Lw v. The Medical Council of Hong Kong
Read the full judgment text of HCAL 1072/2021 on BabelCite. This High Court CFI judgment was delivered on 1 April 2022.
1. This application raises an important question about the ability and the desirability for the Court to receive evidence about the private and confidential deliberations conducted amongst the members of a disciplinary panel prior to the open pronouncement of the panel’s reasoned decision.
Cited by 1 case · Cites 10 cases
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HCAL 1072/2021 [2022] HKCFI 734 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1072 OF 2021 ________________________ BETWEEN
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________________ DECISION ________________ A. Introduction 1.This application raises an important question about the ability and the desirability for the Court to receive evidence about the private and confidential deliberations conducted amongst the members of a disciplinary panel prior to the open pronouncement of the panel’s reasoned decision. 2.The question arises in the context of an intended challenge by way of judicial review. The Applicant is the widow of the deceased Mr Y (“Patient”), who had been under the care of the Interested Party, a doctor in general practice, Dr M (“Doctor”). The Applicant made a complaint to the Putative Respondent, the Medical Council of Hong Kong (“Medical Council”) in relation to the Doctor’s treatment of the Patient. Ultimately, after investigation, charges were preferred against the Doctor, and a hearing of the inquiry into those charges took place on 30 April 2021 (“Inquiry”). 3.At the Inquiry, the Panel (“Panel”) of the Medical Council which conducted the Inquiry found the Doctor guilty of professional misconduct in respect of both charges, on his own admission. By its written decision (“Decision”), the Panel determined that the Doctor’s name should be removed from the General Register for 3 months, ordering that such removal be suspended for 18 months, subject to the satisfaction of a number of conditions designed to improve aspects of his practice (“Sentence”). 4.In these proceedings, the Applicant seeks leave to apply for judicial review to challenge the Decision, on the basis that the Sentence was inadequate. Broadly, as identified in the Form 86, the intended grounds of review are that the Panel (1) failed fully to investigate the facts, (2) failed to take into account relevant considerations, and (3) failed to apply consistent sentencing policy. 5.I originally gave directions for the filing of evidence and a ‘rolled-up’ hearing to address both the application for leave and the substantive application for judicial review. I fixed the date for the ‘rolled-up’ hearing as 8 December 2021. 6.However, by summons (“Intervention Summons”) and his supporting affirmation both dated 22 November 2021, the Intended Intervener (“L”) applied for leave to intervene in the proceedings and to file evidence, as well as to make representations in the judicial review proceedings. 7.L was one of the five members of the Panel, he being one of the two lay (non-medical) members/assessors of the Panel. His application is made for the purpose of disclosing certain information (“Confidential Information”) relating to the Panel’s private and internal discussions and decision-making/reasoning process before it reached and pronounced the Decision and Sentence. 8.The Intervention Summons was opposed by the Medical Council. I also took the view that (1) where L seeks leave to intervene in the Applicant’s application for judicial review, that is a matter on which the Applicant is entitled to be heard, and (2) where the underlying challenge is to a decision of the Panel of the Medical Council in relation to disciplinary charges against the Doctor, it may be a matter on which the Doctor would wish to be heard (though I had already otherwise excused his attendance at the ‘rolled-up’ hearing). Further, I noted that the Intervention Summons might itself give rise to significant points with potentially wider-reaching consequences, which merited an oral hearing. 9.In those circumstances, I vacated the ‘rolled-up’ hearing date, and gave directions for the hearing of the Intervention Summons. Amongst the directions, I required L’s application and supporting affirmation to be served on all interested parties, except that I directed the Confidential Information to be redacted from the copy materials served on the Applicant and the Doctor. As a result, neither the Applicant nor the Doctor (nor their legal advisers) have had sight of the Confidential Information. 10.The hearing of the Intervention Summons took place remotely, using VCF, on 16 March 2022. At the hearing: (1) L was represented by Ms Sabrina Ho and Mr Arthur Poon of Counsel; (2) the Applicant was represented by Mr Anthony Neoh SC, leading Ms Barbara Wong and Mr Jiang Zixin of Counsel; (3) the Medical Council was represented by Mr Anthony Ismail of Counsel and Ms Carmen Siu, Senior Government Counsel; and (4) the Doctor was represented by Mr Timothy Parker of Counsel. 11.At the end of the hearing, I reserved my decision. This is my Decision. 12.But before turning to the detail of the matter, I would specifically point out that, though I will traverse some of the ground as will necessarily be traversed in the ‘rolled-up’ hearing in due course, I remind myself (1) that I am not yet deciding the issues in the intended underlying judicial review challenge and (2) that any views I appear to express on those issues is only preliminary or provisional and for the purpose of resolving the issues which arise on the Intervention Summons. B. Further Background 13.The Doctor is a general practitioner. The Patient was one of his general practice patients, having consulted the Doctor on and off for some 10 years. The Doctor knew at the time of the events material to the subsequent Inquiry by the Panel that the Patient had a history of end-stage renal failure, and was receiving peritoneal dialysis. 14.The Patient consulted the Doctor at his clinic on five occasions during the period from 31 October 2016 to 11 November 2016. He was diagnosed with, among other things, acute gouty attacks. The Doctor prescribed to the Patient (1) Colchicine on 31 October 2016 and 3 November 2016, and (2) Methotrexate on 7 November 2016 and 11 November 2016. 15.The Patient saw the Doctor at his clinic on 14 November 2016, complaining of deterioration in physical condition. Upon the Doctor’s referral, the Patient attended the Accident and Emergency Department of Pamela Youde Nethersole Eastern Hospital (“PYNEH”) later the same day. 16.According to the medical records obtained from PYNEH, the Patient was found to have pancytopenia upon admission, and later found to have deranged liver function and coagulopathy. The Patient suffered sudden deterioration on 17 November 2016, with cardiac arrest. He was resuscitated with intubation and high-dose inotropic support. His clinical presentation was compatible with multiple organ toxicity of severe Colchicine and/or Methotrexate poisoning. The Patient remained in critical condition, and sadly passed away on the evening of 18 November 2016. 17.Following the Applicant’s complaint made, with the assistance of a District Councillor, to the Medical Council, an investigation began. On 22 January 2019, the Preliminary Investigation Committee (“PIC”) invited the Doctor to comment on the complaint (framed in terms similar to the charges ultimately raised). The Doctor admitted the complaint. As part of his explanation for the prescription of Colchicine and Methotrexate, the Doctor said it was for treatment of the Patient’s gout attack and/or psoriatic arthropathy. 18.The course of treatment, as well as the Patient’s deterioration and its causes, were considered in an Expert Report provided to the Medical Council by Dr Shum Yuk Wah (“Dr Shum”) in June 2020. It is relevant for present purposes simply to note that Dr Shum made certain comments and stated two conclusions. The Comments and the two Conclusions are as follows:
