Teoh Sim Chuan Timothy v. The Hong Kong Medical Council

cacv 37/2007

in the high court of the

hong kong special administrative region

court of appeal

(on appeal from THE MEDICAL COUNCIL OF HONG KONG)

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BETWEEN

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Before: Hon Rogers VP, Hartmann and Barma JJ in Court

Date of Hearing: 25 January 2008

Date of Handing Down Judgment: 1 February 2008

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J U D G M E N T

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Hon Rogers VP:

1.This was an appeal from a decision of the Hong Kong Medical Council (“the Council”) given on 16 January 2007.  The appellant had been charged with a disciplinary offence in relation to the issuance of vouchers in respect of consultation fees.  The Council found that the appellant was guilty as charged and ordered that the appellant’s name be removed from the General Register for a period of 6 months and recommended to the Council that if and when the appellant applied for restoration to the General Register consideration should be given both as to whether the appellant should be required to demonstrate by reasonable evidence that he had rehabilitated himself in respect of ethical conduct and also as to whether he should a required to complete a continuing medical education course in medical ethics approved by the Council.  There was also an indication given that the Education and Accreditation Committee should consider whether the appellant’s name should be removed from the Specialist Register.  A direction was given that the exhibits should be referred to the Department of Health for investigation as to whether any offence had been committed. 

2.At the conclusion of the hearing of this appeal judgment was reserved which we now give.

Background

3.The appellant is a surgeon although he was treating the patient who made the complaint which is the subject of the present charge for a psychiatric disorder.  The charge brought against the appellant was:

“That in or about October 2003 he, being a registered medical practitioner, issued 4 vouchers to BUPA Health Net for claiming consultation fees, dated 14 October 2003, 21 October 2003, 24 October 2003 and 27 October 2003 respectively, in respect of his patient CHOW Shun Yung (“Mr. CHOW”), and by which act, he represented or implied that he was consulted by Mr. CHOW on the said dates when in fact he was not.

In relation to the facts alleged, he has been guilty of misconduct in a professional respect.”

4.The complaint was thus that the appellant had charged for consultations which had not occurred.  His defence was that although he had not seen the patient on the days specified, there had been consultations over the telephone on each of the relevant dates.  Although there had been considerable discussion at the commencement of the hearing before the Council as to whether a telephone consultation was sufficient for the appellant to have raised a charge, the Decision of the Council indicated that that matter was not a concern. 

5.What appears to have strongly influenced the Council was the condition of the appellant’s own medical records.  Paragraph 13 of the Council’s Decision contained what appears to have been a crucial part of the reasoning:

“The original medical record of the patient was also attached.  Upon inspection and comparison with the photocopy which has been provided to the patient in September 2004, we find that the original medical record had been tampered with.  When the original record was submitted to us today, there were the hand-written notation of “14/10 Repeat drugs” under the 11 October 2003 entry and the hand-written notations “21/10”, “24/10” and “27/10” under these 17 October 2003 entry.  These hand-written notations were missing from the photocopy provided to the patient in September 2004.  There were precise adhesive marks showing that these notations had been covered at one stage, presumably for the purpose of photocopying.  We must point out that a photocopy was provided by the Defence at the opening of the enquiry, and Defence Counsel specifically asked the Legal Officer to confirm that the photocopy was this same as the photocopy received from the patient when he first made the complaint…..  The hand-written notations must have been added after the photocopy has been provided to the patient in September 2004.  What purpose can be served other than to give the impression that entries had been made on those dates?  However, it must have been discovered afterwards that such tampering would show up when compared with the patient’s copy, and so these hand-written notations had to be covered for photocopying in order to prevent such tampering to be revealed.

We are satisfied that the tampering was made in order to convince the Medical Council that there were in fact consultations on those dates.  Given that finding, we are of the view that the Defendant’s credibility has been completely destroyed, and that he will be prepared to make up other evidence in order to support his case.  In the circumstances, we find that the other evidence produced by the Defence cannot be relied upon.”

6.These are clearly findings of deliberate attempts to deceive, if not to pervert the course of justice.  They are clearly serious findings.  Unfortunately, these were not put to the appellant in order to give him an opportunity of giving an explanation.  As indicated by Mr Grossman SC, who appeared on behalf of the appellant, there may well be an explanation which the appellant could give which would differ very significantly from the conclusion to which the Council came.

7.The Council’s findings in relation to the appellant’s medical records were clearly a central part of the decision.  In those circumstances there can be no alternative but to set aside the decision of the Council.  Nevertheless, there are clearly circumstances which require investigation and for those reasons the matter should be remitted to the Council for re-hearing.  Since the members of Council who formed the quorum in the present disciplinary proceedings have formed a strong view of the matter, it would be prudent for this court to order that those hearing the remitted disciplinary proceedings should be different members of Council.

8.In the present circumstances it is unnecessary to consider the appeal against sentence.  I would, however, make two observations.  Mr Grossman’s point that there appeared to be a discrepancy between the immediate sentence of six months removal in this case and the sentence in the case which came to this court in CACV 56/2007 was a legitimate observation.  In that latter case there had been a suspended six-month sentence of removal in respect of a doctor whose patient had died as a result of the doctor performing a procedure which he had been incompetent to perform.  It would be a sad reflection upon the values of the medical profession if it were thought that a death caused by a doctor when he knew he was incompetent to perform a procedure was less serious than a case of a doctor who had charged for a consultation in circumstances where it would appear that he had done so in order to be able to dispense medicine that was required.  That is not to say that the sentence in this case was inappropriate, although a query might well be raised as to why it was thought that the appellant’s registration as a specialist should be called into question.

9.In those circumstances I would allow this appeal and make an order remitting the case to the Council for another enquiry to be held before different members of the Council.  I would make an order nisi of costs in favour of the appellant in this court.

Hon Hartmann J:

10.I agree.

Hon Barma J:

11.I agree that the appeal should be allowed, and with the orders proposed by the Vice-President.  I would only add that at the fresh enquiry to be held pursuant to this court’s order, it will, of course, be for the members of Council before whom the enquiry takes place to consider such explanation for the markings on the original of the patient’s medical record as the Defendant gives, and to come to its decision in the light of all the evidence before it.

Mr Clive Grossman SC & Ms Yvonne Chiu, instructed by Messrs King & Co., for the Appellant

Mr Nicholas Cooney, instructed by Department of Justice, for the Respondent