Fung Man Chee Maggie and Another v. Hong Kong Institute of Clinical Psychologists Ltd
Read the full judgment text of HCAL 279/2020 on BabelCite. This High Court CFI judgment was delivered on 23 August 2021.
1. This is an application by the Applicants for judicial review of the relevant registration requirements (the “ Impugned Registration Requirements ”) promulgated by Hong Kong Institute of Clinical Psychologists Limited (the “ Institute ”) which preclude them from being able to apply for direct registration on the Register of Clinical Psychologists under the Long Term Arrangement.
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HCAL 279/2020 [2021] HKCFI 2424 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 279 OF 2020 ________________________
________________________ Before: Hon Chow JA (sitting as an additional judge of the Court of First Instance) in Court Dates of Hearing: 25, 26 and 30 March 2021 Date of Judgment: 23 August 2021 ____________________ J U D G M E N T ____________________ INTRODCUTION 1.This is an application by the Applicants for judicial review of the relevant registration requirements (the “Impugned Registration Requirements”) promulgated by Hong Kong Institute of Clinical Psychologists Limited (the “Institute”) which preclude them from being able to apply for direct registration on the Register of Clinical Psychologists under the Long Term Arrangement. BACKGROUND FACTS (i) The 1st and 2nd Applicants 2.The 1st and 2nd Applicants are both practising clinical psychologists in Hong Kong. The 1st Applicant has been practising as a clinical psychologist at a local religious institution on a part-time basis since October 2019, while the 2nd Applicant has been a clinical psychologist in private practice since August 2019. (ii) The CSPP Programme 3.In 2007, the School of Continuing and Professional Education of the City University of Hong Kong (“CityU SCOPE”), in collaboration with the California School of Professional Psychology (“CSPP”) of Alliant International University (“AIU”), started to offer a program to educate and train doctoral-level clinical psychologists (the “CSPP Programme”) in Hong Kong. 4.The CSPP Programme is a four-year, doctoral-level academic program in clinical psychology with a curriculum consisting of 120 credit units of coursework, two comprehensive examinations, at least 2,600 hours of supervised clinical training, a clinical proficiency progress review examination, and a dissertation project. It is modelled after American Psychological Association (“APA”)’s accredited programmes in the United States. The graduates of the CSPP Programme are awarded a Doctor of Psychology in Clinical Psychology degree (“the CSPP PsyD Degree”). 5.The CSPP Programme is in compliance with the Non-local Higher and Professional Education Regulation Ordinance, Cap 493, and is accredited by three different organizations in the United States, specifically:
6.The last cohort of students of the CSPP Programme was admitted in 2015. The total number of graduates from the CSPP Programme is around 120. The 1st Applicant was a graduate of the CSPP Programme in 2015, and the 2nd Applicant in 2019. Both Applicants are holders of the CSPP PsyD Degree. (iii) The Division of Clinical Psychology of Hong Kong Psychological Society (HKPS-DCP) and the Hong Kong Association of Doctors in Clinical Psychology (HKADCP) 7.The Division of Clinical Psychology of Hong Kong Psychological Society (the “Society”) is a professional body of clinical psychologists founded in 1982. As at September 2017, it had around 500 members, the majority of whom were graduates of the Master or Doctoral clinical psychology programmes offered by the University of Hong Kong or the Chinese University of Hong Kong. A minority (about 16%) were graduates of overseas clinical psychology programmes that were accredited by the relevant professional bodies in, inter alia, the UK, US, Australia and Canada. 8.The Hong Kong Association of Doctors in Clinical Psychology (the “Association”) is a later professional body of clinical psychologists with a doctoral degree established in 2012. As at February 2020, it had 85 members, 84 of whom held a CSPP PsyD Degree. The 1st Applicant has been a member of the Association since 2016 and a board member since 2017, and the 2nd Applicant has been a member of the Association since November 2019. (iv) The Scheme 9.In Hong Kong, some healthcare professionals (such as doctors and dentists) are required to have their professional qualifications registered under the law before they can practise in Hong Kong. There are also some healthcare professionals (including clinical psychologists) who are not subject to statutory registration, and are “regulated” on their own, mostly through voluntary, society-based registration[1]. 10.Under society-based registration, a professional body administers a registration system and promulgates a list of its members for reference by the public when seeking relevant services. Such professional bodies usually publish codes of practice to strengthen self-regulation and encourage their members to pursue continuing professional development, obtain qualifications as well as enhance their professional competency. Some professional bodies also develop quality assurance and disciplinary mechanisms to better uphold the professional standards of their members. 