Dr U v. THE PRELIMINARY INVESTIGATION COMMITTEE OF THE MEDICAL COUNCIL OF HONG KONG AND ANOTHER

CACV 151/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 151 OF 2016

(ON APPEAL FROM HCAL NO. 195 OF 2015)

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J U D G M E N T

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Hon Lam VP:

1.  I agree with the judgment of Yuen JA.

Hon Yuen JA:

2.  This is an appeal from a Judgment of Zervos J given on 23 June 2016 (“the Judgment”) in which he dismissed an application by the applicant (“Dr U”) for judicial review of a decision of the Preliminary Investigation Committee (“PIC”) of the Medical Council of Hong Kong (“MC”).  The decision, contained in a letter dated 17 July 2015, was to refer to the Council for inquiry a case of complaint by a patient against Dr U of professional misconduct. 

3.  The facts (in particular, how they evolved over time) are of relevance to the determination of this appeal.

Background

4.  On 24 November 2007, the patient, an active man then aged 60, was admitted to a private hospital in Hong Kong for fever and urinary tract infection (“UTI”). He had fallen ill while on holiday in Australia and had been treated there, but fell ill again when he returned to Hong Kong.  

5.1.   The patient consulted Dr U, a specialist in urology.  Various tests were done, including of the patient’s prostate gland to determine its size and the presence of stones.  

5.2.   On 26 November 2007, Dr U informed the patient that amongst other things, there were a number of stones in the prostate.  Dr U was of the opinion that the patient’s relapsing fever was due to prostatitis, and advised him to undergo surgery for removal of the prostate.  The operation has been referred to as “TURP” (transurethral resection of the prostate). 

5.3.   On 28 November 2007, Dr U performed a laser TURP operation on the patient.  Unfortunately, following the operation, the patient suffered permanent and irreversible urinary incontinence.

6.  Subsequently the patient consulted, apart from Dr U, a number of other doctors in Hong Kong and overseas regarding his condition.  The conclusion reached by Mr Ralph, a consultant urologist at the Institute of Urology, University College London, was that the patient’s sphincter had been damaged in the course of the TURP operation, which operation had not been necessary in the first place.

High Court proceedings

7.1.   On 8 November 2010, the patient issued proceedings against Dr U in the High Court for damages for negligence.  The particulars of negligence pleaded in the Statement of Claim¹ were, briefly, that Dr U:

-   had failed to consider that the patient’s prostate was not enlarged for his age so as to obstruct urinary flow, that the stones were normal for his age, and that the TURP operation was hence not necessary;

-   had failed to advise the patient that the TURP operation was usually performed only to relieve significant obstruction, or in serious or life-threatening situations, and that the risks associated with the TURP operation included the risk of damage to the urethral sphincter and resulting urinary incontinence;

-   had carried out the TURP operation in a negligent manner such that damage was caused to the muscles of the urethral sphincter by instruments used to perform the TURP operation.

7.2.   I shall return later in this Judgment to subsequent developments in the High Court proceedings.

Complaint to the Medical Council

8.  Meanwhile, after the writ was filed but before the Statement of Claim was filed, on 17 December 2010 solicitors acting on behalf of the patient lodged a complaint to the MC against Dr U.  This was supported by the patient’s statutory declaration and the UK doctors’ medical reports.  The specific complaints were that:

(i) Dr U had failed to properly explain the TURP operation to the patient, thereby denying him the opportunity to give proper and informed consent;

(ii) in the above circumstances, Dr U had carried out the TURP operation when it was inappropriate and life-threatening;

(iii) Dr U had improperly conducted the TURP operation resulting in severe urinary incontinence.

Procedure under the Regulation

9.  It may be appropriate here to summarize the procedure set out in the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, Cap. 161 E of the Laws of Hong Kong (“the Regulation”) for dealing with a complaint of professional misconduct² against a registered doctor (hereafter referred to, in general terms, as “the subject doctor”).

10.  The intent and purpose of the statutory provisions have been discussed by A Cheung J (now CJHC) in Dr Li Wang Pong Franklin v Medical Council of Hong Kong³and I shall not repeat them here.  

11.1.   Part III of the Regulation sets out the procedure regarding “proceedings preparatory to holding of an inquiry by the [MC]”. 

11.2.   Part III may conveniently be divided into 3 stages. 

Stage 1 (s.6 - s.8)

11.3.  (a)   This stage involves only the chairman or deputy chairman of the PIC (or by both, as explained below⁴) who would consider the complainant’s case.

(b) The case is considered in the first instance by either the chairman or the deputy chairman of the PIC.

