Dr Young Yau Yau, Cecilia v. The Dental Council of Hong Kong
Read the full judgment text of CACV 150/2007 on BabelCite. This Court of Appeal judgment was delivered on 8 July 2008 before Stock JA, Le Pichon JA, A Cheung J.
Disciplinary proceedings – registered dentist – orthodontic treatment – unprofessional conduct – Dentists Registration Ordinance, Cap. 156 s.18(2) – failure to properly diagnose dental conditions, devise an effective treatment plan, and refer patient to a specialist – appellate review of Dental Council's findings – Whether the orthodontic file produced by the appellant was a contemporaneous record or a recent fabrication – Whether the Council applied the correct test for 'professional misconduct' as defined in s.18(2) – Whether there was sufficient objective evidence to support the finding – essential facts: patient consulted appellant in July 2004 for orthodontic treatment; all four first molars extracted; treatment ran from 26 August 2004 to 11 June 2005; second molars tilted and rotated mesially; patient made repeated complaints dismissed by appellant; patient obtained second opinion in June-July 2005 – first issue: whether the orthodontic file was a contemporaneous record – held: the Council's finding that the file was a recent fabrication was amply supported; the file first surfaced in February 2007 despite extensive prior correspondence, contained no progress notes, and addressed only the matters later charged – second issue: whether the Council applied the wrong test for unprofessional conduct – held: the Council correctly articulated the s.18(2) test (conduct reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency) and did not equate ordinary negligence with unprofessional conduct – third issue: sufficiency of objective evidence – held: once the patient's evidence and the expert's opinion were accepted, the failings (no proper plan, inaccurate time estimate, failure to act on complaints, failure to refer) persisted for months and could reasonably be assessed as disgraceful – appeal dismissed – Council's sanctions of a warning letter and 15 hours of continuing medical education in orthodontics within 12 months were not challenged on appeal – authorities reviewed: Preiss v General Dental Council [2001] 1 WLR 1926, Doughty v General Dental Council [1987] 3 WLR 769, Pillai v Messiter [No. 2] (1989) 16 NSWLR 197, R v General Medical Council [2007] EWCH 2606.
Legal issues: Whether the orthodontic file was a contemporaneous record · Whether the Council applied the correct legal test for unprofessional conduct · Whether there was sufficient objective evidence to support the finding of unprofessional conduct
Outcome: Appeal dismissed; the Council's finding of unprofessional conduct upheld.
Cited by 4 cases
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CACV 150/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 150 OF 2007 (ON APPEAL FROM THE ORDER OF THE DENTAL COUNCIL ----------------------
---------------------- Before: Hon Stock JA, Le Pichon JA and A Cheung J in Court Date of Hearing: 8 July 2008 Date of Judgment: 8 July 2008 Date of Reasons for Judgment: 30 July 2008 -------------------------------------- REASONS FOR JUDGMENT --------------------------------------- Hon Stock JA: Introduction 1.The applicant is a registered dentist, practising in Hong Kong. This was her appeal from a decision of the Dental Council dated 19 April 2007 by which they found her guilty of unprofessional conduct. 2.On 8 July 2008, we dismissed the appeal and said that we would provide our reasons later. This we now do. 3.The charge against the appellant was framed as follows:
4.The proceedings before the Council took place on 27 and 28 February 2007. The Council heard the evidence of the patient whose complaint led to the disciplinary proceedings, the evidence of an orthodontic expert, and the evidence of the appellant herself. History 5.The essential history is helpfully summarized in the Council's findings:
6.Following her dissatisfaction with the appellant’s treatment, the patient saw Dr Albert Lee, a dental surgeon, on 17 June 2005 and he took a panoramic x-ray. The patient then retrieved her records from the appellant and on 2 July 2005 first consulted Dr David Leung, an orthodontist. Dr Leung took radiographs and study models on 26 August 2005 and commenced orthodontic treatment in September. 7.By letter dated 2 August 2005, the patient lodged her complaint with the Council. She complained that the procedure undertaken by the appellant had taken considerably longer than had been promised, yet with no apparent improvement in her dental condition; indeed, the molars had moved inward and occlusion was asymmetrical. She had been told by the appellant, on each of the frequent occasions that she complained, that her condition was normal for the treatment she had received and that progress was in fact quite good. As for the inward movement of the molars, she was assured that this was not a problem and required only a change to another type of wire. The correspondence 8.Given the challenge by the appellant to the Council’s findings in relation to her credibility and, in particular, to its finding that a purported treatment record was a recent concoction, it is necessary to provide some detail of the correspondence that passed between the Council and the appellant before the hearings in February 2007. 