DR TAN RONALD FRANCIS v. THE MEDICAL COUNCIL OF HONG KONG

CACV 50/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 50 OF 2010

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL OF

HONG KONG MADE ON 6 FEBRUARY 2010)

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BETWEEN

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JUDGMENT

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Hon Kwan JA:

1.  The appellant Dr Ronald Francis Tan brings this appeal against the findings and sentence of the Medical Council made in a disciplinary inquiry on 6 February 2010.

2.  Two charges were brought against him and they were in these terms:

“He, being a registered medical practitioner, disregarded his professional responsibility to his patient Madam Ho Shuk Ha (“the Patient”), in that he:

(a)  on or about 15 December 2006, gave steroid injection to the Patient without proper explanation and informed consent; and

(b)  on or about 23 December 2006 or 27 December 2006, gave steroid injection to the Patient without proper explanation and informed consent.

In relation to the facts alleged, he has been guilty of misconduct in a professional respect.”

3.  The Medical Council found the appellant guilty of both charges and ordered his name be removed from the General Register for two months in respect of each charge and that the orders were to run concurrently. 

The background

4.  The relevant background matters, taken from the findings of the Council, may be stated as follows.

5.  The appellant was the treating doctor of the Patient since 1990. She had consulted him intermittently over the years. After an absence of over five years, she consulted him again on 18 November 2006, and was diagnosed with osteoporosis. On the appellant’s advice, she was put on a course of twelve injections to treat the symptoms. When she returned on 15 December 2006 to continue the course of injections for osteoporosis, she made additional complaints of wrist pain and a swelling on the dorsum of the right hand. It is not in dispute that on 15 and 23 December 2006, the appellant gave her local steroid injections on her right hand for these additional complaints. What is in dispute is whether the appellant had informed the Patient of the nature and side effects of the injections on each occasion.

6.  Several days after the steroid injections, the Patient noticed dropping, loss of control, weakness and mild pain initially in her right little finger and then her right ring finger. She consulted three other doctors, Dr Au Ting Wah on 5 January 2007, Dr Tang Yiu Kai and Dr Peter PS Ko on 20 January 2007, and was diagnosed to have ruptured tendons of the right little and ring fingers. On 22 January 2007, she underwent surgery to repair the ruptured tendons. She made a complaint to the Medical Council against the appellant on 6 February 2007.

7.  The Patient asserted that the appellant did not tell her either the nature or the side effects of the injections, whereas the appellant said he had explained to her the name and dosage of the injections but not the side effects. The actual words in English and Chinese he claimed to have used for the name of the drug were: “Cortisone, 激素 [“Kik So” in transliteration]”.

8.  Given the conflicting accounts between the appellant and the Patient, the Council would need to resolve what explanation, if any, was given to the Patient before she received the injections. As noted by the Council, the question of informed consent necessarily follows from the content and sufficiency of any explanation given by the appellant to the Patient.

The Patient’s evidence

9.  The Patient was a housewife of 57 years of age at the time and was educated up to Primary 4 level. According to her evidence, neither the appellant nor his clinical assistants had informed her that the injections to her right hand on 15 and 23 December 2006 contained “類固醇” [“Lui Ku Shun” in transliteration] or “激素” [Kik So]. Although she had heard of the terms 類固醇 [Lui Ku Shun] and 激素 [Kik So], she knew nothing about them and she believed they were different drugs. She trusted the appellant and never questioned the content of the medications given to her, because she had been seeing him since 1990 and his treatments were effective. She said the injections on 15 and 23 December 2006 were administered at the same site on her right hand.

10.  She started to notice dropping, loss of control, weakness and mild pain of the right little finger on 31 December and the same in respect of the right ring finger on 1 January. During the consultation on 2 January 2007, the appellant told her she had a ruptured tendon of her right hand. When she asked him whether she had been given steroid injections, the appellant did not give any answer.