(c) For the purposes of such consideration, he may require the complainant to specify the allegations⁵, to make clarifications⁶ and/or to provide support by way of a statutory declaration⁷. 

(d) If the chairman or the deputy chairman of the PIC considers that the case is “frivolous or vexatious and should not proceed further”⁸, he must consult the other⁹.  Then if both take the same view, “they may dismiss the case”¹⁰.

(e) If the case has not been dismissed following the above procedure, then it proceeds to Stage 2.

Stage 2 (s.9 - s.12)     

11.4.  (a)   This stage involves the PIC and the subject doctor.  

(b) The chairman or the deputy chairman of the PIC¹¹ directs that the case be referred to the PIC for its consideration¹². 

(c) The Secretary of the MC must then:

-   fix a date for a meeting of the PIC to consider the case¹³;

-   notify the subject doctor of the complaint and indicate “any matters or allegations which may appear to raise a question whether [he] has been guilty of misconduct in a professional respect”¹⁴;

-   provide him with certain documents¹⁵;

-   inform him of the PIC meeting date¹⁶; and

-   invite him to send written submissions¹⁷. The subject doctor may produce documents, medical or other reports as well¹⁸.  

(d) The PIC may cause further investigation or further clarification from the subject doctor to be done, and may obtain additional advice or assistance as it considers necessary¹⁹.  It then meets in private to consider the case on paper²⁰.

(e) The PIC may decide that

-   no inquiry should be held²¹, whereupon the complainant would be informed²²; or

-   no inquiry should be held and that advice be given to the subject doctor²³; or

-   that the case be referred to the MC for inquiry²⁴.

(f) If the PIC decides that the case should be referred to the MC for inquiry, then the case proceeds to Stage 3.

Stage 3 (s.13-s.15) 

11.5.  (a) However even after the PIC has referred a case to the MC for inquiry, if “further information is subsequently produced in writing which suggests that an inquiry should not be held”, the Chairman of the MC²⁵ may refer the case back to the PIC “for further consideration”²⁶.

   (b) It is only when all three stages have been undertaken that the MC holds an inquiry, proceedings of which are governed by Part IV.  

How the patient’s complaint was dealt with

12.1.   Coming back to the events of the present case, the chairman of the PIC who was considering the case at Stage 1 requested an expert’s report from a consultant urologist of the Hospital Authority, Dr Man, on the standard of urological care given to the patient by Dr U during his period of hospitalization. 

12.2.   Dr Man was supplied with (1) the patient’s letter of complaint, (2) a medical opinion from Mr Ralph, (3) a urodynamics report from another doctor consulted by the patient in the UK, and (4) medical records from the hospital in Hong Kong.

12.3.   Dr Man provided his report on 4 June 2011.  His comments and conclusion can be summarized as follows:  

(1) the patient had UTI but it was unlikely that it arose from the left kidney (where there was a stone);

(2) the prostate appeared to be the most plausible cause of the UTI, although acute prostatitis was “less likely”; 

(3) stones in the prostate are “generally believed to be harmless, but some of them could still be a source of infection and need operation”, and a medical text was quoted which indicated that stones might protect pathogens which have taken up residence in the interstices of the crystalline matrix, leading to recurrent infections;

(4) UTI should be treated before prostatectomy, but there was “no mandatory reason” to delay the operation on the patient, as there was no increase in vascularity, showing that there was no inflammatory swelling which distorted the anatomy of the prostate;

(5) incontinence of urine was a “significant outcome and complication” of TURP, but as there was little documentation on the explanation given by Dr U to the patient, it was difficult to judge if an adequate explanation had been given in this case;

(6) using a laser to perform TURP was a safe technique, and without a review of a video recording of the operation actually performed on the patient, there was no evidence that it had been performed in a sub-standard manner;

(7) the cause(s) of incontinence in the patient was found in the urodynamics report to be due to detrusor overactivity and distal sphincter weakness.  The distal sphincter weakness could be secondary to damage by TURP, but it could also be a result of aging.  The pre-existing weakness might have been masked by the obstructing prostate and unmasked by the prostatectomy.  For the two causes of urinary incontinence in the patient, one (detrusor overactivity) was definitely not related to TURP and the other (sphincter weakness) might be a result of aging.

13.  By this time, the Statement of Claim had been filed.  On 23 August 2011, the patient’s solicitors provided, amongst other things, the pleadings and witness statements to the MC.  These were forwarded to Dr Man.

14.  On 28 September 2011, Dr Man sent a memorandum to the MC indicating that he found no further evidence that would change or add to his opinion submitted on 4 June 2011.

