Dr. Teoh Sim Chuan, Timothy v. The Medical Council of Hong Kong

CACV 5/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 5 OF 2009

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL

OF HONG KONG MADE ON 19TH DECEMBER 2008)

____________

BETWEEN

____________

Before: Hon Tang Ag CJHC, Le Pichon JA and A Cheung J in Court

Date of Hearing: 4 March 2011

Date of Judgment: 4 March 2011

Date of Reasons for Judgment: 22 March 2011

_________________________________

REASONS FOR JUDGMENT

_________________________________

Hon Tang Ag CJHC:

1.The Appellant was found guilty of the following charge by the Medical Council:-

“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, and by which act, he represented or implied that he was consulted by the patient 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.”

2.The Medical Council ordered that the Appellant’s name be removed from the General Register for a period of 6 months.

3.They also made the following recommendation and observation:

“27. If and when the [the Appellant] applies for restoration to the General Register, we recommend that the Council should consider requiring the Defendant to have satisfactorily completed a course of continuing medical education in medical ethics approved by the Council in advance.

28. We note that the Defendant's name is included in the Specialist Register under the specialty of urology. While it is for the Education and Accreditation Committee to consider whether any action should be taken in respect of his specialist registration, we are of the view that his dishonest conduct which warrants removal from the General Register also justifies removal from the Specialist Register.”

4.On 4 March 2011, we dismissed the Appellant’s appeal against both conviction and sentence with costs.  We now give our reasons.

5.Mr Clive Grossman, SC (with Ms Yvonne Y. H. Chiu) who appeared for the Appellant submitted that the issue before the Medical Council was one of credibility between the complainant on the one hand and the Appellant and his nurse Ms Lam on the other.

6.The complainant had a medical insurance policy under which he was entitled to 3 days’ medication per consultation.  He first consulted the Appellant on 8 October 2003 and was given 3 days’ medication.  He had an insurance card on which a voucher was imprinted, which, after signature would be presented by the Appellant to the insurers for payment.

7.When the complainant returned for a second consultation on 11 October 2003, he requested the Appellant to dispense more medicine to him.  However, he was told that for each consultation, only 3 days’ supply of medicine would be covered under the policy.  According to the complainant, the Appellant then suggested that 6 days’ supply of medicine could be dispensed by imprinting an additional voucher.  The complainant agreed.  Two vouchers were imprinted and 6 days’ supply of medicine was dispensed.  One of the vouchers was dated 11 October 2003, and the other was left blank when he signed it.

8.On 17 October 2003, the complainant consulted the Appellant.  Again, he requested for more medicine.  The Appellant suggested that 12 days’ supply could be dispensed but 4 vouchers would have to be imprinted and signed.  The complainant agreed and 4 vouchers were imprinted and signed and 12 days’ supply of medicine was dispensed.  One of the vouchers was dated 17 October 2003 and the other three were left blank when he signed them.

9.On the other hand, the Appellant and Ms Lam’s evidence was that complainant had visited the Appellant’s clinic on 14, 21, 24 and 27 October 2003 during the Appellant’s absence.  It was only after consultations by telephone with the complainant on each of those dates, namely 14, 21, 24 and 27 October 2003, that the Appellant asked Ms Lam to provide the complainant with the relevant medication.

10.Amongst the medicine prescribed to the complainant were dangerous drugs governed by Part IV of the Dangerous Drugs Ordinance, Cap. 134.  Such drugs had to be kept in a locked receptacle which could be opened only by an authorized person.  Ms Lam was not an authorized person.  Section 23(4).  Also that the Appellant was required to:

“(b) … use a separate register or separate part of the register for entries made with respect to each of the dangerous drugs specified in paragraph 1 of Part I of the First Schedule to the Ordinance …” See: Regulation 5(1)(b) of Dangerous Drugs Regulations.

11.It is not disputed that during the absence of the Appellant from his clinic, Ms Lam, his assistant, was not entitled to access the dangerous drugs. Be that as it may, it was the Appellant’s case that during his absence, Ms Lam was able to access the dangerous drugs and that it was she (on his instructions) who supplied them to the complainant.  It was not necessary for the Medical Council to decide, and they did not decide whether such conduct contravened any of the provisions of the Dangerous Drugs Ordinance.