The appellant’s evidence

11.  The appellant gave evidence that since 2003, he had adopted new measures to ensure that all his patients would be properly informed before receiving steroid injections, after a patient had made complaint that the appellant gave such an injection without prior information. The new measures included the following. Before the injection, the appellant would inform the patient that he was injecting “Cortisone, 激素[Kik So]”, that the dosage was very low and well below the dosage recommended by the American College of Rheumatology Guidelines. His clinical assistant, Miss Cheung Siu Ling (“Miss Cheung”), would make sure he had informed all patients as above before the injection. After the injection, Miss Cheung would advise all patients that the injection contained local anaesthetic and the patient would feel numb for 45 minutes and should avoid lifting heavy objects for the next few days.

12.  The appellant recalled that before he gave the Patient the steroid injection on 15 December 2006, he had said to her that “the drug is Cortisone, 激素[Kik So]”, that the dosage was 8 mg which was lower than the 40 mg recommended by the American Rheumatology Association, and was therefore very safe. He did not inform her of the possible side effects because the dose was very low and it would not cause any side effect. After the injection, he advised her to avoid lifting heavy objects and demonstrated the correct way of carrying heavy objects.

13.  On 23 December 2006, he suspected the Patient might be suffering from rheumatoid arthritis. The site of injection administered on this occasion was about 1 ¾ inches apart from the first injection, and both were below (distal to) the wrist.

14.  On 2 January 2007, he examined the Patient’s fingers but did not see any signs of tendon rupture.

The clinical assistant’s evidence

15.  Miss Cheung testified for the appellant. She gave similar evidence on the precautions adopted to give proper explanation to patients about steroid injections since 2003, what the appellant had told the Patient about the name of the drug and the dosage on 15 and 23 December 2006, and what she said to the Patient after the injection. She also told the Patient that lifting heavy objects might lead to rupture of the tendons. She was however unable to explain the nature of cortisone or激素 [Kik So]. She said the two sites of injection were different and were on opposite sides of the wrist.

The expert evidence

16.  The only other witness who was called was Professor Edmund Li. He gave expert evidence for the appellant. Professor Li was of the opinion that patients should be informed they were receiving steroids when steroids were prescribed. Steroid injections were regarded as invasive procedures. In informing patients about steroids, he would use the Chinese term 類固醇[Lui Ku Shun] because it would be better understood. Before administering steroid injections, his normal procedure would be to inform patients that infection might occur in 4 out of 100,000 injections. Tendon rupture was not a common complication associated with local steroid injections, although the risk of this would be higher in patients suffering from rheumatoid arthritis. He would sometimes warn the patient about the risk of tendon rupture before giving steroid injections but did not have a consistent practice about this as the occurrence was so rare.

The findings and sentencing of the Medical Council

17.  The Medical Council accepted the Patient’s evidence that neither the appellant nor Miss Cheung had explained to her the nature and side effects of the injections. The Council found she had honestly described what had happened without exaggeration. As for discrepancies between her oral testimony and the complaint letters and written statements, the Council regarded them as minor and did not think they affected the credibility and reliability of her evidence. The Council considered the reports of the other three doctors consulted by the Patient in January, noting that the reports of Dr Au and Dr Tang only stated she had received injections of medicine and this was consistent with her evidence that she did not know the nature of the injections. In Dr Ko’s report dated 19 March 2007, it was stated that the Patient “gave history of right dorso-lateral wrist pain and had received two local steroid injections on dorsum of her right wrist by her treating doctors before.” The Council was of the view Dr Ko mentioned in his report that the Patient had received steroid injections because he had got this information from the appellant’s clinical records.

18.  The Council found the evidence of the appellant and Miss Cheung lacking in credibility, and highlighted six questionable aspects of their evidence in paragraph 14 of its findings.

19.  As the Council had accepted the Patient’s evidence that she was not informed of the nature and side effects of the injections, it followed that the injections were given without informed consent. This was the primary finding of the Council.