19.It seems that the two conclusions reached by Dr Shum formed the basis of the charges raised against the Doctor. By Notice of Inquiry dated 8 February 2021, the Doctor was informed that he was charged as follows (“Charges”):
20.The Inquiry was conducted in accordance with the provisions of the Medical Registration Ordinance Cap 161 (“MRO”). 21.The Panel constituted to conduct the Inquiry comprised five members, three medical and two lay. As already noted, L was one of the lay members. L is a registered professional engineer. He had been appointed as a lay assessor by the Medical Council in January 2020, and had been a member of two previous panels. Though he mentions in his affirmation the very limited training or briefing given to him on his role as a lay assessor, L plainly understood that decisions are taken in “closed-door deliberations amongst panel members” (his own words), and that there was, and he owes, a duty of confidentiality as to the information concerning those closed-door deliberations. 22.At the Inquiry, various materials were produced, including: (1) a Statement of Agreed Facts signed by the Legal Officer (i.e. the ‘prosecutor’) and the solicitors for the Doctor; (2) a bundle of documents prepared by the Secretary of the Medical Council, including the expert reports of Dr Shum; and (3) a mitigation bundle, including a written plea in mitigation submitted on behalf of the Doctor. The Doctor’s own medical records and most of the records of the Patient with PYNEH from 2010 to 2016 were not produced. No witnesses were called to give live evidence. 23.At the Inquiry, the Doctor admitted the Charges. In his written mitigation submissions, it was said (amongst other things):
24.On behalf of L, it is pointed out that during the Inquiry – that is, prior to the Decision and the Sentence – the following questions or topics were canvassed by the Legal Adviser with the Panel and the parties: (1) whether the Doctor’s clinical suspicion that the Patient was suffering from psoriatic arthritis was genuine and valid; and (2) whether the Doctor’s medical records supported that suspicion. Reference can be made to parts of the transcript of the Inquiry (where ‘LA’ is the Legal Adviser to the Panel and ‘DS’ is the Defence Solicitor for the Doctor), in particular:
25.Before the members of the Panel retired into their private deliberations, the Legal Adviser (as is usual) gave his legal advice to the Panel before the parties and their legal representatives. Other than the general reminder to the Panel that the role of the expert report is to assist the Panel’s understanding of the matter, but all questions of fact and law are for the Panel to decide and not for the expert, no part of that legal advice touched on the question about the basis for the diagnosis leading to the prescription of Methotrexate. 26.The transcript of the Inquiry shows that the Panel members then retired for discussion. After returning, the Chairperson delivered, or read out, the findings of the Panel. Those findings can be seen from the transcript, but they have also been subsequently reduced into the written Decision (with numbered paragraphs to which I can refer). 27.In the Panel’s Decision, under the heading ‘Findings of the Inquiry Panel’, (at §12) the Panel noted that the Doctor admitted the factual particulars of the disciplinary charges against him and indicated that he was not going to contest the issue of professional misconduct. The Panel referred (at §13) to the unchallenged evidence of Dr Shum and agreed with his conclusion that the prescription of repeated doses of Colchicine to a patient on peritoneal dialysis is grossly improper and inappropriate. Hence the Panel found (at §14) the Doctor guilty of misconduct in a professional respect as per disciplinary Charge (a). The Panel also (at §16) referred to and agreed with Dr Shum’s conclusion that prescription of Methotrexate to a patient on peritoneal dialysis is grossly improper and inappropriate. Hence the Panel also found (at §17) the Doctor guilty of misconduct in a professional respect as per disciplinary Charge (b). 28.As it has given rise to some of the argument on the Intervention Summons, it is helpful to set out the entirety of §16 of the Decision (italics in original):
29.Following the announcement of the findings of professional misconduct, the Panel invited and heard the Doctor’s plea in mitigation. After that, the Chairperson invited the Legal Adviser to advise the Panel on the sentencing options and the facts for consideration in sentencing. After identifying the various sentencing options as set out in section 21 of the MRO, the Legal Adviser stated:
30.Again, there was no specific reference in that advice to the basis for the diagnosis leading to the prescription of Methotrexate. 31.The Panel then again retired to consider and determine the sentence. Upon return, the Chairperson of the Panel delivered, or read out, the Sentence. This can be seen from the transcript, but again it was reduced into the written Decision (with numbered paragraphs to which I can refer). 32.The Panel’s written Decision therefore continues in §§18-24 under the heading ‘Sentencing’. The Sentence itself is set out in §24. Those paragraphs read as follows:
33.The Doctor did not appeal from the Decision and Sentence, and by now 11 months of the suspended sentence period has passed. 34.The Applicant began these proceedings by her Form 86, Notice of application for leave to apply for judicial review, dated 28 July 2021. As already stated, the Form 86 identifies the intended challenge as being against the Decision of the Panel, of course names the Medical Council as Putative Respondent. No other person was identified as an Interested Party. Nevertheless, on 1 November 2021 – notably after the Medical Counsel filed its affirmation in opposition to the Applicant’s challenge – the Applicant served the Form 86, her affirmation and the affirmation in opposition on L (and, I think, the other individual members of the Panel). It is said to be that service which prompted L to seek to intervene. 