Tam Chi Ming v. The Medical Council of Hong Kong

HCAL 118/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 118 OF 2006

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BETWEEN

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Before: Hon A Cheung J in Court

Date of Hearing: 8 June 2007

Date of Judgment: 28 June 2007

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J U D G M E N T

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Facts

1.The Applicant is a registered medical practitioner in Hong Kong.  He specialises in cardiology.  He has obtained a qualification known as “Diplomate, National Board of Echocardiography, Adult Comprehensive Echocardiography”, after successfully completing a one-year full time training in advanced echocardiography at University of California, San Francisco (UCSF) in 2002/2003 and passing the relevant examination and certification process organised by the National Board of Echocardiography (NBE) in the United States in 2003.  The qualification was conferred on him by NBE in 2004.

2.Very briefly, according to the Applicant, echocardiography is a subspecialty in cardiology, using ultra-sound to assess the anatomy, function and haemodynamics of the cardiovascular system.  The practice of echocardiography is operator-dependent and its interpretation requires expertise acquired through adequate training.  It has many applications in diagnostic test in cardiovascular medicine.  It has a large curriculum and is not a simple test within a narrow scope.  According to the Applicant, echocardiography is one of the most common diagnostic tests in cardiology done by cardiologists throughout the world.  In the United States, diagnostic echocardiogram can only be done and interpreted by cardiologists with credentials of adequate training in echocardiography before reimbursement of the expenses concerned may be claimed from insurance schemes and national health programmes. 

3.In February 2004, the Applicant applied to the Medical Council of Hong Kong, the Respondent, to include his qualification in the “List of Quotable Qualifications” maintained by the Respondent.  Inclusion of the qualification in the List is a prerequisite to communication of such qualification with public users of medical services.  In other situations, such as communication with fellow doctors and other health care professionals or in academic and scientific conferences, any qualification may be quoted irrespective of whether it is included in the List.

4.Various documents and materials were supplied by the Applicant to support his application.  Apart from the relevant academic documentation, the Applicant also supplied to the Education and Accreditation Committee (EAC) of the Medical Council responsible for maintaining the List of Quotable Qualifications general information issued by NBE on the examination of special competence in adult echocardiography, and a letter dated 10 August 2006 from the President of the American Society of Echocardiography (ASE) giving a brief introduction of ASE, NBE and the qualification in question – NBE was formed in December 1998 under the auspices of ASE and the Society of Cardiovascular Anesthesiologists in the States.  Besides, he supplied EAC with information obtained from the official website of ASE, as well as a letter dated 15 August 2006 from the President of NBE giving a brief description of NBE, the examination and certification process organised by NBE and the qualification in question; the letter also enclosed general information on the website of NBE.  Furthermore, academic publications such as “Guidelines for Optimal Physical Training in Echocardiography” and a “Clinical Competence Statement on Echocardiography” issued by the American College of Cardiology (ACC), American Heart Association (AHA) and American College of Physicians–American Society of Internal Medicine (ACP-ASIM) Task Force on Clinical Competence were supplied by the Applicant.

5.On 16 March 2004 and 18 April 2004, EAC sent two e-mails to NBE for advice on the requirements for obtaining the qualification in question.  On 20 April 2004, NBE gave some detailed advice on the requirements concerned.

6.On 27 April 2004 and 12 June 2004, EAC sent two further e-mails to NBE for advice on the official full title and abbreviation of the qualification.  A reply on the same was sent by NBE on 3 August 2004. 

7.On 9 November 2004, the Hong Kong Academy of Medicine provided the Chinese translation of the qualification to EAC. 

8.On 21 January 2005, EAC discussed the application in its 58^th meeting.  According to the evidence filed on behalf of the Respondent, members of EAC were concerned about “the standard and level of competence of the qualification”.  It therefore decided to obtain views from the Hong Kong College of Physicians (HKCP).  Neither in the evidence filed nor in the correspondence between EAC and HKCP is it mentioned what concerns EAC actually had about “the standard and level of competence of the qualification”.

9.In any event, the letter to HKCP was sent on 7 February 2005.  On 4 April 2005, EAC got a reply from HKCP, advising EAC that the qualification was just based on a procedure and not a specialty, and therefore HKCP would not evaluate the qualification. 

