Dr Kwan Chee Keung v. The Medical Council of Hong Kong

CACV000101/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 101
(Civil)

--------------------------

Coram: Hon Nazareth, V.-P., Godfrey and Rogers, JJ.A. in Court

Date of Hearing: 20 November 1998

Date of Judgment: 20 November 1998

---------------------

J U D G M E N T

---------------------

Nazareth, V.-P.:

1. This is an appeal by Dr Kwan Chee-keung, the appellant, against the order of the Medical Council of Hong Kong in which it ordered the removal of his name from the medical register for a period of three months consecutive to an earlier period of removal in relation to other matters.

2. That order was made after a hearing of two days in the course of which the Medical Council found him guilty of two of four charges of professional misconduct. The charges were specified in the following way:

"That you, being a registered medical practitioner, at your surgery at Shop H, Kiu Hing Mansion, 14 King's Road, Hong Kong, did .

(i) on 18 September l995, dispense improper dosage of medicine to your patient, minor CHIN Nga-yee for treatment of her abdominal pain;

(ii) on 26 October 1995, dispense improper dosage of medicine to your patient, minor LAM Oi-yee for treatment of her cold and influenza.

(iii) on 18 September 1995, fail to properly label the medicine dispensed to your patient, minor CHIN Nga-yee for treatment of her abdominal pain; and

(iv) on 26 October 1995, fail to properly label the medicine dispensed to your patient, minor LAM Oi-yee for treatment of her cold and influenza;

and that in relation to those facts alleged, you have been guilty of misconduct in a professional respect."

As I say the Council found the doctor guilty of misconduct in a professional respect in respect of charges (iii) and (iv), but they acquitted him on charges (i) and (ii). He now appeals to this Court against the severity of the order made against him.

3. The order was made under s21 of the Medical Registration Ordinance (Cap 161). So far as material its provisions are as follows:

"21. Disciplinary powers of Council

(1) If, after due inquiry into any case referred to it by the Preliminary Investigation Committee, the Health Committee or the Education and Accreditation Committee in accordance with regulations made under section 33, the Council is satisfied that any registered medical practitioner -

(a) has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment;

(b) has been guilty of misconduct in any professional respect;

(c) has obtained registration by fraud or misrepresentation; or

(d) was not at the time of his registration entitled to be registered;

(e) has breached a condition previously imposed under paragraph (iv);

(f) is physically or mentally unfit to practise medicine, surgery or midwifery; or

(g) where applicable, has procured his name to be included in the Specialist Register by fraud or misrepresentation,

the Council may, in its discretion -

(i) order the name of the registered medical practitioner to be removed from the General Register; or

(ii) order the name of the registered medical practitioner to be removed from the General Register for such period as it may think fit; or

(iii) - (v) ..."

The appellant has appealed on a number of grounds. There is no need to list these. Before us Mr Macrae, who did not appear before the Council, pursues on his behalf two main points on the basis of the several grounds specified in the notice of appeal. The first is that the order by way of sentence or penalty was excessive and second that there was a failure to give reasons.

4. Before I turn to address these two points, it is helpful to touch upon the limited nature of the scope for intervention by this Court in orders made by domestic tribunals like the Medical Council and in their proceedings. It is convenient to take that legal position from the case of Libman v General Medical Council [1972] AC 217 where Lord Hailsham LC at pp. 220G and 221E dealing with statutory provisions materially similar to ours which conferred jurisdiction upon the court there, said this:

"Notwithstanding the generality of the above language, the actual exercise of the jurisdiction [of the court] is severely limited by the circumstances in which it can be invoked. ...

In the result, although the jurisdiction conferred by the statute is unlimited, the circumstances in which it is exercised in accordance with the rules approved by Parliament are such as to make it difficult for an appellant to displace a finding or order of the committee unless it can be shown that something was clearly wrong either (i) in the conduct of the trial or (ii) in the legal principles applied or (iii) unless it can be shown that the findings of the committee were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread."

5. Turning then to the first of his two points Mr Macrae calls attention to the Professional Code and Conduct for the Guidance of Medical Practitioners published by the Medical Council of Hong Kong in March 1994 ("the Code"), which introduced the requirements for labelling that were brought into effect on 1 January 1995. He submits, therefore, that as the present offences were committed in September and October 1995, and the appellant was the first medical practitioner known to have infringed the new provisions although another medical practitioner was proceeded against first by the Council, he would not have fully appreciated the impact of the then recently implemented provisions nor become aware of the seriousness of the offences.

6. However, about 8 months had elapsed since the commencement of these new requirements. One would have thought that a medical practitioner would have been well placed to realise the importance of the simple requirements and the seriousness of their breach. That is particularly so since, as we have been made aware in the course of the hearing before us, this particular clinic, like many others we are told, was staffed by the doctor himself and two nurses who were unqualified. The conclusion, therefore, is inescapable that he was the only one in the clinic who was in a position to appreciate the importance of the requirements.