12.The Appellant kept a patients’ record in relation to the complainant. Copies of the complainant’s patient’s record was supplied to the complainant when he requested them in 2004, pursuant to the Personal Data (Privacy) Ordinance, Cap. 486.  The Appellant said in evidence that on 11 October he had initially decided to supply the complainant with 6 days of medicine.  However, when the complainant learned that in that event he would have to pay for 3 days himself, the complainant only wanted medicine for 3 days.  One can see from the patient’s record for 11 October that “6” has been overwritten by “3”. 

13.The entries for 11 October 2003 and 17 October 2003 are important. Against the entries of 11 and 17 October the notation “x 2” and “x 4” respectively appeared in respect of medication. 

14.This is what the Medical Council said about such evidence:

“13. The photocopied medical record provided to the patient on 24 September 2003 is the best evidence of what actually happened. The Defendant admitted that it was a contemporaneous record. In the medical record, there was record of all the consultations with the patient except the 4 dates in question, namely, 14^th, 21^st, 24^th and 27^th October 2003. The Defendant explained that the consultations on those 4 days were reflected by the symbols ‘x2’ in the entry dated 11 October 2003 and ‘x4’ in the entry dated 17 October 2003. These symbols indicated that the same medicines on 11 October 2003 were repeated on another date, and the same drugs on 17 October 2003 were repeated on 3 other dates. When questioned about how he made the entries in respect of the telephone consultations, the Defendant said that when he returned to the clinic in the evening he would make the entry. When asked why he did not make the entries ‘x2’, ‘x3’ and ‘x4’ in the entry dated 17 October 2003 according to the practice he described, he said that he was too busy on the first two days (i.e. 21^st and 24^th October 2003) and so on 27 October 2003 he simply wrote down ‘x4’ to record that the same medicine was also dispensed on two previous days.

14. We find the explanation of the Defendant unacceptable. If he had time to check that the dangerous drugs registers were accurate, which would involve much more work in counting the stock of dangerous drugs and verifying the figures on the various registers against the book maintained by the clinic assistant, he could not be short of time to simply write down the symbol ‘x2’ on 21 October 2003 and the symbol ‘x3’ on 24 October 2003. In any case, on those two days he could not have anticipated that there would be similar dispensing on a subsequent day so that he could leave the record to be taken care of on 27 October 2003. Furthermore, as the Defendant accepted that the medical record was an important record for the continued treatment of the patient, there was no reason that he did not write down at least the date on which the medicines were repeated and the symptoms of the patient. The only inference is that the symbol ‘x2’ was written on 11 October to indicate that two times the usual medicines were dispensed, and ‘x4’ was written on 17 October to indicate that four times the usual medicines were dispensed on the relevant day.”

15.The complainant gave evidence before the Medical Council and the Medical Council accepted the complainant’s versions of events.  Mr Grossman submitted that the Medical Council was wrong to have done so since the complainant was mistaken in relation to some of his allegations.  Mr Grossman did not suggest that the complainant was dishonest, only that he was forgetful. 

16.According to the complainant, he made a complaint by letter dated 28 September 2004 to the Medical Council after reading a press report in the Apple Daily on 24 September 2004 of a complaint against another doctor in respect of a “false reports of consultations”.  In his letter of complaint (which was written in Chinese):

“False reports of consultations I am a member of BUPA Medical Insurance … . On 8 October 2003, I consulted a network doctor, Dr Teoh Sim Chuan, Timothy. From October 2003 to September 2004, Dr Teoh Sim Chuan, Timothy made false reports that consultations were provided to me on 14 October, 21 October, 24 October and 27 October 2003, which involved at least 4 days, and he claimed for fees from BUPA Medical Insurance with the relevant invoices documenting the use of insurance card, which is also a misconduct committed in the professional respect.

