” (4-year course on part time basis).

(4)  In a letter from Mr Geoffrey M Cox, President of AIU, to Dr Anita C Leung, Chairperson of the Society, dated 11 December 2006, it is stated, under the heading “Part-Time v. Full-Time”, that “[t]he schedule of courses is designed for working professionals.  Therefore, courses are offered in the evenings, in ‘executive’ (intensive) formats, or online, all of which are methods used in our U.S. programs”.

(5)  In the “Program Delivery” section of the Student Handbook 2007/2008 for the CSPP Programme, the following is stated: “Typically, face to face modules taught by US-based / HK faculty staff will be delivered by intensive mode during weekday evenings, weekends and/or public holidays. Sometimes, students may have to attend classes on a full-day basis before or after the holidays.  As such, most of the modules will be delivered in either 4-day or 5-day intensive mode.”

(6)  The “Overview of Curriculum and Course Delivery Methods” of the CSPP Programme appearing on the website of CityU SCOPE suggests that a substantial portion of the curriculum is delivered online.

(7)  In Program Director’s Submission, it is mentioned that “[s]ome students attempt to hold full time job in their first year in the CSPP-HK PsyD program.  It is not unusual that our students reduce their paid work hours from full to part-time or even quitted their jobs completely in their second year or third year in order to dedicate more time to their studies in the program”.  The “Student profile” section of the submission also indicates that about 80% of the students, at the point of admission to the CSPP Programme, are in employment.

Pausing here, I should mention that Dr Louis Ma, in his email to the Applicants’ solicitors dated 10 February 2021, said that the description “兼讀” / “part-time” in the student identity card and article referred to in (1) and (3) above was “mistakenly used”.

57.  The present case is not an ordinary civil action where the court is required to determine, on the balance of probabilities, whether the CSPP Programme is a full time or part time course.  This is an application for judicial review, and the question for the court is whether the Institute’s view that the CSPP is a part time course is not supported by evidence, in the sense that there is no evidence for such view or the evidence taken as a whole is not reasonably capable of supporting such view.  On the materials before the court, I am unable to conclude that the Institute’s view was not supported by evidence.

58.  The second factual error allegedly made by the Institute is that the CSPP Programme lacks recognition.  Mr Pun makes 3 arguments in respect of this alleged error of fact:

(1)  Mr Pun argues that the only reason why the CSPP Programme is not accredited by APA is because APA would not accredit programmes outside the United States, but the Institute fails to properly direct itself on the fact.  Assuming that Mr Pun is correct in his submission that the CSPP Programme is not accredited by APA because it is a programme offered outside the United States, the Institute’s view that the CSPP Programme is not accredited by APA is nevertheless a correct statement of fact.  There is no factual error.  Mr Pun’s argument goes to the reasonableness of the Institute’s decision not to recognize the CSPP PsyD Degree as sufficient qualification for direct registration on the Register of Clinical Psychologists under the Long Term Arrangement.  This is a matter which should more appropriately be considered under Ground (3) of judicial review.

(2)  Mr Pun argues that the CSPP Programme did receive recognition from other professional bodies, in particular it held “designation” status under the ASPPB/NR Designation Project from 2010 to 2018, which project was designed for programmes which “APA would not accredit because they were outside the scope of APA accreditation” and typically met the educational requirements for licensing in the United States.  The same comment in (1) above applies to this argument of Mr Pun.

(3)  Mr Pun argues that it is incontrovertible that the CSPP Programme is a full-time degree, and the Institute’s purported finding that the CSPP PsyD Degree is not a full time degree is plainly wrong as a matter of fact.  This is the same complaint that the Institute has made a factual error in coming to the view that the CSPP Programme is a part-time course, which I have already dealt with above.

59.  The third and fourth factual errors allegedly made by the Institute are that the Institute considers (i) the CSPP Programme lacks regulation on clinical training; and (ii) the clinical training under the CSPP Programme lacks “on-site” supervision.  It is important to note, however, that the Institute is not saying that the CSPP Programme has no regulation on clinical training simpliciter, or the clinical training under the CSPP Programme does not have any element of “on-site” supervision whatsoever.  The Institute’s position is that there are 3 essential components in respect of the clinical training of a clinical psychologist: (i) the supervisors must be clinical psychologists, (ii) they must be members of staff of the respective placement settings, and (iii) there must be opportunities for live observation and supervision by the supervising clinical psychologists[6]. The rationale for these 3 components was explained in a letter from Dr Tatia Lee to the Chairman of the Panel dated 16 July 2018, as follows:

(1)  As for the 1^st component, “CP trainees must be supervised by qualified clinical psychologists of the clinical placement settings because, similar to other health care professions, such as medicine and nursing, competence of core professional clinical skills can only be achieved by training and mentorship by experienced professionals of the same trade.”

