Dr F and Another v. Education and Accreditation Committee of the Medical Council of Hong Kong and Another

CACV 274/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 274 OF 2015

(ON APPEAL FROM HCAL NOS 26 OF 2014 AND 55 OF 2014
(CONSOLIDATED))

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HCAL 26/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 26 OF 2014

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BETWEEN

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AND

HCAL 55/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 55 OF 2014

________________________

BETWEEN

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

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.This is an appeal against the decision of Au J[1] (“the Judge”) dismissing judicial review applications brought by the three Applicants against the following decisions made in respect of each of them, namely (i) the recommendation of the Education and Accreditation Committee (“EAC”), made pursuant to section 20N(1)(d)(i) of the Medical Registration Ordinance, Cap 161 (“MRO”), to remove each of them from the Specialist Register; (ii) the decision of the EAC upon review, pursuant to section 20N(4) of the MRO, reaffirming its recommendation; and (iii) the decision of the Medical Council, pursuant to section 20O of the MRO, affirming the decision of the EAC upon appeal from the review under (ii). We shall refer to all of these determinations, as did the Judge, collectively as “the Decisions”.

2.In dismissing the applications for judicial review at a consolidated hearing, the Judge held that:[2]

“…the Decisions are clearly preliminary in nature with no substantive consequences. There are also no exceptional circumstances to justify the court to entertain the judicial review challenges made against them. The court therefore would and should not exercise its discretion to consider these judicial reviews before the making of the final decisions by the full Council under section 19B (of the MRO).”

3.Referring to his earlier decision in Television Broadcasts Ltd v Communications Authority & Anor[3], the Judge identified the relevant principles governing challenges to intermediate decisions as follows:[4]

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

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

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

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

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

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

4.These principles were not doubted by the parties at either the hearing before the Judge or before this Court.

The relevant background

5.On 10 April 2011, 2 December 2012 and 30 March 2010, the Applicants Dr F, Dr G and Dr H were respectively found guilty at separate hearings before the Medical Council of misconduct in a professional respect, contrary to section 21(1) of the MRO.  Dr F’s name was ordered to be removed from the General Register for a period of 6 months, such order to be suspended for a period of 2 years, subject to a condition of satisfactory peer audit and supervision during the suspension period by a supervising doctor appointed by the Medical Council.  Dr G was ordered to be reprimanded, such order to be published in the Gazette.  Dr H’s name was ordered to be removed from the General Register for a period of 3 months, such order to be suspended for a period of 12 months.  In each case, the Medical Council observed that the doctor concerned was included in the Specialist Register and that it would be for the EAC to consider, in accordance with section 20N of the MRO, whether any action should be taken in respect of his registration.

6.On 29 December 2011, 22 March 2013 and 17 August 2010, the EAC recommended that the names of Dr F, Dr G and Dr H respectively be removed from the Specialist Register, but that they would not be debarred from making a fresh application to be included in the Specialist Register when they became eligible for inclusion.  The Applicants each applied to the EAC to review its recommendations.

7.On 8 February 2012, 7 May 2013 and 4 October 2010, Dr F, Dr G and Dr H were each respectively informed that the EAC had reviewed its recommendation and decided to uphold it.  The Applicants then each appealed against the respective decision by the EAC to uphold the recommendation made in relation to them to the Medical Council.

8.The Medical Council (sitting with a quorum of 5 members) heard Dr F’s appeal on 14 November 2013.  The Medical Council (sitting with a quorum of 5 members) heard Dr G’s appeal on 27 January 2014, whilst Dr H’s appeal was heard by the Medical Council (sitting with 6 members) on 29 October 2013 and 8 February 2014.

9.On 30 November 2013, 28 January 2014 and 5 March 2014, the Medical Council decided to affirm the respective decisions of the EAC in relation to the recommendations against Dr F, Dr G and Dr H.

10.The Applicants subsequently sought to judicially review the Decisions, for which ex parte leave was granted in respect of Dr F and Dr G on 17 April 2014; and in respect of Dr H, on 10 July 2014.  As we have said, the Judge dismissed the applications for judicial review at a consolidated hearing on 13 November 2015, essentially for the reasons set out in para 2 above.

11.On 16 August 2016, the matter came before another division of this Court[5] to consider the application of the 1^st Respondent to serve a Respondent’s Notice out of time.  However, on the clear indication by Mr McCoy SC, leading counsel for the Applicants, that there was no intention on the Applicants’ part to argue any substantive grounds of appeal at this appeal, and that the appeal would only be concerned with the correctness of the Judge’s decision that the Decisions were preliminary with no substantive consequences[6], the summons was dismissed.

12.On 13 December 2016, we dismissed this appeal and said we would give our reasons in due course.  These are our reasons.

The Applicants’ grounds of appeal

13.It will be seen that the ambit of this appeal is a narrow one, namely, whether the Judge was right to determine that the Decisions were preliminary in nature with no substantive consequences and effects; and, therefore, in the absence of exceptional circumstances, not amenable to judicial review.

