“DR. Y” v. THE EDUCATION AND ACCREDITATION COMMITTEE OF THE MEDICAL COUNCIL OF HONG KONG AND ANOTHER

CACV 205/2011, CACV 206/2011 AND CACV 209/2011

CACV 205/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 205 OF 2011

(ON APPEAL FROM HCAL NO. 106 OF 2010)

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BETWEEN

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(Heard Together)

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J U D G M E N T

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Hon Fok JA:

Introduction

1.  These appeals are concerned with aspects of the registration and disciplinary processes under the Medical Registration Ordinance, Cap. 161 (MRO) and raise issues of statutory interpretation of various provisions of that ordinance, as well as issues concerning the fairness of the composition of various bodies engaged in the disciplinary process.

2.  The parties to these appeals are Dr X and Dr Y, respondents in CACV 205/2011 and CACV 206/2011 respectively.  The Medical Council of Hong Kong (the Council) is appellant in those appeals.  In CACV 209/2011, Dr Y is appellant and the Council and its Education and Accreditation Committee (EAC) are respectively respondents.

3.  In order to put the Judgment below and the issues arising on appeal into context, it is first necessary to give an overview of the relevant parts of the statutory scheme under the MRO and the background facts giving rise to the issues in these appeals.

Statutory scheme

4.  The MRO was enacted to “consolidate and amend the law by making more comprehensive provisions regulating the registration of practitioners in medicine and surgery”.  For the purposes of these appeals, I will summarise the effect of the material provisions relating to the registration of medical practitioners and then the effect of those relating to the disciplinary process.

5.  The Council is the governing body responsible for the registration of medical practitioners in Hong Kong.  It is established under s. 3 and is composed of 28 members, including 24 registered medical practitioners nominated by different entities and organisations and 4 lay members.

6.  Under s. 20BA, the Council may establish such committees for the better performance of its duties and exercise of its powers as it thinks fit.  One of these committees is the EAC (s. 20BA(2)(b)); two others are the Preliminary Investigation Committee (PIC) and the Health Committee (HC) (s. 20BA(2)(d) and (e) respectively).

7.  The functions of the EAC are set out in s. 20I as follows:

“(a) to determine, upon the recommendation of the Academy of Medicine, the specialties under which names of registered medical practitioners may be included in the Specialist Register;

(b) to recommend to the Council, upon the recommendation of the Academy of Medicine, the qualification, experience and any other attributes that qualify a registered medical practitioner to have his name included in the Specialist Register under a particular specialty determined by the Committee under paragraph (a);

(c) to recommend to the Council the procedures, documentations and fees payable for including the name of a registered medical practitioner in the Specialist Register;

(d) to recommend and review the standard and structure of undergraduate medical education and medical training required for a person to become a registered medical practitioner;

(e) to recommend to the Council whether the name of a registered medical practitioner should be included in or removed from the Specialist Register.”

8.  In order to practice medicine in Hong Kong, a person must be registered under s. 14 and the definition of a “registered medical practitioner” in s. 2 includes a person who is so registered.

9.  By s. 6(1), the Registrar of Medical Practitioners (the Registrar) is required to cause the General Register (GR) to be kept to contain the names, addresses and qualifications of all medical practitioners registered under s. 14.

10.  By s. 6(3), the Registrar is required to cause the Specialist Register (SR) to be kept to contain the names, addresses, qualifications and experience and such other particulars as he thinks necessary of those persons who have been approved by the Council to have their names included in the SR.

11.  It is common ground that the entitlement to practice medicine in Hong Kong flows from registration under s. 14 as a registered medical practitioner and thus the inclusion of the doctor’s name in the GR.  Inclusion of a doctor’s name in the SR does not of itself entitle that person to practice medicine in Hong Kong but entitles him to be known as a specialist in the relevant specialty under which his name is registered in the SR (see s. 20M).

12.  Under s. 19(1), the Council has power to order the removal of a person’s name from the GR in four classes of case, including in s. 19(1)(a) where the person is deceased.

13.  Under s. 19B(1), if the Council orders the removal of a person’s name from the GR under s. 19(1), and that person’s name is also included in the SR, the Registrar shall, at the same time he removes that person’s name from the GR, also order the removal of his name from the SR.

14.  Under s. 19B(2), the Council may, on the recommendation of the EAC and without conducting an inquiry under s. 21 (as to which see below), order the removal of a person’s name from the SR either permanently or for a period as it thinks fit.

15.  By s. 20J, the Council shall, on the recommendation of the EAC, approve the qualifications, experience and other attributes that qualify a registered medical practitioner to have his name included in the SR under a particular specialty.  By s. 20K, a registered medical practitioner who wishes his name to be included in the SR must apply to the Registrar in prescribed form.

16.  Under s. 20N(1), where notice of any complaint or information relating to the suitability of a registered medical practitioner to have his name included in or removed from the SR comes to the EAC, it may, among other things, recommend to the Council the removal of the registered medical practitioner’s name from the SR (s. 20N(1)(d)).  If it is going to do so, the EAC must give notice of this in writing to the registered medical practitioner (s. 20N(2)).  Under s. 20N(3), the registered medical practitioner may within 14 days of the EAC’s written notice of such recommendation, request the EAC to review its decision.  The EAC shall, upon such request, review its decision and notify the registered medical practitioner in writing of its decision after review (s. 20N(4)).

17.  Under s. 20O, the registered medical practitioner may appeal to the Council against the EAC’s decision after review.  The Council may affirm, vary or reverse the decision of the EAC appealed against (s. 20O(3)) and its decision is final (s. 20O(4)).  The quorum of the Council for the purposes of the hearing of an appeal under s. 20O is 5, including the Chairman: see the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, Cap. 161E (the Regulation), s. 47(1).

18.  Turning to the disciplinary process, which is governed by Part IV of the MRO, under s. 21(1), the Council has power to hold a disciplinary inquiry in relation to a registered medical practitioner in respect of seven categories of cases, including an allegation of professional misconduct.

19.  Before an inquiry is held under s. 21, the PIC will make preliminary investigations into complaints or information relating to a registered medical practitioner and, if it thinks fit, make a recommendation to the Council to hold such an inquiry (s. 20T(1)).  The PIC consists of 7 members, two of whom (its Chairman and Deputy Chairman) are members of the Council, four of whom are registered medical practitioners but not members of the Council and 1 of the 4 lay members of the Council (s. 20S(1)).  The quorum for a meeting of the PIC is 3 at least 1 of whom shall be a lay member and the Chairman or Deputy Chairman must preside at the meeting (s. 20S(2) & (3)).

20.  If the Council holds an inquiry under s. 21, either 5 members of the Council or not less than 3 members of the Council and 2 assessors shall form a quorum (s. 21B). By s. 21(4A), it is provided that a member of the PIC who is also a member of the Council shall not attend a meeting of the Council while it is inquiring into a complaint or information in respect of which that PIC member took part in the preliminary investigations.

21.  If, after due inquiry, the Council finds the registered medical practitioner guilty of any of the relevant matters into which it may hold such an inquiry, it has a discretion to impose one of the sanctions stipulated in s. 21(1)(i) to (v).  Among these sanctions is an order that the name of the registered medical practitioner be removed from the GR or SR either generally (s. 21(1)(i) and (iiia)) or for such period as it thinks fit (s. 21(1)(ii) and (iiib)).

22.  A registered medical practitioner who is aggrieved by any order made by the Council under ss. 19, 19B, 21 or 21A may appeal to the Court of Appeal under s. 26.

23.  Where such an appeal is made, an order for the removal of the name of a registered medical practitioner from the GR or SR will be suspended by reason of s. 25(2) of the MRO, which materially provides that:

“… the Registrar shall not remove the name of the registered medical practitioner from the General Register or, as may be appropriate, the Specialist Register, before the expiry of 1 month after the date of service of the order of the Council on the person concerned or, in the case of an appeal made to the Court of Appeal against the order under section 26, before the appeal is finally determined.”

An exception to this suspension may arise where the Council is satisfied that it is necessary to order that the removal to take effect immediately upon its publication “for the protection of the public or in the best interest of the registered medical practitioner” (s. 21(1)(iva)).

