Judith Mary Longstaff v. The Medical Council of Hong Kong
Read the full judgment text of CACV 70/1980 on BabelCite. This Court of Appeal judgment was delivered on 19 December 1980.
1. We allowed this appeal and said that we would give our reasons later.
Cited by 5 cases
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CACV000070/1980 Registered Medical Practitioner - alleged misconduct in professional respect - photograph of writer accompanying newspaper article -unobjectionable article intended to give information on medical matters to general public - no impropriety - duty of Legal Adviser.
----------------- Coram: Sir Alan Huggins, V.-P., Cons, J.A. and Garcia, J. Date of Judgment: 19 December 1980 ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.-P.: 1. We allowed this appeal and said that we would give our reasons later. 2. The Appellant, a registered medical practitioner, was found Guilty by the Medical Council of Hong Kong on the following charge:
She appealed against conviction. 3. We were told that there was no dispute as to the primary facts. The Appellant was invited by the South China Morning Post to contribute a series of articles on "Women and Health" for publication on the Women's Page of their journal. It was indicated to her that there would be a short introductory note about herself "to give authenticity and a medical background to the series". She made five express stipulations:
Subsequently she was told that a photograph of her would be published with the first article. The newspaper had photographs of her but they asked her for an up-to-date picture and she supplied one which had been taken when she was on holiday. The first article was in due course published, along with the photograph and an introductory note. The note contained matter which contravened her stipulations and which was in part inaccurate. A charge was laid in respect of this note, but the Council was not satisfied that she had acquiesced in the publication and that charge was dismissed. The article itself was not complained of in any way, but it was said that the supplying of the photograph constituted misconduct. 4. It is fair to say that the Medical Council clearly regarded the alleged offence as being of a somewhat technical nature, for the sentence they imposed was the least which it was open to them to impose, the sending of a warning letter without publication in the Gazette. Nevertheless, the Appellant considered that her conduct was not such as to warrant censure of any kind and she appealed to this court. 5. As usual in these cases we do not have any statement of the detailed findings of the Council. The only matters upon which there could have been said to be any issue were the intention of the Appellant in giving the photograph and the possibility of her gaining any advantage from its publication. It was never suggested to her that her motive was to gain an advantage, there was no evidence that it was and Mr. Hutcheon, who was called on behalf of the Council, said that the editorial purpose was "purely to describe the person doing it", i.e. writing the article. In those circumstances we must assume that the Council did not find an intention to gain an advantage. On the other hand, the absence of any suggestion that the publication might lead to some advantage does not. I think, compel us to say that it could not do so. Reliance was placed upon the Appellant's evidence that she intended to spend her entire career working in a hospital and not to go into private practice, but the Council was entitled to infer that even a physician in hospital service might be able to benefit his career by Publicising book or articles written by him. However, I have come to the conclusion that as a rule the possibility of advantage is immaterial if no advantage was intended. 6. There was argument addressed to us relating to the standard of proof required in such cases, but in my judgment we need not concern ourselves with the standard of proof in the present case. Just as it goes without saying that the burden of proof was on the Council, so it was axiomatic that a very high standard of proof was required: see Tarnesby v General Medical Council Privy Council Appeal No. 21 of 1969, where it was said:
However, as I have already indicated, I do not think there is any doubt at all as to the facts upon which the case falls to be decided. The real issue in the case was, though not strictly a question of law, one which was akin to a question of law, namely whether an intention to gain an advantage was a necessary ingredient of the offence charged. I say it was only "akin to" a question of law because, basically, it was for the Medical Council and not for the courts to decide what conduct amounted to "misconduct in a professional respect": the courts may intervene only if the rules prescribed are unreasonable. I shall return to that later and at this point will only comment that it was a little surprising, although one can appreciate the Council's conflicting roles of legislator, judge and prosecutor in matters of discipline and although Mr. Hidden has consequently made no complaint in this respect, that the Council is unwilling to advise a practitioner who is in doubt upon a point of etiquette. At least one other professional body does not feel so inhibited. There was evidence before up that the Appellant had, on a previous occasion, sought guidance from the Council and had been rebuffed, being told that she should seek "legal" advice. That might not have been much assistance upon a matter which was not strictly a matter of law at all. The fact that the Appellant took the trouble to seek advice was indicative of her anxiety not to offend and the rebuff explains her not seeking advice from the Council upon the present occasion. 7. A convenient starting point in considering the true nature of the offence is the statement in Rex v General Medical Council 1930 1 K.B. 562, 569 that "advertising misconduct in a "professional respect". Prima facie, therefore, proof of advertising was all that was required, but it becomes clear from the authorities that there can be advertising which does not amount to misconduct in a professional respect. Thus in Whitby v General Medical Council Privy Council Appeal No. 10 of 1963 the Board referred to the publication by institutions of advertisements or public appeals to which the names of well-known surgeons might be attached, and continued:
