Dr U v. The Preliminary Investigation Committee of the Medical Council of Hong Kong and Another

FAMV No 11 of 2018

[2019] HKCFA 6

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 11 OF 2018 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO 151 OF 2016)

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Appeal Committee: Mr Justice Cheung PJ, Mr Justice Chan NPJ and Mr Justice Stock NPJ

Date of Hearing and Determination: 19 February 2019

Date of Reasons for Determination: 20 February 2019

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REASONS FOR DETERMINATION

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Mr Justice Cheung PJ:

1.At the conclusion of the hearing, we dismissed this application for leave to appeal.  We now give our reasons. 

The facts

2.The applicant, Dr U, advised and administered an operation on a patient for urinary tract infection in November 2007.  The patient suffered permanent and irreversible urinary incontinence after the operation.

3.On 17 December 2010, the patient lodged a complaint to the Medical Council against Dr U, alleging that the doctor failed to properly explain the operation to him and therefore denied him the opportunity to give proper and informed consent; that he carried out the operation when well-known medical authority considered it to be wholly inappropriate and life-threatening; and that he incompetently conducted the operation resulting in his injury whilst having previously claimed that the operation was virtually risk free.

4.On 8 February 2012, the patient was notified that his complaint had been dismissed by the Chairman and the Deputy Chairman of the Preliminary Investigation Committee (“PIC”) of the Medical Council under section 6 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation.[1]  The dismissal was on the basis that there was no evidence showing any professional misconduct on the part of Dr U.

5.On 3 April 2012, armed with an affidavit made by Dr U on 30 January 2012 in a related medical negligence action in the High Court in which Dr U admitted that he had given negligent advice to the patient to undergo the operation, the patient wrote to the Medical Council to add a new complaint that Dr U had wrongly diagnosed his condition and had negligently advised him of the need for the operation, and asked the Council to reconsider the case in its entirety.  The patient also enclosed a further expert medical report by a Mr Ralph in support of his complaint.

6.On 24 August 2012, the case was referred by the (new) Chairman of the PIC to the PIC under section 9 of the Regulation for its consideration.  The Chairman explained that the decision was based primarily on the conflict of opinion between Mr Ralph and Dr Man, the independent expert instructed by the (previous) Chairman to advise on the complaint, as well as the wider scope of the revised complaint and the new materials accompanying it.

7.On 17 July 2015, Dr U was informed that the PIC had decided after meeting to refer the case to the Medical Council for inquiry pursuant to section 11(8)(c) of the Regulation. 

The proceedings below

8.After obtaining ex parte leave, Dr U applied for judicial review of  the PIC’s decision to refer his case to the Medical Council for inquiry, the patient’s complaint having previously been dismissed by the Chairman and the Deputy Chairman under section 6.[2]

9.After hearing, Zervos J dismissed the application for judicial review.[3]  He held that the Chairman and Deputy Chairman of the PIC had an implied power to reconsider a complaint after its dismissal, such a power being required for the effective carrying out of their statutory functions.  The judge held that the dismissal at the first screening stage does not amount to a final determination, and so there was no question of a res judicata. 

10.On appeal to the Court of Appeal,[4] Dr U abandoned the res judicata argument but contended that the Chairman could not act intra vires regarding the same case which had been dismissed since the power of dismissal under section 6 was jurisdictional not procedural.

11.By a judgment handed down on 24 November 2017, the Court of Appeal dismissed the appeal.  Giving the lead judgment of the court, Yuen JA explained:

“26.2. In my view, that argument is not engaged in the present case. The Revised Complaint contained a new complaint regarding (amongst other things) the negligent advice given to the patient which was supported by Dr U’s own admission on oath. It matters not that the patient could have brought the complaint of negligent advice back in December 2010, or that Dr U’s affidavit could have been brought to the attention of the chairman of the PIC during the one week between the filing of the affidavit (31 January 2012) and the letter from the Secretary (8 February 2012), for the arguments on res judicata and cause of action estoppel are not pursued.