Background facts

24.  In 2009, Dr X and Dr Y were each separately subject to a disciplinary inquiry brought before the Council pursuant to s. 21 of the MRO in respect of certain, unrelated, disciplinary complaints against each of them.  They were each found guilty of professional misconduct and the Council ordered that their names should be removed from the GR for a certain period of time.

25.  In relation to Dr X, the following is the sequence of material events following the Council’s decision that she was guilty of professional misconduct:

(1) On 18 December 2009, Dr X’s name was removed from the GR for a period of two months.  The letter notifying Dr X of this decision reminded her that her name “will not be automatically restored to the [GR] upon the expiry of the removal period” and that she must apply to the Council for restoration of her name to the GR.

(2) On 22 January 2010, the EAC recommended the removal of Dr X’s name from the Specialist Register (SR) under s. 20N(1)(d) permanently as “only medical practitioners [were] entitled to be included in the [SR]”.  The letter notifying Dr X of this recommendation stated that the removal of her name from the SR would not prevent her from making a fresh application for inclusion in the SR when she became suitable for such inclusion again.  The Judge referred to this as “the EAC’s Recommendation Decision on Dr X”.

(3) On 19 February 2010, the EAC affirmed its recommendation on review.  The Judge referred to this as “the EAC’s Review Decision on Dr X”.  The letter notifying Dr X of this affirmation stated that the reason for this decision was that, as Dr X had been removed from the GR, she had lost the “prerequisite status” to remain on the SR.  It also stated that, as such, Dr X’s specialist competence and qualifications were of no relevance to the EAC’s consideration as to whether or not to recommend removing her name from the SR.

(4) On or about 18 March 2010, Dr X appealed from the EAC recommendation under s. 20O of the MRO.

(5) On 8 June 2010, Dr X’s name was restored to the GR.

(6) On 28 June 2010, the appeal by Dr X to the Council pursuant to s. 20O of the MRO against the EAC’s recommendation was dismissed.  The appeal was heard by the Council consisting of 7 members, 2 of whom were also members of the PIC who took part in the preliminary investigation of the complaints against Dr X and another 2 of whom were also members of the Council’s s. 21 inquiry into the allegations against Dr X.  The Judge referred to this as “the Council’s Appeal Decision on Dr X”.

(7) On 7 July 2010, the Council adopted the recommendation of the EAC and removed Dr X’s name from the SR.  The Judge referred to this as “the Council’s SR Decision on Dr X”.

(8) On 6 October 2010, Dr X’s name was restored to the SR.

(9) Also on 6 October 2010, Dr X applied for leave to bring judicial review proceedings in HCAL 106/2010 seeking orders to quash the EAC’s Recommendation Decision on Dr X, the EAC’s Review Decision on Dr X, the Council’s Appeal Decision on Dr X and the Council’s SR Decision on Dr X.

(10) Leave was granted on 14 October 2010 and it was directed that Dr X’s judicial review be heard together with HCAL 107/2010 (as to which see below).

26.  In relation to Dr Y, the following is the sequence of material events following the Council’s decision that he was guilty of professional misconduct:

(1) On 20 December 2009, Dr Y’s name was ordered to be removed from the GR for a period of five months.  The Council did not make an order under s. 21(1)(iva) for the immediate implementation of that order.

(2) On 15 January 2010, Dr Y appealed from the Council’s s. 21 order pursuant to s. 26.

(3) On 22 January 2010, the EAC recommended the removal of Dr Y’s name from the SR under s. 20N(1)(d) permanently but without prejudice to his right to make a fresh application to be included in the SR again when he became suitable for such inclusion.  The Judge referred to this as “the EAC’s Recommendation Decision on Dr Y”.  The letter notifying Dr Y of this recommendation indicated that, having considered the disciplinary charges against him and the Council’s judgment on them, the EAC considered that Dr Y’s competence as a specialist had fallen below the standard required for a person to remain on the SR and it had therefore decided to recommend removing his name from the SR.

(4) On 19 March 2010, the EAC affirmed its recommendation on review.  The Judge referred to this as “the EAC’s Review Decision on Dr Y”.  The letter notifying Dr Y of the affirmation of the recommendation indicated that the EAC maintained the view that Dr Y’s “competence as a specialist had fallen below the standard for a person to remain on the SR” and that it had decided not to postpone putting up its recommendation to the Council until the outcome of the appeal to the Court of Appeal under s. 26.

(5) On 22 April 2010, Dr Y appealed from the EAC recommendation under s. 20O of the MRO.

(6) The s. 20O appeal was heard by the Council consisting of 6 members, 2 of whom were also members of the PIC who took part in the preliminary investigation of the complaints against Dr Y and another 2 of whom were also members of the Council’s s. 21 inquiry into the allegations against Dr Y.  Dr Y sought the recusal of those 4 members at the hearing of the appeal on the basis of apparent bias.  On 14 September 2010, the Council refused Dr Y’s recusal application taking the view there was no apparent bias and dismissed Dr Y’s s. 20O appeal to the Council against the EAC’s recommendation on the merits.  The Judge referred to this as “the Council’s Appeal Decision on Dr Y”.

(7) On 6 October 2010, the Council adopted the recommendation of the EAC and, pursuant to s. 19B(2), ordered the removal of Dr Y’s name from the SR permanently with effect from that date.  The Judge referred to this as “the Council’s SR Decision on Dr Y”.

(8) On 7 October 2010, Dr Y applied for leave to bring judicial review proceedings in HCAL 107/2010 seeking orders to quash the EAC’s Recommendation Decision on Dr Y, the EAC’s Review Decision on Dr Y, the Council’s Appeal Decision on Dr Y and the “threatened decision” of the Council to remove Dr Y’s name from the SR (i.e. what became the Council’s SR Decision on Dr X).

(9) On 14 October 2010, Dr Y withdrew his appeal against the s. 21 order.  Also on this date, leave was granted to Dr Y to apply for judicial review (save in respect of the “threatened decision”) and it was directed that Dr Y’s judicial review be heard together with HCAL 106/2010.

(10) On 12 November 2010, Dr Y’s name was removed from the GR.

27.  From the above, it will be apparent that the principal difference between Dr X and Dr Y’s cases in the sequence of events following the findings of professional misconduct is that, in Dr Y’s case, because of his appeal against the s. 21 order pursuant to s. 26 of the MRO, the removal of his name from the GR was suspended and did not take effect until after the EAC’s recommendation for the removal of his name from the SR, the related appeal under s. 20O, the Council’s adoption of the EAC’s recommendation, and the removal of his name from the SR.  In contrast, in Dr X’s case, her name was removed from the GR before those stages of the process.  The suspension of the removal of Dr Y’s name from the GR was because of s. 25(2), referred to above.

28.  Another difference between the two cases is that the basis of the EAC’s Recommendation Decision on Dr Y and the EAC’s Review Decision on Dr Y included the EAC’s view as to the competence of Dr Y as a specialist, whereas no such view formed part of the basis for the EAC’s Recommendation Decision on Dr X, the EAC’s Review Decision on Dr X which was based solely on the fact of the removal of Dr X’s name from the GR.

The Judgment below

29.  Applying the principles in Wong Tak Wai v Commissioner for Correctional Services [2010] 4 HKLRD 409 at §37 and Deacons v White & Case (2003) 6 HKCFAR 322 at 332, the Judge held that the Council’s Appeal Decision on Dr X and the Council’s Appeal Decision on Dr Y were tainted with apparent bias.  His reasons, set out in paragraph 70 of the Judgment, were as follows:

“(1) The EAC has a discretion under s. 20N(1) to decide whether or not to make a s. 20N(1)(d) recommendation. In considering whether or not and how to exercise the discretion, it should take into account all the circumstances of the case before it.

(2) Under a s. 20O appeal, the Council is entitled to exercise the discretion afresh to affirm, vary or reverse the EAC’s recommendation.

(3) In relation to Dr X and Dr Y, the EAC’s respective s. 20N(1)(d) recommendation was made based on the result of the respective s. 21 inquiry.

(4) However, 4 members who sat in the Council to hear Dr X’s and Dr Y’s respective s.20O appeals were persons who had previously either been involved in the preliminary investigations (through the PIC) or the subsequent inquiry hearing of the complaints made respectively against Dr X and Dr Y.