The contention on behalf of the Appellant was, therefore, that in so far as the Council might appear to prohibit advertising absolutely that would be unreasonable and it must be assumed that only self-advertisement which aims at securing a financial or professional advantage for the practitioner constitutes misconduct. 8. The intention of the Council must be gleaned from the guidelines provided in a Warning Notice which was published to the profession in 1976. It is right to say straight away that this notice is not to be construed as though it were a statute and that "one should look to the spirit of the guidance it gives": Ding Lik-kiu v Medical Council of Hong Kong Civil Appeal No. 50 of 1973. Mr. Hidden submits that the spirit of the notice in relation to advertising is that there must be moral turpitude to constitute misconduct. Mr. Strawbridge in effect says that that cannot be so because the notice expressly indicates the impropriety of the avoidable use of an identifiable photograph where, in an interview with the lay press, medical matters are under discussion: accordingly, since she admitted supplying the photograph complained of, the Appellant was inevitably guilty of the offence. It is necessary to set out in extenso the relevant paragraphs from the Warning Notice relating to advertising:
9. Although the final sentence in paragraph (a) says that it is no defence to a charge of advertising that a practitioner has derived no actual benefit from the publicity, so that it is the possibility of benefit which must be considered, the rest of the paragraph makes it clear that the essence of the offence is "self-advertisement ... which can reasonably be regarded as promoting his own professional advantage". Paragraphs (b) and (c) indicate particular types of advertising which may be regarded as misconduct. In two instances the advertising consists in commending or drawing attention to the attributes or services of the practitioner, and in respect of one of these paragraph (c) expressly states that the intention behind the publication is relevant. 10. It is paragraph (e) which most directly concerns the kind of advertising alleged against the Appellant. It must be said that the guidance there given does not define what is intended by the phrases "matters of public interest" and "matters of general interest" or say whether it was desired to exclude medical matters of public or general interest, although at least in relation to "matters of public interest" I think medical matters were not excluded. The first sub-paragraph relates, inter alia, to articles in newspapers by or about medical practitioners and includes articles on all subjects, both medical and non-medical. It is therefore not surprising that the mere indentification of the practitioner need not necessarily raise a question of advertising, although there is a caution added that the nature of the material printed may do so. That caution contains in parenthesis a reference to paragraph (f) and that paragraph once more directs attention to "the purpose which animated the writer". On the evidence in our case there can be no doubt that the article was written with a desire to give information about the health-care of women and to direct attention to that subject: it was "written impersonally in order to give "written to the general public". The difficulty in the case - and it is a difficulty which understandably led the Council to the decision they reached - stems from the second part of paragraph (e), for it does appear to suggest that when, as here, a medical matter is under discussion in an interview with the lay press a practitioner should preserve anonymity "both as to name and identifiable photograph". Mr. Strawbridge sough to contend that in spite of this there was a distinction between the attitudes to be taken towards the use of a photograph and the use of a name. I cannot agree. It is, I understand, accepted that the photograph accompanying this article was identifiable, although the reproduction of it in the appeal record is not. No one has suggested that the discussion between the appellant and Mrs. Walkers, the Women's Page Editress, was not the sort of "interview" with which the second sub-paragraph was concerned or that it was not "possible" to insist that no photograph be published. Whilst Mr. Strawbridge submits that this sub-paragraph directly prohibited the supply of the photograph, Mr. Hidden argues that the general tenor of the Warning Notice excludes any absolute prohibition and indicates that the mens rea required is not merely an intention to publish but an intention to publish in order to gain some financial or professional advantage. 11. Without necessarily accepting the whole of Mr. Hiddens argument I think what the Appellant did was not misconduct in a professional respect. If it be legitimate to publish an article on a medical subject under a practitioner's own name in order to give information to the general public, it cannot have been wrong to publish an identifiable photograph where the intention was to attract the attention of readers to the article and to emphasize that the writer was herself a woman and therefore likely to have a more sympathetic appreciation of women's problems. That such was the dominating intention is abundantly clear from the evidence of the Appellant's past conduct in relation to such matters. If she had also a hope that some legitimate meed of personal advancement might result, that could not fairly be said to render her action objectionable. As I have said, it was for the Medical Council to decide what conduct was unethical and this court will intervene only if the Council unreasonably limits the freedom of practitioners. The more directly the limitation relates to the practice of medicine, the less willingly will the court hold that the Council has been unreasonable, though where there is room for disagreement as to a proper treatment an honestly held opinion, even if wrong, plainly cannot amount to misconduct: see Felix v General Dental Council 1960 A.C. 704, 721. In relation to advertising it seems to me that any absolute prohibition against the use of a practitioner's name or