20.  The Council made an alternative finding that even on the appellant’s own version of events, he had failed his responsibility to give proper explanation and to obtain informed consent for the steroid injections. He deliberately chose the Chinese term激素 [Kik So] rather that the much better known term類固醇 [Lui Ku Shun] and that could only be an attempt to obfuscate rather than to explain the true nature of the medication. The explanation should be given in plain and ordinary terms which could be understood by the non-medically trained patient, particularly in the case of the Patient who was educated only up to Primary 4 level.

21.  Furthermore, the Council found that the appellant should have advised the Patient of the side effects of the steroid injections.

22.  On the above findings, the facts of both charges were proved. The Council was satisfied this constituted misconduct in a professional respect and found the appellant guilty of both charges. 

23.  As for sentencing, the Council noted that if the case had involved only a failure to inform the Patient of the side effects of the steroid injections, it would have been treated as a less serious case. The Council was of the view that the appellant knew the difference between類固醇 [Lui Ku Shun] and激素 [Kik So], that the case involved concealment of the nature of the injections and the failure to inform the Patient in the face of direct enquiry, and that a clear message must be sent to the profession that the Council will not tolerate such misleading acts. In effect, what the Council was saying was that the appellant had deliberately misled the Patient by describing steroids as激素 [Kik So] instead of類固醇 [Lui Ku Shun] in spite of her direct enquiry, and sentenced the appellant on that basis to removal from the General Register for two months.

The arguments on appeal

24.  Mr Adrian Huggins, SC, who appeared for the appellant, mounted a total challenge on all the findings and the sentence.

25.  He challenged the primary finding on the basis that the Council should have preferred the evidence of the appellant rather than the Patient as the Council had failed to consider important documentary evidence, which indicated that the appellant had conveyed to the Patient he was administering steroid and that the Patient had understood the injections were of steroid.

26.  He attacked the alternative finding on the additional basis that the Council had made an unjustified finding of deliberate concealment and obfuscation that the drug was a steroid. He sought to adduce new evidence on appeal to support his argument that “Cortisone激素 [Kik So]” would be a proper explanation.

27.  He attacked the finding that the appellant should have advised the Patient of the side effects of the steroid injections on the basis that the Council had ignored or misunderstood important evidence from the only expert who gave evidence, Professor Edmund Li.

28.  He challenged the sentence on the ground that the appellant was given a heavier penalty on the basis of deliberate concealment and misleading the Patient by the use of the term激素 [Kik So] and this was inconsistent with the primary finding of fact which was that the Patient had not been informed of the nature of the injections. Further, the sentence was manifestly excessive in any event.

29.  Mr John Bleach, SC, who appeared with Miss Roxanne Ismail, submitted that the findings of the Medical Council should be upheld but did not seek to uphold the sentence. He conceded there was an error in sentencing and urged this court to remit the sentencing issue back to the Council for re-consideration.

The attack on the primary finding

30.  The Medical Council had to decide whether to accept the evidence of the Patient or the appellant. It was a question of credibility. The crucial issue was what information was provided to the Patient by the appellant before she received the injections and what was her understanding as a result of the information given. What the Patient had told the other three doctors whom she consulted in January 2007, not long after she decided to stop seeking treatment from the appellant, would shed light on this crucial issue.

31.  Mr Huggins took us to the documentary evidence which he submitted the Medical Council had overlooked. He started with Dr Ko’s report dated 19 March 2007, which contained the statement that the Patient “gave history of right dorso-lateral wrist pain and had received two local steroid injections on dorsum of her right wrist by her treating doctors before.” This seems to be a somewhat ambiguous statement, as it is not entirely clear whether the fact that the Patient had received two local steroid injections was part of the history given by the Patient to Dr Ko. Dr Ko was not called as a witness at the enquiry.

