Dr Nip Mun Wing v. The Medical Council of Hong Kong

CACV 231/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 231 OF 2014

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL

OF HONG KONG MADE ON 15 OCTOBER 2014)

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JUDGMENT
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Hon Macrae JA (giving the Judgment of the Court):

1.The appellant faced a charge before the Medical Council of Hong Kong (“the Council”) in the following terms:

“That he, being a registered medical practitioner, disregarded his professional responsibility to his patient … in that on divers dates from 2008 to 2010 (both inclusive):

(a) he prescribed steroid injections to the patient without advising her on the nature and side effects of the said injections; and

(b) he prescribed steroid injections to the patient for such a prolonged period without proper justifications.

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

2.On 15 October 2014, the Council found the appellant, who did not contest the proceedings and was absent from the hearing, guilty of both particulars of the charge. It ordered, in respect of each particular or fact alleged, that the appellant’s name be removed from the General Register for a period of 2 months; the two removal orders being ordered to run concurrently with each other (“the Order”).

3.The appellant appeals against the Order of the Council on the basis that the penalty imposed was manifestly excessive in the circumstances of the case and of the appellant himself, and disproportionate to the gravity of the circumstances when compared with penalties imposed on other medical practitioners for more serious conduct in connection with the prescription and administration of steroids.

4.At the hearing of the appeal on 22 October 2015, we reserved judgment in this matter.

The facts

5.The patient first consulted the appellant at his clinic on 23November 1998 in respect of a rash on her face. From 23 November 1998 to 31 January 2008, she attended the appellant’s clinic intermittently on a number of occasions. The patient attended the appellant’s clinic again on 4 February 2008, presenting with a severe rash on her face. On this occasion, the appellant prescribed a 1ml injection of Diprosan to the patient.[1] It was the patient’s unchallenged evidence that the appellant did not explain to her the nature and possible side effects of the injection on the occasion when it was first prescribed to her. Diprosan is, of course, a steroid.

6.There was also no dispute that the appellant subsequently prescribed Diprosan 1ml injections on nine further occasions; namely, 31October 2008, 12 March 2009, 14 April 2009, 7 September 2009, 24September 2009, 26 November 2009, 23 December 2009, 19 January 2010 and 10 February 2010.

7.It was also not disputed that the patient first asked the appellant about the nature and possible side effects of the injections at the consultation on 26 November 2009. The appellant told her that the injections were steroids and, when she asked if there would be any side effects, the appellant answered “None, no problem”. He went on to quote an example of a patient who had been taking such injections for 10years and was “still fine”.

8.Expert evidence as to the justification for steroid injections and their side effects was given at the hearing before the Council by DrLai Cham Fai, a specialist in dermatology and venereology. His evidence, which was again unchallenged, was that systemic steroid, be it in oral or injectable form, is only indicated for severe or intractable cases, or in patients who are in urgent need of relief of their symptoms. If systemic steroid is indicated, a short-acting regime such as a 3 to 5 day course of oral Prednisolone is preferable to a long-acting regime, in order to avoid the possible side effects of long-term steroid therapy. He explained that a Diprospan 1ml injection had both short-term and long-term actions of up to 3weeks, and that repeated injections at 3 to 4week intervals were equivalent to a continuous administration regime, which will invariably lead to unwanted side effects. The patient’s complaints of puffiness to her face, menstrual irregularities and increased facial hair were all consistent with the effects of long-term steroid use.

The Council’s findings

9.On the basis of the uncontested evidence, the Council considered, by reference to paragraph 9.6 of the Code of Professional Conduct that, where a drug is commonly known to have serious side effects, a doctor has the responsibility to properly explain such side effects to the patient before prescribing the drug. By failing to advise the patient properly as to the nature and side effects of the steroid injections, the appellant was in breach of his professional responsibility. Accordingly, the Council found the appellant guilty of particular (a) in the charge.

10.The Council also found, based on the evidence of Dr Lai, that a short-acting regime of oral steroid prescription was preferable and that the continuous regime of steroid injections prescribed by the appellant, particularly those repeated at 3 to 4 week intervals, would invariably lead to unwanted side effects. The Council found that the appellant’s prescription of steroid injections between 2008 and 2010 was without proper justification and that the appellant was thereby guilty of particular (b) in the charge.

