DR F AND ANOTHER v. UCATION AND ACCREDITATION COMMITTEE OF THE MEDICAL COUNCIL OF HONG KONG AND ANOTHER

HCAL 26/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 26 OF 2014

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AND

HCAL 55/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 55 OF 2014

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_______________

(Consolidated pursuant to the Order of
the Honourable Mr Justice Au dated 15 September 2014)

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JUDGMENT

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A.   INTRODUCTION

1.  Drs F, G and H are specialist medical practitioners. Their names are registered on the Specialist Register (“the SR”) kept by the Registrar of the Medical Council (“the Council”).  Dr F is a specialist in Anaesthesiology, Dr G in General Surgery and Dr H in Obstetrics and Gynaecology.

2.  These are their applications to judicially review (a) the respective decisions (collectively “the EAC’s Recommendation Decisions”) of the Education and Accreditation Committee (“EAC”) of the Council to recommend to the Council the permanent removal of their names from the SR with a right to apply for re-inclusion; (b) the subsequent decisions (“the EAC’s Review Decisions”) of the EAC in affirming the Recommendation Decisions on review; and (c) the subsequent decisions (“the Council’s Appeal Decisions”) of the Council to affirm on appeal the EAC’s said decisions.  For convenience, I would refer to these decisions collectively as “the Decisions”.

3.  As will be further explained later, the grounds of judicial review are broadly that the Decisions are vitiated by errors of law, various forms of procedural unfairness and/or want of adequate reasons.

4.  The applicants are represented by Mr McCoy SC, together with Mr Melvin Wong and Ms Denise Souza.

5.  The applications are opposed by the EAC (as the 1^st respondent) and the Council (the 2^nd respondent).  They are respectively represented by Mr Stewart Wong SC (with Mr Wilson Leung) and Mr Ismail.

6.  The primary ground of opposition by both the EAC and the Council is that the court should not entertain the judicial reviews as the Decisions are only interlocutory decisions with no substantive legal effect. Alternatively, the respondents contend that in any event none of the grounds of judicial review are made out.

7.  To put the arguments in proper context, it is necessary to first set out the relevant background.

B.   RELEVANT BACKGROUND

8.  On 10 April 2011, 2 December 2012 and 30 March 2010, Drs F, G and H respectively were disciplined by the Council after having been found guilty of misconduct in a professional respect under section 21(1) of the Medical Registration Ordinance (Cap 161) (“MRO”).  The subject complaints underlying the respective disciplinary inquiries related to incidents occurring between 2006 and 2008.  Each of the complaints concerned with a single incident of the subject doctor’s performance of medical procedures on the complainant patient.

9.  They were respectively given sentences by the Council ranging from reprimands to suspended removal from the General Register (“the GR”).  In the case of Dr F, he was also subject to an additional requirement for peer audit and supervision for two years.

10.  Then, on 29 December 2011, 22 March 2013 and 17 August 2010, the EAC respectively recommended that Drs F, G and H’s name be respectively removed from the SR but they would not be debarred from making a fresh application for inclusion in the SR again when they become suitable for such inclusion pursuant to section 20N(1) of the MRO.  The EAC came to these decisions as apparently based on the same respective complaints leading to the above disciplinary inquiries, it was of the view that the respective applicants had fallen below the standard of competence required in their respective specialist fields.  These are the EAC’s Recommendation Decisions.

11.  The applicants then respectively asked the EAC to review the Recommendation Decisions.

12.  On 8 February 2012, 7 May 2013 and 4 October 2010, Drs F, G and H respectively were each informed that the EAC reviewed its recommendation and decided to uphold it.  These are the EAC’s Review Decisions.

13.  The applicants respectively appealed the EAC’s decisions to the Council.

14.  The Council heard Dr F’s appeal on 14 November 2013, Dr G’s on 27 January 2014, and Dr H’s on 29 October 2013.  The Council that heard Dr F’s and Dr G’s appeal had a quorum of five members.  The Council that heard Dr H’s appeal had a quorum of six members.

15.  By written decisions dated 30 November 2013, 27 January 2014 and 5 March 2014, the Council decided to affirm the EAC’s decisions of Drs F, G and H respectively.  These are the Council’s Appeal Decisions.