an identifying photograph, even in connection with publication of articles on medical matters, would be unreasonable and that paragraph (f) of the Warning Notice recognises this. Thus in the majority of cases it will probably be right that the charge should include some such words as "for the purpose of obtaining patients or promoting your own professional advantage": see the charge in Gardiner v General Medical Council Privy Council Appeal No. 35 of 1960. I do not say that there might not be a case where, although the intention was in fact innocent, the probability of real personal advantage was such as to make the identification of the practitioner objectionable, but this was not such a case. 12. In coming to the conclusion that the verdict was not justified by the evidence I am not to be taken as agreeing with the submission that the Council failed to make a "due enquiry" or that there was something clearly wrong "in the conduct of the trial": see Libman v General Medical Council 1972 A.C. 217. The enquiry was conducted in exemplary fashion and the fact that, as I think, the Council came to a wrong conclusion was due to a misapprehension of the elements of the offence rather than to any procedural defect. We were invited to hold that there was an obligation upon the Legal Adviser, to direct the Council as to the burden and standard of proof if these matters were not mentioned by someone else in the course of the hearing, but I am not satisfied that there was any such duty, nor do I think Tarnesby v General Medical Council (supra) is authority to the contrary. Any attempt to assimilate proceedings before the Council with a trial by judge and jury must be resisted. Primarily the Legal Adviser's duty is to tender advice when asked. In addition he must not allow the Council to be misled and, if a party advances a submission which is bad in law or if he becomes aware that the Council in the Course of their deliberations are misdirecting themselves, it is his duty of his own motion to put matters right. Beyond that he is not required to go and this court will not normally entertain appeals on the general ground of "non-direction". Cons, J.A.: 13. I agree with the reasons just expressed. However, as we have seen fit to overrule the decision of a most eminent body, I would like to state shortly how the crux of the matter appeared to me. 14. At p.15 of the booklet issued by the Medical Council there is the sentence:
The words "medical practitioners in giving interviews to radio, television or the lay press should preserve anonymity" are printed in italics, presumably to give more emphasis. 15. It seemed to me on reading the record in this instance that in all likelihood the Council had taken the view that these words included an absolute prohibition upon the publication of a photograph in the lay press, whenever medical matters were involved, unless it was physically impossible for the practitioner to prevent it. Taking the section on advertising as a whole I do not for myself think that the Council so intended, or to impose any absolute prohibitions for that would be inconsistent with other parts of the section. If I am wrong in this, then I respectfully agree that such prohibitions would be unreasonable and could not be enforced. 16. In my view the sentence quoted does no more than show that the Council is alive to the great danger that in an interview with the media comments may be made to which insufficient consideration has been given in advance or that words may be misunderstood or unconsciously distorted; and that to avoid possible subsequent embarrassment the Council recommend, and strongly recommend, anonymity as a wise precaution. 17. The guidance given by the Council on advertising is lengthy and couched partially in general terms and partially by reference to particular and common circumstances. As I read the whole of it two basic principles emerge. 18. The first is that for any publicity to amount to advertising it must contain some element "which can reasonably be regarded as promoting (the practitioner's) own professional advantage". A lawyer would say that it must be "calculated" to do so, a phrase approved in this connection in Ding Lik-kiu v Medical Council of Hong Kong (unreported) Civil Appeal No. 50 of 1973. For present purposes it may be put in more general terms, that the publicity must either be intended or be likely to lead to some advantage to the doctor. It is not simply a question of subjective intent. It would be, for example, no excuse for a doctor to say that he really did not mean to benefit himself or that he personally did not realise that his conduct might do so. Nor is it simply a question of objective effect. Unsuccessful advertising will still remain advertising. 19. The second principle is that not all advertising in this sense amounts to professional misconduct. The Council appreciates that there are occasions when the practitioner unavoidably receives some professional advantage from his conduct, but that the benefit to him is acceptable in relation to the benefit given to the community at the same time. Whether any particular conduct falls within this category may become a matter for individual consideration by the Council. It has indicated in its guidelines that it will give consideration then to three questions:
20. It seemed to me that if the Medical Council had considered these questions in the light of the unchallenged evidence in this case the Council must inevitably have come to the conclusion that there was no professional misconduct. For that reason, I agree in allowing the appeal. 21. I would like further and in particular to endorse the opinion that there is no general duty on the Legal Adviser to the Council to advise on the burden or standard of proof, or indeed upon any other matter, unless he is asked for his opinion or unless he has some indication or reason to think that the Council is falling into error. No complaint can be made about the manner in which the enquiry was conducted in this instance. Garcia, J.: 22. I fully agree with the judgment of Huggins, V.-P. 23. There are dicta in Fox v General Medical Council 1960 1 W.L.R. 1017, 1021 supporting his view as to the duty of the Legal Adviser:
19th December 1980. |
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