(2)  As for the 2^nd component, “clinical supervision for clinical psychologist in training should be conducted by an experienced clinical psychologist who works in the same context where the training is taking place.  This is essential because only in this way is the supervisor fully responsible for the quality of the clinical work delivered by the student receiving clinical training in the setting.  Besides, given the diversity in clinical settings and clinical issues, the CP supervisor must be familiar with the context and the profile of clienteles that the setting serves.  A competent CP in a medical inpatient setting, for example, may not be an expert in child assessment.  Also, given the increasing need for inter-disciplinary and inter-professional collaboration in the care of clients, a non-staff CP as supervisor would not have the necessary organizational knowledge and collegial relationship with the other health professionals in the setting.”

(3)  As for the 3^rd component, “[o]ur goal is to provide training to our students without sacrificing the patient’s best interests.  Our training model systematically increases the trainee’s independence, which we agree is important.  That said, at the initial phase, we believe the presence and periodic direct contribution from the supervisor serves an indispensable function.  Life (or ‘in vivo’) supervision provides timely response, guidance and intervention in situations that the trainees are unfamiliar with.  Post ad hoc case discussion with reviews of progress notes and/or recordings may constitute parts of the supervision format, but notes are subjected to biased reporting, and recordings cannot prevent immediate risks or sub-optimal services provided to the clients.  Therefore these formats cannot and should not replace live supervision.  Moreover, being able to observe supervisors at work or even engage in co-therapy with supervisors has always been a highly valued learning experience reported by the trainees.”  As for the proportion of time in which the supervisor should be physically present in the treatment room, that would depend on “the service needs of the clients, individual training needs of the trainees, as well as live supervision equipment availability (e.g., one-way mirror, bug-in-the-ear, and live video-streaming).”

60.  These 3 components in respect of clinical training are reflected in the Education Standards, at §5.2.2: “Clinical placements must be provided via on-site supervision by qualified clinical psychologists who have at least 3-year full-time post-qualification experience, and who work in the placement setting” [underlining added]. These requirements, while not identical to those prescribed in the Guidance on Clinical Supervision by British Psychological Society in the UK, the APAC Accreditation Standards for Psychology Programs - Evidence Guide in Australia, or the APA Standards of Accreditation for Health Service Psychology and Accreditation Operating Procedures in the US, share many similar features with them.  The details are set out in §81 of the 1^st Affidavit of Poon Mak Sui Man, which it is not necessary to repeat in this judgment.

61.  The details of the clinical training under the CSPP Programme are set out in a document titled “Professional Training Practicum & Internship Manual”.  The salient features are summarised in the Program Director’s Submission, including:

(1)  students working with three different supervisors concurrently: a weekly meeting for individual supervision, a weekly meeting for group supervision, and a regular meeting with their designated site supervisor.  The qualification of the site supervisor is that he/she must be a “licensed, registered, or certified mental health professionals such as clinical psychologist, psychiatrist, social workers, and other health professionals”;

(2)  standardized evaluation of students in each semester; and

(3)  requirement of at least 1,040 direct client contact hours providing psychological services to clients and a total of 2,600 clinical training hours.

62.  It is clear that the clinical training under the CSPP Programme does not satisfy the 3 components which the Institute considers to be essential for training clinical psychologists.  The Institute’s finding is that “most of the site supervisors in the CSPP Degree were not clinical psychologists, whereas the primary supervisor, being the clinical psychologists will not be present at the place of internship for provision of site supervision at the placement setting”[7].

63.  In the Program Director’s Submission, it is argued that:

(1)  The clinical training requirements favoured by the Institute are based on the “apprenticeship model or master-apprentice mentoring approach” (the “Apprenticeship Model”), whereas the clinical training model adopted by the CSPP Programme is based on APA-accredited programs in the US and fulfils the requirements of the California Board of Psychology (the “Competency-Based Model”).

(2)  The Apprenticeship Model is the prominent supervisory training model for clinical psychologists in Hong Kong.  The assumption of this model is that learning occurs through observing and assisting a “master” at work.  This model uses in-room live supervision in which the clinical supervisor supervises the trainee in actual treatment and provides feedback to the trainee in the presence of the client.