10.Pausing here, it should be immediately pointed out that many clinical specialties or subspecialties are based on some diagnostic or interventional procedures showing extra training or skill, and some of them, for instance, diagnostic radiology (a diagnostic procedure) and cardiological interventional skill (an interventional procedure) have been approved by the Respondent as quotable qualifications. 

11.On 15 April 2005, EAC again discussed the application in its 61^st meeting.  This time it decided to obtain views from the Hong Kong College of Cardiology (HKCC).  HKCC’s views were sought because the panel of HKCC consisted of a number of leading and esteemed practitioners in the field of cardiology and it was thought that their views could provide substantial assistance in the matter.  A letter dated 29 April 2005 was sent to HKCC to solicit its views on the standard and competence of the qualification and whether the qualification had satisfied the requirements of the relevant criteria for quotable qualifications.  A copy of the criteria was enclosed for HKCC’s reference.

12.On 20 May 2005, upon the inquiry of the Applicant about the progress of his application, EAC informed the Applicant that it had decided to seek advice from professional medical organisations and consideration of the application would be deferred pending such further advice.

13.On 6 October 2005, EAC received a one-paragraph letter dated 30 September 2005 from HKCC.  The letter said that HKCC had discussed the issue and had sought further information from the United States.  At the end, the HKCC was still “having reservation about the standard of the examination process, as well as the nature of the institution organising the examination”.  No elaboration on the discussion held, the further information sought, nor the reservation entertained was made in the letter.  Nor is the same set out in the evidence filed in these proceedings. 

14.According to the evidence filed, EAC discussed the matter again in its 66^th meeting on 21 October 2005.  Treating the reply from HKCC as an interim reply, it decided to await the final assessment by HKCC on whether the standard and level of competence of the qualification satisfied the requirements of the published criteria for vetting quotable qualifications, before making any recommendation to the Respondent.  A letter in such terms dated 2 November 2005 was sent to HKCC.  Again, a copy of the criteria was attached.

15.By letter dated 11 January 2006, HKCC informed EAC that it had discussed the issue and was still in the process of obtaining further information.  The letter did not say what further information was being obtained.  Neither does the evidence filed in these proceedings shed any light on the matter. 

16.Very understandably, the Applicant was becoming increasingly anxious about his application, which had by then been outstanding for two years.  A letter dated 23 February 2006 was sent by the Applicant to EAC to enquire about the progress of his application.  A short reply dated 9 March 2006 was given by EAC to the Applicant, informing him that EAC had decided to seek advice from a professional medical body. 

17.On 3 March 2006, 2 May 2006 and 29 June 2006, three reminder letters were sent to HKCC, inviting them to provide EAC with its views on the qualification.

18.On 5 July 2006, EAC eventually received a reply from HKCC dated 4 July 2006.  Again it was a very short letter, and it reads as follows:

“Further to my last letter, I wish to inform that the Hong Kong College of Cardiology has not obtained any further useful information to enable the College to assess whether the above captioned qualifications fulfil the criteria of quotable qualification as stipulated by the Medical Council of Hong Kong.  This matter was discussed again in the last meeting of the Council Members of the College.  The general feeling of the Council Members was, with the lack of useful information, not to rush into a decision and tend to decline their accreditation for the time being.  …”

19.Quite plainly, the letter did not explain, for instance, what further information HKCC had hoped to obtain to enable it to assess whether the qualification fulfilled the criteria of quotable qualifications, whether it had received any such further information, and if “yes” why the same was considered not “useful”, and from whom or where HKCC had sought to obtain the further information.

20.It should also be noted that the letter did not specifically repeat the “reservation about the standard of the examination process, as well as the nature of the institution organising the examination” expressed in HKCC’s earlier letter dated 30 September 2005.  It simply said that with the lack of “useful information” – whatever it might be, the general feeling was not to rush into a decision and therefore the council members of HKCC tended to decline the accreditation of the qualification for the time being. 

21.I should add that the evidence filed in these proceedings has not made the picture in this regard any clearer.