9.By letter dated 10 July 2006, the Council gave notice to the appellant that a meeting of the Preliminary Investigation Committee (PIC) of the Council was to be held on 15 August 2006 in order to determine whether an inquiry should be held by the Council into the substance of the complaint. The complaint was put to her in terms that were the same as were ultimately reflected in the charge, save for minor drafting differences of no material consequence. She was invited to submit to the PIC any explanation that she wished to advance, an opportunity of which she availed herself by letter dated 11 August 2006. 10.In that letter, she explained that in July 2004 she had given “the diagnosis for extraction of four premolars for the orthodontic purpose” and explained why it had been decided instead to extract the second molars. She said that: “During the treatment, I retracted the premolars one by one to prevent anchorage loss and ready to increase the anchorage by all means. Her protrusion were decreased during the treatment.” She added that: “I would have to correct the mesially inclined problem if the treatment was continued just by a stiffer rectangular wire and increase the anchorage. … When she first told me she wanted to consult another doctor, I gave all her medical record for her purpose immediately. … If [the patient] were still continued to treatment … the rectangular wire would be used. Anchorage will be increase if needed.” She then made the point, much emphasised in the disciplinary proceedings themselves, that there had been a period of about 11 weeks (from 11 June 2005 until 26 August 2005) when the teeth had not been monitored by radiography during which period the condition of the teeth may well have deteriorated significantly, rendering unreliable any expert assessment of their condition when last treated by the appellant. She urged the PIC to dismiss the complaint. 11.On 7 September 2006, the Council issued a Notice of Inquiry that specified the charges. The appellant was invited to answer the charges in writing and to appear before the Council on 4 January 2007. That hearing must have been postponed, for the next we have in the papers before us are two letters from the appellant dated 17 January 2007. The first was directed to the Council by which she requested the Council to refer the matter back to the PIC. She prayed in aid a statutory provision which enables the Council to refer a matter back to the PIC when further information is produced that suggests an inquiry should not be held. It is clear that she was anxious to put the matter to rest. So much is also evident from the second letter of that date, addressed to the PIC, by which she sought to answer the specific allegations against her. 12.In response to the allegations that she failed to provide a proper diagnosis of the patient’s dental condition and to devise a proper and effective treatment plan, she said that the diagnosis she gave was of “an extraction of the 4 first premolars” and she explained again why it was decided to extract molars instead. The treatment plan was to retract the premolars and canines, to fix them by ligature and then ‘reciprocal force would be used to retract the incisors by the second molar’. A stiffer rectangular wire would correct the tilting problem. As for the allegation that she failed to refer the patient to another practitioner or to a specialist when the treatment was not proceeding well, she denied the premise: she asserted that the treatment had been proceeding well. 13.The request to refer the matter back to the PIC was not successful. 14.In January 2007, a report was prepared by Dr Tong, the orthodontist who was to give expert evidence to the inquiry. A copy of this report was provided to the appellant after her letters of 17 January 2007 and before the hearing. The expert had examined the patient and, more particularly, had studied the records, including the pre-treatment radiographs and the radiographs taken after June 2005. The diagnosis of her condition in June 2004 was that she “presented with a convex profile, a skeletal Class II with mild retrognathia and a divergent growth pattern with a steep mandibular plane angle.” He said that the treatment that would customarily be required was the extraction of four first premolars “with maximum anchorage consideration” and that the treatment time for that would be 18 to 24 months. Nonetheless, he accepted that in a case such as this patient’s, who had incomplete root fillings and weakened dental structures, the extraction of the four first molars was an acceptable alternative so long as mandatory additional arch support was provided to maintain the position of the second molars and so long as a skeletal anchorage, such as microscrews, was applied; all of which dictated that the patient had to be informed in advance that the case would become more complicated and that treatment time would be extended by at least four to six months. However, no additional anchorage support had been planned or provided for the remaining second molars and the treatment provided was not only inadequate but counter-productive. His view was that there was no proper diagnosis, and no treatment plan or treatment prognosis. He concluded that the appellant’s orthodontic knowledge and capability “in treating complex extraction cases have demonstrated inadequacy and incompetency.” After nine and a half months treatment, the patient’s occlusion had worsened. 