32.  Be that as it may, the Medical Council found that Dr Ko obtained the information the Patient had received steroid injections because he had read the appellant’s clinical records. Mr Huggins submitted this finding was manifestly unsound in that it had ignored the following evidence at the enquiry:

(1)  The Patient did not hand over to Dr Ko the appellant’s clinical records in relation to her until sometime after 22 January 2007 (the date of her surgery at St Paul’s Hospital, she was discharged the following day) and before 5 February 2007 (the date of her complaint statement to the Medical Council). In her complaint statement, the Patient mentioned that for the purpose of making a complaint against the appellant, she telephoned the appellant’s clinic to obtain a copy of her medical record but her request was refused. Four days later, a nurse of the appellant’s clinic called her agreeing to give her a copy of the medical record and she then provided a copy to Dr Ko for his review.

(2)  Dr Ko had written a request for a histopathology report on a specimen of the Patient received by St Paul’s Hospital on 23 January 2007. The histopathology report dated 24 January 2007 referred to “post-steroid injection” of the Patient.

(3)  Dr Ko’s contemporaneous clinical notes for the consultation he had with the Patient on 20 January 2007 contained this record: “mid Dec 06 2 local steroid injections by GP”.

33.  Mr Huggins pointed out that the information about the steroid injections in the documents in (2) and (3) could not have come from the appellant’s clinical records, as Dr Ko had not received a copy of the appellant’s clinical records from the Patient at the time he made the contemporaneous record on 20 January 2007 in his clinical notes or when he provided the information in his request for the histopathology report on 23 January 2007.

34.  I accept these are valid submissions.

35.  Mr Huggins pressed home the point the inherent probability was that Dr Ko obtained the information about the steroid injections in the documents in (2) and (3) from the Patient herself, and this demonstrated she did know the nature of the injections. He submitted the evidence indicated strongly that the Patient had understood from the appellant he had administered steroid injections and therefore she did know the nature of the injections, contrary to the primary finding the appellant did not tell her the nature of the injections. The Medical Council had simply accepted her denial of having told Dr Ko about the contents of the injections without addressing the point that the clinical notes of Dr Ko were patently inconsistent with that denial.

36.  Mr Bleach accepted that the contemporaneous record in Dr Ko’s clinical notes and the statement in the histopathology report are potentially of critical importance. These documents should have been, but were not, properly explored before the fact-finding tribunal. In the cross-examination of the Patient, neither Dr Ko’s clinical notes nor the histopathology report was put to her. She was merely asked why Dr Ko had stated in his report dated 19 March 2007 that she told him at the first consultation on 20 January she had received two steroid injections and she replied she did not know. Although Dr Ko’s clinical notes and the histopathology report were included in the trial bundle, the appellant’s counsel at the enquiry (not Mr Huggins) did not refer to these documents in his submissions at all. Counsel had merely referred to Dr Ko’s report of 19 March 2007 in his closing address and made the point that the Patient was unable to explain why Dr Ko was able to say in his report that she told him during the first consultation she had received two steroid injections. In view of how the point was raised at trial, Mr Bleach submitted it was open to the Medical Council to find in Dr Ko’s report of 19 March 2007 that mention was made that the Patient had received steroid injections because by then Dr Ko had received a copy of the appellant’s clinical records.

37.  Mr Bleach relied on the well-known principle of The Tasmania (1890) LR 15 App. Cas. 233 at 225. There is no dispute about this principle.  As stated by the Court of Final Appeal in Flywin v. Strong & Associates Ltd. (2002) 5 HKCFAR 356 at 369B to C, para. 38, the principle is to this effect:

“Where a point is taken at the trial, the facts pertaining to it are open to full investigation at the evidence-taking stage of the litigation. That is as it should be. Therefore where a party has omitted to take a point at the trial and then seeks to raise that point on appeal, the position is as follows. He will be barred from doing so unless there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at the trial.”