22.Nor is there any suggestion in the evidence filed that EAC has sought clarification along the lines indicated in the preceding paragraphs or for that matter, any clarification at all, from HKCC, after receiving HKCC’s last letter.

23.Be that as it may, according to the evidence filed, on 21 July 2006, EAC discussed the matter in its 73^rd meeting.  According to paragraph 44 of the first affirmation of the chairperson of EAC filed in these proceedings,

“On 21 July 2006, the EAC discussed the matter in its 73rd Meeting.  Having considered all the available information including HKCC’s advice, the EAC still had reservation about the standard of the examination process as well as the nature of the institution organising the examination.  In the absence of useful information to assess the qualification in question, the EAC came to the view that the application should not be approved for quotability.  The EAC decided to recommend to the Council that the application be rejected.”

24.In the chairperson’s second affirmation, she elaborated on EAC’s thinking process:

“10.  HKCC in its letter dated 30 September 2005 (“TWKG-11) informed the EAC that after seeking information from the United States it still had reservation about the standard of the examination process and the nature of the institution organising the examination.  There was no reason for the EAC and the Council to doubt HKCC’s opinion, in view of the fact that the panel of HKCC consisted of a number of leading practitioners in cardiology and would have proper knowledge of the development in the field.  On the other hand, despite its efforts up to 4 July 2006 (“TWKG-16”) HKCC was unable to obtain further useful information for assessing the qualification, the EAC and the Council were in no better position to obtain such information.  Having exhausted all the available avenues for further information, the Council decided to make a decision on the basis of the available information.  In any case, it is the responsibility of the Applicant to provide information to satisfy the EAC and the Council that the qualification fulfilled the requirements for inclusion in the List.

11.  Having considered all the information provided by the Applicant and the opinions of HKCP and HKCC, the Council was not satisfied that the qualification satisfied the requirements for inclusion in the List.  Therefore, the application was rejected.  It is incorrect to say that the Council has not considered the documents and information provided by the Applicant (paragraph 43 of the Applicant’s second Affidavit).”

25.On 2 August 2006, the Respondent endorsed the recommendation of EAC in its 266^th policy meeting.  The Applicant was notified of the result by letter on 5 August 2006.  The letter explained:

“The Committee has considered all the information on the captioned qualification and the advice of a professional medical body.  In the absence of useful information for the Committee to ascertain whether the captioned qualification had fulfilled the Revised Criteria for Vetting Quotable Qualifications, the Committee considered that it was not appropriate to allow quotability of the captioned qualification.  In the light of the above, the Committee decided to recommend to the Council that the application should be rejected.  The Council endorsed the Committee’s recommendation at the Policy Meeting held on 2 August 2006.”

26.Dissatisfied with the decision of the Respondent not to accredit his qualification, the Applicant lodged an appeal with the Respondent on 17 August 2006.  Arguments as well as further materials and information were supplied.

27.On 4 October 2006, the Respondent decided at its 268th policy meeting to uphold its previous decision to reject the application, and the appeal was dismissed accordingly.  By letter dated 9 October 2006, the Applicant was informed that the Respondent maintained its previous view and the appeal was rejected.  No further reason was given.

28.Aggrieved by the decision of the Respondent, the Applicant commenced the present judicial review proceedings to challenge the Respondent’s last decision communicated to him by letter dated 9 October 2006, having obtained leave to do so from the Court on 21 November 2006.

Quotable Qualifications Scheme

29.The statutory functions of the Respondent are prescribed by the Medical Registration Ordinance (Cap 161) and the regulations made under the primary legislation.  The primary functions of the Respondent are to oversee the registration of medical practitioners, the conduct of the licensing examination as well as the maintenance of ethics, professional standards and discipline in the profession. 

30.In order to avoid confusion to the public and to assist patients to make an informed choice of doctors, the Respondent has decided that it is necessary to regulate the quoting of qualifications by doctors in their communication of information to the public.  Such regulation is thought necessary to maintain public confidence in the medical profession and to protect the public from misleading information.  The Quotable Qualifications Scheme has been set up under those circumstances. 

