WAN HUNG CHING AARON v. PHYSIOTHERAPISTS BOARD HONG KONG

cacv 186/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 186 of 2006

(on appeal from HCAL NO. 34 of 2006)

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.  This was an appeal from the order dated 6 April 2006 of Chu J refusing the applicant’s application for leave to apply for judicial review.  At the conclusion of the hearing, the appeal was dismissed with reasons to be handed down later which we now do.

Background facts

2.  The applicant is a physiotherapist.  Between April and September 2005, the applicant worked as a physiotherapist at the Grace Rehabilitation Centre operated by ELCHK, a charity.  The centre operated a community programme for the elderly in the Kwai Ching area.  The applicant was involved in monitoring this project as well as providing front-line services to clients.  Mr Siu who was also a physiotherapist worked under him.  After the applicant left in October 2005 which coincided with the end of Phase I of the programme, Mr Siu continued to work at the Centre for Phase 2 of the physiotherapists’ project.

3.  In November 2005, after having left the programme, the applicant complained to the Hong Kong Physiotherapists Board (“the Board”) that, (1) Mr Siu, as a Part Ib registrant practised independently without the supervision of a Part Ia registrant; and (2) Mr Siu practised physiotherapy without a medical doctor’s referral.  These will hereafter be referred to as “the supervision issue” and “the referral issue” respectively.

4.  In accordance with section 18 of the Physiotherapists (Registration and Disciplinary Procedure) Regulation, Cap. 359 (“the Regulation”), the complaint was referred to the Preliminary Investigation Committee (“the Committee”).  Meanwhile, the Secretary of the Board asked Mr Siu for an explanation.  By letter dated 8 February 2006, Mr Siu responded enclosing, inter alia, the promotional leaflet about the programme.  About a week later, ELCHK also wrote to the Board in connection with the complaint.

5.  The promotional leaflet which had been distributed to the public stated that the purpose of the programme was to help the elderly who are suffering from chronic pain to cope with the pain, physically and psychologically; to overcome or reduce the impact of pain on their daily life and hence, to improve their quality of life.

6.  The complaint came before the Committee on 28 February 2006.  After considering the matter, the Committee decided not to refer the complaint to the Board for enquiry. That was a determination that was within its statutory powers under section 21(2).  On 6 March 2006, the applicant was informed by letter that:

“… [h]aving considered all the information available, including the written submissions from you and the respondent, the Committee decided that there was insufficient prima facie evidence to support your allegations and that the complaint would not be referred to the Board for inquiry.”

7.  On 11 March 2006, the applicant commenced his leave application.  It was heard by Chu J on 6 April 2006.  Prior to that hearing, the Secretary to the Board had filed an affirmation explaining the Committee’s deliberations.  On the supervision issue the Committee considered that there was no requirement under the relevant legislation or the code of practice that a Part Ib registrant had to practice under the supervision of a Part Ia registrant.  On the referral issue the Committee found that there was no evidence showing that Mr Siu had participated in activities other than training and education health lectures.  The Committee concluded that “there was no or no sufficient evidence that the services provided by Mr Siu to clients were physiotherapy treatment for which a doctor’s letter of referral was required”.  See paragraph 13 of the affirmation of Li Choi Ling, Charling dated 3 April 2006.

8.  The judge refused leave: she considered that there was no basis for the contention that the Committee’s reasoning and decision on the supervision issue was Wednesbury unreasonable and on the referral issue, that there was nothing in the materials before the Committee that required it to conduct further investigation into the complaint.  The judge concluded that the Committee was justified in their views that “taking part in training and educational programmes does not amount to practising physiotherapy”.

This appeal

The supervisory issue

9.  Sections 5(1) and 6 of the Regulation provide as follows:

“5(1)    For the purposes of section 13(4) of the Ordinance, the Secretary shall enter the name of a physiotherapist-

(a)   who-

(i) holds a qualification referred to in section 4; and

(ii) has recognized experience of not less than 1 year acquired after the physiotherapist acquired such qualification,

in Part Ia of the register;

(b)    who holds a qualification referred to in section 4 but does not have the recognized experience referred to in paragraph (a)(ii), in Part Ib of the register;

(c)    who is qualified to be registered under section 12(1)(b) or (c) of the Ordinance, in Part Ia or Ib of the register as the Council may determine under section 12(1A) of the Ordinance; and

(d)    to whom a certificate of provisional registration has been issued under section 15 of the Ordinance, in Part II of the register.”

“6 ….  A Part II physiotherapist shall not practise otherwise than under the supervision of a Part Ia physiotherapist.”