11.Following (i) the release of a report by the Ombudsman in 2014 on the Government’s control of healthcare professions not subject to statutory regulation, and (ii) a feasibility study carried out by the Jockey Club School of Public Health and Primary Care of the Chinese University of Hong Kong, the Government, in 2016, launched a pilot scheme of the Voluntary Accredited Registers Scheme for Healthcare Professions (the “Scheme”) for those healthcare professions which were not subject to statutory registration and regulation. As stated in a paper for the Legislative Council Panel on Health Services (the “Panel”) titled “Voluntary Accredited Registers Scheme for Healthcare Personnel who are currently not subject to Statutory Regulation”, LC Paper No CB(2)1459/15-16(03), dated May 2016, at §6, the aim of the Scheme is to enhance the current society-based registration arrangement under the principle of professional autonomy, with a view to assuring the professional competence of healthcare professionals and providing more information for the public to make informed decisions. 12.The Jockey Club School of Public Health and Primary Care of the Chinese University of Hong Kong has been appointed as the independent Accreditation Agent (“AA”) of the Scheme. The roles of AA include setting the standards and developing the process of accreditation, carrying out the accreditation process, providing relevant training to healthcare professions, and handling complaints about accredited healthcare professional bodies where appropriate. 13.The essential features of the Scheme are set out in a paper for the Panel titled “Accredited Registers Scheme for Healthcare Professions”, LC Paper No CB(2)1787/17-18(05), dated July 2018, as follows:
14.AA has issued a document titled “Accredited Registers Scheme for Healthcare Professions (Pilot Scheme) - Guidance for Applicants” (December 2016, First Edition) (“the Guidance”) for healthcare professional organizations wishing to apply for accreditation under the Scheme. The Guidance describes the framework of the Scheme, the application process and the standards for accreditation. The Guidance also provides that all personnel of AA shall abide by a Code of Conduct which mandates them to, inter alia, act professionally at all times by demonstrating impartiality and independence in all actions and decision-making, and avoid and declare conflicts of interest (§2.3). 15.Details of the Scheme are set out in Section 2 of Guidance. At §2.5, it is stated that healthcare professional organizations holding registers of healthcare professions should have a broad representation of the corresponding profession and an established operation for a substantial period (including newly formed ones which have been set up from re-structuring or merging of other established associations/societies), and the accredited professional organizations will be charged with the following functions:
16.It is further stated, at §2.6 of the Guidance, that the essential elements required for standards for registrants include:
17.The Guidance provides, in Section 3 thereof, for a 2-step application process for healthcare professional organizations applying for accreditation status under the Scheme. Under Step 2 of the application process, an Accreditation Survey of an applicant would be carried out by an Accreditation Team of Surveyors (“the Survey Team”), with further review and final consideration of the application by the Accreditation Office and Accreditation Panel of AA. 18.Section 4 of the Guidance sets out the “Principles of Standard Development” for the Scheme. §4.10 refers to six sets of standards to be met by professional organizations for accreditation, namely:
19.In relation to the standard for “Educational and training requirements” (Standard 5), the Guidance states that the organization should set standards for education and training to enable its registrants to competently practise in the profession. Two core criteria under Standard 5 provide that:
20.The Scheme was open for application at the end of December 2016. A total of 20 applications covering 15 professions, including the profession of clinical psychologists, were received by AA upon the close of application on 17 February 2017. (v) The granting of full accreditation status to the Institute 21.In February 2017, both the Society and the Association applied for full accreditation status to administer the register of the profession of clinical psychologists under the Scheme. In its application form dated 17 February 2017, the Society indicated that the name of the organization which would be holding and administering the register would be a company called “Hong Kong Council of Clinical Psychologists Limited”. Eventually, the Institute was formed by the Society on 18 September 2017 for the purpose of its application. 22.By a letter dated 11 June 2018, AA informed the Society that it had been selected to proceed to the Accreditation Assessment first. AA advised the Society that, to meet the Standards of Accreditation Assessment, it would be prudent for the Society to engage the other applicant, ie the Association, as well as other clinical psychologists in Hong Kong in the consideration and formulation of educational and training requirements of clinical psychologists for ensuring the appropriate and adequate professional competence to practice. AA also reminded the Society that one of the assessment criteria that it would consider is whether the submission of the Society was able to demonstrate the inclusiveness through the use of reasonable criteria to admit professionals from different educational background and training, and the Society should conduct consultations with other key stakeholders such as relevant training institutions, services providers, parties representing and protecting the interests of patients and consumers. 