27.1. In any event, new materials had been provided in the form of the opinion of Dr Lo (Dr U’s expert) and Mr Ralph’s response to it. As was fairly accepted by Mr McCoy, even if the patient had not brought a revised complaint in April 2012 but had merely provided the MC with new materials, those new materials may still be regarded as “information” received by the Secretary suggesting that Dr U has been guilty of professional misconduct, and they would still have to be submitted to the chairman of the PIC for his consideration under s.6. Indeed, as noted by Mr Stewart Wong SC, leading counsel for the PIC and the MC, it has never been Dr U’s case that the matters put forward with the Revised Complaint did not warrant referral.

27.2. Once the case is extant (whether as a result of a new complaint, or of the receipt of new information), it would be completely unrealistic and contrary to the intent and purpose of professional misconduct investigations to suggest that only certain aspects of it (the “new” complaint) may be considered, and not other aspects, for this case only involved one course of treatment of the patient over a single period of only a few days.”

12.Dr U sought leave from the Court of Appeal to appeal to this court on the basis of the following question of great general public importance:

“Whether the exercise of the power under section 6(3) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (Cap. 161E) to dismiss a Complaint, results in a final determination of the Complaint, which debars any further reconsideration of the allegations encompassed in that Complaint?”

13.By a judgment dated 14 February 2018,[5] the Court of Appeal dismissed the application for leave to appeal.  Yuen JA observed that Dr U was simply seeking leave to appeal to this court on the very ground which the Court of Appeal had held was not engaged in this case.  The question on which the decision of this court was sought was of no consequence to the two parties in the action.[6]  Lam VP, agreeing with the judgment of Yuen JA, observed that Dr U’s submission was just an attempt to revive the argument on res judicata, which he failed before Zervos J and did not repeat before the Court of Appeal.[7]

Leave to appeal

14.Dr U sought leave to appeal before us on a slightly revised question:

“Whether the exercise of the power under section 6(3) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (Cap. 161E) to dismiss a Complaint results in a final determination of the Complaint, and debars any further reconsideration of the Complaint unless the dismissal is quashed by the High Court in its supervisory jurisdiction?”

15.We need only consider two matters, that is, whether the question now put forward by Dr U before us is an academic one; and whether the question is reasonably arguable. For reasons that follow, these are related matters, and for those reasons, we have refused leave to appeal. 

16.First, whether the question raised is academic.

17.Section 6(1)(a)(ii) of the Regulation provides that where “a complaint is made to or information is received by” the Secretary of the Medical Council that a registered medical practitioner has been guilty of misconduct in any professional respect, the Secretary shall submit the complaint, information or matter to the Chairman of the PIC or, in his absence, the Deputy Chairman for his consideration of the case.  Section 6(2) essentially provides that if both the Chairman and the Deputy Chairman consider that the case is “frivolous, or groundless, and should not proceed further”, they may dismiss the case.  Section 9(1) of the Regulation provides, relevantly, that if a case received by the Chairman or the Deputy Chairman under section 6 “has not been dismissed”, the Chairman or the Deputy Chairman shall direct that the case be referred to the PIC for its consideration.  As already mentioned, section 11(8)(c) provides that the PIC shall, having regard to any written explanation submitted by the practitioner in question and all the materials put before it by the Secretary, consider the case, and may refer the case to the Council for inquiry.

18.The intent and purpose of the statutory scheme under the Regulation is clear.  One purpose that the provisions seek to serve is to provide a just balance between the legitimate expectation of the complainant that a complaint of serious professional misconduct will be fully investigated, and the need for legitimate safeguard for the practitioner who as a professional person may be considered particularly vulnerable to and damaged by unwarranted charges against him.  However, there is a wider picture to bear in mind, that is, the provisions are designed to protect the public from the risk of practice by practitioners who for any reason (whether competence, integrity or health) are incompetent or unfit to practise and to maintain and sustain the reputation of, and public confidence in, the medical profession: Dr Li Wang Pong Franklin v Medical Council of Hong Kong.[8]

19.As is true with any complaint system, there is a risk of abuse and therefore a need to deal with complaints that are frivolous or groundless summarily.  However, given the aim to protect public interest and maintain public confidence in the medical profession, it would be correct to say that any measures to prevent the abuse of the system must be no more than is necessary to achieve that purpose. Moreover, form or procedure should not be allowed to trump substance. 