(5) These members had already formed a view (in the previous investigation or s. 21 hearings) on Dr X’s and Dr Y’s professional conducts based on the underlying facts related to the respective complaints. These were also the facts which had led the Council to make the respective order against Dr X and Dr Y after the inquiry. These orders and/or the very same underlying facts as considered by the EAC had then further led to the relevant s. 20N recommendations. In these circumstances, I believe objectively a fair-minded and well informed observer would apprehend and suspect that there is a real risk these previous views may well slip into and affect these members’ minds in hearing the s. 20O appeals against the EAC’s recommendations. These previous views may then unfairly affect these members’ views in deciding (a) whether the EAC had properly exercised its discretion after taking into account of all the circumstances of Dr X’s and Dr Y’s respective case before it in making the recommendations, and/or (d) whether the Council on appeal should exercise the discretion differently.

(6)  In the premises, I am of the view that objectively a fair minded and well informed observer would apprehend or suspect that there was a real possibility of bias of the Council with the above composition in hearing the s. 20O appeals.”

30.  The Judge rejected the Council’s submission that, given the nature of the EAC’s respective recommendations regarding Dr X and Dr Y, there was no question of bias despite the overlapping memberships (§§72 to 79).  He also rejected the Council’s further submission that, even if there was apparent bias, the rule should give way to the common law principle of necessity (§§80 to 90).

31.  The Judge accordingly quashed the Council’s Appeal Decisions on Dr X and Dr Y and remitted the s. 20O appeals back for fresh determination by a differently constituted Council (§90).  Given that the appeal decisions were quashed and the relevant s. 20O appeals were to be reconsidered afresh, the Judge held that it followed that the Council’s SR Decisions on Dr X and Dr Y must also be similarly quashed (§91).

32.  The Judge went on to consider Dr X and Dr Y’s challenges that the EAC recommendations made under s. 20N were illegal, ultra vires and/or an abuse of power.  He rejected Dr X and Dr Y’s submissions that, on a proper construction of s. 20N (read together with s. 20I), the EAC cannot invoke s. 20N for matters relating to a competence issue and that the EAC was wrongfully exercising the power under s. 20N(1) when it made a recommendation based on the subject matter of the s. 21 inquiry since this amounted to “double punishment” for the same subject matter of the inquiry (§§94-110).

33.  He concluded that the EAC’s Recommendation Decision on Dr X was not based on an illegal or wrongful exercise of the EAC’s power under s. 20N (§112) and that the EAC’s Recommendation Decision on Dr Y was also not based on an illegal or ultra vires exercise of the EAC’s power under s. 20N (§113).

34.  The Judge rejected the submission of Dr X and Dr Y that the EAC’s recommendation that their names each be permanently removed from the SR was disproportionate to the Council’s order to remove their names from the GR for a short period of time (§§117 to 118).

35.  The Judge considered and rejected the challenge advanced by Dr X (but not Dr Y) that the EAC did not have jurisdiction over her under s. 20N because she was not a registered medical practitioner at the time when the EAC’s Recommendation Decision on Dr X was made (§§120 to 133).

36.  He also considered and rejected the contention advanced by Dr Y (but not Dr X) that there was no jurisdiction to recommend or order the removal from the SR pending an appeal to the Court of Appeal (§§135 to 140).

These appeals and the issues arising

37.  In CACV 205/2011, the Medical Council appeals against the Judge’s orders quashing the Council’s Appeal Decision on Dr X and the Council’s SR Decision on Dr X.

38.  In CACV 206/2011, the Medical Council appeals against the Judge’s orders quashing the Council’s Appeal Decision on Dr Y and the Council’s SR Decision on Dr Y.

39.  The Medical Council contends that Dr X’s conduct giving rise to the disciplinary proceedings against her were factually and legally not relevant to the decision-making process so that there was therefore no scope for any apparent bias on the part of those members of the Council who took the impugned decisions.  This raises, in CACV 205/2011, the scope of the s. 20O appeal hearing in respect of Dr X and, depending on what that was, whether the decision of the Council on Dr X’s s. 20O appeal was tainted by apparent bias (thereby also tainting the Council’s SR Decision on Dr X).

40.  The Medical Council further contends, in relation to Dr X and Dr Y, that, as a matter of statutory interpretation, the MRO intends, allows and requires there to be overlapping membership between the Council and its committees involved in the disciplinary process and the removal from the SR process so that the Judge ought not to have found any apparent bias arising from the overlapping membership of the PIC, EAC and Council dealing with the cases of Dr X and Dr Y.  This raises, in both CACV 205/2011 and CACV 206/2011, the issue of whether, as contended by the Council, the proper construction of the MRO intends, allows and requires overlapping membership between the Council and its committees involved in the disciplinary process and the removal from the SR process.

41.  In CACV 209/2011, Dr Y appeals against the Judge’s dismissal of his judicial review challenges to the EAC’s Recommendation Decision on Dr Y and the EAC’s Review Decision on Dr Y. In the original notice of appeal, Dr Y contends that the EAC has no power under s. 20N to consider matters of competence; instead, the EAC can only consider matters of compliance and competence is solely a matter for disciplinary consideration by the Council under s. 21.  Further, Dr Y contends that the EAC consideration under s. 20N and the appeal to the Council under s. 20O should have been stayed because the s. 21 proceedings were stayed by operation of s. 25(2) until the appeal to the Court of Appeal had been determined.

42.  These contentions raise, in CACV 209/2011, the issues of the ambit of the jurisdiction of the EAC under s. 20N and, specifically, whether it has power to recommend the removal of the name of a registered medical practitioner from the SR on the basis of competence.  They also raise the issue of the effect of MRO s. 25(2) and whether this prevents the EAC from making a recommendation for removal from the SR when there is a pending appeal under s. 26.

43.  Dr Y has filed an amended notice of appeal dated 12 October 2012 seeking different declaratory relief in the event his appeal is successful. This is objected to by the Medical Council and the EAC principally on the ground that the new relief sought goes beyond the relief claimed in the Form 86A.  It is also contended that one of the substituted grounds of appeal relates to relief that was expressly abandoned in the Court below. Since the viability of the alternative relief sought depends on the correctness of the underlying contentions of Dr Y set out above, it is convenient to address the issues raised by those contentions (as set out in the preceding paragraph) before considering the question of whether the amendments to the notice of appeal are proper.  It is to be noted that the amended notice of appeal is dated less than three weeks before the date fixed for the hearing of the appeal, so that leave for the amendments is required: see RHC O.59 r.7(1).

The Medical Council’s appeal in respect of Dr X (CACV 205/2011)

44.  The two stages of the process relevant to this appeal were (i) the s. 20O appeal to the Council against the EAC’s Recommendation Decision on Dr X and (ii) the s. 19B(2) determination of the Council to adopt the EAC’s Recommendation Decision on Dr X.  Stage (i) occurred on 28 June 2010 and stage (ii) on 7 July 2010.  Both those dates were after the restoration of Dr X’s name to the GR but related to the EAC Recommendation Decision on Dr X and the EAC Review Decision on Dr X which were taken on 22 January 2010 and 19 February 2010 respectively, at a time when Dr X’s name had been removed from the GR and before it was restored.

45.  The crux of the Medical Council’s appeal in respect of Dr X is that, by virtue of the removal of her name from the GR, it was inevitable that the EAC must recommend that her name be removed from the SR since, by operation of ss. 20J and 20K, being a registered medical practitioner (i.e. having one’s name registered in the GR) is a prerequisite to being included in the SR.  Since removal from the SR is inevitable where a person’s name is removed from the GR, it follows that the Council was bound, both when considering the appeal under s. 20O and whether to follow the EAC’s recommendation to remove her name from the SR, to dismiss the appeal and remove her name accordingly.  It was submitted by Mr Stewart Wong SC, leading counsel for the Council, that, therefore, since the result was inevitable and did not involve any judgment or discretion as to whether Dr X’s name should be removed from the SR, there was no question of any member of the Council hearing the s. 20O appeal or considering the recommendation of the EAC being influenced by any prior involvement in the PIC investigation or Council inquiry under s. 21 in respect of the allegations of professional misconduct against Dr X.