16.  The applicants later applied for leave to bring these judicial reviews seeking to challenge the Decisions.  Ex parte leave was granted under these applications respectively on 17 April 2014 and 10 July 2014.

C.   THIS JUDICIAL REVIEW

C1.  Grounds of judicial review

17.  The applicants run the following broad grounds of judicial review as advanced by Mr McCoy at the hearing:

(1)  The Council erred in law in failing to conduct the section 20O(1) appeals as a hearing de novo and that the EAC and the Council erred in law and/or adopted an unfair procedure in refusing to consider evidence on the applicants’ present skill or competence.  This ground is premised primarily on the contentions that the EAC and the Council, in making the decisions, wrongly only assessed the applicants’ specialist competence as at the time of the incidents underlying the complaints (which occurred years before the time of the decisions) but not at the time of the recommendations.  This error had further led to the EAC and Council’s refusal to admit evidence of the applicants’ present competence when considering whether to make the decisions or not.  Separately, the Council also erred in law in not treating the appeals as de novo hearing which also resulted in its refusal to hear any evidence that was not placed before or admitted by the EAC.

(2)  The EAC’s Recommendation Decisions are vitiated by a failure to give adequate reasons.  This ground is premised on the fact that in the letters communicating the EAC’s Recommendation Decisions, the EAC generally only stated that the concerned applicant had “fallen below the standard of competence required” without providing reasons or any factual basis for that conclusion.[1]

(3)  The EAC and Council’s decisions are Wednesbury unreasonable and/or amount to an operation of a blanket policy of permanent removal.  The gist of the complaint under this ground is that all the recommendations are to remove the applicants’ names from the SR permanently albeit without prejudice to their right to reapply for inclusion.  It is contended that, given the not so serious nature of the incidents underlying the complaints[2] and the need to consider the present competence of the applicants, it is Wednesbury unreasonable for the EAC to recommend the removal of the applicants’ names from the SR permanently, when the EAC could and should have recommended any removal for a specific period of time only.

(4)  The Decisions are also tainted by further procedural unfairness specific to each of the applicants’ individual circumstances.  In gist under this ground, each of the applicants further complains that there was specific procedural unfairness in the way the EAC and the Council had treated certain specific evidence relevant to each of the applicants.

18.  As mentioned above, the EAC and the Council oppose the judicial review on:

(1)  The primary ground that the Decisions are all preliminary in nature with no substantive legal effects or consequences.  As such, the court should not entertain the judicial reviews.

(2)  The alternative ground that there are in any event no merits in any of the grounds of the judicial review.

19.  It is obvious that if the EAC and the Council are correct in their primary ground of objection, it would be sufficient to dispose of the judicial reviews entirely without looking at the merits of the substantive grounds of judicial review.  I would therefore consider this primary ground of objection first.

C2.  Should the court entertain these judicial reviews

20.  Mr McCoy fairly and rightly accepts it is well established that, save in exceptional circumstances, judicial review is only concerned with ultimate actions or decisions with substantive legal consequences and a decision of determinative effect.[3]

21.  Leading counsel further accepts that the relevant principles governing when the court may entertain challenges of intermediary decisions or actions are as summarised by this court in TVB v Communications Authority [2013] 5 HKC 593 at paragraph 25 (after reviewing a line of authorities) as follows:

“25.    These relevant principles governing when the court may entertain challenges of intermediary or preparatory steps by way of judicial review have been helpfully summarised by Ms Teresa Cheng SC (together with Mr Abraham Chan) in their skeleton for the Authority as follows:

(1)   Judicial review focuses on ultimate actions with substantive legal consequences and a decisive or determinative effect.

(2)   The supervisory jurisdiction of the court is not to micro‑manage the administrative actions of public bodies and the court must be vigilant against doing so.

(3)   Intermediate steps should normally only be reviewed as part of the entire process after the determinative and ultimate action or decision is taken.  For example, where a challenge is based on an allegation of an unfair consultation process, it has been said that, unless the preliminary ‘decision’ has a permanent judicial effect on the person affected, the court should not entertain such a challenge, in particular, as it is usually difficult to judge whether the process is so materially unfair before the process has ended.