15.  On 11 October 2011, the then chairman of the PIC considered that the case should not proceed further. The then deputy chairman of the PIC was consulted and he concurred.  The view of a lay member of the PIC was also sought. 

Conclusion of MC’s action on the complaint

16.  On 8 February 2012, the Secretary of the MC wrote to the patient’s solicitors stating that the chairman and the deputy chairman of the PIC considered that there was no evidence to support any act of professional misconduct on the part of Dr U.  They accepted Dr Man’s opinion that the laser would be a safe technique for TURP, and there was no evidence that the operation had been performed in a sub-standard manner.  Incontinence afterwards was due to detrusor overactivity and sphincter weakness.  The former was not caused by TURP while the latter could be due to aging.  The letter continued:

“On the whole, there was no evidence to show any professional misconduct on the part of [Dr U]. It follows that the complaint cannot be pursued further by the Medical Council under the said regulation.

I am directed to inform you that the Medical Council’s action on the complaint has been concluded. However, this decision does not preclude you from pursuing other remedies which you may wish to take”. (Emphasis added).

Developments in the High Court proceedings

17.  However about a week prior to this letter, on 31 January 2012 Dr U filed an affidavit in the High Court action in which he said²⁷:

“In this Action, after careful review and with the necessary advice, I came to accept that the Operation might have been too aggressive a treatment for the [patient] at the time and conservative treatment might have been more appropriate, and I decided not to contest the allegation that my advice to the patient to undergo the Operation was negligent. It of course followed that, if I had not advised the [patient] to undergo the Operation, the [patient] would not have undergone the Operation”. (Emphasis added).

18.1.   Of course there remained the legal issue whether the admitted negligent advice to undergo the operation resulted in the patient suffering from urinary incontinence, for in a cause of action based on tort, the negligent act had to result in damage before substantial damages²⁸ could be obtained. 

18.2.   This was the issue decided by Bharwaney J, the judge in charge of the Personal Injuries List, after a hearing on 26 April 2012.   On 9 May 2012, the judge gave his reasons for his decision to enter interlocutory judgment against Dr U, not only for breach of contract, but also for the tort of negligence, with an order for damages to be assessed. 

18.3.   Bharwaney J referred in his judgment to the opinion of Dr Lo, Dr U’s expert. Dr Lo’s opinion was that the patient probably had an overactive bladder pre-operatively, but that was controlled and masked by the internal and external sphincters.  However the internal sphincter was resected (removed) by the surgery and with the external sphincter weakened, the overactivity was unmasked, leading to stress incontinence.  Thus Dr Lo was of the view that post-operatively, the patient suffered both stress and urge incontinence, with the former caused by the operation.  In view of this, the judge therefore entered judgment for negligence in tort, on the basis of the admission that there was a negligent act (the advice to undergo the operation) that had caused some damage, leaving it to be decided at a later hearing exactly what damage had been caused.

Request for reconsideration of case with revised complaint

19.1.   In the meantime, on 3 April 2012, the patient’s solicitors wrote to the MC asking that it reconsider its decision.  The solicitors added a new complaint that Dr U had wrongly diagnosed the patient’s condition and had negligently advised him of the need for the operation.  (This has been referred to as “the Revised Complaint”).

19.2.   The patient’s solicitors enclosed further materials, including Dr U’s affidavit in which he had accepted he had given negligent advice, and a new further expert report from Mr Ralph, in response to Dr Lo’s report and Dr U’s witness statement, stating that the patient’s urinary incontinence was due to damage to the sphincters caused by the operation.  On 4 July 2012, the Secretary of the MC wrote to Dr Man, stating that the patient had requested for a reconsideration of the complaint, and that the current chairman²⁹ of the PIC “having reconsidered the complaint”, sought further advice from Dr Man on three issues. 

20.  Dr Man informed the Secretary that he had difficulties answering one of the questions and did not revert with a further supplemental report after some time. 

21.  In his affidavit³⁰ the current chairman of the PIC said he “was aware of the need to re-consider the matter without undue delay, the conflicting evidence and opinion that had been made available, and the fact that the Revised Complaint was now being pursued by the [patient] with new information and materials warranting further investigation”. (Emphasis added).  Accordingly, on 24 August 2012, the chairman of the PIC referred the case to the PIC under s.9.

22.1.   For reasons which are not material to this appeal, there was a lapse of time before the notice of the meeting of the PIC was issued to Dr U on 7 August 2014.  The particulars of the complaint were:

(a) he had improperly advised the patient to undergo the TURP operation;

(b) he had failed to adequately and properly explain to the patient about the risks and complications associated with the operation, including the risks of damage to the urethral sphincter and urinary incontinence, before performing the operation; and

(c) he had improperly damaged the urethral sphincter during the operation.

