Dr. Siu Ting Wing v. The Medical Council of Hong Kong

CACV 130/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 130 OF 2008

(ON APPEAL FROM JUDGMENT OF INQUIRY OF

THE MEDICAL COUNCIL OF HONG KONG)

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BETWEEN

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Before: Hon Rogers VP, Le Pichon JA and Macrae J in Court

Date of Hearing: 12 November 2010

Date of Judgment: 12 November 2010

Date of Handing Down Reasons for Judgment: 2 December 2010

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an appeal from a decision of the Medical Council following a hearing on 16 April 2008 wherein the Council found that the appellant had been guilty of misconduct in a professional respect in respect of 2 matters, namely:

“That on or about 26 July 2005 he, being a registered medical practitioner, disregarded his professional responsibilities to his patient Madam (C.) in that:

(a) he prescribed two types of pills (“the medications”) to her without any proper medical examination or advice on the possible side effects of the medications.

(b) he failed to ensure that the medications dispensed to her were properly and separately labelled with (i) the name of doctor or means of identifying the doctor who prescribes the medications; (ii) a name that properly identifies the patient; (iii) the date of dispensing; (iv) the trade name or phamacological name of the drug; and (v) the dosage.”

2.The Council ordered that the appellant’s name be removed from the General Register for a period of 3 months in respect of each charge, the orders to run concurrently. The Council considered whether the orders should be suspended but, given the appellant’s disciplinary record and the gravity of the case, the Council did not consider this was a suitable case for suspension.  Moreover the Council added a recommendation that when the Council considers the appellant’s request for restoration, it should require that cogent evidence be provided as to the arrangements to ensure compliance with drug labelling and dispensing requirements.

3.At the conclusion of the hearing, this appeal was dismissed with reasons to be given in writing.

The history

4.The patient saw an advertisement for a beauty centre, namely BC Medical Beauty Group (“the Group”).  That advertisement advertised a form of slimming treatment called mesotherapy.  As a result, on 19 July 2005 she went to the Causeway Bay branch of the Group to enquire about mesotherapy.  She was shown a brochure of the Group and that, together with statements from the staff, reassured her that the treatment would be administered by a registered medical practitioner.  Her evidence was that she was also assured by the appellant that he would personally follow through the full course of her treatment.  In those circumstances, she signed for a full course of treatment.

5.The mesotherapy treatment entails injections of Phosphatidyl Choline at locations where slimming is desired.  The brochure disclosed that 60-100 injections would be given each time by use of special equipment and that the whole course of treatment would require 5-10 treatments.  The efficacy of the treatment was not a matter that was the subject of the complaint, nevertheless, the Council observed that there was no evidence-based review of its efficacy.

6.The Council accepted the patient as an honest and reliable witness.  They thus accepted that on the first occasion of her visit, namely 26 July 2005, she was given injections by the appellant.  In paragraph 7 of the decision the Council recorded that

“Although the appellant did not tell her that he would prescribe medicine for the treatment, after the injections 2 types of medicine, namely one type of capsules and one type of pills, were dispensed to her through the staff of the beauty centre. The same practice continued each time she attended the beauty centre for treatment. On one occasion when the patient asked for more of the medicine from the staff, the staff was unable to provide the medicine as they did not have it at the centre. She was told that the medicines would be brought by the Defendant and so she had to wait for the arrival of the Defendant in order to get the medicine.”

7.The patient experienced side effects from the medicines, specifically palpitation, dizziness and blurring of vision.  On the second occasion, when she visited the Group, she complained to the appellant.  The appellant told her that those were normal reactions which she would get used to and told her to continue with the medicines.  On the following occasion the same complaints were made and the appellant told her to halve the dosage and that he would prescribe a weaker medicine for her on the next occasion.  The next time the patient went to the Group’s clinic, she was told that the appellant had left the Group and the injections were performed by another doctor.

8.The appellant admitted that he was the doctor providing treatment to the patient, but denied that he had prescribed or dispensed any medicine to her.  The Council recorded that the appellant admitted that he had advised the the patient, but claimed that he did not know what medicines she had been taking and who had prescribed the medicines.  He said he only gave general advice as he did not wish to interfere in another doctor’s prescription.  He never asked the patient who prescribed the medicines and what the medicines were.

9.The Council did not accept the appellant’s evidence and, for reasons that appear sound, considered that his evidence was “completely contrary to common sense.”  The Council also observed that there had been no proper medical examination nor was the patient’s medical history taken.  Given the nature of at least one of the drugs that was administered, there could have had serious consequences.  In respect of the first charge, the Council concluded:

“13. We are satisfied that the Defendant neither properly examined the patient nor advised her of the significant side effects before prescription. Given the dangerous drug nature of the medicines, the Defendant’s conduct clearly fell below the standard expected of registered medical practitioners and constituted professional misconduct.”

10.In respect of the second charge, it was clear that a wholly inadequate description of the drugs was given when the medicines were dispensed and that none of the information set out in paragraph 10.1 of the Professional Code and Conduct was provided on the medicine bags.

This appeal

11.On this appeal, Mr Kwan, who appeared on behalf of the appellant, described the fundamental ground of appeal as being the question as to whether the appellant had prescribed the medicines. He stressed the fact that the appellant had not given the medications to the patient directly.  Counsel tried to make the best of the fact that the patient had said that one of the medicines which had been produced had been placed in a different container from that in which they had been when the patient had been given them.  That, however, was peripheral to the matter in issue which was whether the appellant had taken proper care of the patient when prescribing drugs.

12.In my view, the Council’s reasoning in holding that the appellant did prescribe the medicine is unassailable.  Quite apart from the concession, which had been made on behalf of the appellant, recorded at page 80 of the transcript of the hearing before the Council, that no issue was being taken as to the provenance of the samples sent for analysis, in paragraph 10 of the decision, the Council said:

“In 2005 he was a doctor of 26 years experience. If the patient was asking him about the side effects of the medicines in the context that he prescribed them, he certainly would have told her that he was in no position to advise as he did not know what those medicines were. He certainly would have to know the nature and dosage of the medicines in order to advise the patient what to do, and to determine whether the injections had to be withheld. He acted as if he knew what the medicines and the dosages were. On the other hand, if he did not prescribe the medicines, he certainly would have told the patient that she should seek advice from the prescribing doctor instead. We accept the patient's evidence that she was given the impression that the Defendant knew what the medicines were, and that the Defendant neither indicated that he did not prescribe the medicines nor told her to seek advice from other doctors. We are satisfied that the Defendant had by his conduct showed that he prescribed those medicines. Our finding in this respect is corroborated by the fact that it was a consistent conduct, and that the staff was unable to provide the medicine until the Defendant's arrival.”

13.There was, in short, no substance in the complaints made on behalf of the appellant.  The matters had been clearly and properly proved.  There was no appeal in respect of sentence.  It was for these reasons that I considered that the appeal should be dismissed.

Hon Le Pichon JA:

14.I agree with the Reasons for Judgment of Rogers VP.

Hon Macrae J:

15.I agree.

Mr Jonathan Kwan, instructed by Messrs Louis K. Y. Pau & Co., for the Appellant

Mr Edward Shum, instructed by Department of Justice, for the Respondent