(4)   Courts will not review procedural ‘decisions’ or intermediate steps save in exceptional circumstances, such as where the decision has substantial legal consequences and will cause clear and otherwise irretrievable prejudice to the applicant.

(5)   Errors of fact in the procedural ‘decision’ do not of themselves generally amount to exceptional circumstances.

(6)   Any alleged unfairness must be clearly shown.”

22.  Applying these principles, it is EAC and the Council’s contentions that the Decisions under challenged are clearly intermediate decisions with no substantive effect or legal consequences on the applicants. There are also no exceptional circumstances to justify the court’s intervention to entertain the judicial reviews.  The court should therefore dismiss them on this basis alone.

23.  I think EAC and the Council are right.  I will explain why.

24.  I should start with the relevant statutory scheme under the MRO.  Unless otherwise stated, all references to a statutory provision herein below are references to the provision under the MRO.

25.  The Council is established under section 3 to, among others, regulate the registration of medical practitioners in Hong Kong.

26.  All medical practitioners need to be registered under the GR before they could lawfully practise medicine in Hong Kong.[4]  Further, any medical practitioners on the GR who wish to use the title of a specialist must also be registered on the SR.  See section 20M.

27.  The EAC is created under the Council (see section 20H) and carries the function, among others, to recommend to the Council whether the name of a registered medical practitioner should be included or removed from the SR (see section 20I(e)).

28.  Relevant for the present purposes, the EAC may recommend to the Council the removal of a medical practitioner’s name from the SR, and if the Council eventually adopts the recommendation, the Council (but not the EAC) may order the removal of that name from the SR.  The relevant process involves the following statutory steps or procedures:

(1)  Where the EAC comes to the notice of any complaint or information relating to the suitability of a registered medical practitioner to have his name included in the SR, it may, among others, with or without having given the medical practitioner an opportunity to explain (either in writing or to appear personally), recommend to the Council to remove the name of that medical practitioner from the SR permanently or for such period as the EAC recommends: section 20N(1)(d).

(2)  When the EAC recommends such a removal, upon the affected registered medical practitioner’s request, the EAC shall review its recommendation decision: section 20N(3) - (4).

(3)  If the EAC affirms its removal recommendation on review, the medical practitioner may further appeal the EAC’s decision to the Council under section 20O(1).  In determining a section 20O(1) appeal, the Council may invite the appellant (who can be represented by a legal representative) to appear before it.  The Council on appeal may affirm, vary or reverse the EAC’s decision appealed against (section 20O(3)). In conducting a section 20O appeal, five members of the Council shall constitute a quorum (section 4(2A)) and the Council’s section 20O appeal decision is final (section 20O(4)).

(4)  Finally, if the EAC’s removal recommendation is upheld or varied on appeal, that recommendation would be then considered by the Council under section 19B(2) to decide whether or not to remove the medical practitioner permanently or for such a period as the Council may think fit.  The Council making a section 19B decision must be a full Council having a quorum of 13 members (see section 4(2)).

(5)  The full Council’s section 19B(2) decision is further subject to appeal to the Court of Appeal, whereby the Court of Appeal may affirm, reverse or vary the order appealed against, or remit the case to the Council for an or another inquiry (see section 26).

29.  Thus, under the statutory scheme, it is only the full Council that has the power to make the final decision under section 19B to remove a medical practitioner’s name from the SR.  In other words, only a section 19B decision made by the full Council can result in the actual and eventual removal of the practitioner’s name from the SR.  All the decisions relating to a removal recommendation made by the EAC and confirmed by the Council (with five members or more) on appeal are only preliminary in nature and would not cause any substantive consequences on the practitioner.

30.  The EAC’s Recommendation Decisions, the EAC’s Review Decisions and the Council’s Appeal Decisions under challenged in the present judicial reviews are made respectively under sections 20N(1)(d), 20N(4) and 20O(1).  They are all only preliminary decisions which would not result in any substantive consequence or legal effect on the applicants.

31.  Their preliminary nature can be highlighted by these. As rightly submitted by Mr Wong SC and Mr Ismail, the simple fact is that despite all the Decisions, the applicants’ names have still not been removed from the SR, and they would not be so removed unless and until the full Council has made the final decisions under section 19B to do so.  The full Council however has not decided yet.  The full Council may or may not adopt the recommendations. If it rejects the recommendations, all the challenges made under these judicial reviews are meaningless.  On the other hand, if the full Council adopts the recommendations, the applicants can and should then challenge the final decisions by way of an appeal to the Court of Appeal, or if necessary, by way of judicial review.