Sentence

11.The Council observed that the potentially serious side effects of long-term use of systemic steroids were well known, particularly in the aftermath of the SARS epidemic of 2003. It had on many occasions warned medical practitioners that it was professional misconduct to prescribe a steroid without informing the patient of the nature of the drug and explaining properly its possible side effects. It was the responsibility of any doctor prescribing any drug which is commonly known to have serious side effects to properly explain the nature of the drug and its potential side effects to the patient before prescription, so that the patient could make an informed decision as to whether or not to accept the treatment.

12.The Council, however, accepted that the appellant did not intend to mislead the patient by giving her a false sense of security. It also recognised that the appellant had a clear record and specifically stated that it was giving him credit for admitting the factual allegations averred in the charge, and for his full cooperation at the preliminary investigation stage and before the Council itself. Nevertheless, the Council considered that, rather than punish a defendant doctor, its duty was to protect the public from the incompetent, and to maintain confidence in the medical profession by upholding the reputation of that profession.

The appellant’s grounds of appeal

13.Whilst accepting that the Council was uniquely qualified to assess the appropriate sentence to be imposed upon a medical practitioner found guilty of professional misconduct in relation to a technical medical issue, Mr Coleman SC, on behalf of the appellant, enjoined this Court not to accord more deference to a professional tribunal than was appropriate in the circumstances: see Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117, at 167J-168F, applying Ghosh v General Medical Council [2001] 1 WLR 1915 and Preiss v General Dental Council [2001] 1 WLR 1926.

14.He submitted that it was open to this Court to have regard to similar cases on penalty in order to ensure consistency of sentence: see Musonza v Nursing and Midwifery Council [2012] EWHC 1440 (Admin), at para 67. On that basis, Mr Coleman drew our attention to two decisions of the Council concerning the prescription and administration of steroids; in one[2], where the doctor concerned had, among other complaints, over the course of about a year prescribed an oral steroid (as distinct from steroid injections) without proper justification and without properly and adequately advising his patient of the possible side effects of the drug, for which he had been ordered to be removed from the Register for 3 months, which order was suspended for two years; in the other[3], where, on obviously more serious facts involving 399 injections administered over three to four years against the patient’s express instructions that she would refuse to accept any steroid treatment, the doctor concerned had been ordered to be removed from the Register for a period of 10 months. Both judgments were first instance decisions of the Council and neither appears to have resulted in any appeal.

15.Mr Coleman further highlighted a number of mitigating factors, which he suggested would have merited a suspension of a lesser period of removal from the Register.

The Council’s response

16.Mr Chang, on behalf of the Council, submitted that the Council specifically took into account all matters which it was proper to have regard in mitigation and disregarded those matters to which it should not have had regard. As for comparisons with other cases, he warned of the inadvisability of comparing penalties on different facts as if they were sentencing guidelines imposed in criminal cases. He cited another decision of the Council, where, in respect of a similar allegation of prescribing a steroid without proper justification and without advising the patient’s parent about the nature and side effects of the drug, the steroid in question being an oral steroid, the Council had ordered the doctor’s removal from the Register for a period of 2 months, notwithstanding that there were no side effects and none were expected from the dose and duration prescribed. That case had resulted in an appeal, in which this Court (differently constituted) declined to interfere with the penalty.[4]

Discussion

17.In Lau Koon Leung v Medical Council of Hong Kong [2006]3 HKLRD 225, Yuen JA noted in her judgment (with whose reasoning, LamJ (as he then was) agreed), at 251A-G:

“The reasons for caution in appeals against penalties have been repeated in a number of authorities eg Peatfield v General Medical Council [1986] 1 WLR 243, Ng Mei Sin v Medical Council of Hong Kong [1995] 1 HKLR 204, Dr Chow Siu Shek v Medical Council of Hong Kong [1995] 2 HKC 527. In Evans v General Medical Council (unrep., The Times, 19 November 1984), quoted in Ghosh v General Medical Council [2001] 1 WLR 1915, it was held:

The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled. It has been said time and again that a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct and that the Board will be very slow to interfere with the exercise of the discretion of such a committee …

The committee are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. The Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards (at para 34). (Emphasis added)

Whilst the Privy Council in Ghosh v General Medical Council [2001] 1 WLR 1915 asserted a wide jurisdiction on hearing the doctor’s appeal from her penalty to decide whether it was appropriate or was excessive or disproportionate, it affirmed the reasons for caution explained in Evans v General Medical Council (unrep., The Times, 19 November 1984) and said that for those reasons, it would accord an “appropriate measure of respect to the judgment of the committee” (at para 34).”