38.  Applying the principle here, Mr Bleach submitted that the attack on the primary finding based on the failure of the Medical Council to address Dr Ko’s clinical notes and the histopathology report must fail. The points made on appeal were new points not taken at trial. Had the points been taken at trial, the evidence would have been very different. This court cannot be satisfied beyond doubt it had before it all the facts bearing on the new contention as completely as would have been the case if the controversy had arisen at the trial. The Patient was not cross-examined on Dr Ko’s clinical notes. This court does not have an explanation from Dr Ko on the circumstances in which he made the record in his notes for the first consultation, nor does it have all the relevant facts from Dr Ko, the doctor who signed the histopathology report, or St Paul’s Hospital as to why that report contained a reference to “post-steroid injection”. The Medical Council cannot be criticised for failure to address an inconsistency between Dr Ko’s clinical notes and the Patient’s evidence, when no submission of such an inconsistency was made before it.

39.  Mr Huggins’ reply was that the matters raised on appeal could not be regarded as new points, on a fair reading of the transcript. The Patient was given the opportunity in cross-examination to deal with the apparent inconsistency between her assertion that the appellant did not tell her the nature of the injections and the statement in Dr Ko’s report that she had received two steroid injections. Other than denying that she had told Dr Ko about the contents of the injections, she could only reply she did not know why Dr Ko had so stated in his report. Mr Huggins postulated that even if she were to be asked about Dr Ko’s clinical notes, she could not have anything further to say.

40.  Mr Huggins submitted further the fact that Dr Ko’s clinical notes and the histopathology report were not read to the Medical Council was irrelevant. These documents were introduced into the evidence by prosecuting counsel by including them in the trial bundle. The record in Dr Ko’s clinical notes was evidence ex facie that the Patient knew she had been given two steroid injections and she had conveyed that information to Dr Ko in the first consultation. Notwithstanding this, the prosecution chose not to call Dr Ko to speak to his clinical notes. There was no onus on the appellant to call Dr Ko to see if the doctor would give evidence to gainsay or qualify in some way the statements in his reports, when these statements spoke for themselves.

41.  To recapitulate, I accept the submission of the appellant that the reasoning of the Medical Council as to how Dr Ko came to know that the Patient had two steroid injections was flawed. In this respect, the Council had misdirected itself as to the effect of certain evidence which it understood to support its conclusion. I accept also the appellant’s submission that ex facie the statements in Dr Ko’s clinical notes and the histopathology report undermined the Patient’s evidence that it was not conveyed to her the injections were of steroid. Dr Ko’s clinical notes and the histopathology report were evidence placed before the Council, although no one had alluded to them and their significance was apparently not appreciated by any one at trial. It is not in dispute that these documents are of critical importance to resolving the issue of credibility. I do not however agree with Mr Huggins that these documents spoke for themselves, nor do I think it matters that they were introduced into the evidence by prosecuting counsel.

42.  I do not think it is correct to say that the point raised on appeal – that Dr Ko had obtained information from the Patient as to the nature of the injections in his first consultation – is a new point. This point was raised in the cross-examination of the Patient and addressed by the appellant’s counsel in his closing submission, but only with reference to Dr Ko’s report dated 19 March 2007. This point was not canvassed with reference to the other two documents already adduced in evidence, which are of critical importance, and the facts pertaining to these documents had not been fully investigated and explored before the fact-finding tribunal. In that sense it is correct to regard this as a new point.

43.  In these very special circumstances, it seems to me the principle in The Tasmania should not be applied rigidly. It would not be fair to the appellant if he were barred from taking an important point on appeal which had been taken, albeit not fully, at the trial. It would not be fair to the respondent if this court were to set aside the primary finding without giving an opportunity to the prosecution to adduce evidence from the makers of the two documents to explain them, as the prosecution had no forewarning from the appellant at the enquiry that these documents would be relied on in this particular manner. In fairness to both sides, they should be given the opportunity to adduce or elicit further evidence pertaining to these documents that had been overlooked by everyone at the trial. As Mr Bleach has recognised, there is potentially a middle ground here for the matter to be remitted to the Medical Council for another enquiry. It is within the discretion of this court, and we are empowered to do so under the Medical Registration Ordinance, Cap. 161, section 26(1). 