(3)  The CSPP Programme does not adopt the Apprenticeship Model for several reasons, including that it is no longer a common model in the US for supervision of clinical psychology trainees, the implicit assumption behind the master-apprentice model that clinical knowledge and skills could easily be transferred through apprentices’ observations of the masters’ clinical work is not or may not be sound, the lack of research evidence to support its effectiveness, and the Apprenticeship Model seems to be obsolete according to contemporary research studies in clinical supervision.

(4)  Instead, the CSPP Programme employs supervision models supported by empirical evidence that are aligned with standards of internationally recognized professional associations.

Dr Tien Liang concludes that “there are at least two different models of training clinical psychologists in HK.  We hold that being different does not imply lesser quality.  In fact, we contend that the analysis presented offers evidence that the professional competency of psychologists graduated from the CSP-HK PsyD program is, at a minimum, equivalent to that of those trained through the local master’s level clinical psychology programs.”

64.  In my view, the differences between the parties lie in which is the preferred or better clinical training model for clinical psychologists.  It is beyond the proper function of this court in an application for judicial review to enter into a debate on, or determine, which model is the better one.  While the Applicants may not agree with the view of the Institute, I do not see how it can be said that the Instituted commits any error of fact in its view that the clinical training under CSPP Programme does not satisfy the 3 components which it considers to be essential for training clinical psychologists or meet the requirements of “on-site supervision” prescribed by §5.2.2 of the Education Standards.

65.  In all, I do not accept Mr Pun’s argument that the Impugned Registration Requirements are predicated upon “errors of fact”.

GROUND (3): WEDNESBURY UNREASONABLENESS

66.  Under Ground (3), the Applicants contend that, in the face of the cogent evidence and rebuttals provided by CityU SCOPE, no reasonable accreditation body could ever have disregarded them and come to the conclusion that the CSPP PsyD Degree is not an equivalent qualification to the recognised local qualifications under the Registration Policy so that graduates of it should be precluded from being able to apply to be registered directly on the Register of Clinical Psychologists under the Long Term Arrangement (§87 of the Form 86).

67.  In substance, what is being contended for by the Applicants is that the CSPP PsyD Degree should be recognized for registration on the Register of Clinical Psychologists under the Long Term Arrangement.  In an application for judicial review based on the Wednesbury unreasonableness ground, the threshold for intervention is a high one.  The court is not concerned with the merits of the Institute’s decision.  It can interfere in the Institute’s decision only if it is so unreasonable that no reasonable decision-maker, properly directed on the law and fact, could have made the decision in question.  The question of whether any particular qualification ought to be recognized for registration purpose is a matter which calls for the exercise of professional knowledge, expertise and judgment.  The professional body is much better placed than the court to determine such question.  The court ought to respect the judgment of the professional body on an issue of this nature, unless grounds for intervention are clearly shown.

68.  Mr Pun argues that the Institute failed to properly consider the question of whether the CSPP Programme was a qualification equivalent to other programmes recognized by the Institute, bearing in mind the Scheme’s standards of ensuring a “set of minimal clinical knowledge and skills”.  In particular, Mr Pun contends that the Institute did not have proper regard to the following matters:

(1)  The CSPP Programme received more than adequate quality assurance.  In particular, it received ASPPB/NR designation, which was equivalent to APA accreditation for the purpose of licensure in the United States, and the standards of the CSPP Programme were required to be comparable to APA-accredited home programmes.

(2)  Putting aside whether it is labelled as full-time or part-time, the reality and substance is that the CSPP Programme has 120-credit units and is designed to be completed within 4 years.

(3)  The CSPP Programme clearly has adequate clinical training and sufficient diversity in placement settings.

(4)  The purposes of the Institute’s “on-site supervision” are that “only in this way is the supervisor fully responsible for the quality of clinical work delivered by the student receiving clinical training in the setting”, that “supervisor must be familiar with the context and profile of clienteles that the setting serves”, and that “notes are subjected to biased reporting, and recordings cannot prevent immediate risks or sub-optimal services provided to the clients”.  In fact, the CSPP Programme’s supervision arrangement equally achieves these purposes.  Various specific matters referred to in §101(1) to (6) of Mr Pun’s Skeleton Arguments are relied upon in support of this submission.