Overcharging On 22 September 2004, I was provided with a medical report of 12 lines (half page), which was lack of details and also incoherent, at a cost of $800.00.

Refused giving drugs Dr Teoh neglected to take blood pressure for me and prescribe me with antihypertensives whenever I consulted him even though he knew that I suffered from hypertension.”

17.Mr Grossman relied in particular on the fact that in the letter of complaint, he complained that the Appellant:

“… neglected to take blood pressure for me and prescribe me with antihypertensives whenever I consulted him even though he knew that I suffered from hypertension.”

18.Mr Grossman referred us to the patient’s medical record which showed that although the complainant’s blood pressure was not measured on every occasion (out of what appeared to be 19 undisputed consultations, his blood pressure measurement was recorded on 10 occasions, so presumably, his blood pressure was measured on those occasions), the complainant must have been mistaken when he said that the Appellant:

“… had neglected to take blood pressure … whenever I consulted him.”

Mr Grossman emphasized “whenever”.

19.Mr Grossman has also referred to other inaccuracies in the complainant’s recollection. 

20.But the complaint is a very simple one.  The complaint was that on 11 and 17 October, the complainant was given more than 3 days’ medication for which he had to sign additional vouchers.  His evidence was also very clear that those vouchers were not signed as a result of telephone consultations following visits by him to the Appellant’s clinic.  These are hardly matters which a person is likely to misremember.  The complainant’s case was that the complaint was triggered by a press report about another doctor regarding similar conduct.  Since it was not suggested (and rightly so) that the complainant was dishonest, I am not surprised that the Medical Council was unimpressed by Mr Grossman’s submission.

21.Of course, the Medical Council also had the evidence of the Appellant and Ms Lam.  But they were not impressed with their evidence.  Nor were they satisfied with the evidence produced on their behalf.  In particular, what the Medical Council described as “a book recording the dangerous drugs dispensed to patients”.  This is what they said of this book:

“12. The Defendant also produced a book recording the dangerous drugs dispensed to patients to support the fact that the dangerous drugs were dispensed to the patient on the dates stated in the vouchers. According to the evidence of the Defendant and the clinic assistant, the book was filled in by the clinic assistant at the time of dispensing, and then copied to the statutory dangerous drugs register the next day. There was no explanation as to the reason for this unusual and redundant practice, as it would only add unnecessary work and increase the chance of mistakes when the information was copied from the book to the various dangerous drugs registers. In this respect it must be noted that it is a statutory requirement to keep separate registers in respect of separate dangerous drugs. The practice of keeping a separate record of dangerous drugs dispensed in addition to the statutory registers is unheard of in the medical community. While we cannot rule out the possibility of the Defendant adopting such an unusual practice, it is also a factor for us to consider in relation to credibility of the Defendant's evidence, in particular that no explanation was given by the Defendant for such a practice.”

22.Mr Grossman complained that because the Medical Council rejected or did not accept the Appellant’s evidence, they in effect had found him guilty of forgery.  He submitted the Medical Council ought to have adopted a criminal standard of proof.  I do not think that follows at all.  In any event, the Appellant’s own record could not have a higher status than the oral evidence of the Appellant and Ms Lam.  I do not agree that the Medical Council had applied the wrong standard of proof.  The Medical Council had been properly advised that the standard is as stated by the Court of Final Appeal in Solicitor (24/07) v. Law Society of Hong Kong (2008) 11 HKCFAR 117. 

23.Mr Grossman also relied on the fact that in a previous inquiry, the Appellant’s conviction was overturned on appeal (CACV 37/2007 (unreported, dated 1 February 2008)).  That is so but only because this Court (Rogers VP, Hartmann J (as he then was) and Barma J) took the view that the Appellant had not been given an opportunity to deal with the fact that the original of the patient’s record had written on it against the date of 11 and 17 October 2003, words which had not appeared in the copy given to the complainant in September 2004.  Mr Grossman sought to rely on the following passages in Rogers VP’s judgment:

“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 the 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.”