46.  I agree with this analysis.

47.  The Judge appears, in paragraph 77 of the Judgment, to have held to the contrary that removal of the registered medical practitioner’s name from the GR would not automatically lead to removal from the SR, which remained a matter for the discretion of the EAC under s. 20N(1) in the light of all the circumstances of the case.  With respect, I disagree with this view.

48.  Instead, I accept the Council’s contention that it is clear from ss. 20J and 20K that only a registered medical practitioner with the requisite specialist competence may have his name included on the SR and that being a registered medical practitioner is a prerequisite for inclusion in the SR and it must follow that it must also be a prerequisite for a person’s name to remain on the SR.  The SR is not a register of a person’s entitlement to practice medicine.  That entitlement flows from registration and inclusion in the GR.  The legislative intent behind the introduction of the SR was to allow for formal registration and control of medical specialists but it was not the intention to create a two-tiered SR, one for registered medical practitioners and one for persons who were not so registered.  There is simply no purpose in a person’s name remaining on the SR if his name has been removed from the GR.

49.  On that basis, it follows, in my view, that the removal of a person’s name from the GR means that it must also be removed from the SR.  I do not agree with the Judge’s view (§77) that, if this is what was intended, the legislature would have spelled it out expressly.  The legislature already made it a prerequisite for inclusion in the SR that a person is a registered medical practitioner and therefore, on removal from the GR, it follows that the Council would be bound to exercise the power of removal under s. 19B(2).  It is noteworthy, in this context, that s. 19B(1) provides that, when a person’s name is removed from the GR under s. 19(1) and his name is also included in the SR, the Registrar shall order the removal of that person’s name from the SR at the same time as he removes his name from the GR.

50.  It also follows, for the reasons set out in paragraph 117 of the Judgment, that removal of the name from the SR, on the basis of removal of the person’s name from the GR, should be permanent rather than for a fixed period of time.  As the Judge observed, at that stage, it would not be known whether that person would apply for re-inclusion in the GR and if such application would be successful.  Hence, removal from the SR permanently but without prejudice to the right to re-apply for inclusion would be appropriate.

51.  Upon restoration of his name to the GR, the registered medical practitioner may also then re-apply for inclusion in the SR.  Such re-application process would involve the evaluation process laid down in s. 20K of the MRO and s. 4 of the the Regulation.

52.  Since, as at 22 January 2010 and 19 February 2010, Dr X’s name was removed from the GR, the EAC was inevitably bound to recommend the removal of her name from the SR and to confirm that recommendation on review.

53.  Turning to the s. 20O appeal, I would accept the contention that the Council’s task was to decide whether the EAC’s recommendation was correct in the light of the facts and circumstances before the EAC at that time.  I also agree that, since the EAC could have come to no other conclusion than to recommend the removal of Dr X’s name from the SR, since she was not a registered medical practitioner, the Council was bound to affirm the correctness of that recommendation on the appeal under s. 20O and that outcome was, as a matter of fact, the only and inevitable outcome of the appeal.

54.  In paragraphs 70(2) and 70(5)(d) of the Judgment, the Judge appears to have taken the view that the appeal hearing under s. 20O in respect of Dr X was a hearing de novo or a rehearing rather than simply a review of the correctness of the decision of the EAC based on the materials and circumstances before it at the time.

55.  I would accept the contention of the Council that, on Dr X’s s. 20O appeal, the Council was reviewing the correctness of the EAC’s decision, in this case to make the EAC Recommendation Decision on Dr X, based on the materials and circumstances before it at the time rather than a hearing de novo or a rehearing.  For this reason, the change of circumstances occurring since the EAC Recommendation Decision on Dr X, namely the fact that Dr X’s name had been restored to the GR, was not relevant to the s. 20O appeal process.

56.  Without deciding whether it is possible that there may be appeals in different factual contexts under s. 20O in which the Council does consider the matter de novo or by way of rehearing, on the facts of Dr X’s case, that was not the process which the Council was either required or entitled to undertake. Instead, all the Council was doing was determining by way of review if, on the materials and circumstances before the EAC at that time, the EAC’s Recommendation Decision on Dr X, i.e. that her name must be removed from the SR, was a correct decision. Since that decision was, for the reasons set out above, inevitable, it follows that the only decision the Council could have reached on the s. 20O appeal was to affirm the EAC Recommendation Decision on Dr X.

57.  The removal of Dr X’s name from the GR meant that it was inevitable that the EAC must recommend the removal of her name from the SR under s. 20N(d) and that the Council must affirm that decision on an appeal under s. 20O and follow the recommendation of the EAC and order such removal under s. 19B(2).

58.  From the above, I would accept that it follows, as submitted by Mr Wong, that the Council was required on the s. 20O appeal in respect of Dr X, as a matter of law, to affirm the EAC’s Recommendation Decision on Dr X and, when considering what decision to make under s. 19B(2), to order the removal of Dr X’s name from the SR.  As such, no discretion was involved and the facts and matters giving rise to the disciplinary complaint against Dr X, which had been investigated by the PIC and were considered by the Council on the s. 21 inquiry, were irrelevant.

59.  Since the Council as decision-maker was bound to reach only one conclusion as required by law, there was no room for any possibility that the Council members considering the s. 20O appeal or making the s. 19B(2) decision could be affected by any predisposition or closed mind arising from their previous involvement in the PIC investigation into the complaint against Dr X or the ensuing s. 21 inquiry.

60.  It was not in dispute that the relevant test for apparent bias is whether, in the light of all the circumstances, a fair-minded and informed observer would conclude that there was a real possibility that the Council was biased: see Deacons v White & Case LLP (2003) 6 HKCFAR 322 at §27.  The nature of the issue to be decided is a relevant factor to be considered in this exercise: see Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at §25.

61.  With respect to the Judge (who stated to the contrary at paragraph 70(5) of the Judgment in relation to Dr X), the underlying facts relating to the complaint against Dr X did not form any part of the subject matter of the s. 20O appeal or the s. 19B(2) decision.  On the contrary, as a matter of fact, the facts and matters giving rise to the disciplinary complaint and the finding of professional misconduct on the part of Dr X were never raised and were not in issue or relied upon at any stage either by the EAC in making the EAC Recommendation Decision on Dr X or the EAC Review Decision on Dr X or by the Council in the Council’s Appeal Decision on Dr X or the Council’s SR Decision on Dr X. For these reasons, I consider that the fair-minded and informed observer, knowing the issues raised and before the Council on the s. 20O appeal, would not apprehend any real possibility of bias because of predetermination, closed mind or otherwise.

62.  Therefore, and with respect to the Judge, I conclude that the Council’s Appeal Decision on Dr X or the Council’s SR Decision on Dr X should not have been quashed on the grounds of apparent bias.

The Medical Council’s appeal in respect of Dr Y (CACV 206/2011)

63.  Unlike Dr X, Dr Y’s name was not removed from the GR at the time when the EAC came to consider his case under s. 20N(1).  The EAC Recommendation Decision on Dr Y was made on the basis “[his] competence as a specialist had fallen below the standard required for a person to remain on the [SR]”.  The underlying basis for that conclusion was the finding of the Council at its s. 21 inquiry into the allegations of professional misconduct against Dr Y.

64.  As a matter of fact, there can be no doubt that 4 of the members of the Council who heard Dr Y’s s. 20O appeal were tainted by apparent bias, having previously taken part in the preliminary investigation of the complaints against Dr Y and the s. 21 inquiry into the allegations against him.  The position was analogous to the situation in P (A Barrister) v General Council of the Bar [2005] 1 WLR 3019, in which a lay member of the relevant committee of the Bar Council responsible for deciding whether to prosecute and, if so, for conducting the prosecution of a barrister before its disciplinary tribunal was disqualified from sitting as a panel member on the body which heard appeals from that disciplinary tribunal.

65.  The Council’s answer to this was to pray in aid the necessity principle.  Citing Wade & Forsyth, Administrative Law (10^th Ed.) p. 392-394, the Judge described the principle in these terms:

“82. For the necessity principle to apply, it demands in reality and all practicality (whether factually or statutory-[w]ise) an impossibility to require someone else other than the complained person (or for the present purposes the panel as constituted) to hear or decide the subject matter. Mere administrative inconvenience does not suffice.”