44.  Mr Bleach referred us to the decision of the Court of Appeal in Unlimited Production Ltd. v. Filmko Pictures Ltd. [2008] 1 HKC 247, in which the Tasmania principle was applied. The court refused to allow a point to be taken on appeal regarding a particular letter on which the principal witness was not cross-examined and no reference was made to it in closing submissions at trial. The circumstances in that case were distinguishable. The relevant passage in the letter was equivocal and consistent with the respondent’s case (at paras. 23 and 29). The trial judge had considered the passage and did not regard it as significant (at para. 30). In any event, there was other evidence that supported the respondent’s case (at para. 34).

45.  I have considered Mr Huggins’ submission about the appellant’s anxiety and the costs to be incurred in a re-trial and whether this court should simply quash the findings without more.  Justice must be done to both sides in this situation. In the exercise of our discretion, I think it appropriate to order a fresh enquiry, before a differently constituted tribunal of the Medical Council, since the members of the tribunal who heard the disciplinary enquiry had formed certain views on the credibility of the Patient, the appellant and Miss Cheung.

46.  Given the conclusion reached above that the matter should be remitted for a re-trial, it is not necessary to deal with Mr Huggins’ submissions criticising the Council for rejecting the evidence of the appellant and Miss Cheung as incredible, for the reasons stated in paragraph 14 of the findings. Nor would it be appropriate for this court to pass comment whether the reasons given by the Council were satisfactory, as the issue of credibility of the witnesses should be approached afresh by the new fact-finding tribunal, in the light of all the evidence to be placed before it.

The attack on the alternative finding

47.  The alternative finding (that the appellant had failed to give proper explanation to the Patient even on his own version of events) cannot stand on its own, as this is also affected by the point raised on appeal that the Patient did understand the nature of the injections from what the appellant told her and had conveyed this to Dr Ko at the first consultation.

48.  As there is to be a fresh enquiry, it is unnecessary to deal with the appellant’s application to adduce new evidence on appeal on medical terminology and evidence from a translator particularly qualified in medical terms in order to attack the findings in paragraphs 18 and 31 that it is wrong to say both the Chinese terms 類固醇 [Lui Ku Shun] and激素 [Kik So] mean steroid and that the appellant’s explanation the nature of the injections was激素 [Kik So] was misleading.

49.  The only matter I need deal with is the submission that the Council had made an unjustified finding of deliberate concealment and obfuscation of the nature of the injections on the basis of the appellant’s own version of events. Mr Huggins submitted this finding is relevant not just to the error in sentencing, which was conceded by Mr Bleach, but also to the finding of liability. This finding was manifestly illogical, in view of the primary finding that the appellant did not tell the Patient anything about what the medication was and did not even use the expression激素 [Kik So]. Besides, the serious allegation of a deliberate decision by the appellant to describe steroids as激素 [Kik So] instead of類固醇 [Lui Ku Shun] as a means of concealing the fact that he was administering a steroid was not put to the appellant. He had no opportunity to answer this allegation with the kind of evidence for which he has sought leave to adduce on appeal.

50.  I agree with the above submissions. Although the appellant had given evidence to explain why he used the term “Cortisone, 激素 [Kik So]” to the Patient, he was not responding to an allegation that he deliberately chose an expression which he knew to be incorrect in order to obfuscate and to mislead the Patient. The additional evidence he sought to adduce on appeal would be relevant to the appellant’s state of mind and the issue if he honestly believed the expression he used was justified so there was no deliberate and dishonest attempt to mislead. The finding of deliberate concealment, an attempt to obfuscate and to mislead the Patient in paragraphs 17, 31 and 32 cannot stand.