24.I do not see how those passages can assist the Appellant.  This is what the Medical Council said on this occasion:

“15. We have also seen the original medical record. There was significant difference between the original record and the photocopy. In the original record there were the entries ‘14/10 - Repeat drugs’, ‘21/10’, ‘24/10’ and ‘27/10’. These entries were missing from the photocopy provided to the patient on 24 September 2004 immediately upon the patient producing the personal data access request form. It is also noteworthy that in the receipt signed by the patient on 24 September 2004 acknowledging receipt of copies of the medical record, the 4 days in question were missing while all the other days were carefully listed out. Therefore, these 4 entries must have been added after the photocopy has been provided to the patient.

16. It is obvious that in the original medical record there were adhesive marks over the 4 subsequently added entries, showing that they have been covered at some stage. The Defendant explained that he wrote the 4 entries on the original after he was notified by the Preliminary Investigation Committee of the complaint in order to help him remember that there were 4 consultations which were not recorded. He then gave the original to his former legal representatives. He could not give any explanation for the adhesive marks, as he did not know what the former legal representatives did to the original. In effect the Defendant was suggesting that the former legal representatives tampered with the original medical record. While it is not for us to speculate what actually happened, we must take into consideration that the Defendant by his own admission made alterations to the original medical record on matters which are of direct relevance to the complaint. As it is the professional duty of all registered medical practitioners to keep proper contemporaneous medical records of all consultations, the Defendant must have known that the medical record was a crucial piece of evidence when he made the alteration by adding those 4 crucial entries.

17. On the other hand, the Defendant's meticulous efforts in making the redundant record of dangerous drugs dispensed is in stark contrast to the perfunctory manner in which the Defendant kept the record of the telephone consultations. If he was so careful in record keeping, he would not have omitted even writing down simply the dates of the telephone consultations.”

25.Mr Grossman submitted that:

“… there was no question of hiding the original medical records, the original was called for after the proceedings had closed, a photocopy having been handed in earlier. This was done by reputable counsel and solicitors then acting on behalf of the Appellant.”

26.But the Medical Council had not so found.  Nor was there evidence that the Appellant’s former solicitors and counsel had the original all along but were content to proceed on the basis of the incomplete copy that was produced by the Appellant to the complainant in 2004.

27.With respect, I cannot see how the Medical Council could be faulted.

28.Mr Grossman also complained that the Medical Council wrongly rejected the evidence of the Appellant and Ms Lam on the basis that they were surprised that they were able to remember the events of October 2003 so well. 

29.Our approach to a disciplinary tribunal’s finding must be that stated in the judgment of Bokhary PJ in Solicitor (24/07).  I can see no basis upon which to interfere with findings of fact made by the Medical Council.  I wish to add that on the evidence, I have no doubt that the Medical Council had come to the correct conclusion.

30.I do not agree with Mr Grossman that the fact that the Appellant had not been prosecuted made any difference.  Nor the fact that he was able to produce a book which has been described as redundant, which it obviously was.  Anyway, a self-serving book produced by the Appellant and his witness can carry no more weight than their evidence.  Mr Grossman relied on the fact that the Appellant had more than one such book.  In fact, according to the Appellant, he has 7 years’ worth of such books.  But the provenance of those books depended on the evidence of the Appellant and Ms Lam.  So essentially, they depended on their credibility as witnesses.

31.I turn to the appeal against the sentence.

32.With respect, I agree with Mr Anthony Ismail, who appeared as counsel for the Medical Council, that:

“The sentence was wholly appropriate for the protection of the public, the reputation and standing of the profession and maintaining confidence in the medical profession, … (and that we must accord) an appropriate measure of respect to the judgments of disciplinary bodies.”

33.For the above reasons, I have dismissed the appeal with costs.

Hon Le Pichon JA:

34.I agree with the Reasons for Judgment given by Tang Ag CJHC.

Hon A Cheung J:

35.I also agree.

Mr. Clive Grossman, SC & Ms. Yvonne Y. H. Chiu instructed by Messrs Reed Smith Richards Butler for the Appellant

Mr. Anthony Ismail instructed by Department of Justice for the Respondent