66.  In Judicial Recusal: Principles, Process and Problem (Hart Publishing, 2009) by Grant Hammond, it is said (at p. 99):

“Pollock succinctly stated the rule in these terms:

[T]he settled rule of law is that, although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may, but must do so if the case cannot be heard otherwise.”

67.  In De Smith’ Judicial Review (6^th Ed.) at §10-059, it is stated:

“There are two ways in which the doctrine of ‘necessity’ has been held to apply. First, if the person who makes the decision is biased, but cannot effectively be replaced, e.g. if a quorum cannot be formed without him. Secondly, where the administrative structure makes it inevitable that there is an appearance of bias.”

68.  It is therefore apparent that, for the doctrine of necessity to apply, it must be shown that it is factually impossible for the decision to be taken by a decision-maker who is not tainted by apparent bias.

69.  The Judge analysed the relevant quorum requirements of the Council, the PIC and EAC and summarised them in paragraph 83 of the Judgment as follows (omitting the footnotes):

“(1) The Council has 28 members, 24 of whom are registered medical practitioners and 4 are lay persons.

(2) For meetings of the Council to hear a s. 21 inquiry, 5 members of the Council or 3 members of the Council together with 2 assessors (who are not members of the Council) shall form a quorum. In other words, a minimum of 3 Council members are required to form the necessary quorum for a s. 21 inquiry.

(3) For meetings of the Council to hear a s. 20O appeal, the minimum quorum is 5 Council members.

(4) PIC consists of 7 members, with the chairman and deputy chairman to be elected from the members of Council and 1 lay member to be nominated from the 4 lay members of the Council. Thus, 3 out of the 7 members of the PIC must be from the 28 members of the Council.

(5) The quorum of the PIC meetings is 3, with at least 1 to be a lay member and 1 to be the chairman or the deputy chairman. Therefore, the minimum number of Council members required to form a quorum is 2.

(6)  The EAC shall consist of 14 members, of whom 5 are from the members of the Council.  The chairman of the EAC is to be elected from the Council members.  The quorum of EAC meetings is 5 which must include the chairman.  The minimum number of Council member required to form a quorum is thus 1.”

70.  Although the Judge referred to and quoted the relevant evidence from Professor Felice Mak, the former Chairman of the Council, setting out various scenarios to show that it was impossible not to have overlapping memberships in the various bodies (Judgment §85), it was conceded by Mr Wong that it was not a practical impossibility, when the Council heard Dr Y’s s. 20O appeal and when it considered its decision under s. 19B(2) to make the Council’s SR Decision on Dr Y, for the Council to have been constituted by members who had not previously been involved in the PIC investigation in respect of Dr Y, the consequent s. 21 inquiry and the EAC meetings to make the EAC Recommendation Decision on Dr Y and the EAC Review Decision on Dr Y.

71.  In my view, that concession (which I would accept was correctly made as a matter of fact) precludes reliance by the Council on the necessity principle as an answer to the allegation of apparent bias on the part of the Council hearing the s. 20O appeal of Dr Y and making the Council’s SR Decision on Dr Y.

72.  Mr Wong, however, submitted that, notwithstanding the absence of factual impossibility of convening an untainted Council for these purposes, as a matter of statutory interpretation, the MRO intends, allows and requires there to be overlapping membership between the Council and its committees involved in the disciplinary process and SR-removal process.  He submitted, by reference to the constitution of each of the PIC (s. 20S(1)), HC (s. 20U(1)) and EAC (s. 20H(1)), that the legislation prescribed a certain number of members of each of the PIC, HC and the EAC be Council members, and that only a Council member can be a committee chairman (s. 20BA(5)), therefore showing that the intention was to ensure that there be an “overlap of memberships between the committees and the Council for continuity consistency and cross-fertilisation of ideas, experience and policy application”.  Thus, overlapping membership was “desired, intended and allowed”.

73.  I do not accept these submissions.

74.  There is no express provision in the MRO which permits overlapping members tainted by apparent bias sitting in the relevant bodies.  If this is intended, allowed and required, it must be something that arises by necessary implication.  I do not agree that such implication is necessary.  In the first place, as already noted, it is conceded that it would be possible, as a matter of fact, for an untainted and quorate Council to hear Dr Y’s s. 20O appeal and to make the Council’s SR Decision on Dr Y.  It cannot, therefore, be necessary to imply that the legislation mandates the use of Council members tainted by apparent bias.  Secondly, the common law rule precluding a decision-maker sitting in a case in which he has an apparent bias is very well-established rule of fairness and courts are “reluctant to attribute to the legislature an intention to make a radical change by way of a side-wind”: see Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 at 158.  Thirdly, the Council’s submissions as to the practical difficulties of using the minimum statutorily required numbers of members for the various bodies in order to retain a sufficient number of untainted members for later stages of the statutory processes, which were referred to in Mr Wong’s submissions as the “manpower austerity measures”, are simply complaints as to the practical difficulties that would arise in seeking to avoid the use of members previously involved in an earlier stage of the process or earlier stages of the processes.  As a matter of principle, that is not sufficient for the necessity principle to apply.

75.  Mr Wong referred to s. 21(4A) which provides that a member of the PIC who is also a member of the Council shall not attend the meeting of the Council whilst it is enquiring under s. 21 into a complaint or information, in the preliminary investigation of which he took part.  Mr Wong submitted that this showed that attendance at meetings was only expressly restricted, in terms of overlapping memberships, to this extent.

76.  I do not agree that this express provision necessitates the implication that overlapping memberships are permitted and required.  On the contrary, it is noteworthy that s. 20S(4) provides, in respect of the PIC, that if both the chairman of the deputy chairman declare an interest in respect of a particular case which is to be decided at a meeting, neither of them may preside at the meeting and the members present (including the chairman and deputy chairman) shall elect another member to preside at the meeting.  This shows that, for these purposes, an apparently biased chairman or deputy chairman is not permitted to sit in the PIC.  Furthermore, I agree with the submission of Mr Gerard McCoy SC, leading counsel for Dr Y, that this provision is a statutory necessity provision, i.e. an express provision permitting the chairman and deputy chairman to participate in the election of another member to preside over the PIC.  But for that provision, it would be inappropriate for an apparently biased chairman or deputy chairman to do so.  If there was a necessary implication of the necessity principle within the scheme and structure of the MRO, this express statutory necessity provision would be redundant.

77.  Mr Wong also referred to the fact that the legislative scheme requires the Council Chairman to chair the s. 21 inquiry (Part IV of the Regulation) and also to participate in the s. 20O appeal (s. 47(1) of the Regulation) and in an appeal from the HC under s. 20W (s. 49(1) of the Regulation).  However, the answer to this point would appear to lie in s. 3A(4) of the MRO, which provides that if the Chairman is unable to perform the functions of his office for any period due to absence from Hong Kong or any other reason, the members of the Council shall at a meeting of the Council elect one of themselves to act in his place for the duration of that period and, notwithstanding any provision in the MRO, the Secretary may, where necessary, convene a meeting for the purpose of such election.  Where the Chairman would be disqualified by reason of apparent bias from participating in a subsequent s. 20O or s. 20W appeal, by reason of having already chaired a Council inquiry under s. 21, s. 3A(4) would provide the means by which he could be replaced by another, untainted, member of the Council.

78.  Further, and in any event, I do not regard those provisions as supporting the necessary implication of the necessity principle. Both s. 47(1) and s. 49(1) of the Regulation are addressing the quorum of the Counsel for the purposes of those respective appeals and I do not regard them as mandating the participation of the Chairman, if he is otherwise precluded by the operation of the rule against apparent bias from participating.  Indeed if, those provisions had the effect of mandating the Chairman’s participation, it is difficult to understand why, notwithstanding the fact that the Chairman of the Council had previously chaired the s. 21 inquiry in respect of Dr Y, the Council would now concede that it would have been possible for the s. 20O appeal in respect of Dr Y to proceed with a quorum of members of the Council who were not tainted by apparent bias.

79.  In the circumstances, I consider that the Judge was correct in holding that the Council is unable to rely on the necessity principle to avoid the conclusion that the Council’s Appeal Decision on Dr Y and the Council’s SR Decision on Dr Y were tainted by apparent bias.