23.AA also sent a letter to the Association dated 11 June 2018 containing, essentially, the same information. 24.In order to satisfy the aforesaid assessment criteria, the Society/Institute held three rounds of public consultation between October 2017 and October 2018 (including 40 group meetings, of which 12 were with the Association/AIU-SCOPE, 8 with work partners and patient group representatives and 14 with LegCo members, as well as conferences, open forums and survey/online survey), and attended three Accreditation Assessment Training Sessions conducted by AA between June and August 2018. The Society/Institute also held an additional round of open consultation between February and March 2019 upon the suggestion of the Survey Team. The Society/Institute submitted Consultations Reports to AA at various stages of the consultation process to justify their proposals and to demonstrate their efforts on inclusiveness, transparency and reasonableness in formulating their proposals in relation to educational and training requirements of clinical psychologists. The Accreditation Survey of the Institute was conducted on 7 and 8 January 2019, during which the Survey Team assessed whether the Institute fulfilled the requirements of the Scheme. 25.During the accreditation process, the Society/Institute put forward five proposals regarding the education and registration requirements for clinical psychologists in light of the feedbacks received from the consultation exercises, but serious disagreement remained between, inter alia, the Society/Institute and the Association on the relevant requirements. One of the complaints levelled against the Society/Institute was that their proposed accreditation standards were biased, in that they were specifically tailor-made for graduates of the Chinese University of Hong Kong and University of Hong Kong. It is not necessary to set out the full details of the disagreement between the two professional bodies in this judgment, which have been summarised in §§29-52 of the Form 86. The disagreement led to the Association and other parties (including Accredited Register Scheme (Clinical Psychologist) Concern Group, International Psychologists Concern Group, and PsyD Alumni Association) boycotting the consultation proposed by the Society in March 2019. 26.Various versions of (i) “Membership Registration and Handling Policy of Hong Kong Institute of Clinical Psychologists Limited” (“the Registration Policy”), and (ii) “Education Standards of Clinical Psychology in Hong Kong” (“the Education Standards”) were produced by the Institute and submitted to AA for its review during the accreditation process. On 27 May 2019, the Institute submitted revised drafts of the Registration Policy and Education Standards, being the 5th proposal, to the Survey Team in response to the latter’s comments and recommendations. 27.On 31 July 2019, the Institute published the final versions of Registration Policy and Education Standards (which were identical to those submitted to the Survey Team on 27 May 2019):
The Impugned Registration Requirements are found in those documents, which I shall come back to later in this judgment. 28.On 31 October 2019, DH announced that:
29.As an accreditation body under the Scheme, the Institute is subject to the “Terms and Conditions for Accredited Bodies”, which require the Institute to conform to the accreditation standards at all times and prove its continued compliance with each of the accreditation standards and the relevant criteria in order to maintain/renew the accreditation (§5.2). Failure to comply with the accreditation standards and criteria may result in the suspension or termination of its accreditation status (§6.4). 30.On 26 November 2019, the Association lodged an appeal to the Appeal Board, Accredited Registers Scheme for Healthcare Professions, against the aforesaid accreditation decision of DH pursuant to §§3.11-3.14 of the Guidance. The appeal has not, I am told, yet been determined. (vi) The Impugned Registration Requirements 31.Upon the Institute being granted full accreditation status for administering the Register of Clinical Psychologists on 31 October 2019, the Registration Policy and Education Standards came into force. The Registration Policy sets out two routes for registration on the Register of Clinical Psychologists, namely, (i) “Long Term Arrangement”, and (ii) “Alternative Qualifying Requirements - Transitional Arrangements”. 32.For clinical psychologists wishing to be registered on the Register of Clinical Psychologists under the Long Term Arrangement, the relevant qualifications are set out in §5 of the Registration Policy, which, so far as relevant, provides as follows:
33.The Education Standards prescribes the education standards which the Institute considers to be necessary for the practice of clinical psychology in Hong Kong to ensure that all registrants of the Institute have acquired the academic knowledge and clinical skills necessary for reliable service provision.