10.  If I did not misunderstand the applicant, his submission was that in fact there is currently no physiotherapist registered under Part II and that it is therefore to be inferred from the definition of “recognized experience” set out in section 5(2) that a registrant under Part Ib can only practice under the supervision of a Part Ia registrant.  In other words he was inviting the court to read section 6 as if the reference to a Part II physiotherapist were a reference to a Part Ib registrant.

11.  “Recognized experience” is defined as meaning

“experience in the practice of physiotherapy acquired by him other than in the course of practising physiotherapy-

(a) as a sole proprietor; or

(b) in any other capacity at a profit-seeking establishment at which no other physiotherapist who has experience of not less than 1 year in the practice of physiotherapy practises physiotherapy.”

It is not permissible for the court to “rewrite” the legislation under the pretence of construing it.  The fact that there is currently no Part II physiotherapist is neither here nor there.  It does not affect the proper construction of section 6 and is certainly not a ground for construing section 6 in the manner suggested by the applicant.  Section 5(2) does not assist his case.  If a Part Ib registrant practices otherwise than in accordance with subsection (2), all it means is that during that time, he does not acquire “recognized experience”.  It does not mean that he may not practice unless what he was doing amounted to “recognized experience”.  In my view, the applicant’s contention is entirely devoid of merit.

The referral issue

12.  Paragraph 13 of the Code of Practice (1998) of the Board provides as follows:

“13. Relationships with the medical and other health professions

In broad terms a patient’s illness should be assessed or treated on referral from, or while having direct access to, registered medical practitioner, or a person registered in respect of a medical clinic exempted under section 8(1) of the Medical Clinics Ordinance, Cap. 343.

In emergencies and under certain other circumstances, a physiotherapist may be obliged to undertake some treatment without such previous referral.  In such an eventuality the physiotherapist should ensure that such assessment and treatment as is undertaken be strictly limited to what the practitioner of physiotherapy has been trained to do.

Under no circumstances should a physiotherapist hold himself or herself out to be a person who is by training, experience or other skills, capable of independently providing medical treatment.

The above points serve only to illustrate that the physiotherapist is required to maintain the normal conventionally observed codes of behaviour in this regard.”

13.  The evidence before the Committee included the applicant’s original letter of complaint dated 14 November 2005, his statutory declaration and complaint letter of 2 December 2005, the letter from Mr Siu with enclosures, the letter from ELCHK and the Code.  The applicant’s evidence consisted of a bald assertion that “Mr Siu was treating seniors without medical doctors referral to community centres” operated by the ELCHK from April to September 2005, that to the best of the applicants knowledge, “Mr Siu had provided physiotherapy to clients without single quote medical doctors referral’ from April 2005 to October 2005”.  There was no evidence adduced from anyone to whom the alleged physiotherapy treatment had been provided by Mr Siu.  Details of the programme operated by the ELCHK referred to in paragraph 5 above were before the Committee.  On the basis of that evidence, I do not see that it can be said that the Committee had no basis for reaching the conclusion set out in paragraph 7 above.

14.  At the hearing, the applicant referred to the promotional leaflet which included photographs of certain pain easing equipment.  It was then said that Mr Siu had been “treating” patients with this equipment.  Suffice it to say that there was no evidence put before the Committee of actual hands-on treatment.  As the judge observed in paragraph 18 of the judgment, the programme was essentially aimed at

“training and educating the participants on how to deal with their chronic pain.  The mere provision of relevant equipment will not take the programme outside its nature as a training and education programme.  Whether the provision of pain easing and sporting equipment for use by the participants amounts to a physiotherapy treatment must be viewed against the purpose of making available the equipment and, in turn, the objectives and nature of the programme.”

I would respectfully agree.

15.  The applicant then referred to the definition of “physiotherapist” in the schedule to the Supplementary Medical Professions Ordinance, Cap. 359:

“3. Physiotherapist        A person trained to assess and treat physical disabilities by means of remedial exercises, manual therapy and mechanical, thermal or electrical energy.”

He went on to submit that given that definition, even training by way of exercises and education should be regarded as physiotherapy treatment.  It does not follow that training by way of exercises must necessarily amount to treatment.  They are entirely separate concepts.  What amounts to “physiotherapy treatment” involves a professional judgment.  I agree with the judge that the court would normally defer to the views of the professional body when it is a matter of standards for the profession unless they are manifestly absurd or contrary to reason.  In the present case, there is no basis upon which the conclusion of the Committee on the referral issue could be impugned.  On the evidence before it, the Committee was perfectly entitled to reach the conclusion that taking part in training and education programmes does not amount to practising physiotherapy and in the exercise of its discretion under section 21(2) of the Regulation to decide that no inquiry should be held.  In my view, this appeal was wholly misconceived.

Hon Sakhrani J:

16.  I agree.