22.2.   The PIC met in December 2014 and July 2015.  On 17 July 2015, Dr U was informed that the PIC had decided that the matter should be referred to the MC for inquiry.

Dr U’s application for JR

23.  This led to Dr U’s application for judicial review against the PIC and the MC.  As the judge put it succinctly, “at issue ... is the jurisdiction of the PIC to consider or re-consider a complaint and refer it to the [MC] for inquiry, after the Chairman and the Deputy Chairman of the PIC had already dismissed the complaint pursuant to section 6 of the [Regulation] on the grounds that the complaint was ‘frivolous, or groundless, and should not proceed further’”. 

The judge’s Judgment

24.  For reasons set out in his comprehensive Judgment, which I shall not attempt to summarize here, the judge held that the application for judicial review failed on all the grounds raised by Dr U.

Appeal

25.1.   Dr U appealed.  There were two grounds of appeal which may be summarized as follows:

(1) the power to dismiss a case under s.6 was jurisdictional in nature, and not merely procedural, and consequently the chairman of the PIC “can no longer act intra vires regarding the same case which was dismissed” (emphasis added);

(2) as far as the public interest was concerned, the exercise of the power to dismiss was premised on the allegation being “frivolous or groundless” and therefore not a bona fide allegation of professional misconduct at all, and hence dismissal was to prevent further vexation.  The judge was therefore wrong to hold that reconsideration was consistent “with the intent and purpose of the Ordinance and the Regulation in providing an efficient and effective system of addressing allegations of professional misconduct by medical practitioners as well as protecting the public and the profession”.

25.2.   The arguments of res judicata and/or cause of action estoppel raised before the judge were not pursued on appeal³¹.

25.3.   The PIC and MC filed a respondent’s notice to affirm the Judgment.

Discussion

26.1.   It is clear from the written and oral submissions of Mr McCoy, leading counsel for Dr U³², that his main submission for the first ground of appeal was that there was no express power in the Regulation for a chairman of the PIC to revoke or modify a decision to dismiss a case under s.6, in contrast with the express power of the MC to review a final decision under s.34 of the same Regulation.

26.2.   In my view, that argument is not engaged in the present case.  The Revised Complaint contained a new complaint regarding (amongst other things) the negligent advice given to the patient which was supported by Dr U’s own admission on oath.  It matters not that the patient could have brought the complaint of negligent advice back in December 2010, or that Dr U’s affidavit could have been brought to the attention of the chairman of the PIC during the one week between the filing of the affidavit (31 January 2012) and the letter from the Secretary (8 February 2012), for the arguments on res judicata and cause of action estoppel are not pursued. 

27.1.   In any event, new materials had been provided in the form of the opinion of Dr Lo (Dr U’s expert) and Mr Ralph’s response to it.  As was fairly accepted by Mr McCoy³³, even if the patient had not brought a revised complaint in April 2012 but had merely provided the MC with new materials, those new materials may still be regarded as “information” received by the Secretary suggesting that Dr U has been guilty of professional misconduct, and they would still have to be submitted to the chairman³⁴ of the PIC for his consideration under s.6.  Indeed, as noted by Mr Stewart Wong SC, leading counsel for the PIC and the MC³⁵, it has never been Dr U’s case that the matters put forward with the Revised Complaint did not warrant referral. 

27.2.   Once the case is extant (whether as a result of a new complaint, or of the receipt of new information), it would be completely unrealistic and contrary to the intent and purpose of professional misconduct investigations to suggest that only certain aspects of it (the “new” complaint) may be considered, and not other aspects, for this case only involved one course of treatment of the patient over a single period of only a few days.  

28.  For the above reasons I do not see any jurisdictional problems in the present case.

29.  The second ground can be dealt with briefly.  This ground of appeal is based on the argument that the subject doctor would be vexed by a re-consideration of the complaint.  Quite apart from the reasons given above for dismissing the first ground of appeal, the essential point is that at Stage 1 of Part III, the subject doctor is simply not vexed.  He has no involvement with the consideration of the case by the chairman or deputy chairman of the PIC, and suffers no inconvenience at all.

30.  It is accordingly not necessary to consider the respondent’s notice.  

Order

31.  For the above reasons, the appeal should be dismissed with an order nisi that the appellant is to pay the respondents’ costs with certificate for two counsel. 

Hon Macrae JA:

32.  I agree with the judgment of Yuen JA.