34.The qualification of the CSPP PsyD Degree is not amongst the local qualifications listed in Appendix 1 to the Registration Policy for the purpose of §5.2.1.1. It is also not an overseas qualification accredited in the country in which the degree is conferred for the purpose of §5.2.1.2. Accordingly, holders of the CSPP PsyD Degree such as the 1st and 2nd Applicants do not meet the qualification requirements under either §5.2.1.1 or §5.2.1.2 of the Registration Policy for direct registration under the Long Term Arrangement. 35.In passing, it may be noted that if a clinical psychologist is not qualified to be registered on the Register of Clinical Psychologists under the Long Term Arrangement, he/she may apply to be registered under the Alternative Qualifying Requirements - Transitional Arrangements. For those who have been practising as clinical psychologists in the public sectors, universities, established NGOs or other settings in Hong Kong continuously for less than 2 years full-time immediately before 31 October 2019 (applicable to the situation of the 1st and 2nd Applicants), the relevant qualifications are set out in §6.3 of the Registration Policy:
Since the focus of the present application is not on the Alternative Qualifying Requirements - Transitional Arrangements, it is not necessary to further discuss the Applicants’ criticism of them in this judgment. 36.The requirements contained in §5.2 of the Registration Policy (read together with Appendix 1 thereto and §5.2.2 of the Education Standards) constitute the Impugned Registration Requirements challenged by the Applicants in this application for judicial review. APPLICATION FOR JUDICIAL REVIEW 37.On 12 February 2020, the Applicants applied for leave to apply for judicial review of the Impugned Registration Requirements. Three grounds of review are advanced in the Form 86:
38.On 3 November 2020, the court granted the Applicants leave to apply for judicial review. GROUND (1): APPARENT BIAS 39.In the Form 86, the Applicants rely on three matters in support of the contention that the Impugned Registration Requirements are tainted by apparent bias:
40.It is not in dispute that the Impugned Registration Requirements promulgated by the Institute may be challenged on the ground of apparent bias. The test for apparent bias, as approved by the Court of Final Appeal in Deacons v White & Case LLP (2003) 6 HKCFAR 322, at §20, is the “reasonable apprehension of bias test”, viz:
41.For the purpose of the reasonable apprehension of bias test, the qualities of a “fair-minded” and “informed” observer were explained by Lord Hope in Helow v Secretary of State for the Home Department [2008] 1 WLR 2416:
42.The essential attributes of a fair-minded and informed observer were summarised by Reyes J in PCCW-HKT Telephone Ltd v Telecommunication Authority [2007] 2 HKLRD 536, at §46:
43.The first step in the application of the reasonable apprehension of bias test is to ascertain all relevant circumstances, including the nature and context of the decision, which have a bearing on the suggestion that the decision-maker was biased. In the present case, the following circumstances are, in my view, relevant:
44.In respect of the first matter relied upon by the Applicants referred to in §39(1) above, I do not consider the mere fact that the Society/Institute were engaged in a current and heated dispute and disagreement with the Association during the application process under the Scheme is sufficient to establish apparent bias. The two cases relied upon by Mr Hectar Pun, SC (for the Applicants), namely, (i) R (National Association of Memorial Masons) v Cardiff City Council [2011] EWHC 922 (Admin), and (ii) R (A1 Veg Ltd) v Hunslow London Borough Council [2004] LGR 536, cannot, in my view, be read as establishing a general proposition of law that whenever a decision-maker is in a current and heated disagreement with the person aggrieved by the relevant decision, such decision would be tainted by apparent bias. Both cases were decisions on their particular facts. In the former case, the head of the council which made the impugned decision was also the president/chairperson of the applicant’s rival organization which had just “a few days earlier” decided to “sever all contact and communication with the [applicant’s organization]” as a result of disputes relating to a national registration scheme for accredited masons of which both organizations were members, including a dispute on the control of the bank account of the national registration scheme. In the latter case, the decision of a local authority on the suitability of the existing tenants of an old market for tenancies in a future new market (which would be smaller than the existing one and thus could not accommodate all existing tenants) was held to be tainted by apparent bias because when making its decision, the local authority had received