31.The objectives of the Quotable Qualifications Scheme are:

“	(i)	To give recognition to the basic medical education that was required of a person to be registered as a medical practitioner in Hong Kong;
	(ii)	To give due recognition to further instruction/training that may significantly enhance the clinical expertise of the medical practitioner in the particular specialty or subspecialty of the quoted qualification;
	(iii)	To provide such information to the public so that the latter would have knowledge of what significant additional training, relevant to medical practice, that the medical practitioner has undergone and achieved recognition in;
	(iv)	To provide other medical practitioners with information of specialty or subspecialty expertise of any medical practitioner, based on which relevant patient referrals to him or her can be done.”

32.The applicable criteria for vetting quotable qualifications at the time the Applicant made his application was the “Revised Criteria for Vetting Quotable Qualifications”, the so-called 2004 Revised Criteria.  There has since been a set of Amended Revised Criteria published in 2006 which does not apply to the present application.  The 2004 Revised Criteria were as follows:

“	(i)	satisfy fully the spirit of the Professional Code and Conduct as is expressed in paragraph 4.
	(ii)	been ordinarily acquired through formal assessment by a recognised medical body, or assessment involving some sort of public vetting of the evaluation process (for example external examiners) from a recognised medical body acceptable to the Education and Accreditation Committee.
		(In this regard a recognised medical body would be :
		(a)	that providing tertiary education recognised by the Medical Council to be similar to that of the University of Hong Kong or the Chinese University of Hong Kong; or
		(b)	a post-graduate body with standards equivalent to that of the Royal Colleges or to those set by the Hong Kong Academy of Medicine.)
	(iii)	the course of study should ordinarily be full-time, post-graduate structured and supervised training or study related to medical practice of an appropriate duration which will be at least 6 months.  Where the course is not full-time, the Education and Accreditation Committee may apportion the equivalency in time if the Education and Accreditation Committee considers that the course is valid.
	(iv)	MD, MS awarded by a recognised medical body should be quotable.
	(v)	Honorary higher medical qualifications from recognised medical body as defined above should be quotable.
	(vi)	Master or PhD from recognised medical body shall be considered individually.  If the work leading to the degree is medically related, then the doctor may quote that degree.
	(vii)	An application for the quotability of a qualification will not be considered before the completion of the initial course leading to that qualification.”

Echocardiography

33.According to the Clinical Competence Statement on Echocardiography, which is a report of ACC, AHA, ACP-ACIM Task Force on Clinical Competence, developed in collaboration with the ASE, the Society of Cardiovascular Anesthesiologists and the Society of Paediatric Echocardiography, the Task Force on Clinical Competence was formed in 1998 to develop recommendations for attaining and maintaining the cognitive and technical skill necessary for the competent performance of a specific cardiovascular service, procedure or technology, and echocardiography is one such procedure.  The Clinical Competence Statement is evidence-based and, and when evidence is not available, expert opinion is utilised to formulate recommendations.  The purpose of the Clinical Competence Statement on Echocardiography has been explained as follows :

“However, over the past 15 years echocardiography has evolved into a family of techniques (Table 1), each one with unique applications and its own set of cognitive skills and training requirements.  Although the majority of these newer technologies were in their early phase of development in 1990, today they are used routinely in community hospitals all across the nation.  In addition, the application of echocardiography in children and adults with congenital heart disease (CHD) has evolved into a highly specialised modality with its own set of cognitive skills and training requirements.  Subspecialty societies such as the ASE have published recommendations for training and, in some cases, for competence in some of these newer techniques.  In addition, guidelines for training in adult cardiovascular medicine in the form of a suggested core curriculum (COCATS) have included recommendations on training in echocardiography, first in 1995 and currently in a revised version (4).  The recently formed National Board of Echocardiography (NBE) has also introduced guidelines for certification of special competence in adult echocardiography, which includes passing an examination in addition to specific training requirements.  Separate certifications are granted for transesophageal echocardiography (TEE) and stress echocardiography.  Recognising the growths in technology and the increased complexity of echocardiography, the members of the ACC/AHA/ACP-ASIM Task Force on Clinical Competence commissioned this writing group to provide a new set of recommendations that recognise the different cognitive skills required for each of the new modalities and that address training, documentation and maintenance of competence.”