15.By letter dated 2 February 2007, the Council provided particulars of the three alleged failings on the appellant’s part that were said to constitute professional misconduct. The first charge, relating to the failure to make a proper diagnosis, included the contention that proper diagnosis would have identified the fact that ‘the patient was presented with a Class II division 1 malocclusion, a convex profile, a skeletal Class II with mild retrognathia and a divergent growth pattern with a steep mandibular plane angle.’ The notes and the file 16.What then happened was that by e-mail dated 8 February 2007, the appellant sent to the Council several documents, including what she described at the hearing as her orthodontic file (‘the file’) for the patient. Her case was that this file was a computer file created in August 2004 that was additional to contemporaneous hand-written clinical notes (‘the notes’). This was the first time that any mention was made by the appellant of an orthodontic file kept by her. She had produced the notes to the PIC, but not the file, nor had she mentioned its existence to the PIC. 17.The file is important because if it was a contemporaneous record, it was an answer to the first charge, at least, of failing to make a proper diagnosis in August 2004. There were several references in the document to “diagnosis”, one of which read:
18.With the omission of two phrases, this matched exactly the diagnosis that the Council (and the expert) had put forward as the one that ought to have been made. The words used were precisely the same, as was sequence of the phrases used. 19.There were other features of the file’s contents that had never previously been mentioned by the appellant. They included details of a treatment plan which referred to “adding extra anchorage by transpalatal and lingual holding arch or headgear if needed after discussion with the patient.” However, despite an entry which said that the patient had last been seen on the 11 June 2005, the file included not a single progress report. 20.The notes carried all the features of a contemporaneous record but, on any view, were starkly sparse. Under the box headed “treatment plan”, there was no entry at all. The record commenced on 27 July 2004 and finished on 11 June 2005. Save for two instances, one line was devoted to each entry and each such entry (save for those two) carried one word only: either the word ‘review’ or the abbreviation ‘adj.’ standing for ‘adjust.’ There was no record of progress either in the notes or in the file. Despite the fact that in her evidence the appellant said that she made measurements of the teeth every two weeks, no such measurements were recorded. The hearing 21.At the hearing, the patient gave evidence much in accordance with her original complaint. The appellant had promised her, she said, that the extraction of the molars, rather than the premolars, would have a slight impact only and that the treatment would take eight months. She, the patient, repeatedly told the appellant about the outward tilting and rotation of her teeth and poor occlusion but was assured that this was not a problem; the matter could be fixed by a replacement of the wires. By the time she sought other advice in July 2005 her molars were, she said, “lying down”. 22.The appellant’s case at the hearing was that as at 11 June 2005, the patient’s condition was quite normal and that there was only slight tipping of the teeth and she planned to correct that by using a rectangular wire. The condition of the teeth in August was due to neglect since June. It was put to her that it seemed strange that, given the lack of any detail in her notes, she was able in her evidence to relate details of the treatment afforded and particularly of the patient’s progress about which there were no entries in the file either. She said that the case had been difficult and therefore she remembered the details ‘very much’. So, for example, the very slight tipping and the very slight rotation that was present on 11 June had started from 4 May 2005, a fact she remembered, she said, even though there was no reference to it in either the notes or the file. 23.Dr Tong’s evidence accorded with the report he had provided. He rejected the notion that the condition of the teeth, namely, the tilting and rotation, was attributable to neglect since 11 June 2005, though lack of treatment during that period may have made the condition worse. The evidence suggested to him that the rotation and poor occlusion was due to ‘the usage of a round wire without adequate control of the tooth movement.’ It was mandatory that ‘something has to be done about securing the position of the second molars after the extraction of the first molar.’ Yet in this case, no anchorage support at all had been provided. In fact, the appellant had achieved the reverse of the movement desired. He explained why the rectangular wire she said she had in mind was inadequate, and said that in any event it would have been impossible to fit such a wire in the mal-aligned tooth position that presented itself by June 2005. The ‘reciprocal force’ solution proposed by the appellant was totally incorrect he said: “This is an absolute maximum anchorage case. You should not be applying reciprocal force at all.” In answer to the point put to him by the appellant in cross-examination, that she could and might have added the anchorage in late June 2005, he said: “That’s where you went wrong. You should have added the anchorage from the very beginning when you started the case. Why wait till the molars have already been completely mesialized and added the anchorage? What’s the use?” 24.The expert was scathing about the standard of record keeping evidenced by the notes. For example, when a note merely read “adjust”, how was one to know what she adjusted, what kind of wire was put into the patient’s mouth, or when the dentist started using elastics? She should have recorded the measurements she had taken but none was recorded, not even in the file, the contemporaneous status of which he doubted. He suggested that comments by her and entries in the file made one question whether she knew the difference between diagnosis and treatment. Once she noticed that molars had started to rotate and that nothing had happened to the patient’s profile, she should have taken steps, since she was carrying out orthodontic treatment, that orthodontists in such circumstances would have taken, but she had not done so. After all the months of treatment at the hands of the appellant, the objective had not been reached and the patient’s teeth had “gone haywire”. He took the view that the case should have been handed to a specialist at the beginning, namely, once the plan involved the extraction of the four first molars. The correct treatment would have taken 24 to 26 months, rather than the eight months predicted by the appellant. 25.The Council accepted the evidence of the patient, even where it conflicted with that of the appellant. So, too, did the Council accept the findings and opinions of the expert. Findings 26.The Council commented adversely on the handwritten notes. They constituted “an extremely brief record, with no diagnosis whatsoever of the patient’s dental condition. No treatment plan was recorded. There was no meaningful record of what was done on each of the visits, nor the progress achieved by the treatment.” 27.They found that the file was not a contemporaneous record:
28.The Council rejected the suggestion that the poor condition of the remaining molars as diagnosed in August 2005 was attributable to non-treatment since June 2005. The Council found that the appellant had no proper or effective plan in June 2005 to correct irregularities; and that the patient had been complaining about the irregularities for some time, yet nothing had been done to correct them. Indeed, they accepted that she had assured the patient that there was no problem, a fact that demonstrated the appellant’s failure to recognize the fundamental nature of what was happening. It was obvious to the Council that the patient’s treatment was “out of the [appellant’s] control”; and that the problems had developed to an extent that was beyond the appellant’s capability to manage. The appellant, they found, should have referred a patient to another dentist and yet there had been no intention to do so. 29.The Council accordingly held that each of the charges was made out and said that:
30.The Council ordered that a warning letter be served on the appellant and that she complete 15 hours of continuing medical education, other than self-study, in orthodontics within the next 12 months. The appeal 31.The appeal was directed at the finding of unprofessional conduct. There is no appeal against the penalty imposed. 32.The argument upon appeal crystallised itself into two broad grounds of complaint:
The file 33.The attack on the finding in relation to the file was the subject of four of the five grounds of appeal. 34.It was said, first, that the Council erred in finding that the file was not a contemporaneous record and, further, that it had erroneously placed an evidential burden upon the appellant to prove that it was contemporaneous. 35.The allegedly flawed finding was, so the argument ran, crucial to the Council’s decision in relation to the failure properly to diagnose the patient’s dental condition and in relation to the failure to devise an effective treatment plan. Since the file revealed a diagnosis in line with that made by the expert and since it contained a treatment plan close to the one he advocated, those two aspects of the charge were necessarily not proved. Furthermore, in relation to the third allegation behind the assertion of unprofessional conduct, namely, the failure to refer the patient to another dental practitioner, the Council’s reasoning was, it was argued, unfairly tainted by the conclusion it had drawn as to the appellant’s credibility in relation to the file. 36.Dr Jones, for the appellant, argued that the reasons put forward by the Council for its finding did not withstand scrutiny. First, to suggest that the file was not a contemporaneous record because it contrasted in its detail with the sparseness of the notes was, he contended, illogical. The second reason provided by the Council, that the appellant had never mentioned anchorage considerations to the PIC was not, he said, correct and, in any event, it had been made clear to the appellant that she was not obliged to respond to the PIC. As for the Council’s suggestion that had the document been a contemporaneous one, it would have contained additional information, he suggested that this made no sense in that the Council had found that the file was very thorough and systematic and the Council did not state what additional information should have been added that was not. In argument before us, he asserted that when she was responding to the allegations put to her by the PIC, the appellant had assumed that the criticism of her concentrated on her decision to extract the molars rather than the premolars. 