32.  Mr McCoy however raises a number of contentions to say why the court should exercise its discretion to entertain the present judicial reviews against the Decisions.  I would deal with them in turn.

33.  First, leading counsel says this court and the Court of Appeal both had entertained similar judicial review challenges of the EAC’s recommendations (and the Council’s subsequent section 20O appeal decisions) in Drs X, Y and Z v EAC and the Medical Council.[5] In the premises, it has already been established or demonstrated that these decisions are reviewable and should be reviewed.

34.  I am unable to agree.

35.  The simple reply to these submissions is that none of the respondents in Drs X, Y and Z had sought to oppose the judicial reviews on the basis that the decisions involved were not substantive decisions. As such, the court in that case had not engaged in any considerations as to whether it should entertain those challenges given the preliminary nature of the decisions involved.  In other words, there are no judicial determinations in Drs X, Y and Z as to whether the court should entertain judicial review challenges of these types of decisions.  Drs X, Y and Z therefore does not stand as an authority or a precedent to show that the decisions made by the EAC and the Council under sections 20N and 20O respectively are of such nature that the court should entertain judicial review challenges made against them.  It is entirely open to the respondents in the present cases to oppose the judicial reviews on the basis that it is premature for the court to review these decisions.

36.  Second, Mr McCoy submits that these decisions do have substantive consequences on or cause irreparable prejudice to the applicants, as they would not be able to challenge before the full Council all the procedural unfairness and errors of law that have tainted the recommendations.

37.  I am also unable to accept this submission.

38.  As rightly pointed out by Mr Ismail, before deciding whether to accept or reject the EAC’s recommendations under section 19B(2), the full Council must apply the common law particularly as to the rules of natural justice.  As said by Bohkary PJ in The Medical Council v Dr Chan Hei Ling Helen (2010) 13 HKCFAR 248 at paragraph 32:

“32. Within limits, a body like the Medical Council is, in the words of Viscount Simon LC in General Medical Council v. Spackman [1943] AC 627 at p.634, ‘master of its own procedure’. And that is, as pointed out by Ribeiro PJ in Lam Siu Po v. Commissioner of Police [2009] 4 HKLRD 575 at p 623, para 138, generally true of all administrative and domestic tribunals. At lease in general, they are all, within limits, masters of their own procedure. Another way of putting it is that, generally speaking and within limits, they are entrusted with ‘not only the making of the decision but also the choice as to how the decision is made’. That is how the point was expressed by Lord Mustill in R v. Home Secretary, ex parte Doody [1994] 1 AC 531 at p 561A. The relevant limits are set by law. And the relevant law may be found in: (i) legislation whether primary or subsidiary; (ii) the common law particularly as to the rules of natural justice; and (iii) the constitution.” (emphasis added)

39.  Mr Ismail therefore further submits (which I accept) that the Council therefore must give Drs F, G and H a right to be heard.  The applicants are therefore free to submit whatever information and representations they wish in order to persuade the full Council not to adopt the EAC’s recommendations and the Council has a corresponding duty to consider them.  The information may be in the form of statements (if it is not clear whether Drs F, G and H can give oral evidence), testimonials of their competence from other doctors, their work since their conviction of misconduct and even a legal opinion on the law, procedure and evidence the Council must and must not take into account.  They may also point out and address all the alleged errors of law and procedural unfairness they say to have affected the recommendations[6].

40.  It must also not be forgotten that the applicants have a further right to appeal the Council’s section 19B decisions to the Court of Appeal.

41.  In the premises, the applicants would have the opportunity to seek to “correct” the alleged errors of law and procedural unfairness that they say have affected the EAC’s recommendations firstly at the full Council before the final decisions are made, and secondly (if necessary) at the Court of Appeal against the final decisions.

42.  In response, Mr McCoy draws the court’s attention to section 4(4A) and says that the full Council may transact its business by circulation of papers without a meeting.