34.The Clinical Competence Statement on Echocardiography, published in the Journal of the American College of Cardiology (Vol 41, No 4, 2003), has this to say about NBE and its examination and certification :

“Board Examination.  The NBE was formed in December of 1998 to establish criteria for Special Competence in Adult Echocardiography.  These requirements include the successful completion of a written board examination for Special Competence in Adult Echocardiography, known as the ASCeXAM, and the completion training requirements consistent with this statement and the COCATS document.

Certification.  The NBE has established a process to issuing certification for Special Competence in Adult Echocardiography, specifically in transthoracic two-dimensional and Doppler echocardiography, to physicians who have successfully completed all training requirements and have passed the ASCeXAM.  Specific details regarding certification are offered on the NBE web site: www.echoboards.org.”

35.It is clear from the Clinical Competence Statement, see for example Table 6 relating to documentation and maintenance of competence in transthoracic echocardiography, that NBE certification is regarded as an acceptable proof of competence under the Statement.

Preliminary observations

36.In this application for judicial review, the Applicant relies on a number of grounds to challenge the Respondent’s decision to refuse his application, which is in turn based on the recommendation of EAC. 

37.The Applicant accepts that public interest requires that there be a limited restriction on his fundamental freedom of speech guaranteed under the Basic Law.  Although both sides have referred generally to Dr Kwok-hay Kwong v The Medical Council of Hong Kong HCAL 46/2006, 11 August 2006, Reyes J (under appeal), no specific argument is based on it.  What the Applicant complains about is essentially that the Respondent has not done its job properly. 

38.It is plain from the events chronologically set out above that the Respondent/EAC has taken a very substantial period of time to come to its decision.  The original application was made in February 2004, and the eventual decision of the Respondent was only made in August 2006.  According to the evidence, including the affirmations filed as well as the exhibits available, the Respondent/EAC has not been satisfied with the fulfilment of the Revised Criteria on the information available regarding the qualification.  However, what concerns this Court is the total lack of particulars or elaboration on the Respondent/EAC’s dissatisfaction.  At the outset of the substantive hearing, the Court explained its concerns to Mr. Kwok, counsel for the Respondent, and asked if the Respondent had any further information or materials that could be provided to the Court by way of additional evidence.  After taking instructions, Mr. Kwok informed the Court that all relevant information and materials had been adduced before the Court.  They comprise two affirmations made by the chairperson of EAC and a number of exhibits to the affirmations, including the three short letters from HKCC.  There is no other evidence coming from HKCC.  Nor is there evidence of any other communication (written or oral) between EAC/the Respondent and HKCC.  The relevant minutes (if there are any) of the relevant meetings of EAC and the Respondent are not placed in evidence.

39.In those circumstances, I find the decision made as well as the decision-making process highly problematic.

Ultra vires delegation and abdication

40.First, it is not disputed that as a matter of public law, a decision-making body, entrusted with the duty, power and responsibility to make a decision must make that decision by itself, and by no one else; to do otherwise would constitute ultra vires delegation.  The principle has been stated in Wade & Forsyth, Administrative Law (9^th  ed) 311 as follows :

“An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else.  The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable.  Normally the courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents, sub-committees or delegates, however expressly authorised by the authority endowed with the power.”

41.Closely connected to delegation is the question of abdication, which has also been explained by Wade & Forsyth at pp 322 to 324 :

“Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another.  The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions.  The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void.  So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them. …

Clearly these rules ought not to be carried to the length of preventing one government department from consulting another, or of preventing government agencies from acting in accordance with government policy.  There must always be a difference between seeking advice and then genuinely exercising one’s own discretion, on the one hand, and, on the other hand, acting obediently or automatically under someone else’s advice or directions.”

42.On the facts of the present case, it is clear that a substantial part of the lengthy time that has been taken by the Respondent to reach its final decision has been spent on seeking and waiting for advice from HKCC.  Apart from HKCC, as mentioned above, EAC has also consulted HKCP, which has however declined to render any useful assistance since it has taken the view that the qualification only involves a procedure.  Mr. Kwok has specifically disavowed any intention to rely on that as a justification for refusing the application. 

43.As regards seeking advice from HKCC, HKCC being a body comprising a number of leading and esteemed practitioners in the field of cardiology in Hong Kong, no criticism can be made against EAC for so doing.