37.In my judgment, none of these arguments was persuasive. The evidence pointed irresistibly to the conclusion that the file was a recent fabrication by the appellant. 38.I have commented earlier that the correspondence shows how anxious was the appellant to lay the complaints to rest before the matter came before the Council. It was clear from the letter of 10 July 2006 that the complaint was directed, amongst other matters, to diagnosis and to the absence of an effective treatment plan. True it is that that letter made clear that the appellant was not obliged to present an explanation to the PIC, but the fact of the matter is that she chose to do so; and she chose to do so in considerable detail. It is obvious from the very first response that month that she knew full well that the complaint was not concentrated upon the decision to extract the molars rather than the premolars. In that letter, as well as in the letters of 17 January 2007, in each of which she showed particular concern that the matter should not go further forward, no reference was made to the existence of the file, to the diagnosis made in it and to its precise treatment plan which included a plan for anchorage by transpalatal and lingual holding arch or headgear. Common sense dictates that had the file existed in the summer of 2006 and January 2007, she would have produced it well before she did. She even said in her letter of 11 August 2006 that she had given the patient all the medical records required for the purpose of consulting another dentist. Yet it was common ground that the patient was not given any file. 39.It is noticeable as well that if the file was meant to complete the record, it did not do so. It contained no notes of the progress made from visit to visit. That fact is remarkable in the context of this case because what is left instead is a document that concentrates solely on the matters to which the charges were directed, namely, the diagnosis and the treatment plan. That, I have no doubt, is what, in part, the Council had in mind when it contrasted the extreme brevity of the notes with the detail of the file, detail that was directed at “covering every aspect which was being criticised by the expert.” 40.The file suggested that it might be necessary to apply special anchorage, including headgear; a matter which, had it truly being considered by the appellant, would surely have been mentioned by her to the patient, if not to the patient’s employers with whom she had corresponded. No such prospect or eventuality was conveyed to the patient, a matter conceded by the appellant, although she said that she had had it in mind. 41.In her letter dated the 11 August 2006, the appellant said that during treatment “I retracted the premolars one by one to prevent anchorage loss and ready to increase the anchorage by all means”; that had the patient continued treatment beyond 11 June 2005, rectangular wire would be used and that “anchorage will be increased if needed.” It is said that it was therefore inaccurate for the Council to say that the appellant had not mentioned anchorage considerations until after the expert report was given in January 2007. This, with respect, is an unrealistic, non-contextual, criticism. The file referred to specific methods of maximum anchorage of the type advocated by the expert in his report: “transpalatal and lingual holding arch or headgear”. It is, again, not conceivable that had these methods been set down in this, or any other, file by the appellant in 2004 or 2005, the letters before January 2007 as well as in that month would have made the vague references to anchorage that they did. 42.Where it is said by Dr Jones that the Council did not state what “additional information” ought to have been in the file that was not there, I cannot agree. It is clear to me from the record of the proceedings that time and again the point was made that that file, as well as the clinical notes, were bereft of any record of measurements or of other progress tests. That is the additional information that one would expect in a record kept contemporaneously with treatment. 43.I further find nothing of merit in the suggestion that the Council placed a burden upon the appellant to prove that the file was contemporaneous. It was emphasised by Dr Jones that the burden of proving such a serious allegation was upon counsel prosecuting the matter. With that I agree, but I see no basis for the suggestion that the Council viewed it otherwise and I am satisfied that that burden was discharged. 