43.  This however would not affect the above observations:

(1)  The power by the full Council to make a section 19B decision by circulation of papers is a discretionary one.  Given (a) that the Council through its counsel has clearly submitted to this court in the above that the present applicants must have a right to be heard in the circumstances of these cases; and (b) the present complaints of procedural unfairness in the process of the recommendations, I am confident that the full Council would seriously consider whether it would make the present section 19B decisions by circulation of papers only.

(2)  Moreover and in any event, as again rightly submitted by Mr Ismail, even if the full Council were to adopt paper determinations, because of the applicants’ right to be heard and the Council’s duty to hear them, those papers must include all the relevant documentary materials and written representations the applicants and their legal representatives wish to submit.  These could include all the materials mentioned at paragraph 39 above.

44.  Third, Mr McCoy submits that the challenged decisions effectively have substantive consequences as historically EAC’s recommendations have always been adopted by the full Council.  Moreover, leading counsel emphasizes in support that it is unrealistic to believe that the Council will differ from the EAC’s recommendations as they have already been confirmed on appeal by the same Council by way of the Council’s Appeal Decisions.  In substance, what Mr McCoy is implying is that the full Council would only rubber-stamp the EAC’s recommendations.

45.  I reject these submissions:

(1)  First, there is simply no evidence to support the underlying allegation that the full Council has always adopted the EAC’s recommendations.[7]

(2)  Second and in any event, purely for the sake of argument, even if the full Council did in the past always adopt the EAC’s recommendations, that alone and without more does not then show that the full Council was only rubber stamping all these recommendations without its own considerations.  For example, it may equally be possible that there were no circumstances in those cases to justify the Council on its own consideration to disagree with the recommendations.

(3)  Third, if it can be shown eventually that the full Council only rubber-stamps the EAC’s recommendations in the present cases without considering the applicants’ representations made before it, it is then open (as submitted by Mr Ismail) to the applicants to challenge the Council’s final decisions on appeal at the Court of Appeal, or by way of judicial review as a last resort.  The alleged “rubber-stamping” practice would not render the recommendations themselves substantive decisions challengeable by judicial reviews.

(4)  Finally, as stated above, the Council’s Appeal Decisions made under section 20O were made by the Council with five or six members, while the section 19B decisions are going to be made by the full Council with 13 members.  They are therefore of significantly different compositions.  Clearly, it cannot be said (as contended by Mr McCoy) that it is the same Council which is going to make the section 19B decisions.

46.  Finally, Mr McCoy contends that as the Council’s Appeal Decisions are provided to be final under section 20O(4), it shows that these decisions (which affirm the EAC’s recommendations) are of substantive consequences or legal effect.

47.  With respect, there is nothing in this argument.  The finality of the Council’s appeal decisions refers only to the effect that there cannot be any more appeals from the EAC’s recommendations decisions.  But those decisions remain at the recommendation stage and would not turn into substantive effect to remove the applicants’ name from the SR unless and until it is adopted by the full Council into its final decisions made under section 19B.

48.  For all the above reasons, I agree with the respondents that the Decisions are clearly preliminary in nature with no substantive consequences.  There are also no exceptional circumstances to justify the court to entertain the judicial review challenges made against them.  The court therefore would and should not exercise its discretion to consider these judicial reviews before the making of the final decisions by the full Council under section 19B.

49.  Given this conclusion, it is both unnecessary and inappropriate for the court to further consider the substantive grounds of judicial review.  The EAC’s recommendations would be considered independently by the full Council, and I repeat what I said at paragraphs 39 - 43 above.  The court should not pre-empt the full Council’s own consideration.

D.  CONCLUSION

50.  I will dismiss the judicial reviews for the above reasons.[8]

51.  As the applicants are unsuccessful, I further order (on a nisi basis) that costs of the judicial reviews be to the EAC and the Council, to be taxed if not agreed, with certificate for two counsel for the EAC.  I consider it appropriate to have two sets of costs.  At least some of the complaints made in these applications against the EAC and Council are separate and different.  They are therefore entitled to have separate representations to provide separate submissions addressing specifically those complaints.  Moreover, even on the primary case based on the prematurity of the challenges, the EAC and the Council do make submissions concerning the procedures and nature of the decisions which are specific to them respectively.

52.  Lastly, I thank counsel for their helpful assistance in these matters.