20.Viewed in that light, counsel for Dr U was right to concede before the Court of Appeal[9] and before us also that regardless of the presence or absence of a complaint or a repeated complaint, if “information” – including information subsequently supplied by a complainant whose complaint had been dismissed under section 6(2) – is received by the Secretary that a practitioner has been guilty of misconduct in any professional respect, the Secretary is duty bound to submit the information to the Chairman or the Deputy Chairman for consideration of the case.

21.Moreover, section 6, and indeed the entire Regulation, do not specify who may make a complaint or supply information to the Secretary regarding professional misconduct.  It may be done by a patient, his family and relatives, the hospital concerned, the Hospital Authority, the police, the media or even the court (for instance, after hearing a medical negligence case).[10] Counsel for Dr U contended, when arguing that the dismissal of a complaint would as a matter of statutory construction debar any reconsideration of the complaint, that such a dismissal would debar another person from making the same complaint to the Secretary.  Given the obvious intent and purpose behind the statutory scheme under the Regulation, this contention is wholly unarguable.

22.For what really matters is the substance, that is, whether the practitioner has been guilty of professional misconduct, rather than who brought the complaint in the first place, whether the materials presented by a particular complainant were sufficient or complete, or whether the complainant happened to know how to formulate his complaint precisely or correctly.

23.The question of vexing the medical practitioner in question twice is a red herring.  Nor does the question of protecting the practitioner’s professional reputation from unwarranted damage arise at this stage.  As was pointed out by the Court of Appeal, at this initial screening stage under section 6 of the Regulation, the practitioner is simply not involved.  It is simply an internal matter for the Chairman and Deputy Chairman to decide.  The practitioner is not even notified of the receipt of complaint or information.  It is only at the PIC investigation stage when the practitioner would be asked to respond.

24.This being the case, even if the question now put forward by Dr U is answered in his favour, so that the dismissal of a complaint by a particular complainant would debar any further consideration of the same complaint by that complainant, it would not prevent the Secretary, after receiving further relevant information of professional misconduct, to refer the matter to the Chairman or Deputy Chairman for consideration.  Nor would it debar any other persons, including the court, from making a complaint of misconduct arising from the same incident to the Secretary under section 6(1). 

25.For these reasons, it is quite plain that the question raised by Dr U for the purpose of seeking leave to appeal is simply an academic one.

26.For these reasons also, turning to the second matter in question, there really is little point in construing section 6 of the Regulation to mean that once a dismissal is made, it results in a final determination of the complaint which debars any future reconsideration of the same complaint.  To so construe the section would serve no practical purpose.  But even more importantly, to do so would go against the intent and purpose of the statutory scheme under the Regulation, which is to protect the public interest and to maintain public confidence in the medical profession as a whole.  This is particularly so when rejecting the construction argued for by Dr U would not vex the medical practitioner twice nor affect his professional reputation, as he is not even aware of the existence of the complaint (unless and until the matter reaches the PIC investigation stage).

27.We note that conspicuous by its absence is any mention anywhere in the Regulation that a dismissal under section 6(2) is final.

28.We also note that counsel for Dr U was unable to identify the public law ground upon which the High Court could quash a dismissal by way of judicial review as suggested in the question relied on by Dr U to seek leave to appeal before us, if a section 6(2) dismissal were to be treated as final.

29.On the other hand, if a frivolous or groundless complaint that has been dismissed is made a second time to the Secretary, section 6(2), as we read it, gives the Chairman and Deputy Chairman sufficient power to dismiss the repeated complaint summarily.  We see no difference between that and what Dr U’s construction would enable them to do – in either case a short letter telling the complainant that his repeated complaint fails will suffice.

30.For these reasons we conclude also that the question relied on is not reasonably arguable.

Disposition

31.Accordingly, the application for leave to appeal was dismissed with costs.

Mr Gerard McCoy SC and Mr Albert N B Wong, instructed by Mayer Brown, for the applicant

Mr Stewart Wong SC and Mr Jenkin Suen, instructed by the Department of Justice, for the 1^st and 2^nd respondents