80.  Since it was accepted there was no factual impossibility in the present case, it is not necessary to consider Mr McCoy’s reliance on the provisions of s. 3C for the appointment of temporary members of the Council to fill in for any member who is unable “because of illness, absence from Hong Kong or any other reason” to perform his duties and exercise his powers as a member of the Council for any period.

Dr Y’s appeal against the EAC Recommendation Decision and the EAC

Review Decision (CACV209/2011)

The jurisdiction of the EAC under s. 20N

81.  The fundamental proposition underlying Dr Y’s appeal against the EAC Recommendation Decision on Dr Y and the EAC Review Decision on Dr Y is that the EAC did not have jurisdiction, under s. 20N, to make a recommendation to the Council on the basis of competence.  Instead, it was Mr McCoy’s contention that the EAC is solely a compliance body whose function is limited to ascertaining that the relevant registered medical practitioner who is seeking inclusion in the SR, or in respect of which there is a question of removal from the SR, has satisfied all the necessary compliance requirements to be on the SR.

82.  In considering whether Dr Y’s case on appeal is correct, it is helpful to review and consider the scheme of the MRO.

83.  Part III of the MRO concerns the registration of medical practitioners.  Parts IIIB and IIIC concern respectively the EAC and inclusion in and removal from the SR.  I have set out above the provisions of s. 20I (in Part IIIB) which prescribe the functions of the EAC.  The first function of the EAC to determine the specialties under which names of registered medical practitioners may be included in the SR.  We were informed that their current 52 categories of specialty in the SR (although there are no registered medical practitioners included under two of those specialties).  It is to be noted that this determination is made by the EAC on the recommendation of the Academy of Medicine, which provides expert advice to the EAC in this regard. Thus, whilst the EAC itself may not be composed of specialists or particular specialists, it acts on the advice of a body which does.

84.  It is also part of the EAC’s functions to recommend to the Council the basis for inclusion in the SR (s. 20I(b)) and also the inclusion and removal of individual medical practitioners from the SR (s. 20I(e)).  So far as the former function is concerned, recommendation of the basis for inclusion depends on a number of factors including “the recommendation of the Academy of Medicine, the qualification, experience and any other attributes that qualify a registered medical practitioner to have his name included in the [SR] under a particular specialty”.  The function in s. 20I(b) is general in the sense that the EAC is making recommendations on these matters for registered medical practitioners as a whole rather than a specific registered medical practitioner.  I would accept the submission of Mr Nicholas Cooney SC, counsel for the EAC, that the elements of “qualification, experience and any other attributes” (underlining added), in particular the latter element which is widely expressed, are matters addressed to issues of professional competence of registered medical practitioners seeking to be included in the SR.

85.  The function in s. 20I(e) is specific in the sense that it is directed to the EAC’s function of making a recommendation to the Council for inclusion or removal of a specific registered medical practitioner in the SR.  There is nothing in the language used in that sub-section which precludes the EAC from looking at issues of competence of a registered medical practitioner when making such a recommendation.  On the contrary, it seems to me that, since the EAC is concerned with issues of competence when considering the generic basis for inclusion in the SR, it is only logical that it should be similarly concerned with issues of competence when making a specific recommendation in respect of a particular registered medical practitioner.

86.  So far as the statutory scheme is concerned, the relevant powers and procedures for inclusion in the SR are contained in s. 20J and s. 20K in Part IIIC.  The former provision concerns qualification for inclusion in the SR and corresponds to the function of the EAC in s. 20I(b) (including the reference to “any other attributes”).  The latter provision concerns inclusion in the SR and corresponds to the first of the two functions of the EAC in s. 20I(e).

87.  The process for inclusion under s. 20K involves a registered medical practitioner applying to the Registrar (s. 20K(1)).  If the Registrar is satisfied of certain matters, he shall refer the application to the EAC (s. 20K(2)).  One of the matters which may satisfy the Registrar accordingly is that the medical practitioner has been certified by the Academy of Medicine to have “achieved a professional standard comparable to that recognized by the Academy for the award of its fellowship”.  I agree with Mr Cooney’s submission that this reference to “professional standard” is another indicator that this process includes a consideration of competence of the relevant medical practitioner.

88.  The referral from the Registrar to the EAC may then proceed, under s. 20K(6) to a recommendation by the EAC to the Council for the registered medical practitioner’s name to be included in the SR.  If the Registrar does not refer the application to the EAC, an appeal by the registered medical practitioner lies to the EAC (s. 20K(5) & (7)).  One of the matters which the EAC will consider on such an appeal is whether the applicant has achieved a professional standard comparable to that recognized by the Academy of Medicine for the award of its fellowship, again indicating that the question of competence will be relevant to its considerations.

89.  With these observations in respect of the inclusion of a registered medical practitioner’s name in the SR, I turn to consider the provisions of s. 20N, which is headed “Complaints against specialists”.  It was Mr McCoy’s contention that, under this provision, it is not within the jurisdiction of the EAC to consider issues of competence of a registered medical practitioner and that it is instead limited to considering issues of compliance.

90.  The powers of the EAC under s. 20N(1) arise where any complaint or information “relating to the suitability of a registered medical practitioner to have his name included in, or removed from, the [SR]” (underlining added) comes to the notice of the EAC.  Such complaint or information may include, but is not limited to, “anything about qualification, experience, or failure of the registered medical practitioner to comply with section 20L” (i.e. the continuing medical education requirements for persons included in the SR).  In my opinion, since the complaint or information may relate to qualification, experience or continuing medical education, the reference to “suitability” for inclusion or removal from the SR must, consistent with the earlier provisions concerning professional standards and competence, also refer to matters of competence for inclusion or removal from the SR.

91.  The material power with which we are concerned is that in s. 20N(d) which provides that the EAC may:

“with or without having given the registered medical practitioner an opportunity to explain under paragraph (a), recommend to the Council –

(i) where the registered medical practitioner’s name is included in the [SR], that the name of the registered medical practitioner be removed from the [SR], permanently or for such period as the Committee recommends, with or without referring the matter to the [PIC] at the same time; or

(ii) where the registered medical practitioner is applying for the inclusion of his name in the [SR], that his application be rejected.”

92.  It is clear from s. 20N(d)(i) that the circumstances leading to the exercise of this power may or may not give rise to the need to refer the matter to the PIC. Such a need would arise if the complaint or information suggested that a matter of misconduct was involved engaging the possible need for the PIC to refer the matter to the Council for an inquiry under s. 21. That power of reference to the PIC is additional to the specific power of reference in s. 20N(1)(c).  I would accept Mr Cooney’s submission that there is no conflict between considerations of competence under s. 20N and misconduct under s. 21 at the same time and that the MRO contemplates that, as a matter of jurisdiction, both these matters may be under consideration concurrently.

93.  Under s. 20N(2), where the EAC decides to dismiss the matter (s. 20N(1)(b)), refer the matter to the PIC (s. 20N(1)(c)) or recommend removal of the registered medical practitioner’s name from the SR or the rejection of his application for inclusion in the SR (s. 20N(1)(d)), it must notify the registered medical practitioner of this in writing.  The registered medical practitioner may request the EAC to review its decision under s. 20N(3), which the EAC is required to do under s. 20N(4).

94.  The final section of Part IIIC of the MRO is s. 20O which provides for an appeal against the review decision of the EAC under s. 20N(4).

95.  Part IV of the MRO concerns inquiries, disciplinary proceedings and offences.  The first section in this part is s. 21 concerning the disciplinary powers of the Council.  The Council is empowered to hold a disciplinary inquiry in relation to a registered medical practitioner in respect of seven categories of misconduct and, if such misconduct is proved to its satisfaction, to impose one of the punishments listed in (i) to (v), including removal of the name of the registered medical practitioner from the GR (s. 21(1)(i)) and removal of the name of the registered medical practitioner on the SR (s. 21(1)(iii)).

96.  In the course of argument, Mr McCoy was asked what provision the Council should have resort to in order to investigate the need to remove the name of a registered medical practitioner from the SR.  His answer was that this could and should only be done by way of inquiry into misconduct under s. 21.