and considered comments from members of a tenants’ association who were the claimants’ competitors and/or had a direct pecuniary and personal interest in securing limited tenancies for themselves in the new market, and the claimants were not informed of the content of such comments and did not have an opportunity to respond to them. 45.In this case, the dispute or disagreement between the Society/Institute and the Association centred on the standards to be adopted for the education and training requirements of clinical psychologists. The formulation of the appropriate education and training requirements was for the purpose of ensuring professional competence and protection of the public. The fact that the two bodies held sharply divergent views on these matters did not necessarily indicate bias, or apparent bias, on the part of either party. It was equally consistent with each party holding a strong conviction of the necessary or appropriate education and training requirements to be satisfied by a clinical psychologist before he/she might be permitted to be registered on the Register of Clinical Psychologists. Further, it is relevant to take into account the fact that the Society/Institute and the Association were engaged in a competing process for the status of being the accreditation body of the Register of Clinical Psychologists under the principle of “One Profession, One Professional Body, One Register”. Serious disputes or disagreement between the two competitors on matters concerning their accreditation proposals, including the professional qualifications required to be satisfied by registrants, while unfortunate, were not entirely unexpected. For the avoidance of doubt, I should make it clear that the court is not expressing a view on whether the education and training requirements as set by the Institute are appropriate. In an application for judicial review, the court is not concerned with the merits of the decision, but only with issues of legality, rationality and procedural propriety. 46.In respect of the second matter relied upon by the Applicants referred to in §39(2) above, the fact that members of the Society and the Association may be viewed as competitors in the market of clinical psychologists in Hong Kong is undeniable. It does not automatically follow, however, that the Society/Institute’s formulation of the education and training requirements to be satisfied by persons seeking to be registered on the Register of Clinical Psychologists would be tainted by bias or apparent bias. That this is so is demonstrated by the fact that under the Impugned Registration Requirements, holders of post-graduate clinical psychology degrees conferred in Australia, Canada, UK and USA accredited by Australian Psychology Accreditation Council, Canadian Psychological Association, Health and Care Professional Council, and American Psychological Association respectively are qualified to be registered under the Long Term Arrangement. Compared to the limited number of CSPP PsyD Degree holders (about 120, bearing in mind that the last cohort of students admitted to the CSPP Programme was in 2015), the potential competition from holders of the above overseas qualifications would plainly be more serious. 47.Lastly, in respect of the third matter relied upon by the Applicants referred to in §39(3) above, the specific incidents referred to in §71(1) to (4) of the Form 86 are also not, in my view, sufficient to show an appearance of predetermination or make out a case of apparent bias. In gist, those incidents show that the Society/Institute were consistently critical of the CSPP Programme in relation to matters such as whether the CSPP Programme was full time or part time, the need for the presence of an on-site clinical psychologist as supervisor at clinical training, the non-accreditation of the CSPP Programme by APA, etc. As pointed out by Stock J (as he then was) in Tran Thang Lam v Director of Immigration, HCAL 80/1997, there is a cardinal difference between “predetermination or illegitimate predisposition” and “legitimate disposition”. At pp 31-32 of the His Lordship’s judgment, the following was stated:
48.In R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139 at 151, Simon Brown LJ said:
In short, predisposition connected with the merits is not, of itself, illegitimate. 49.The evidence shows that the Society/Institute did engage in consultation and discussion with the Association/AIU-SCOPE, and sought to address some concerns and issues raised by them by amending the Registration Policy/Education Standards[3]. The fact that the Society/Institute held, and persisted with, strong views about some other perceived inadequacies of the CSPP Programme even after the consultation and discussion is not sufficient to show bias, or apparent bias, on their part. 50.Taking into account the relevant background circumstances mentioned in §43 above and looking at the matters relied upon by the Applicants (whether singly or cumulatively), I am unable to conclude that a fair-minded and informed observer would come to the view that there was a real possibility, or a real danger, that the Institute was biased against holders of the CSPP PsyD Degree or members of the Association in their formulation of the Impugned Registration Requirements. 51.In his Skeleton Arguments dated 18 March 2021 and/or oral submissions, Mr Pun relies on various other matters in support of Ground (1). Those matters have not, however, been pleaded in the Form 86 and the Applicants are not entitled to rely on them. I do not therefore propose to deal with them in detail in this judgment, save to make the following brief comments:
In all, the additional matters relied upon by Mr Pun do not alter my conclusion that the Applicants have failed to establish apparent bias in this case. 52.Ground (1) of judicial review is rejected. GROUND (2): IRRATIONALITY - FACTUAL ERRORS 53.Under Ground (2), the Applicants argue that the Impugned Registration Requirements are predicated upon factual errors or findings of fact which are unsupported by evidence (see §§78-85 of the Form 86). In his Skeleton Arguments for the Applicants dated 18 March 2021, Mr Pun identifies 4 errors of fact allegedly committed by the Institute:
54.Both Mr Pun and Mr Johannes Chan, SC (for the Institute) rely on the judgment of Mr Justice Ng in Dr Chan Sze Jacqueline v Dental Council of Hong Kong [2014] 1 HKLRD 77 as correctly setting out the applicable principles for “mistake of fact” as a ground of judicial review. In that judgment, the learned Judge stated the following:
55.The first factual error allegedly committed by the Institute is that it considered the CSPP Programme to be a part-time program. According to Mr Pun, the fact that the CSPP Programme is a full-time doctoral level program is beyond dispute. He relies on, amongst other matters, the following:
56.On the other hand, the Society/Institute rely on the following matters to come to the view that the CSPP Programme is a part-time degree course:
Pausing here, I should mention that Dr Louis Ma, in his email to the Applicants’ solicitors dated 10 February 2021, said that the description “兼讀” / “part-time” in the student identity card and article referred to in (1) and (3) above was “mistakenly used”. 57.The present case is not an ordinary civil action where the court is required to determine, on the balance of probabilities, whether the CSPP Programme is a full time or part time course. This is an application for judicial review, and the question for the court is whether the Institute’s view that the CSPP is a part time course is not supported by evidence, in the sense that there is no evidence for such view or the evidence taken as a whole is not reasonably capable of supporting such view. On the materials before the court, I am unable to conclude that the Institute’s view was not supported by evidence. 58.The second factual error allegedly made by the Institute is that the CSPP Programme lacks recognition. Mr Pun makes 3 arguments in respect of this alleged error of fact:
59.The third and fourth factual errors allegedly made by the Institute are that the Institute considers (i) the CSPP Programme lacks regulation on clinical training; and (ii) the clinical training under the CSPP Programme lacks “on-site” supervision. It is important to note, however, that the Institute is not saying that the CSPP Programme has no regulation on clinical training simpliciter, or the clinical training under the CSPP Programme does not have any element of “on-site” supervision whatsoever. The Institute’s position is that there are 3 essential components in respect of the clinical training of a clinical psychologist: (i) the supervisors must be clinical psychologists, (ii) they must be members of staff of the respective placement settings, and (iii) there must be opportunities for live observation and supervision by the supervising clinical psychologists[6]. The rationale for these 3 components was explained in a letter from Dr Tatia Lee to the Chairman of the Panel dated 16 July 2018, as follows:
60.These 3 components in respect of clinical training are reflected in the Education Standards, at §5.2.2: “Clinical placements must be provided via on-site supervision by qualified clinical psychologists who have at least 3-year full-time post-qualification experience, and who work in the placement setting” [underlining added]. These requirements, while not identical to those prescribed in the Guidance on Clinical Supervision by British Psychological Society in the UK, the APAC Accreditation Standards for Psychology Programs - Evidence Guide in Australia, or the APA Standards of Accreditation for Health Service Psychology and Accreditation Operating Procedures in the US, share many similar features with them. The details are set out in §81 of the 1st Affidavit of Poon Mak Sui Man, which it is not necessary to repeat in this judgment. 61.The details of the clinical training under the CSPP Programme are set out in a document titled “Professional Training Practicum & Internship Manual”. The salient features are summarised in the Program Director’s Submission, including:
62.It is clear that the clinical training under the CSPP Programme does not satisfy the 3 components which the Institute considers to be essential for training clinical psychologists. The Institute’s finding is that “most of the site supervisors in the CSPP Degree were not clinical psychologists, whereas the primary supervisor, being the clinical psychologists will not be present at the place of internship for provision of site supervision at the placement setting”[7]. 63.In the Program Director’s Submission, it is argued that:
Dr Tien Liang concludes that “there are at least two different models of training clinical psychologists in HK. We hold that being different does not imply lesser quality. In fact, we contend that the analysis presented offers evidence that the professional competency of psychologists graduated from the CSP-HK PsyD program is, at a minimum, equivalent to that of those trained through the local master’s level clinical psychology programs.” 64.In my view, the differences between the parties lie in which is the preferred or better clinical training model for clinical psychologists. It is beyond the proper function of this court in an application for judicial review to enter into a debate on, or determine, which model is the better one. While the Applicants may not agree with the view of the Institute, I do not see how it can be said that the Instituted commits any error of fact in its view that the clinical training under CSPP Programme does not satisfy the 3 components which it considers to be essential for training clinical psychologists or meet the requirements of “on-site supervision” prescribed by §5.2.2 of the Education Standards. 65.In all, I do not accept Mr Pun’s argument that the Impugned Registration Requirements are predicated upon “errors of fact”. GROUND (3): WEDNESBURY UNREASONABLENESS 66.Under Ground (3), the Applicants contend that, in the face of the cogent evidence and rebuttals provided by CityU SCOPE, no reasonable accreditation body could ever have disregarded them and come to the conclusion that the CSPP PsyD Degree is not an equivalent qualification to the recognised local qualifications under the Registration Policy so that graduates of it should be precluded from being able to apply to be registered directly on the Register of Clinical Psychologists under the Long Term Arrangement (§87 of the Form 86). 67.In substance, what is being contended for by the Applicants is that the CSPP PsyD Degree should be recognized for registration on the Register of Clinical Psychologists under the Long Term Arrangement. In an application for judicial review based on the Wednesbury unreasonableness ground, the threshold for intervention is a high one. The court is not concerned with the merits of the Institute’s decision. It can interfere in the Institute’s decision only if it is so unreasonable that no reasonable decision-maker, properly directed on the law and fact, could have made the decision in question. The question of whether any particular qualification ought to be recognized for registration purpose is a matter which calls for the exercise of professional knowledge, expertise and judgment. The professional body is much better placed than the court to determine such question. The court ought to respect the judgment of the professional body on an issue of this nature, unless grounds for intervention are clearly shown. 68.Mr Pun argues that the Institute failed to properly consider the question of whether the CSPP Programme was a qualification equivalent to other programmes recognized by the Institute, bearing in mind the Scheme’s standards of ensuring a “set of minimal clinical knowledge and skills”. In particular, Mr Pun contends that the Institute did not have proper regard to the following matters:
69.In respect of the matter referred to in §68(1) above:
70.In respect of the matter referred to in §68(2) above, I have already dealt with the issue of whether it is open to the Institute to come to the view that the CSPP Programme is a part-time program. As pointed out by Mr Chan:
71.Lastly, in respect of the matters referred to in §68(3) and (4) above, it is not with disrespect to Mr Pun that I do not propose to analyse in detail whether the CSPP Programme has “adequate” clinical training or “sufficient” diversity in placement settings, or whether CSPP Programme’s supervision arrangement “equally achieves” the purposes of the 3 components which the Institute considers to be essential for training clinical psychologists, for that would be to stray into the impermissible territory of merits review. What seems to me to be significant is that even in the Project Director’s Submission, it is said that there are, at least, two different models of training clinical psychologists, ie the Apprenticeship Model and the Competency-Based Model, which differ in the way supervision is provided as well as in the underlying theoretical model of supervision. It is also clear from the Project Director’s Submission that the Apprenticeship Model is a well-recognised and established training model which has been the prominent supervisory training model for clinical psychologists in Hong Kong. Whether the training provided under the CSPP Programme is “adequate” or “sufficient”, and whether it can achieve the same purposes of the said 3 components, are primarily matters for professional judgment by the accreditation body. Mr Chan is correct in his submission that it is not for the court to determine which is the most desirable training model for clinical psychologists in Hong Kong. I do not see how the Institute’s negative view of various aspects of the training provided under the CSPP Programme, or its view that the training provided under the CSPP Programme is not equivalent to that provided by other local programs recognized by the Institute, can be said to be unreasonable in the Wednesbury sense. 72.In all, Ground (3) of judicial review is rejected. 73.Having reached the above conclusions, it is not necessary for me to consider whether the present application should be refused because of the existence of alternative remedies, namely, an appeal against the accreditation decision made by DH based on the recommendation of AA. Had it been necessary to do so, I would have rejected the argument that such appeal is an effective alternative remedy for the Applicants for the reasons given in §6 of this court’s decision dated 3 November 2020. 74.I also do not accept the Institute’s suggestion that the proper respondent to the present application should be AA and/or DH. The Registration Policy and Education Standards containing the Impugned Registration Requirements are promulgated by the Institute, not AA or DH. The proper respondent to the present application seeking to challenge the Impugned Registration Requirements should, therefore, be the Institute. DISPOSITION 75.The application for judicial review is dismissed. The parties are agreed that costs should follow the event. I therefore make an order that the Applicant shall pay the costs of the Institute, to be taxed if not agreed, with certificate for 2 counsel. 76.The Applicants’ summons dated 30 March 2021 is also dismissed on the ground that the matters contained in the 4th Affidavit of the 2nd Applicant are not relevant, or sufficiently relevant, to justify its late admission. The court accepts the submissions made by Mr Chan in the “Speaking Note for HKICP” dated 30 March 2021 on the lack of relevance of the proposed evidence. The costs of the summons shall be treated as part of the costs of the application for judicial review.
Mr Hectar Pun, SC, Mr Anson Wong Yu Yat & Mr Jason Kung, instructed by JCC Cheung & Co., for the 1st and 2nd Applicants Mr Johannes Chan, SC leading Ms Allison Wong, instructed by Ho, Tse, Wai & Partners, for the Respondent [1] As at May 2016, there were some 15 types of healthcare professionals who were not subject to statutory registration and regulation: audiologists, audiology technicians, chiropodists/podiatrists, clinical psychologists, dental surgery assistants, dental technicians/technologists, dental therapists, dietitians, dispensers, educational psychologists, mould laboratory technicians, orthoptists, prosthetists/orthotists, scientific officers (medical) and speech therapists. [2] See §9(2) of the 5th Affidavit of Poon Mak Sui Man. [3] For details, see §§28, 33, 35 and 42 and Table 1 at §54 of the 1st Affidavit of Poon Mak Sui Man filed on 15 May 2020. [4] Bundle BE2, p 360.13. [5] Bundle BE2, p 360.14. [6] See §14(1) of the 5th Affidavit of Poon Mak Sui Man. [7] See §79 of the 1st Affidavit of Poon Mak Sui Man. [8] See the Society’s letter to the Panel dated 23 February 2017, at §4. [9] See §73 of the 1st Affidavit of Poon Mak Sui Man. [10] See the emails exchange between the Society and Ms Laura Rhymes, Program Manager, Credentialing and Compliance, National Register of Health Service Psychologists, between 25 and 31 October 2018. [11] See Ms Laura Rhymes’ email dated 26 October 2018. [12] See ASPPB webpage tilted “Joint Designation” at Bundle BE5, p 883. [13] See ASPPB webpage tilted “ASSPB Position Statements” at Bundle BE5, p 1064. [14] See letter from ASPPB/NR to Doctoral Program Director dated 19 April 2013 at Bundle BE2, p 360.18. [15] See BE 5, p 1080. [16] See BE2, pp 475-476. | |||||||||||||||||||
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