14.It is the argument of Mr McCoy (with him Ms Souza) for the Applicants that the statutory framework of the MRO demonstrates that the Decisions are not preliminary in nature and that the recommendations of the EAC, affirmed on review by the EAC and then on appeal by the Medical Council (sitting with a quorum of 5 members, in accordance with section 4(2A) of the MRO) do in fact result in substantive legal consequences or effects for the Applicants, even though they are pending formal adoption/implementation by the full Medical Council (sitting with a quorum of 13 members, in accordance with section 4(2) of the MRO).

15.He points to the provisions of section 20O of the MRO, governing an appeal to the Medical Council from a decision to review under section 20N(4), and in particular that:

“(4) The decision of the Council under this section is final.”

16.Mr McCoy contends that any errors of law and procedure by the EAC in either making or reviewing its recommendation, and by the Medical Council in considering an appeal from the EAC’s decision, can no longer be reviewed, given the finality of the Council’s decision.

17.Furthermore, since the Medical Council (sitting with a quorum of 13 members) “may transact any of its business by circulation of papers without meeting” under section 4(4A) of the MRO, which business would include the adoption/implementation of the EAC recommendation, the earlier processes of determination, review and decision do in fact have legal consequences and effects. Even if the Medical Council were to consider the matter afresh (which exercise Mr McCoy does not accept) with a quorum of 13 members, as required by section 4(2) of the MRO, its function in making a section 19B(2) order is not to review any errors of law or procedure made during the recommendation/review/appeal process.  Accordingly, the only effective challenge to such errors is by way of judicial review.  And since such errors of law and procedure are not reviewable by virtue of the finality of section 20O of the MRO, the Judge ought to have held that there are exceptional circumstances justifying the intervention of the court.

18.A further extension of the argument that exceptional circumstances exist to warrant the intervention of the court is that there is said to be no power to grant a statutory stay against a section 19B(2) removal order, even in the event of an appeal against the order under section 26 of the MRO, since the power to order a stay under section 25(2) operates exclusively in relation to removal orders made as a result of a section 21 disciplinary inquiry.  There is no such inquiry for the purpose of making an order under section 19B(2) of the MRO: indeed, the very wording of the subsection is that the Medical Council may act upon a recommendation of the EAC “without conducting an inquiry under section 21”.   Mr McCoy argues, therefore, that the scope of the power of stay under section 25(2) is narrow and does not operate to stay proceedings of the Medical Council when making an order consequent upon a section 20N recommendation: see X v Education and Accreditation Committee, Medical Council of Hong Kong.[7]

The response of the 1^st and 2^nd Respondents

19.Mr Stewart Wong SC (with him Mr Wilson Leung) for the 1^st Respondent, and Mr Anthony Ismail for the 2^nd Respondent, take issue with the notion that the Medical Council, in exercising its power to order the removal of a name from the Specialist Register under section 19B(2) of the MRO, is simply a “rubber stamp” for a recommendation (duly reviewed and appealed) by the EAC.  They submit that such an argument is simply not borne out by the statutory scheme to which we have referred.  Only the Medical Council, sitting with a quorum of 13 members, has the power to make a decision with substantive consequences and effects for the medical practitioner concerned.  By contrast, section 20I of the MRO does not confer any power on, nor does it provide for any function by, the EAC itself to remove a medical practitioner from the Specialist Register: its function in this regard, under section 20I(e) of the MRO, is “to recommend to the Council whether the name of a registered medical practitioner should be included in or removed from the Specialist Register”.

20.Whilst the Medical Council, in exercising its power under section 19B(2) of the MRO, would obviously place considerable weight on the recommendation of the EAC, that does not mean that the recommendation (whether reviewed and appealed or not) is anything more than a preliminary step on the way to the final decision by the Medical Council exercising its power under section 19B(2) with the requisite quorum.  The emphasis must be “on the decisive nature of the exercise of power”.[8]  Were it otherwise, the courts would be “ensnared in multiple applications to the courts”[9] and be drawn into “micro-managing the activities of subordinate tribunals or administrative decision-makers”.[10]

21.Mr Wong and Mr Ismail both further submit that when the Medical Council makes its final decision under section 19B(2) of the MRO, it will be bound, inter alia, by the common law, in particular the rules of natural justice, which incorporate the duty to act fairly: see Medical Council of Hong Kong v Helen Chan.[11] Furthermore, if the medical practitioner concerned is aggrieved by the decision of the Medical Council made under section 19B(2) of the MRO, he has a statutory right of appeal from that decision to the Court of Appeal, by virtue of section 26(1) of the MRO.  Accordingly, at that stage, he has the right to question the decision and the decision-making process.

22.If there were to be an appeal under section 26(1) of the MRO, there is no reason why the Court could not grant interim relief pending determination of the appeal under the Rules of the High Court, which are specifically invoked by virtue of section 26(3) of the MRO. Therefore, any argument that a statutory stay does not operate against a removal order under section 19(2), as it does in respect of an appeal against a disciplinary order made after an inquiry under section 21 of the MRO, is misconceived.