97.  I do not agree with this submission.  As I have endeavoured to demonstrate above, the provisions in s. 20N do not limit the EAC to considering only compliance issues and do enable it to consider issues of competence as well.  Further, it is clear that the EAC’s consideration of matters which may lead to a recommendation for the removal of the registered medical practitioner’s name from the SR may or may not involve matters of misconduct which it would then be relevant to refer to the PIC for further consideration by it in the context of disciplinary control.  Finally, it is well-established that incompetence does not necessarily require a finding of misconduct: see R (on the application of Remedy UK Ltd) v General Medical Council [2010] Med LR 330 at §16, and also R (on the application of Calhaem) v General Medical Council [2008] LS Law Med 96 at §39; in Hong Kong, in the context of the Dental Council, the same point has been made in Dr Young Yau Yau Cecilia v The Dental Council of Hong Kong, unrep., CACV 150/2007, per Stock JA at §§47-48.  Similarly, it is clear from the judgment of Bokhary PJ in Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 at p. 155 that there is a distinction between issues of integrity and those of qualifications and competence.

98.  Further, as Mr Wong pointed out, the possibility of the EAC recommending removal of a name from the SR under s. 20N(d)(i) without referring the matter to the PIC is echoed in s. 19B(2) under which the Council may accept a recommendation of the EAC to do so without conducting an inquiry under s. 21.  This further confirms the possibility of removal for reasons other than misconduct and reinforces the point that issues of competence and misconduct may be discrete.

99.  Mr McCoy referred, in his reply, to s. 20T which sets out the functions of the PIC.  This shows that investigative powers are given to the PIC, under s. 20T(1)(d), whereas no such powers are given to the EAC.  If it determines there is incompetence, then pursuant to s. 20T(1)(b) it may recommend to the Council that it should hold an inquiry under s. 21. It was submitted that the reason for this distinction in powers is that the EAC is a compliance body only whereas the PIC is an investigative body.  Further, it was submitted that this demonstrated that incompetence is always an issue of misconduct.

100.  I disagree.  I do not think the specific investigative powers given to the PIC support the argument that the EAC’s functions are confined to issues of compliance and do not also include considerations of competence.  In any event, I have already referred to authorities supporting the proposition that incompetence is not necessarily to be equated with misconduct.

101.  Mr McCoy pointed to the statutory protections afforded to a registered medical practitioner in respect of proceedings against him under s. 21 and contrasted the lack of those protections in respect of proceedings before the EAC.  The absence of such safeguards was, he submitted, the best legislative indication that the EAC was not intended to operate as a competence body.

102.  Mr Cooney’s answer to this point was that the recommendation of the EAC under s. 20N is confined to a recommendation to remove a registered medical practitioner’s name from the SR or to reject the application to include his name on the SR.  That, in substance, is entirely different to the possible outcome of proceedings against a registered medical practitioner under s. 21, which may include removal of his name from the GR.  That is a much more serious outcome and involves the loss of his right to practice medicine altogether.  That same distinction is also apparent in respect of proceedings before the HC since, by reference to the functions of that body under s. 20V, one of the recommendations that it may make to the Council is for the name of a registered medical practitioner to be removed from the GR.

103.  Another procedural difference to which Mr McCoy referred was the fact that, by paragraph 5 of Schedule 2 to the MRO, committees and sub-committees of the Council established under s. 20BA could, instead of holding meetings in person, conduct business by way of circulation of papers and written resolutions.  Mr McCoy suggested that, if the MRO was to consider issues of competence, it would be inadequate for the EAC to do so by way of paper meeting.

104.  The answer to this point is that paragraph 5 of Schedule 2 is an option and not a mandatory requirement.  The test of fairness would apply and in the particular circumstances of an individual case it may be necessary for the EAC to meet in person.  There is no systemic unfairness by reason of the option given to the EAC to hold a paper meeting. In any event, as a matter of fact in the case of Dr Y, the EAC met in person and did not make the EAC Recommendation Decision on Dr Y or the EAC Review Decision on Dr Y on the basis of a paper meeting only.

105.  Next, Mr McCoy referred to the fact that s. 47(9) of the Regulation provides that all appeals under s. 20O are to be held in private.  He submitted that it could not be right for competence to be dealt with in private under s. 20 but for it to be dealt with in public under s. 21.

106.  That submission presupposes acceptance of Mr McCoy’s basic contention that competence is to be dealt with exclusively under s. 21.  For the reasons I have set out above, I do not accept that contention.  Competence may be relevant in the context of a s. 21 inquiry because the facts and circumstances calling into question whether the conduct of the registered medical practitioner amounts to misconduct may also give rise to issues relating to competence.  But incompetence in itself may not amount to misconduct and may therefore quite properly fall to be discretely considered in the context of s. 20N and, on appeal, under s. 20O.  There is no inconsistency between the manner in which the respective hearings are to be conducted.  The reason hearings of appeals relating purely to competence are heard in private is the obvious reason that it may transpire on the appeal that there is no question of the registered medical practitioner being incompetent.

107.  Mr McCoy made reference to the fact that there was a lack of expert evidence before the EAC and submitted that this supported his contention that the issue of competence could not be intended to be dealt with by the EAC under s. 20N.

108.  There are two answers to this point. First, as a matter of fact in the circumstances of this case, expert evidence was not required from a specialist in Dr Y’s specialty (plastic surgery) because the case did not proceed to the point of a consideration of Dr Y’s competence in plastic surgery as such.  Instead, the competence of Dr Y was called into question (and ultimately found lacking) because of his failure to have equipment and procedures available to deal with an emergency arising from his administration of an anesthetic. In those circumstances, Mr Cooney submitted that the EAC was entitled to look at the procedure as a whole and to conclude that at the anesthetic stage the lack of equipment and procedures were such that Dr Y fell below the standards required.  He further submitted that this Court should give appropriate deference to the EAC on a matter of this nature.  The second answer to this point is that there is no prohibition in the MRO to the EAC seeking assistance from an expert in any particular case.  It is a matter of fairness in the circumstances of a particular case whether the EAC may require expert evidence from a suitable specialist before making any recommendation based on a competence issue.

109.  Mr McCoy submitted that the EAC’s recommendation to the Council to remove Dr Y’s name permanently from the SR amounted to a disproportionate punishment, since the Council had itself only ordered the removal of Dr Y’s name from the GR for a period of five months as a result of the s. 21 inquiry.  Mr McCoy also submitted that the recommendation to remove Dr Y’s name from the SR permanently was the operation of a fixed policy and the failure to exercise any discretion in relation to the period of removal.

110.  I do not agree that the recommendation to remove Dr Y’s name from the SR permanently but subject to the right to reapply for inclusion was disproportionate.  As mentioned above, there is no automatic reinstatement on the GR once the period of removal has elapsed and the medical practitioner must apply for re-registration on the GR in order for his name to be restored to that register.  Since the EAC cannot know whether or not the medical practitioner will apply for re-registration of his name on the GR, it is appropriate, and not disproportionate, for the recommendation of the removal of that registered medical practitioner’s name from the SR to be permanent, since it will only be possible for him to re-apply for registration on the SR when he has re-applied for registration on the GR.

111.  As to Mr McCoy’s second point, that the recommendation to remove permanently was a failure to exercise a proper discretion, I agree with Mr Cooney’s submission that this was not an unlawful fixed policy amounting to a fettering of discretion but was instead a policy applied to particular circumstances, namely the automatic consequence that a medical practitioner whose name was removed from the GR could no longer have his name included on the SR and the uncertainty as to whether and when the medical practitioner might re-apply for registration on the GR.

112.  A discrete argument was advanced by Mr McCoy based on article 10 of the Hong Kong Bill of Rights (BOR10).  The thrust of the argument appeared to be by way of analogy with the case of Dr Q v Health Committee of the Medical Council of Hong Kong [2012] 3 HKLRD 206.  That case involved a challenge to the prohibition on legal representation of a doctor who was appearing before the HC at a hearing under s. 20V.  It was held that BOR10 applied to the stage of the hearing before the HC because of the substantial influence the outcome of that hearing would have on the doctor’s right to practice medicine, thereby engaging a relevant civil right.  It was also held that BOR10 was breached in Dr Q’s case because there was irretrievable prejudice to him in form of the transcript of his evidence before the HC, at which he was deprived of the protection of legal representation, which would be available to the Council in subsequent s. 21 proceedings.