44.However, from the two substantive replies that HKCC has given to EAC during the lengthy period of waiting, all one can tell is that HKCC has had reservation about the standard of the examination process as well as the nature of the institution organising the examination, it has not been able to obtain any further useful information to assess whether the qualification fulfils the Revised Criteria, and it has therefore counselled caution in the matter as the general feeling is not to rush to a decision to accept the application.

45.That, again, in my view, is a fair enough view, even though, neither in the two very short letters from HKCC nor in the evidence filed in these proceedings, is one told in any detail what has been troubling HKCC and what further useful information it has sought, rather unsuccessfully, to obtain.

46.However, HKCC is not the body charged with the responsibility to approve or reject the application, or for that matter, to apply the Revised Criteria.  Rather, EAC has the task to make the recommendation, and the Respondent has the power and responsibility to make the final decision.

47.It is here that the question of ultra vires delegation or abdication comes into play.

48.It is clear from the chronology that after the lengthy wait for HKCC’s final reply, which eventually arrived on 5 July 2006, EAC met and decided on the recommendation to make on 21 July 2006, about two weeks after HKCC’s letter.  And then in less than a fortnight’s time, the matter went before a policy meeting of the Respondent on 2 August 2006, which accepted the recommendation of EAC to reject the application.  A letter of rejection was sent on 5 August 2006, one month after HKCC’s final reply.  As regards the appeal, it was disposed of in less than 2 months’ time.

49.Again, there is nothing against EAC and the Respondent acting expeditiously, particularly given the background that there has been a substantial period of waiting.  But what is really baffling is that there is no evidence before the Court, whether by way of affirmation evidence or documentary evidence, to suggest that EAC or the Respondent knew why HKCC felt unable to advise acceptance of the qualifications, apart from the very brief and general reasons set out in HKCC’s final reply which comprised only one substantive paragraph.  On the evidence available, there was no follow up correspondence or communication between EAC/the Respondent and HKCC for elaboration on the very brief reasons.  For instance, did EAC/the Respondent find out from HKCC what “useful information” HKCC had sought to obtain? Did they know whether any further information was obtained, and if yes, why that was not considered to be useful?  Did they know whether HKCC had obtained any negative information or reports from its sources regarding the qualification, the university training course or NBE, and if yes, what they were?  Did they know whom HKCC wrote to or contacted for such further information?  Did they find out whether HKCC fully understood the Revised Criteria and had properly applied the same to the facts in the present case?  On the materials before the Court and given the Respondent’s failure to take up the Court’s invitation to put in further evidence to explain the matter, the Court is driven to the conclusion that EAC and the Respondent did not find out any of these from HKCC.

50.It is in those circumstances that one must assess the Respondent’s claim that it has not abdicated its decision-making role to HKCC but has carried out an independent evaluation of the application, based not only on HKCC’s advice but also on all the materials available.

51.I have difficulty in accepting the claim.  Given the chronology of the matter, EAC and the Respondent obviously place much importance on HKCC’s view.  Not that this is wrong or impermissible.  But when HKCC comes up with a very brief reply, before the Respondent and EAC can rely on that reply as part of the reasons for their ultimate decision, they should first find out more from HKCC.  Otherwise, how can they tell, for instance, whether they should themselves make further enquiries or investigations into the qualification before deciding whether it has satisfied the Revised Criteria?  Put another way, their acceptance of HKCC’s view, which undeniably forms a major reason for their ultimate decision, is nothing but a blind acceptance – one that is not based on any objective and independent consideration, but rather on their confidence in the views of those eminent people comprising HKCC.  Indeed the second affirmation of the chairperson of EAC (extracted above) says so in terms.

52.In the circumstances, looking at the matter from the viewpoint of delegation and abdication and based on what is actually available before the Court by way of evidence, it is difficult not to reject the Respondent’s claim that it has carried out an independent evaluation of the available materials before reaching an informed decision to reject the application.  In other words, there has been an ultra vires delegation and abdication of the Respondent’s responsibility and power in the matter – despite its claim to the contrary, which is not permissible. 