35.It can also be noted that, since L issued the Intervention Summons, the Applicant has made an application to amend her Form 86 (and then a further application to offer different proposed amendments to her Form 86). I have not yet dealt with the amendment application, so the original Form 86 is the prevailing version, and it was the one prompting L’s application to intervene. In any event, I think it fair to say that, whichever version is considered, the thrust of Ground 1 remains the same, namely the allegation that there was a failure to have discharged the duty to make “due inquiry” into a number of questions which the Applicant asserts ought to have been answered. C. L’s Stance 36.In the Intervention Summons itself, L sought leave to make representations at the hearing of the substantive judicial review application. However, in Ms Ho’s oral submissions, she made clear that L (now) only intends to file evidence in the substantive judicial review, so as to disclose the Confidential Information (and the remainder of the affirmation is to explain the basis of the Intervention Summons and the relevance of the Confidential Information to what she says are the issues in the substantive judicial review). 37.Now that any application to make representations has been abandoned, the purpose of intervention would only be to adduce the Confidential Information as evidence. In other words, the aspects of intervention and adducing evidence stand or fall together. 38.Ms Ho submits that L considers himself duty-bound to make this application with the aim of bringing the Confidential Information to the attention of the Court. It is said that the Confidential Information is relevant to Ground 1 as found either in the original Form 86 or the proposed Amended Form 86. 39.Whatever his stated motive, it is also clear from L’s affirmation that he was personally dissatisfied with the Decision, and in particular the Sentence. It appears he was in the minority on the decision-making, because his affirmation has specifically pointed to his understanding that “there is no procedure for a dissenting member of the Inquiry Panel to have his views recorded or summarised in the Medical Council’s final Decision”. I was also told by Ms Ho at the hearing that L had given his name card to the Applicant after the Inquiry. As I have also already pointed out, the application as originally formulated sought leave for L to make representations in the underlying judicial review. 40.Therefore, though it is not in any way determinative of, and perhaps is not even very relevant to, the current consideration on the Intervention Summons, I am afraid I take with ‘a pinch of salt’ the suggestion that L seeks to intervene to provide the Confidential Information irrespective of whether it assists either the Applicant or the Medical Council in the underlying substantive judicial review. 41.On the basis of what is evident from the Decision itself, it is said on behalf of L that two aspects were not explained at all in the Decision, being:
42.On behalf of L, those two questions have been defined as the “Key Aspects”. However, that definition is plainly ‘loaded’ or self-serving, and it seems to me to be preferable to adopt a neutral definition. I shall refer to them simply as the “Questions”. 43.First, it can be noted that there is plainly no difficulty for anyone (including even this Court) to identify that the Questions were not dealt with in the Decision. Secondly, there is in any event no complaint in the Form 86 that the Panel failed to provide adequate reasons for the Decision. The reasons can be read for themselves, and if they give rise to an inference of a failure in the decision-making process, that can be identified. 44.But, Ms Ho submits that, because of the lack of explanation as to the Questions, the Decision of the Panel is open to four possible interpretations:
45.Ms Ho submits that the Court needs to consider these possible interpretations. As she puts it, it is not about whether the Questions were taken into account, but rather why they were or were not. In short, she says that with the benefit of the Confidential Information the Court would not have to resort to guesswork to ascertain why the Panel has come to its sentencing decision. D. Broad Outline of Arguments 46.On behalf of L, Ms Ho submits in outline:
47.On behalf of the Medical Council, Mr Ismail submits in outline:
48.On behalf of the Applicant, Mr Neoh submits in outline:
49.On behalf of the Doctor, Mr Parker submits in outline:
50.From this identification of the broad outline of the arguments, I think that it might be convenient and appropriate to address the following, albeit overlapping, issues under separate headings, as follows:
E. The Short Answer 51.However, before looking at the detail and coming to the conclusion the longer way round, it seems to me that there is a simple and short answer to this Intervention Summons. 52.Leaving aside for the moment whether it could ever be appropriate for an apparently dissenting member of a unitary or ‘corporate’ decision-making body to seek to place before the Court materials relating to the private and confidential discussions of that body:
53.Now to the longer way round. F. The Statutory Regime for an Inquiry 54.Under section 2 of the MRO an “assessor” means a “lay assessor” appointed under section 20BB(4) or a “medical assessor” appointed under section 20BC(4). However, section 20BD makes clear that the general duties of both types of assessor are the same. 55.Section 3B of the MRO provides that the Medical Council shall have a Legal Adviser, who shall be appointed by the Chief Executive. 56.Section 20S provides for the establishment of the PIC. Section 20T provides for the functions of the PIC and its chairman, as follows:
57.Section 21 of the MRO provides for the disciplinary powers of an inquiry panel. In so far as is material for present purposes, section 21 is in the following terms:
58.Though less directly relevant for present purposes, it can in passing also be noted that section 21(4B)-(4D) provides that an inquiry panel may, within 14 days of its decision, review that decision on its own initiative (but not otherwise), and if it decides so to do it may invite the parties to appear before it again and make further submissions, before deciding whether to affirm, vary or revoke its decision. 59.As is clear, “due inquiry” means an inquiry by an inquiry panel conducted substantially in accordance with procedure prescribed by regulations made under section 33 of the MRO. Though it may be obvious, an inquiry conducted substantially in accordance with the procedure in the relevant regulations simply means that the procedure in the regulations must be complied with in substance. 60.It is also clear that, whatever else is meant by “due inquiry”, the process of the inquiry will be informed by (1) the charge, (2) the facts alleged in the charge, and (3) the evidence that is adduced to prove the facts alleged in the charge. 61.In my view, what amounts to a “due inquiry” is a question of law, and the scope of a “due inquiry” does not turn on the facts of any individual case – though the scope and content of the duty is context specific. Whether in any case there was compliance with the duty to conduct “due inquiry” – that is, an inquiry substantially in accordance with the procedure in the regulations – is a question of fact, and it is the facts of the individual case which will therefore identify compliance or a breach in that case. 62.But, for the purposes of the Intervention Summons, I do not need to decide – and I do not finally decide – the correct scope of “due inquiry”, nor whether there was a “due inquiry” by the Panel. Those matters are for consideration and determination in the underlying application for judicial review. 63.The relevant regulations are the Medical Practitioners (Registration and Disciplinary Procedure) regulation Cap 161E (“DP Regulation”), though reference can be made also to the Medical Registration (Miscellaneous Provisions) Regulation Cap 161D (“MP Regulation”). 64.Under section 6 of the MP Regulation, a legal adviser must be present at every inquiry held by an inquiry panel under section 21 of the MRO, and the inquiry must not be commenced if a legal adviser is not present. 65.Section 8 of the MP Regulation provides that the advice of the Legal Adviser shall not be confidential:
66.Section 13(4) and (5) of the DP Regulation require, amongst other things a notice of inquiry to be served on the defendant, and that the notice of inquiry must specify in the form of a charge or charges the matters into which inquiry is to be held. 67.Section 16(2) of the DP Regulation permits the charge on the notice of inquiry to be amended:
68.Part IV (sections 19 to 34) of the DP Regulation provides for ‘Proceedings at an Inquiry of an Inquiry Panel’. The matters provided for include, but are not limited to: public or private hearing; adjournment; representation; record of proceedings; objections on points of law; order of procedure; evidence; voting; and review by inquiry panel. 69.Section 31 of the DP Regulation makes provision for ‘Evidence’ as follows:
70.Sections 32 of the DP Regulation provides for ‘Voting’, as follows:
71.In summary, the inquiry panel’s deliberations take place in private, behind closed doors, with only the members and assessors of the inquiry panel and the Legal Adviser present. The Legal Adviser does not participate in the deliberation or the voting, and his role is to advise the inquiry panel on any question of law as to evidence, procedure or any other matter in any inquiry. His advice, even if given during deliberations, is not confidential, and should be given in front of or notified to the parties. But it can be noted that the only part of the private deliberations which the legislature has directed is allowed to be, and should be, disclosed is the giving of legal advice by the Legal Adviser. 72.Decisions are made by the taking of votes from the members and assessors, where each member and assessor (but not the Legal Adviser) has a single vote. As was the fact in this particular case, there can be no equal or tied votes, because there are altogether five members and assessors on the inquiry panel. If the voting is not unanimous, the decision of the majority will be taken as the final decision of the inquiry panel. In other words, the inquiry panel decides by the majority rule, and the majority decision is the joint decision of all members of the inquiry panel arrived at after deliberation. Dissenting minority voters are bound by the decision of the majority voters. 73.It follows that the intended challenge by way of judicial review in these proceedings is to a decision of the Panel (that is, the single decision of the Panel as a whole, and not to the decision of any or some individual members of the Panel). 74.At this point, it is perhaps also helpful to remember that on a judicial review challenge to that type of decision, the Court is concerned with the decision-making process and does not act as an appellate body. It does not ordinarily evaluate the relative strengths and weaknesses of the evidence, or engage in any weighing of relevant considerations, because those are matters for the decision-maker (perhaps particularly where that decision-maker is a professional body such as the Medical Council). G. Order 53 rule 5B and Intervention 75.RHC Order 53 rule 5B is headed ‘Court’s powers to hear any person’ and provides as follows:
76.A similar provision exists in Order 53 rule 9(1), though L places no reliance on it. 77.Therefore, the Court shall not grant leave for a non-party to file evidence or make representations unless satisfied that the proposed intervener – here L – is a proper person to be heard. 78.When considering whether the proposed intervener is a proper person to be heard, the Court will address the five ‘primary’ considerations identified by the Court of Appeal in QT v Director of Immigration (unreported, CACV 117/2016, 8 June 2017), affirmed in QT v Director of Immigration (Leave to Intervene) (2018) 21 HKCFAR 150 (“QT(CFA)”); and in ZN v Secretary for Justice [2018] HKCA 255 at §8. Though the relevant observations were made in the context of ‘public interest’ interventions, I think it right that they are of general application. 79.The five ‘primary’ considerations are:
80.There are also additional or explanatory principles or considerations to be divined from the analysis of various authorities performed in QT(CFA) at §§10-18. They seem to me to include the following:
81.I would also respectfully endorse the summary offered by Chow J (as Chow JA then was) in Junior Police Officers’ Association of the Hong Kong Police Force v Electoral Affairs Commission [2019] HKCFI 2887 at §5. Subject to considerations of specific prejudice to the parties to the proceedings, the primary consideration of the court when deciding whether to permit intervention is whether the proposed intervener is likely to be able to provide additional, material, assistance on either law or fact or the consequences of the court’s judgment which it is unlikely will be provided by the immediate parties to the proceedings. 82.Rule 5B also requires the application to be made “promptly”. H. The Competing Public Interests H.1 Which Public Interests Are Engaged? 83.The parties have identified the following areas of public interest as being potentially engaged:
84.In considering those duties, reference can also be made to the balancing of certain duties in varying circumstances. H.2 All Facts and Matters before the Court 85.There is no dispute that there is a general principle of public policy that the administration of justice requires that all facts and matters relevant to a legal dispute should, generally speaking, be put before the court: see for example Ho Loy v Director of Environmental Protection [2016] HKCFI 951 at §28. However, in the same paragraph, it was recognised that there may well be exceptions to this principle. In particular, there may be occasions when the public interest in the administration of justice must give way to a greater public interest (for example, the public interest in avoiding harm to society as a whole). 86.Relevantly, it has also been recognised that confidentiality may sometimes have to yield to the general public interest that in the administration of justice truth will out. In D v National Society for the Protection of Cruelty to Children [1978] AC 171 at 218B-C, it was said:
87.As it was also put slightly differently in the same case, at 246D:
88.The facts and matters which public policy ordinarily requires to be available to the court in the determination of a legal dispute are those facts and matters relevant to that dispute. But, even assuming a relatively broad approach to the question of relevance, there may be countervailing features in the case, not least arising from other aspects of the public interest. H.3 Medical Council’s Duty 89.There is no dispute that the MRO is designed to protect the public from the risk of practice by medical practitioners who are incompetent or unfit to practice, and to maintain and sustain the reputation of, and public confidence in, the medical profession in Hong Kong. The Medical Council as the governing body is under a duty to protect the public against incompetent medical practitioners: see, for example, Law Yiu Wai Ray v Medical Council of Hong Kong [2016] 4 HKC 1 at §115. 90.I also accept that, when deciding on sentences, the Medical Council must have regard to its wider duties as a professional disciplinary body, which include ensuring the penalty reflects the gravity of the occasion, maintaining the reputation of the medical profession and preserving the confidence of the public in the profession. H.4 The Duty of Candour 91.The law on the duty of candour in judicial review proceedings was considered in Chu Woan Chyi v Director of Immigration [2009] 6 HKC 77 at §§11-21. Focusing on those aspects which are relevant for present purposes, I can summarise some of the relevant principles as follows:
92.Where the duty of candour arises, it is a duty placed on the decision-maker. In this case, that is the Panel as represented by the Medical Council as Putative Respondent to the intended judicial review challenge to the Decision. H.5 Duty of Confidentiality of Closed-Door Deliberations 93.There is obviously no dispute between the parties that there is a clear duty of confidentiality owed in relation to the closed-door deliberations of bodies such as the Panel. But it is important to understand why such a duty exists. 94.In Roylance v The General Medical Council [1999] UKPC 3, it was held that public interest immunity attaches to in camera discussions of the General Medical Council (“GMC”). In refusing to order disclosure of the untranscribed shorthand notes of the relevant in camera deliberations, Lord Steyn stated at §4:
95.The Roylance case was revisited, and the same question arose again in Roylance v The General Medical Council (No. 2) [2000] 1 AC 311, and in a passage at 323G-325D, which can usefully be quoted at some length:
96.The Duke of Buccleuch case referenced in the above quote has been considered in Hong Kong, for example in Cheung v Insider Dealing Tribunal [2000] 1 HKLRD 807, where the Court of Appeal held that it was contrary to public policy to admit evidence concerning the deliberations of the members of the tribunal, unless questions of misconduct on the part of an adjudicator in the decision-making process arose. The Court also held (at 814E) that it was inadmissible to question or seek evidence from the tribunal members for the purpose of identifying how the decision was arrived at, what items it included, or what meaning was intended at the time to be given to it. 97.I agree with those propositions, and the logic for them. 98.Similar principles of policy were espoused – albeit in the context of the deliberations of an arbitration tribunal – in P v Q [2017] 1 WLR 3800 at §§59-64. From those paragraphs, one might distil the following:
99.A further useful statement can be found in Chairman and Governors of Amwell View School v Dogherty [2007] ICR 135, where the Employment Appeal Tribunal (“EAT”) refused to admit unauthorised recordings of the private deliberations of the employer’s disciplinary hearing panel, on the ground of public interest. It was noted (at §71) that there is an important public interest in the integrity of the private deliberations of a panel adjudicating on any matter of dispute, particularly where all parties to the dispute knew in advance that the adjudicating body would not only deliberate privately but would later promulgate a decision with reasons. 100.These points were elaborated at §§72-73 as follows:
101.Further as to balancing the duty of confidentiality of private deliberations against other duties, reference can be made to another EAT case, Fleming v East of England Ambulance Service NHS Trust (unreported, UKEAT/0054/17/BA, 28 November 2017) at §17. Whilst noting the important factors that the case was concerned with an internal grievance/disciplinary panel in the employment context – rather than with a statutory panel of inquiry – and that the relevant private deliberations were not final deliberations, it can nevertheless be pointed out that the EAT (amongst other aspects) considered that:
102.The decision in R v Poole Borough Council, ex parte Beebee [1991] 2 PLR 27, is also helpful as to the underlying rationale. There it was stated (at 31):
103.I also share these grave reservations about the usefulness of this sort of exercise when there is no allegation of bad faith, and the concerns as to the theoretical difficulties in establishing the reasoning process of a body which acts by majority decision. 104.Ms Ho places great reliance on the case of R (on the application of Young) v Oxford City Council [2002] EWCA Civ 990, as showing that any potential dispute as to the content of the Confidential Information should not preclude the Court from receiving it in evidence. She submits the case is clear authority of a case in which further evidence was admitted from the members of the decision-making body to explain why they made the decision subject to the challenge. 105.However, in my view, that misunderstands the case. In fact, the case was not concerned with why a decision was made but rather with what decision was made (there being two different possibilities, with different potential public law consequences). This is clear from §§5-6, which stated:
106.The following warning was given in the case at §§20-21:
107.It was also added at §25:
108.Ultimately, the Court allowed the materials to be adduced as being relevant and admissible essentially because – and only because – the relevant procedure had not been followed by the decision-maker, and it was impossible to know with certainty the basis upon which the decision to grant planning permission was made, namely which power had been used and what decision had been made. 109.As will be seen below, that is not the position in this case, and so the Oxford CC case does not assist L’s position, but – as Mr Parker submits – is instead against it. H.6 Judicial Privilege or Judicial Immunity 110.Mr Ismail also sought to place some reliance on the principle of judicial privilege or judicial immunity. That principle is that anything said or done by anybody in the course of judicial proceedings is protected by absolute privilege. 111.The foundation of the principle is well known. The rationale is one of public policy, to protect the integrity and effectiveness of the judicial system and thereby the public interest. It is based upon the idea that judges must be able to exercise their functions free from any danger that they might be called to account for any words spoken as judges. The doctrine has, of course, been extended to tribunal’s exercising functions equivalent to those of an established court of justice. 112.Though settled, I do not think this particular principle need be considered further in the context of the Intervention Summons. In my view, it is essentially either irrelevant or neutral to the necessary analysis for present purposes. I. Is the Confidential Information Relevant? 113.I have already indicated why Ms Ho submits that the Confidential Information is relevant to Ground 1, and why it will assist in identifying the right interpretation of the Panel’s approach to the Questions. 114.Mr Parker submits that the approach taken for L is based on a misapprehension of the proper scope of the issues that were live before the Panel, and hence the scope of the issues that will be material in the judicial review application. As might be summarised by me, he pointed out:
115.I tend strongly to agree with those submissions. However, it is probably not necessary or appropriate for me to reach a final conclusion on them. This is because I agree with Mr Parker’s further submission that the matters considered by the Panel, and the reasons for reaching its views, can (and must) be ascertained from the written Decision. The proposed evidence from L is not relevant for that purpose. Secondly, nothing raised by the Legal Adviser during the Inquiry could have bound the Panel, which is the decision-maker entitled to attribute the weight and materiality to any particular matter which it thinks fit. 116.But, even more importantly, the thrust of Ground 1 is the alleged failure to have addressed and answered the Questions, including if necessary by seeking further evidential material. But, there is no dispute as to what evidence was before the Panel, and that which was not. There is, and there can be, no dispute as to whether the Panel sought further evidential material not already before them. Further, the thrust of the complaint itself is based on the averment that one can see from the Decision itself that the Questions were not addressed and answered. If that was a breach of some public law principle, that can be identified. 117.An issue has also been raised as to whether there is a difference between materials used in proof of the charge, and those used for the purposes of sentencing. This has also been traversed in the context of whether the Panel in this case was entitled to go outside the basis of the Charges, when coming to considering sentence after the finding of professional misconduct on those Charges. 118.In Dr Wong Tak Lun v Medical Council of Hong Kong (unreported, CACV 57/2013, 21 February 2014), the Court of Appeal considered a case in which the major complaint of the appellant was that he went to a disciplinary hearing expecting to face, and to admit, a regulatory offence arising through a failure to exercise due care, but came away from the hearing having been punished for misconduct in a way which revealed bad faith or dishonesty. One of the issues arising was whether it was open to the Medical Council when dealing with the conviction of failing to exercise due care to punish the offender on a basis of dishonesty. At §48, it was stated:
119.Reference can also be made to the case of Dr Wu Daniel Yiang v Medical Council of Hong Kong (unreported, CACV 162/2013, 15 December 2014) at §§38-41, where the Court of Appeal considered a case in which it was suggested that the doctor had been convicted on a different basis from that with which he was charged. It pointed out the enormous difference in culpability between a neglectful failure to comply with professional standards and a wilful failure to so comply that is motivated by an intention by the professional to advance his own interest to the detriment of his patient. At §§40-41, it said:
120.This point was addressed by Ms Ho, in particular in her reply submissions. She refers to the case of Moody v General Osteopathic Council [2008] EWCA Civ 513, which raised what was described as an important issue of principle or practice: the admissibility, in relation to the proper sanction for professional misconduct, of evidential matters going not to the proven charges but to the generality of the practitioner’s work. In the case, it was held that:
121.Ms Ho also refers to Gomez on ‘The Regulation of Healthcare Professionals: Law, Principal and Process’ 2nd Ed at §29-015, which references the Moody case. That text also refers to a subsequent appeal in Roomi v General Medical Council [2009] EWHC 2188 (Admin) where the appeal was allowed because the fitness to practice panel’s finding of impairment by reason of Deficient Professional Performance was based on findings that went beyond the allegations in the notice of hearing. The particular failure was not part of the charges, so the panel could not properly rely on it for that reason. 122.My provisional view is that that, in the present proceedings, we are likely in Roomi territory and not Moody territory. But final resolution of that point can await proper argument in the underlying judicial review proceedings. The real point for present purposes is, though, that the evidence which was and which was not before the Panel is clear, what was said at the Inquiry is clear, and the Panel’s reasoning for the Decision and Sentence is on the face of the written Decision. 123.This leads to a connected point, though not exactly the same as the duty of confidentiality – namely the principle in judicial review proceedings that contemporaneous written reasons of the Decision Maker must speak for themselves. Therefore, parol evidence is admitted only exceptionally, and for the limited purpose of clarifying ambiguities in the original decision. 124.In essence, where written reasons are given and they are clear and unambiguous, it is not open to individual members of the decision-maker (whether one or all of them) to give evidence to add to, vary or contradict the reasons which have been given on behalf of all of them: see, for example, Breen v Amalgamated Engineering Union [1971] 2 QB 175 at 192H. This is based on the principle that where a tribunal has given a decision and expressed it in language from which a court can ascertain what the decision was, the court will not accept evidence to say that the tribunal meant something else. Indeed, it is settled that a court exercising its supervisory judicial review jurisdiction will be astute to prevent any attempt by the decision-maker to provide material which may comprise reasoning after the event, or alteration or contradiction of what is otherwise apparent from the written decision. 125.The primary source for identifying the reasons for a decision must be found in the written decision itself. Where there is any ambiguity in the reasons, that ambiguity can be resolved by reference to evidence, provided that that evidence is credible and authoritative. However, this makes it inherently unlikely that evidence of the relevant debate or discussion would normally be admissible: see R (on the application of P Richards & G Richards) v Pembrokeshire County Council [2004] EWCA Civ 1000 at §58. As also pointed out in that paragraph, reasons which could have been, but were not, in the decision-makers’ minds are immaterial, and it would require exceptional circumstances before the court would be prepared to entertain evidence of any other nature to enable reasons to be given for a decision. 