The attack on the finding of failure to advise side effects

51.  The Medical Council found that the appellant should have advised the Patient of significant and common side effects of steroid injections such as infection, local irritation and the risk of tendon rupture in paragraphs 20, 28 and 29. The appellant accepted that he did not advise the Patient of any side effects. His complaint here is two-fold.

52.  Firstly, there was no evidence to support the finding that the side effects mentioned by the Medical Council were significant or common, or that there was anything other than very remote risks of them being caused by the injections of the low dosage administered by the appellant. The Council misapprehended the evidence of Professor Li about the remoteness and insignificance of the risks of infection, local irritation and tendon rupture.

53.  Secondly, the Council misapprehended the evidence of Professor Li on the practice of informing patients of the side effects of steroid injections. Professor Li had expressed the opinion in his report that even if the appellant had failed to inform the Patient of the side effects of steroid injections, he does not consider it a “serious matter to commit to professional misconduct for the reason that the incidence of complication associated with steroid injections such as infections or tendon rupture is sufficiently low” and did not detract from this opinion in his oral evidence. There was no expert evidence to refute the opinion of Professor Li. Mr Huggins submitted that the Council had erred in law in proceeding on the basis that a doctor needs to give a warning of the risks of any side effects of steroids, however insignificant or remote the risks.

54.  Mr Bleach accepted there were two errors in paragraph 10(c) of the findings where the Council summarised the expert opinion of Professor Li, which it accepted in paragraph 11. In stating that Professor Li would routinely inform patients about the risk of local irritation, the Council had erred as Professor Li’s evidence on his “normal procedure” of informing patients was only in respect of the risk of infection. In fact, the Professor gave evidence to the contrary, stating that he would not inform patients of the risk of local irritation, and did not think the appellant should have done so in this case. The Council made a further mistake in stating that infection was a “common” side effect, as opposed to it being “common knowledge” that infection was a side effect. On the evidence of Professor Li, the complication of steroid injections into the joint or intra-articular include infection, which is “most serious but is rare”, occurring 1:2,000 to 10,000 in patients with rheumatoid arthritis.

55.  It is a doctor’s duty to warn a patient of the possible serious risks involved and of a small but well established risk of serious injury as a result of a treatment or drug (Chester v. Afshar [2005] 1 AC 134 at 143H, para. 16). Mr Bleach has drawn our attention to Professor Li’s report in which he mentioned “an appreciable risk of profound and disabling complications” in the context of the duty to inform patients of the risks of a treatment, and this is not the legal test in Chester v. Afshar. I accept it is for the Medical Council, not for Professor Li as the expert witness, to determine the issue whether the appellant’s omission to warn the Patient of side effects amounted to professional misconduct.

56.  I am of the view that the finding of the Medical Council in this respect must be set aside, in view of the two errors accepted by Mr Bleach, which I regard as grave and would lead one to seriously question if the finding of professional misconduct would still be reached even if those mistakes had not been made. This matter should also be considered afresh in the new enquiry.

The attack on sentencing

57.  As mentioned earlier, Mr Bleach conceded there was an error in sentencing and the sentence should be set aside. This concession is correctly made. The Council should not have sentenced the appellant on a basis inconsistent with its primary finding of fact. Other than that, it is not necessary or desirable for this court to express any view on the appropriateness or otherwise of the sentence passed, as findings of fact have yet to be made in the new enquiry. 

Conclusion

58.  For the above reasons, I would allow the appeal, set aside the findings and sentence, and remit the matter to a fresh enquiry before a differently constituted tribunal of the Medical Council.

59.  The question of costs is to be the subject of written submissions, as we have directed at the conclusion of this appeal. I would direct the appellant to serve his submissions within seven days of the handing down of this judgment, the respondent to serve its submissions within seven days thereafter, with a right of reply to the appellant three days thereafter.

Hon Fok JA:

60.  I agree.

Hon Chu J:

61.  I agree and have nothing to add.

Hon Kwan JA:

62.  Accordingly, we make an order in terms of paragraph 58.