69.  In respect of the matter referred to in §68(1) above:

(1)   The Institute’s position, in so far as recognition of overseas post-graduate clinical psychology degrees for registration purposes is concerned, is that the degrees should be accredited by the relevant accreditation bodies in the countries where the degrees are conferred.  This requirement is, I consider, justified because the licensure or accreditation body of a country or region has no, or limited means, to verify or ensure the quality of an overseas program run by an institution in another country[8]. It is not unreasonable for the Institute to rely on the status of accreditation of an overseas program by the local accreditation body to ensure the quality of the program as well as the competence of the registrant.

(2)   The Institute does not consider ASPPB/NR designation to be of the same standard as accreditation by APA for, inter alia, the following reasons -

(a)   “Designation” of a program by ASPPB/NR is a review of official institutional documentation that demonstrates the program meets the doctoral degree guidelines as a psychology program, whereas accreditation by APA involves a more rigorous assessment that requires an extensive, in-depth review of the program including site visits[9].

(b)   APA accreditation applies only to specialised programs (clinical, counselling, school and professional-scientific programs and new areas approved by APP), whereas ASPPN/NR designation can cover any doctoral psychology programs including those not reviewed by APA[10].

(c)   The purposes of ASPPB/NR designation are, inter alia, to provide “qualified doctoral programs an opportunity for a stepped approval process as they prepared for and then applied for APA accreditation.  Almost all designated programs followed this track, so that they were ‘designated-only’ for a period of time, then they applied for and were granted APA Accreditation.  At that point they were dually accredited/designated, although the APA accreditation status functionally superseded designation from a licensing and credentialing perspective”[11]. As a matter of fact, ASPPB has expressly reminded students, faculties, licensing boards and the courts that the process of designation “does not purport to substitute for the judgment of the licensing authorities as to the ability of any program to qualify a candidate for licensure/certification purposes or ensure that the program meets the jurisdiction’s mandated curriculum requirements”[12]. ASPPB has also endorsed the position that “graduation from an APA/CPA [Canadian Psychological Association] accredited program should be a minimum requirement for doctoral level licensure for health service providers”[13].

(d)   The ASPPB/NR Joint Designation Committee ceased to review doctoral programs in 2014, and the designation status of programs under the ASPPB/NR Designation Project came to an end 2018.  The decision to terminate the ASPPB/NR Designation Project was due to, inter alia, the fact that “many professional organizations in the psychology community and federal funding agencies requested that organized psychology require graduation from an accredited program as the standard for recognition in professional psychology like other health care professions”[14].

These are, I consider, sufficient materials on which the Institute can reasonably come to the view that ASPPB/NR designation is not of the same standard as accreditation by APA.

(3)   The Institute’s ultimate decision to accept only post-graduate clinical psychology degrees conferred in Australia, Canada, UK and USA accredited by Australian Psychology Accreditation Council, Canadian Psychological Association, Health and Care Professional Council, and American Psychological Association respectively under §5.2.1.2 of the Registration Policy and §3 of Appendix 1 thereto for the purpose of direct registration under the Long Term Arrangement represents an exercise of its professional judgment, which the court sees no sufficient ground to interfere in.

70.  In respect of the matter referred to in §68(2) above, I have already dealt with the issue of whether it is open to the Institute to come to the view that the CSPP Programme is a part-time program. As pointed out by Mr Chan:

(1)  APA’s Standards of Accreditation for Health Service Psychology and Accrediting Procedures provides that, at a minimum, the program must require that each student successfully completes a minimum of 3 full-time academic years of graduate study (or the equivalent thereof) plus an internship prior to receiving the doctoral degree[15]; while

(2)  the Education Requirements in the latest ASPPB’s Model Regulations for Licensure and Registration of Psychologists (March 2018) provides that a curriculum “shall encompass a minimum of three (3) years of full time graduate study which includes a minimum of one (1) continuous academic year of full time residency at the educational institution granting the doctoral degree”, and expressly states that “[m]ultiple long weekends and/or summer intensive sessions do not meet the definition of continuous” and “[r]esidency means physical presence, in person, face-to-face, at an educational institution granting the doctoral degree for the purposes of facilitating acculturation in the profession, the full participation and integration of the individual in the educational and training experience and includes faculty student interaction”[16].

The importance or significance of a program being full-time or part-time is, I consider, a matter of professional judgment for the accreditation body, not the court.