18.In Sin Chung Yin Ronald v Dental Council of Hong Kong [2014] 4 HKLRD 337, McWalters JA, giving the reasons for judgment of the Court held, at 359:

“We cannot detect, therefore, any error by the Council in its assessment of the seriousness of the unprofessional conduct and the culpability of the appellants in respect of it. In deciding whether the Council’s determination that the appellants should be punished by a removal order was excessive and disproportionate or was appropriate and necessary in the public interest, we are conscious that there is now a less restrictive and less deferential approach to the review of a disciplinary tribunal’s findings. Nevertheless, there are still good reasons to accord an appropriate measure of respect to the judgment of the Dental Council for, to adopt the words of the Privy Council in Evans v General Medical Council …, this Court does not have the advantage of being familiar with the whole gradation of seriousness of the cases of various types of unprofessional conduct which come before the Dental Council, which is particularly well qualified to say at what point in that gradation removal from the General Register becomes the appropriate sentence. This Court “does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purposes of maintaining professional standards.” ”

19.In a case such as this, where the Council will know far better than this Court about the relative merits of a short-term course as distinct from a continuous administration of systemic steroid, or about the relative seriousness of potential side effects of different dosages of steroids administered in injectable form as distinct from oral form, the Council is in a correspondingly far better position to determine the justification for such treatment, and the ambit of the duties on its members to properly inform their patients when prescribing such treatment.

20.The Council specifically found that repeated injections of steroid at 3 to 4 week intervals, which embraced the frequency of the last four injections between 26 November 2009 and 10 February 2010, was equivalent to a regime of continuous administration, which would invariably lead to unwanted side effects; as indeed they did. This Court cannot possibly gainsay that finding, particularly where the evidence from which the finding was derived was never challenged at the hearing.

21.Mr Coleman at one stage suggested that this Court might accept an assertion, derived from an apparent entry in the appellant’s patient records for 4 February 2008, that there was, as he put it, “a conscious discussion about the use of steroid, and this was not a case where the matter of merit and demerit of a proposed treatment was ignored”. However, this Court is not in a position to accept such an assertion in substitution for the Council’s finding, based on the unchallenged evidence of the complainant after a full hearing, that the appellant did not explain to her the nature and possible side effects of the steroid injections when they were first prescribed.

22.As for comparisons with the penalties meted out by the Council in other cases involving steroids, these will be of limited utility other than to gauge the broad range of sentences which have been applied by different tribunals in different circumstances to different facts. And they will, with respect, be of even less utility where the decision has not been the subject of appellate review. As the Court in Musonza explained, at para 67:

“… as in criminal sentencing in the Crown courts, previous appellate decisions concerned with sentence or sanction are or should be used as indicators of the appropriate level or severity of sentence or sanction, in other words as guidelines to the appropriate sentence or sanction being appealed. It is therefore permissible to refer to previous sanction decisions to show that a particular decision is outside the wide margin of appreciation permitted to a CCC (Conduct and Competence Committee) panel when deciding on an appropriate sanction. Any reference to other decisions for this purpose should be both limited and circumspect and the previous decisions scrutinised with care to ensure that their different factual background is taken account of.”

23.We can see no error in the Council’s approach to sentence or penalty in this case. We acknowledge that an otherwise appropriate sentence or penalty should have been discounted in view of the appellant’s cooperation in not contesting the charge before the Council. In the normal course, such cooperation may amount to cogent mitigation. However, the Council expressly declared that it was giving the appellant “credit in sentencing for admitting the factual allegations in respect of the (charge) and for his full cooperation in the preliminary investigation stage and before us today”. Had the Council not done so, we might have been concerned about the resulting sentence on general principles. However, we have no such concerns in the light of the way the Council specifically directed itself.

Conclusion

24.In our judgment, it cannot be said that the penalty imposed on the appellant in this case was excessive or disproportionate to the misconduct alleged. This is not a case, severe though the consequences for the appellant undoubtedly are, where the Court considers that it should interfere. The appeal is accordingly dismissed.

25.In the circumstances, costs should follow the event. There will be an order nisi that the costs of the appeal should be to the Council, to be taxed if not agreed.

Mr Russell Coleman SC, instructed by Howse Williams Bowers, for the Appellant

Mr Jonathan Chang, instructed by Department of Justice, for the Respondent