53.In this regard, the Court must stress also the total lack of elaboration on what has been discussed in the crucial EAC and Medical Council meetings held on 21 July 2006 and 2 August 2006 respectively, after HKCC’s final reply has been obtained.  The minutes of those meetings have not been produced.  The affirmation evidence only gives a very sketchy description of the meetings.  The Court is simply left in the dark.

54.In all the circumstances of the case, the Court is driven to the conclusion that EAC and the Respondent have not exercised independent judgment and evaluation on the matter, but have unduly relied on the wholly unelaborated view of HKCC given in its final letter of reply.  In fact, when pressed during argument, Mr. Kwok is unable to inform the Court what “useful information” has been thought to be lacking in order for EAC to ascertain whether the qualification has fulfilled the Revised Criteria – the lack of useful information being a main reason given by the Respondent in its letter dated 5 August 2006 for rejecting the application.  I do not blame counsel for his inability to assist the Court.  Even if he were able to tell the Court anything, that would have been coming from the bar table.  The affirmation evidence filed in the proceedings is wholly silent on this matter.  Nor is there any documentary evidence exhibited to shed light on what is really meant by useful information or the lack of it.

Faulty decision-making process

55.This brings me to another perspective from which one could examine what has happened in the present case, which is equally troubling, namely, the decision-making process.

56.Given the nature of the discretionary decision in question, and given the rapid advances in medical science, EAC is not expected to have all the necessary knowledge and expertise on the varieties of qualifications that it may be asked to accredit.  The need to make enquiries and consult others is self-evident.  To do so, as part of the decision-making process, is not only permissible but, in many cases, the only right course to take, The present case is plainly one of them. 

57.As described, EAC has consulted HKCP and HKCC.  It has also written some e-mails to NBE at an early stage of the matter.  Of course, EAC has read the materials supplied by the Applicant, including the ACC/AHA Clinical Competence Statement referred to above.  That, apparently, however, is the sum total of what EAC has done in the present case.

58.Generally speaking, it is not for the court to tell a professional body like the Medical Council or EAC what enquiries, investigations or advices they should make or seek in situations like the present.  But the facts of the present case really leave many questions unanswered.  For instance, the main if not only reason given for rejecting the application is the lack of useful information.  What useful information was EAC or the Medical Council looking for?  Why have they not written (or written further) to UCSF, NBE, ASE or the internationally reputable ACC or AHA for further information or clarification?  Has any attempt been made to contact, for instance, the Royal Colleges in the United Kingdom or similar medical bodies in other developed Commonwealth countries for information or advice?  I am not suggesting for a moment that EAC or the Respondent should write to the whole world to make enquiries.  Far from it.  But those questions that I have raised are all reasonable questions to ask in the light of the wholly unelaborated views given by HKCC in its two short letters. 

59.It should be noted that at least from materials such as the ACC/AHA Clinical Competence Statement on Echocardiography, both ACC and AHA have apparently endorsed NBE and its examination and certification.  And on the materials filed in these proceedings, ACC is highly regarded by HKCC in the field of cardiology.  If the apparent endorsement by ACC of NBE in the Clinical Competence Statement is not regarded as sufficient or satisfactory, why has there been no communication with ACC for further clarification?

60.Of course, there might be questions of resources – the Court does not know, because none has been mentioned in the evidence.  But in any event, the deliberation process has taken over two years.  And as has been demonstrated by the e-mail communication between EAC and NBE, communicating with other American professional bodies such as ACC and AHA should not have been a problem.  At least no such difficulty has been suggested in the affirmation evidence. 

61.When the only substantial reason, which is a highly ambiguous one, given for the rejection of the application by the Respondent is the lack of “useful information”, I do not think it is a wholly unfair question to ask why further enquiries have not been made by the Respondent or EAC with these third parties that one can easily think of. 

62.I do not know whether there is an equivalent or similar quotable qualifications scheme in the United Kingdom.  The evidence is silent on it.  But even if there is none in the United Kingdom, there is nothing to stop EAC from writing to the Royal Colleges in the United Kingdom for general advice on this rather new subspecialty under cardiology.  Again I say this against the background that the only or main reason given for rejection is the lack of useful information.  The Royal Colleges, it should be remembered, are expressly referred to in the Revised Criteria as a sort of benchmark bodies for recognition purposes.