126.The complaint in the intended judicial review challenge to the Decision and the Sentence is that, although a particular matter was raised for discussion during the Inquiry, the Panel made no further inquiry into that particular matter and gave a written Decision which on its face identifies that what is said to be the relevant Questions were not addressed and answered. 127.The Confidential Information is not relevant to the resolution of Ground 1 as suggested. For that reason alone, the Intervention Summons falls to be dismissed. J. Balancing the Duties 128.However, even if the Confidential Information were to be regarded as relevant, there would still need to be performed the balancing exercise by reference to the various public interest duties. 129.Ms Ho submits that balancing the nature and quality of the Confidential Information against the public interest of preserving the privacy of closed-door deliberation, the Court should exercise its discretion to allow disclosure of the Confidential Information. She says (a) it is directly relevant to whether the Panel properly discharged its duty to make “due inquiry” under section 21 of the MRO, (b) it is highly probative, and (c) it would fill “the gap in the evidence on the Inquiry Panel’s decision-making/reasoning process” with regard to the Questions, being information absent from the Decision. 130.But, in my view already stated, there is no relevant gap in the evidence, as it is perfectly clear what matters were before the Panel and what they say they took into account in making the Decision and passing the Sentence. Once the proper scope of the duty of “due inquiry” is shown, nothing else is necessary to understand whether the Panel properly discharged that duty. 131.Ms Ho also points to the fact that the accuracy of the Confidential Information is not being challenged. However, first, I think that jumps the gun, where the application is being objected to as a matter of principle and the Medical Council has understandably not so far addressed the accuracy or otherwise of the Confidential Information. Secondly, the Panel is independent and separate from the Secretary to the Medical Council, who conducts this litigation in a different capacity than that of the Panel. Thirdly, the submission also raises the spectre that, in addition to the satellite litigation relating to intervention, there may even be ‘satellite satellite’ litigation relating to the accuracy or otherwise of materials sought to be put in by the proposed intervener. 132.As to Ms Ho’s submission that the scope of the Confidential Information is confined, because L is not seeking to disclose the content of the entire closed-door deliberation, but rather only “certain episodes during the deliberations” which he says are directly relevant to the Questions, I think that submission itself identifies part of the flaw of the argument. There seems to me to be little likely probative value in receiving evidence about part of what might have been said by some of the members of the Panel, when (a) that might not be properly understood out of context as to what those members have said at different times, or what other members have said at different times, and (b) where some members may not have expressed all of their own thinking or any development of their own thinking during the deliberations and decision-making process. This is essentially the point made in the Beebee case (see above), with which I am in total agreement. 133.I also reject Ms Ho’s submission that allowing disclosure of the Confidential Information in the present case would not open any floodgate. As I pointed out during the hearing, the word “floodgate” has two elements comprising (a) the flood and (b) the gate. Allowing the Confidential Information in the present case seems to me almost certain to unleash a flood of similar applications, potentially from both any individual members of decision-making bodies as well as from other persons seeking to challenge the decisions of those bodies, whether patients or their relatives or doctors. 134.With respect, it is naive to think that allowing disclosure of the Confidential Information in this case would have no repercussions beyond the case. Whilst it might be correct that the Court would (where apt) be able to close the gate on an individual application, that would not necessarily stop the flood. History teaches us that the mere fact that a Court says something will be permitted only in exceptional circumstances does not prevent a raft of applicants arguing – often with the benefit of the ingenuity of their lawyers – that their case is one of the exceptional ones. 135.As to Ms Ho’s submission that the disclosure would not cause any chilling effect to deter volunteers from serving on inquiry panels of the Medical Council, I disagree. I think it would naturally dampen panel members’ openness in discussions, not least in light of the legitimate concern that each utterance – including of still inchoate thoughts and developing reasoning – might later be minutely parsed and pored over by lawyers and courts. Indeed, this chilling effect has been specifically identified in previous authorities, to some which I have already referred. 136.Further, in so far as Ms Ho suggests disclosure would remind future inquiry panels that they should explain their decision-making/reasons properly and adequately in the written decision, that is already a settled feature of public law – and if there is a relevant failure to give proper and adequate reasons in any individual case, that can be addressed. 137.Of course, I accept Ms Ho’s submission that there is a distinction between “elucidation” and “alteration”, and the danger which is to be guarded against is one where originally faulty reasons are sought to be cured by later evidence, or where the later evidence exhibits a significant or fundamental shift of ground from the reasons given at the time. 138.But, in this particular case, there is no ambiguity in the reasons given, as are set out in the written Decision. The criticism is based upon the evident fact that those reasons do not address and answer the Questions, which the Applicant says should have happened. To my mind, if it can be established that it should have happened but it is known that it did not happen, the appropriate legal consequences can flow, and it is irrelevant as to why it did not happen and any attempt to explain why it did not happen is almost certainly to offend the underlying rationale for excluding extrinsic evidence as to reasoning. 139.I do not accept the submission that the Confidential Information does not seek to alter the effect of the Sentence, but simply to elucidate and explain the reason why the Panel came to the Decision and Sentence. But, for reasons I have explained, I also think that material is simply unnecessary. 140.Further, in any event, I am absolutely certain that on any balancing exercise in this case, the balance is firmly in favour of maintaining the confidentiality and privacy of the closed-door deliberations of the Panel. 141.Ultimately, in the absence of any suggestion of fraud or bias or other form of bad faith, whatever the material in the Confidential Information, it is not based on any criticism of sufficient gravity to justify the step of enquiring into the iterative workings and deliberations of the Panel. 142.Having reached that view on the balance, no question of confidentiality undertakings or any other form of protection relevant to mitigating the breach of confidentiality needs to be further considered. K. Is L a ‘Proper Person’? 143.Looking at the five ‘primary’ considerations identified in the QT case:
144.Enlarging on that last point, L was a member of the decision-making body whose Decision is impugned in these proceedings. First, he is bound by the Decision. Secondly, in being a party to the Decision, he performed a quasi-judicial function. Thirdly, therefore, he has no legitimate interest in the outcome of the judicial review to challenge the Decision: see, for example, Nattrass v Attorney General [1996] 1 HKC 480 at 489B-G. 145.In that case, it was held that a judge did not fall into the category of a ‘proper person’ to be heard on a challenge to his decision. Keith J thought the notion of a judge being able to be heard by Counsel to justify a ruling which he has given in an inferior court to be “bizarre”. It was wholly inappropriate and unseemly for any attempt to be made for the judge who made the ruling to seek to justify the stance he took. That logic would, in my view, apply equally to a minority member of a decision-making panel. But, more importantly, it was also held that where reasons have been given for the ruling, the words should speak for themselves. I agree. 146.Both those main points were also made in Orrico Philippe v Municipal Services Appeals Board [2015] 4 HKLRD 111 at §§23-24, where Lam VP (as Lam PJ then was) said:
147.Perhaps another way to test the question is as follows. Assuming the present proceedings had not been commenced by the Applicant, it might be asked whether L would have been able to commence any proceedings arising (at a minimum, in part) from his apparent dissatisfaction with being in the minority element of the Panel making the Decision and passing the Sentence – and to do so by seeking to place the Confidential Information before the Court. Absent any suggestion of fraud, bias or other bad faith, such proceedings – in effect a challenge to the Decision of the Panel by part of the Panel itself – seems to me to be inconceivable. It is difficult to think that intervention in someone else’s challenge should allow something to occur indirectly which it is inconceivable might be permitted directly. 148.In short, I do not think Order 53 rule 5B is intended to be a means for a dissenting minority voter of a decision-making body to intervene and “assist” in a judicial review application that seeks to quash the final decision of the majority voters which is binding on him. That is especially so, when the intervention is solely to seek to put in evidence the closed-door deliberations which led to the majority, and binding, decision of the decision-making body (here the Panel). 149.There is also the point that every participant in the Inquiry must be taken to have understood the rules and procedures under which that Inquiry would be undertaken. Those rules included that: (1) the Panel’s deliberations as to findings of professional misconduct and any relevant imposition of sentence would be conducted in private behind closed doors; (2) in contrast to the position of the remainder of the Inquiry, no notes or transcript would be made of the closed-door discussions; and (3) the only aspect of the closed-door deliberations which would ever be disclosed would be, as required, notification of any legal advice provided to the Panel by the Legal Adviser. 150.Not only did every participant know those rules in advance, and conduct the Inquiry on the basis of them, they are the rules set by the statutory regime. 151.It would take something truly exceptional to depart from those rules and the basis upon which the Inquiry was knowingly conducted. The circumstances of this case are very far from such a position. 152.L is not a proper person to make this application on the Intervention Summons. L. Whether L has acted Promptly 153.In light of my other conclusions, it is probably unnecessary to deal with the question whether L has acted promptly in seeking to intervene in these proceedings. 154.It probably suffices to point out that I doubt I would have refused the application on its timing alone. M. Conclusion 155.The Intervention Summons is dismissed. 156.For the avoidance of doubt, though I have read the Confidential Information de bene esse for the purposes of dealing with this application, I confirm that no part of that material will be taken into account in the underlying judicial review challenge. I also direct that the Confidential Information shall not be provided in form or substance either to the Doctor or the Applicant. N. Costs 157.The event of the application is clear, but as there are numerous parties that may complicate the question of costs. Therefore, though I might give a costs order nisi, I think it is preferable to permit the parties to review this Decision, and for me simply to reserve the question of costs to be dealt with on paper submissions. 158.Submissions should be provided by the Medical Council, the Doctor and the Applicant by 5pm on 14 April 2022, and by L by 5pm on 22 April 2022. 159.Any application for summary assessment of costs should accompany the costs submissions, with any relevant Statement of Costs attached. Any opposition to such an assessment should be with opposing submissions and any relevant List of Objections. 160.Unless I require any further submissions, which I shall then direct, I will then proceed to deal with the question of the incidence of costs, and the assessment of costs, on paper. O. Future Conduct 161.I propose to re-fix the previously vacated ‘rolled-up’ hearing. For that purpose, I invite the parties to suggest any suitable procedural directions, including by reference to those potential directions identified in PD 26.1. 162.Obviously, L will not be a party to any part of the future proceedings. But I would invite the Doctor to indicate whether he now wishes to continue to be an active party or return to the position adopted by him before the Intervention Summons, namely that he be excused from further attendance. [Post-Decision Note: The proceedings were ultimately resolved on agreed terms offered in a consent summons and accepted by the Court on 22 July 2024, that the application for leave to apply for judicial review be withdrawn with no order as to costs.]
Mr Anthony Neoh SC, Ms Barbara Wong and Mr Jiang Zixin, instructed by Paul C.K. Tang & Chiu, for the applicant Mr Anthony Ismail, instructed by the Department of Justice and Ms Carmen Siu, Senior Government Counsel, of the Department of Justice, for the putative respondent Ms Sabrina Ho and Mr Arthur Poon, instructed by Lau & Chan Solicitors, for the intended intervener Mr Timothy Parker, instructed by Mayer Brown, for the interested party | |||||||||||||||||||||||||||||||||
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