44.Finally, in relation to the file, it is said that the issue was unduly prejudicial, and that it unfairly coloured the Council’s view of the appellant’s credibility. Again, I cannot agree. It was the appellant who put forward the file in her defence. It was an important piece of evidence, for if it was, or may have been, a contemporaneous record, it was likely to be an answer to at least one of the charges, possibly two. It was a matter central to the case in respect of which a determination was necessary. If, as the Council found to be the fact, the appellant had fabricated this file for the purpose of the disciplinary proceedings, it necessarily and correctly affected her credibility generally. But that did not mean – and there is no reason to believe that the Council took it to mean – that in relation to other specific matters the appellant was not to be believed or that a finding of unprofessional conduct followed. I am satisfied that there was much material wholly independent of the question of the authenticity of this file upon which the Council could, and did, rely in coming to the conclusion that the evidence of the patient was to be believed and the opinion of the expert to be preferred. 45.Accordingly, I found that there was nothing in the first four grounds of appeal. Professional misconduct 46.The fifth ground of appeal is couched as follows:
47.We were taken by Dr Jones to a number of authorities, each directed to categories of misconduct phrased, in its particular statutory context, differently from the provision with which we are concerned. Some referred to the test for “serious professional misconduct” (Preiss v General Dental Council [2001] 1 WLR 1926 and Doughty v General Dental Council [1987] 3 WLR 769); another to “misconduct in a professional respect” (Pillai v Messiter [No. 2] (1989) 16 NSWLR 197); and yet another to “misconduct” whereby fitness to practice was impaired (R v General Medical Council [2007] EWCH 2606). The point that Dr Jones wished to make by reference to these authorities is that ordinary negligence does not normally suffice to constitute unprofessional conduct, but that what must be shown is an elemental and grievous failure and, further, that it is the nature of the conduct rather than the consequences that will dictate whether there has been a serious breach of professional standards. 48.All this I accept, and in this particular case it is to be noted that section 18(2) of the Dentists Registration Ordinance, Cap. 156 defines ‘professional misconduct’ as:
49.I see no reason for concluding that the Council applied the wrong test, and still less for concluding that they equated mere negligence with unprofessional conduct. The Council expressly articulated the test as one that required proof of conduct that “would be reasonably regarded as disgraceful and dishonourable by registered dentists of good repute and competency;” and found that the conduct of the appellant met that test. The Council evidently concluded that the appellant’s incompetence and dereliction of professional duty in this case warranted that description. Whilst there may be room to argue that the conduct is not aptly described as “dishonourable”, I am satisfied that there is no basis for disturbing the Council’s assessment that it was disgraceful. It was not merely a case of the appellant following an inadvisable course. The Council concluded that the appellant had at no stage devised a proper plan for the treatment of this patient’s condition; had given her an entirely inaccurate idea of how long the treatment would take; that in the face of regular complaints by the patient, nothing was done to correct the problems as they were presented and as they later developed; and, beyond that, that the appellant had assured the patient that there was no problem when it ought to have been obvious, as a matter of elementary professional assessment, that there was. The Council concluded, in terms, that the treatment had fallen “out of the [appellant’s] control”; and that from the very outset she ought to have referred the patient to someone else, but failed to do so. The panel that presided over these disciplinary proceedings included a number of highly experienced and distinguished members of the profession. Whilst that fact does not absolve this Court from its task of testing whether the evidence could reasonably suffice to constitute unprofessional conduct as defined by the Ordinance, I see no reason to overturn that assessment. 50.Nor do I agree that there was insufficient objective evidence to enable the Council to arrive at the conclusion that the conduct was sufficiently serious to constitute unprofessional conduct, as defined. Once the Council accepted the evidence of the patient and the evidence and opinion of the expert, the primary findings of fact to which I have referred inevitably followed and the appellant’s failings in her treatment of this patient – failings that persisted for months – could reasonably be assessed as falling within the category of unprofessional conduct as defined by the Ordinance. 51.For these reasons, I concluded that the fifth ground of appeal was not made out. Hon Le Pichon JA: 52.I agree. Hon A Cheung J: 53.I also agree.
Dr Douglas Jones, instructed by M/s Richards Butler for the Appellant Mr Wesley W. C. Wong, DPGC & Mr Mark Chan, GC for the Respondent |
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