7. Reverting to Mr Macrae's submissions, he also points out in mitigation that it was established that the appellant had, since the breaches of the Code, implemented a computer system which printed out the names of the medicines dispensed and moreover changed his practice to ensure that actual brand names were used and all medicines personally approved by him before being given to patients. To that extent he had compiled with the most important of the requirements. He submits, therefore, that the situation had been rectified by the time of the inquiry and was unlikely to be repeated.

8. He also submits that upon the law, the Council was entitled to have regard to other orders of that sort made to ascertain whether the particular order contemplated was out of line or disproportionate to the particular circumstances. He relies in that respect upon in re H (A Barrister) [1981]1 WLR 1257, 1261. In that case which, as the title reveals was a disciplinary case against a barrister, the hearing was before the visitors, Latey J, Sir Robert Megarry VC and Ralph Gibson J. In their judgment they recognised that in general it is desirable that there should be consistency in such orders. They added, and this is perhaps relevant more to Mr Macrae's next ground, that the record of decisions made available to the sentencing disciplinary tribunal ought to state such matters relevant to the sentence as can readily be stated. They also addressed the question whether there was an established pattern or norm, deciding there was, in the three comparable cases all disclosing identical sentences.

9. Against that background I return to Mr Macrae's submission. He pointed out that by 1 April 1998 there had been two inquiries before the Council in relation to two medical practitioners charged with the same offence under paragraph 5 of the Code. The second medical practitioner had been acquitted on the basis that the inadequacies of her labelling which they found did not amount to professional misconduct. The first medical practitioner, however, was found guilty in relation to four packets of medicine dispensed to an unidentified number of patients for failing to label them with the name of the patient and the date of dispensing. By way of penalty he was served with a warning letter which, Mr Macrae points out, ranks as the least penalty open to the Council upon conviction.

10. In that respect, Mr Macrae refers to the specific labelling requirements of the Professional Code and Conduct. These are contained in paragraph 5.1 which reads:

"5.1 As from 1 January 1995, all medicines dispensed to patients directly or indirectly by a medical practitioner should be properly labelled with the following essential information:

(a) Name of patient

(b) date of dispensing

(c) trade name or pharmacological name of the drug

(d) dosage per unit

(e) method and dosage of administration and

(f) precaution where applicable."

He points out that in this case the deficiencies were in the date of dispensing, the trade name or pharmacological name of the drug, and the dosage per unit. But, he says, there was compliance as to the name of the patient, in that the Christian name of one of the minors was specified and the full name of the other. He contended that the requirement for dosage per unit to be specified did not quite apply to the appellant's case because what was dispensed here were syrups and not pills. That is not a submission that can be accepted since the dosage of liquid medicines is commonly specified by reference to millilitres or teaspoons. When this was pointed out to Mr Macrae, he acknowledged that this is perhaps not his strongest point.

11. Mr Macrae's next ground was that by the time that the sentence came to be passed, there had been the two cases mentioned which, he submitted, established some sort of pattern or norm. However, it has to be said that where there are only two cases, particularly with the disparate results mentioned, they cannot be regarded as providing any sort of pattern or norm of the sort contemplated in the case of in re H (A Barrister). As to Mr Macrae's first point, for my part, I cannot see that it affords any basis for inference with the Council's order.

12. I turn to the second main point. In making its order the Council said this:

"The Council views the failure to properly label the medicine dispensed as specially serious in this case. The Council orders that subject to any appeal which must be lodged within one month after the date of service of the order of the Council Dr Kwan Chee Keung shall be removed from the General Register for a period of three months and such decision shall be published in the Hong Kong Government Gazette. This period of removal is in addition to the period of removal made under the earlier order in the event that that order is not reversed."

Mr Macrae says that to say that the case was viewed as specially serious was not to give any reason at all. He acknowledges that the law does not require reasons to be stated. Indeed that is the position originally stated by Lord Hailsham in the Libman case. It has recently been reviewed in this Court in Dr Ip Kay-lo, Vincent v Medical Council of Hong Kong CivApp No. 41 of 1997, unreported. There Leong JA at p.13F said this:

"The established principle seems to be that generally under Common Law there is no obligation imposed on tribunals to give reasons on administrative decisions but where the statute expressly provides for reasons to be given, it is a duty that reasons should be given. Otherwise, where the circumstances of the case require, there is an implied duty to give reasons. As Chan CJHC said in Oriental Daily Publisher Ltd v Commissioner for TELA:

'Where in appropriate cases, it is considered desirable or even necessary to know the reasons for a decision, the courts have readily implied a duty in the administrative tribunal or the lower court to give reasons for its decisions. The nature and circumstances of the adjudication may indicate a necessity for giving reasons ...' "

Leong JA also cited passages from the judgment of Liu JA in Tong Pon Wah v HK Society of Accountants [1998]3 HKC 82 to the effect that the Medical Council does not give reasons for its decisions. He concluded that although the Council had no obligation to give reasons in the case before him, the way in which it was prosecuted and the way in which the Council reached their findings of fact cried out for a reasoned decision without which an appeal would be difficult.