113.  In my view, the case of Dr Q is distinguishable from this case and BOR10 is not engaged in respect of the EAC recommendation and review stages in respect of Dr Y’s case.  A hearing under s. 20V is different in character and content to the process whereby the EAC comes to make a recommendation for removal of a registered medical practitioner’s name from the SR.  The taint of the lack of legal representation in the case of Dr Q at a hearing under s. 20V would carry forward to any hearing before the Council under s. 21.  In contrast, the recommendation of the EAC under s. 20N(d)(i) in respect of Dr Y was of a different nature, not requiring a hearing and resulting in only a recommendation for removal from the SR rather than removal from it, and led on to a different stage of the process, the s. 20O appeal, at which Dr Y was afforded procedural safeguards that have not been suggested to be non-compliant with BOR10.

The EAC ignored the statutory stay under s. 25(2)

114.  Dr Y advanced the further argument in support of his appeal that, as a sub-committee of the Council, the EAC could have no greater jurisdiction than the body from which it derived its authority.  It was contended that the EAC’s exercise in relation to Dr Y, after Dr Y had obtained a statutory stay of the Council’s decision pursuant to s. 21(1) to remove his name from the GR by filing an appeal to this Court pursuant to s. 26, wrongly circumvented and undermined the statutory stay.

115.  I would reject this contention based on the effect of the s. 25(2) stay that arose upon Dr Y filing his appeal under s. 26.

116.  It is necessary to consider to whom the s. 25(2) stay is directed and what action is thereby stayed.  It is clear from s. 25(2), which I have set out above, that it is directed to the Registrar and to the action of removing the name of a registered medical practitioner from the GR or SR as the case may be before the expiry of one month after the relevant date, that date being, in the case of an appeal to this Court, after the appeal is finally determined.  It is a narrow provision suspending one particular type of order the Council may make under s. 21 (removal of a registered medical practitioner’s name from the GR or SR).

117.  In short, the section does not stay the proceedings before the Council, nor does it stay the proceedings of the EAC considering, for example, a s. 20N recommendation. It is not directed to the EAC or the Council as a whole, but only to the Registrar, and there is no reason to read the prohibition on the Registrar from removing a registered medical practitioner’s name from the GR or SR as precluding the consideration of other matters or the making of recommendations by the EAC or as precluding the Council from considering any other ramifications of its finding of misconduct on the part of the registered medical practitioner.  In particular, since the recommendation of the EAC does not result in the removal of a registered medical practitioner’s name from the SR, that is not the action to which s. 25(2) is directed.

Amendment to the Notice of Appeal

118.  In the light of my conclusions above rejecting Dr Y’s contentions as to the proper ambit of the EAC’s jurisdiction, it is not necessary to consider if leave should be granted to Dr Y to amend his notice of appeal.  In any event, I would have been disinclined to permit Dr Y to amend the relief sought in the appeal to include relief not originally claimed in the Form 86A notice below.  Those matters were by definition not argued below and it would be unfair, in my view, to permit them to be raised for the first time in this Court.

119.  Mr McCoy indicated that he would not seek to advance a constitutional challenge to the finality provision in s. 20O(4), which had been abandoned in the court below.  Had he not done so, I would not on any event have been disposed to allow an amendment to resurrect a previously abandoned argument of that nature.

Remitter

120.  Since I have concluded that the appeal against the quashing of the Council’s s. 20O Decision should be dismissed, the question arises as to whether the Judge’s remitter order should also stand.

121.  Not surprisingly, Mr McCoy indicated that Dr Y had no interest in any remitter of the Council’s decisions and was content for the decisions to be quashed.  This would have the effect that Dr Y’s name ought to have remained on the SR throughout, save that during the time when his name was not on the GR, he would not have been able to practise medicine at all and the inclusion of his name on the SR would or ought to have served no practical purpose.

122.  For a number of reasons, I would not be disposed to affirm the Judge’s remitter order.

123.  First, the Judge remitted the Council’s s. 20O Decision on Dr Y to a differently constituted Council to consider it afresh.  He did not remit the Council’s SR Decision on Dr Y.  Since Dr Y’s name could not have been removed from the SR unless a fresh decision under s. 19B(2) were made, the remitter of the s. 20O decision on its own would be of little practical effect.

124.  Secondly, as a matter of fact, it is relevant to note that Dr Y’s name was actually removed from the SR pursuant to the Council’s SR Decision on Dr Y since there was no stay of the Council’s s. 19B(2) Decision on Dr Y.  He has since applied for his name to be restored to the SR but no decision has yet been taken on the restoration application.  His name was removed from the GR, pursuant to the order made on the s. 21 inquiry, one month after the withdrawal of his appeal under s. 26 (on 12 November 2010) and we were informed that it was restored to the GR on 14 December 2011.

125.  Thirdly, one of the difficulties of maintaining the remitter order is that there are now apparently only 8 members of the Council who have not previously dealt with Dr Y’s case.  Subject to reliance on the provisions of s. 3C to appoint temporary members, there would therefore now appear to be a case of factual impossibility of convening a wholly untainted Council to reconsider the Council’s SR Decision on Dr Y.

Merit of amendment to s. 21(1)?

126.  By way of postscript, I would make the observation that none of the issues that have arisen in respect of Dr X and Dr Y’s cases would have done so if the Council had jurisdiction, under s. 21(1), to impose an order for the removal of the name of a registered medical practitioner found guilty of professional misconduct from both the GR and the SR by reason of that misconduct.  At the moment, because the sanctions that may be imposed by the Council in its discretion following a finding of misconduct at an inquiry under s. 21 are as a matter of statutory language strictly alternative, the Council cannot order the removal of the name of a registered medical practitioner from the SR when it orders its removal from the GR.  Thus, it can make an order under s. 21(1)(i) (or (ii)) in respect of the GR or it can make an order under s. 21(1)(iiia) (or (iiib)) in respect of the SR but it cannot make both.  There is no logical reason that I can see for this anomaly and none was suggested by counsel when this point was raised in the course of argument.  On the contrary, an order for the removal from the SR should, logically, also be made at the same time as an order for the removal from the GR since a medical practitioner not registered by having his name on the GR cannot practice and therefore there is no purpose in his name remaining on the SR: cf. the automatic removal of a person’s name from the SR under s. 19B(1).  In the circumstances, it seems to me that serious consideration should be given to amending s. 21(1) to give the Council discretion to make simultaneous removal orders in respect of both the GR and SR following a finding of misconduct.

Disposition

127.  For the reasons set out above, I would therefore:

(1)  allow the Council’s appeal against Dr X in CACV 205/2011, set aside the Judge’s orders and dismiss Dr X’s judicial review in HCAL 106/2010;

(2)  dismiss the Council’s appeal against Dr Y in CACV 206/2011 but set aside the Judge’s order remitting the Council’s s. 20O Decision on Dr Y to a differently constituted Council to consider it afresh; and

(3)  dismiss Dr Y’s appeal against the EAC and the Council in CACV 209/2011.

128.  As to costs, I would make an order nisi that the costs follow the event in each of the appeals.  Thus:

(1)  Dr X will pay the Council the costs of its appeal in CACV 205/2011, to be taxed if not agreed with a certificate for two counsel;

(2)  The Council will pay Dr Y the costs of his appeal in CACV 206/2011, to be taxed if not agreed with a certificate for two counsel; and

(3)  Dr Y will pay the EAC and the Council their respective costs of his appeal in CACV 209/2011, to be taxed if not agreed with a certificate, in the case of the Council, for two counsel.

129.  For the assistance of the taxing master, I would propose, on a nisi basis, apportioning the time of the appeal hearing spent on CACV 205/2011, CACV 206/2011 and CACV 209/2011 in the ratio 1:2:2.

Hon Chu JA:

130.  I agree with the judgment of Fok JA and the orders proposed.

Hon Lunn JA:

131.  I agree with the judgment of Fok JA and his proposed orders as to the disposal of the appeals, judicial review and in respect of costs.