63.The Respondent has by evidence asserted that EAC has not seen fit to seek further information from the Applicant himself because:

“The whole exercise is to assess the standard and level of competence of a qualification and not the competence of the Applicant (who is usually a holder of the qualification).  Therefore, if it is necessary to obtain information on the qualification for the purpose of assessment, official information will be obtained from the conferring institution (which is in a better position to provide reliable and objective information on the qualification) rather than from the Applicant.” (Paragraph 20 of EAC’s chairperson’s first affirmation)

64.This may be correct as a very general statement of guidance.  But a rigid adherence to this statement could lead to very odd results.  Take the present case as an example: given it is felt that there is an absence of useful information, one would have thought that EAC should go back to the Applicant for the further useful information required.  From the evidence available, very few people in Hong Kong know much about echocardiography, and the Applicant would appear to be one of those who could provide useful information on the subject.  Of course, whatever he says, particularly that which involves subjective opinion or unofficial information, should be received with a suitable degree of caution.  But one would have thought that the Applicant should be in a position to supply further useful objective materials to EAC to assist its evaluation of the qualification.  After all, the apparently useful Clinical Competence Statement on Echocardiography issued by ACC/AHA has been produced by the Applicant.  It is a report published in a well-known medical journal in the States.  No one has suggested that the fact that the copy in question has come from the Applicant should affect the quality of the contents of that document.  It illustrates that the Applicant could be a source of further useful information, which has however not been tapped in the present case.

65.But not only that.  In the chairperson’s second affirmation, she actually says “it is the responsibility of the Applicant to provide information to satisfy the EAC and the Council that the qualification fulfilled the requirements for inclusion in the List”, as a partial explanation for rejecting his application.  That, in my view, makes asking the Applicant for further information even more important.  Yet, the plain fact remains that even up to now, neither the Applicant nor the Court knows what further information the Respondent or EAC is looking for or feels is missing.  In those circumstances, quite understandably the Applicant is simply in no position to assist further.

66.Indeed it is impossible for one to be more precise regarding what further enquiries should be made, given that one simply does not know what “useful” information EAC and the Respondent have considered to be lacking.  Put the other way round, unless and until EAC and the Respondent are prepared to tell the Applicant or the Court in more precise terms what further useful information they would like to have, the Court is unable to say, whether, for instance, they could or should write to UCSF, NBE, ASE, ACC or AHA in the States, the Royal Colleges in the United Kingdom or the Applicant in Hong Kong for such further information, clarification or advice, or whether in those circumstances, they should simply contact HKCC further for more details and advice on its view.  The Court is simply left in the dark.  And not only are the Court, and for that matter, the Applicant as well, left in the dark, Mr. Kwok is also left in a most unenviable position of having to defend his client’s position by making submission in the dark.

67.Again, I wish to emphasize that generally speaking, it is not for the Court to tell the Medical Council or EAC what investigations or inquiries they should make.  The Court, sitting in its public law function, will not intrude into this sort of professional area.

68.But in the very peculiar circumstances of the present case, including the state of evidence before the Court, the above doubts and queries assume significance.

69.At the end of the day, it is a matter of judgment.  Again the Court is driven to conclude that the deliberation or decision-making process involved in the present case has been faulty in the sense that insufficient efforts have been made to properly inquire into and evaluate on the qualification, due and generous allowance having been given to the possible differences that reasonable men may have regarding what would constitute a proper, appropriate and sufficient inquiry and evaluation.  The Respondent has thus failed to exercise its discretion properly.

70.Another way of putting the same point is that the resulting decision is arbitrary.

Outcome

71.For those reasons, the decision of the Respondent must be quashed.  I so order.  There will be an order of mandamus requiring the Respondent to reconsider the application in accordance with law.  The Respondent has through counsel accepted that costs should follow the event.  I therefore order that the costs of the application for judicial review, including the costs of the initial application for leave, be paid by the Respondent to the Applicant, to be taxed if not agreed.

72.I would like to thank both the Applicant and Mr Kwok for their assistance.

The Applicant, appearing in person

Mr Kwok Sui Hay, instructed by the Department of Justice, for the Respondent