Consideration

23.We are in no doubt that the Decisions sought to be reviewed by way of judicial review are preliminary in nature with no substantive consequences or determinative effects for the Applicants, and thus not amenable to judicial review.  We agree with the Judge’s decision in this regard.  Nor can we see any warrant for criticising the court for not exercising its discretion to consider such a review prior to a decision being made under section 19B(2) of the MRO.

24.It is clear from the statutory scheme under the MRO that the ultimate decision whether or not to order the removal of a medical practitioner’s name from the Specialist Register must be made by the Medical Council, in accordance with section 19B(2), sitting with a quorum of 13 members, in accordance with section 4(2) of the MRO.  The function of the EAC goes no further than recommending to the Medical Council whether the name of a medical practitioner should be removed from (or included in) the Specialist Register, in accordance with section 20I(e) of the MRO.  The decision to recommend will have gone through the process of recommendation, under section 20N(1) and (2), review (if necessary), under section 20N(3) and (4), and appeal (if necessary), under section 20O(1) and (2), before being confirmed, under section 20O(3), by the Medical Council sitting with a quorum of 5 members, in accordance with section 4(2A) of the MRO.

25.We agree with the Judge that the “finality” of the Medical Council’s decision referred to in section 20O(4) of the MRO simply refers to the process of recommendation and ensures that, after recommendation, review and appeal, the decision affirming (or varying or reversing) the recommendation under section 20O(3) is not subjected to an unlimited appeal process.  As the Judge held[12], any decision by the Medical Council upon appeal under section 20O(3):

“remain at the recommendation stage and would not turn into substantive effect to remove the applicant’s name from the Specialist Register unless and until it is adopted by the full Council into its final decision(s) made under section 19B”.

26.An order made by the Medical Council under section 19B(2) is then appealable in accordance with section 26(1), to which the Rules of the High Court apply, by virtue of section 26(3) of the MRO.  We cannot conceive of, and Mr McCoy had difficulty in advancing, any permutation of fact or circumstance, whereby the order of the Medical Council, under section 19B(2), and the process by which it arrived at its decision following recommendation, review and appeal, would not be amenable to appeal under section 26(1) of the MRO.  Accordingly, the decision to seek a judicial review of the Decisions was in our judgment wholly misconceived.

27.The recommendations of the EAC are exactly that: they are recommendations.  There is nothing “decisive” about them, since the ultimate decision is to be made by a quorum of 13 members of the Medical Council, which decision will, in due course, be amenable to appeal.  That the Medical Council does not consider itself a “rubber stamp” in simply implementing a recommendation of the EAC is perhaps demonstrated by the remarks which the Medical Council added to its sentence in respect of Dr G, at the conclusion of the disciplinary inquiry on 2 December 2012.  It said:

“The Defendant’s name is included in the Specialist Register under the specialty of General Surgery. While it is for the Education and Accreditation Committee to decide whether any action should be taken under section 20N of the Medical Registration Ordinance in respect of his specialist registration, we are of the view that the case being an isolated incident does not reflect adversely upon his specialist competence as a general surgeon.” (Emphasis supplied)

We consider it quite possible that the Medical Council, when it eventually comes to consider the recommendation of the EAC under section 19B(2) of the MRO, may not agree with the recommendation of the EAC in respect of the medical practitioner concerned, and may decide not to remove his name from the Specialist Register. On the other hand, if the Medical Council were to agree with the recommendation of the EAC and remove him from the Specialist Register, the Applicant would be entitled to refer to the evidence and the remarks of the tribunal at the disciplinary inquiry, which had the advantage of hearing and seeing the witnesses, in appealing the order under section 26(1) of the MRO.

28.We see no evidence at all that the Medical Council sitting with a quorum of 13 members would regard itself as a “rubber stamp” for the decision of 5 members sitting upon an appeal from a recommendation of the EAC; and none has been adduced.

29.Finally, we cannot see any reason why a court could not grant interim relief pending determination of an appeal against a section 19B(2) order under the Rules of the High Court, to which such an appeal shall be subject, in accordance with section 26(3) of the MRO. Accordingly, we can discern no advantage for the Applicants in proceeding by way of judicial review which they cannot also obtain by way of appeal under section 26(1) of the MRO.  The only conceivable advantage to launching an application for judicial review is, as demonstrated by the history of this case, to delay the ultimate decision of the Medical Council under section 19B(2) for as long as possible.  That is not a proper use of the review mechanism and the courts will be vigilant to ensure that the judicial review process is not abused in this way.

30.The appeal was accordingly dismissed.  We made an order that the Applicants shall pay the costs of the appeal of the 1^st and 2^nd Respondents to be taxed if not agreed, with a certificate for two counsel in respect of the 1^st Respondent.

Mr Gerard McCoy SC and Ms Denise Souza, instructed by Mayer Brown JSM, for the Applicants/Appellants

Mr Stewart K M Wong SC and Mr Wilson Leung, instructed by the Department of Justice, for the 1^st Respondent

Mr Anthony Ismail, instructed by the Department of Justice, for the 2^nd Respondent