71.  Lastly, in respect of the matters referred to in §68(3) and (4) above, it is not with disrespect to Mr Pun that I do not propose to analyse in detail whether the CSPP Programme has “adequate” clinical training or “sufficient” diversity in placement settings, or whether CSPP Programme’s supervision arrangement “equally achieves” the purposes of the 3 components which the Institute considers to be essential for training clinical psychologists, for that would be to stray into the impermissible territory of merits review. What seems to me to be significant is that even in the Project Director’s Submission, it is said that there are, at least, two different models of training clinical psychologists, ie the Apprenticeship Model and the Competency-Based Model, which differ in the way supervision is provided as well as in the underlying theoretical model of supervision.  It is also clear from the Project Director’s Submission that the Apprenticeship Model is a well-recognised and established training model which has been the prominent supervisory training model for clinical psychologists in Hong Kong.  Whether the training provided under the CSPP Programme is “adequate” or “sufficient”, and whether it can achieve the same purposes of the said 3 components, are primarily matters for professional judgment by the accreditation body.  Mr Chan is correct in his submission that it is not for the court to determine which is the most desirable training model for clinical psychologists in Hong Kong.  I do not see how the Institute’s negative view of various aspects of the training provided under the CSPP Programme, or its view that the training provided under the CSPP Programme is not equivalent to that provided by other local programs recognized by the Institute, can be said to be unreasonable in the Wednesbury sense.

72.  In all, Ground (3) of judicial review is rejected.

73.  Having reached the above conclusions, it is not necessary for me to consider whether the present application should be refused because of the existence of alternative remedies, namely, an appeal against the accreditation decision made by DH based on the recommendation of AA.  Had it been necessary to do so, I would have rejected the argument that such appeal is an effective alternative remedy for the Applicants for the reasons given in §6 of this court’s decision dated 3 November 2020.

74.  I also do not accept the Institute’s suggestion that the proper respondent to the present application should be AA and/or DH. The Registration Policy and Education Standards containing the Impugned Registration Requirements are promulgated by the Institute, not AA or DH.  The proper respondent to the present application seeking to challenge the Impugned Registration Requirements should, therefore, be the Institute.

DISPOSITION

75.  The application for judicial review is dismissed.  The parties are agreed that costs should follow the event.  I therefore make an order that the Applicant shall pay the costs of the Institute, to be taxed if not agreed, with certificate for 2 counsel.

76.  The Applicants’ summons dated 30 March 2021 is also dismissed on the ground that the matters contained in the 4^th Affidavit of the 2^nd Applicant are not relevant, or sufficiently relevant, to justify its late admission.  The court accepts the submissions made by Mr Chan in the “Speaking Note for HKICP” dated 30 March 2021 on the lack of relevance of the proposed evidence.  The costs of the summons shall be treated as part of the costs of the application for judicial review.

[1] As at May 2016, there were some 15 types of healthcare professionals who were not subject to statutory registration and regulation: audiologists, audiology technicians, chiropodists/podiatrists, clinical psychologists, dental surgery assistants, dental technicians/technologists, dental therapists, dietitians, dispensers, educational psychologists, mould laboratory technicians, orthoptists, prosthetists/orthotists, scientific officers (medical) and speech therapists.

[2] See §9(2) of the 5^th Affidavit of Poon Mak Sui Man.

[3] For details, see §§28, 33, 35 and 42 and Table 1 at §54 of the 1^st Affidavit of Poon Mak Sui Man filed on 15 May 2020.

[4] Bundle BE2, p 360.13.

[5] Bundle BE2, p 360.14.

[6] See §14(1) of the 5^th Affidavit of Poon Mak Sui Man.

[7] See §79 of the 1^st Affidavit of Poon Mak Sui Man.

[8] See the Society’s letter to the Panel dated 23 February 2017, at §4.

[9] See §73 of the 1^st Affidavit of Poon Mak Sui Man.

[10] See the emails exchange between the Society and Ms Laura Rhymes, Program Manager, Credentialing and Compliance, National Register of Health Service Psychologists, between 25 and 31 October 2018.

[11] See Ms Laura Rhymes’ email dated 26 October 2018.

[12] See ASPPB webpage tilted “Joint Designation” at Bundle BE5, p 883.

[13] See ASPPB webpage tilted “ASSPB Position Statements” at Bundle BE5, p 1064.

[14] See letter from ASPPB/NR to Doctoral Program Director dated 19 April 2013 at Bundle BE2, p 360.18.

[15] See BE 5, p 1080.

[16] See BE2, pp 475-476.