13. Mr Macrae also relied upon the following passages in the judgment of Rogers JA inDr Ip Kay-lo, Vincent at p.17:

"In the quarter of a century which has passed since [Libman's case], there has been, as has been observed in other cases perhaps, a gradual move to the requirement of reasons. The requirement however is never onerous."

And following a reference to what Lord Lane CJ said in R v Immigration Appeal Tribunal, ex p. Khan (Mahmud) [1983] QB 790, 794-5 of the entitlement of a party before a tribunal to know what it is to which the tribunal is addressing its mind, and also entitled to know the basis of fact upon which its conclusion of fact has been reached, he continued at p.18:

" ... it is a counsel of prudence for a tribunal not to assume too readily that the issues being addressed by it are obvious or that the facts upon which it is basing its opinion are obvious. The setting out of the basic facts and the giving of reasons need take no more than a few short sentences."

14. The position thus seems to me to be clear. There is no general or primary obligation upon domestic tribunals such as the Council to give reasons. Of course, a duty may be imposed by statute. Besides, the nature and circumstances of the adjudication may indicate a necessity for giving reasons, in which case the tribunal or the courts will readily imply a duty to give reasons.

15. So, what is it here that requires reasons to be given? It is recognised in the authorities that reasons can often be apparent from the particular facts themselves. Mr Fitzpatrick ,appearing for the respondent, does not seek to contend that such is the position here. Mr Macrae for his part, as I have said, has submitted that a mere statement of the view that the failure to properly label was regarded as specially serious in this case was equivalent to giving no reason.

16. He referred also to the evidence that had been given by Professor Kumana of a mix-up. At least three members of the Council seemed to have been concerned about that possibility. Mr Macrae suggested that it could have been an aspect which the Council would have regarded as casting a serious light upon what had transpired. He submitted that in the circumstances reasons should have been given. As regards another aspect of that submission, I do not propose to do more than mention the reliance he placed also upon what was contained in Mr Fitzpatrick's written submissions which mentioned the matter of a mix-up, since Mr Fitzpatrick explained that he was simply recounting the way the matters unfolded below and not in any sense relying upon that possibility of a mix-up as providing the requisite element of seriousness.

17. I cannot see that either of Mr Macrae's grounds disclose a necessity to give reasons.

18. However, Professor Kumana's evidence in his written report bears upon the main question in this appeal, i.e. whether the order made against Dr Kwan was too severe, or manifestly excessive, as Mr Macrae puts it. The material part of the report was as follows:

"(4 & 5)Regarding labelling of medicines dispensed by Dr Kwan and opinion on charges (iii) & (iv) in the notice of inquire - re failure to properly label dispensed medicines.

Having inspected the 6 drug labels copied to me (item 2), they appear to defeat the whole intent of drug labelling, in that they do not adequately communicate the content of the medicine in the corresponding containers. Thus, labelling a medicine as S, T or F is utterly inappropriate and the three remaining labels contain neither a name nor a letter for identification. Furthermore, all 6 labels are also inadequate in the following respects and curiously dosage instructions on all of them are identical.

a) the patients names are incomplete and they are not dated

b) 4 times daily could correspond to every 6 hours (not every 4 hours)

c) No dosage/strength is mentioned"

and going on to requirement (6) Other:

"The labelling of dispensed medicines according to what amounts to a secret code defeats its whole purpose, namely to facilitate the identification of the medicine. It is a practice that I have heard complaints about from several doctors in Hong Kong. Apart from hampering patient management in emergency situations involving possible adverse drug reactions, it interferes with the proper assessment of patients seeking a second opinion; ..."

The report went on to add that the appellant had a system of labelling in place. The system relied upon a code in involving use of "capital initials which indicated to his nurses what medicines he was prescribing or what dosage". This would not have been understood by anyone else. It was a system that also left his unqualified nurses to supply the medicines without the doctor himself checking them. It was plainly a deficient system and the appellant acknowledged this.

19. Mr Macrae submits that the considerations mentioned by Professor Kumana would apply in any case and would not explain the words in the Council's sentencing reasons. He therefore suggests that it may well have been the mix-up that the Council regarded as "specially serious".

20. For my part, I can see no reason to fault the Council's conclusion simply upon the basis that they did not give reasons which they may well have done. The question must therefore be whether on the material before them they could properly have taken the view that the deficient labelling was "specially serious". The evidence that was properly before the Council was not disputed as to the system that the appellant operated, nor as to the serious considerations requiring medication and medicines to be labelled, clearly explained by Professor Kumana. Those considerations were highlighted in the particular cases that were the subject of the two charges, which came to light when the patients' indispositions could not be effectively diagnosed because the medication they had taken could not be identified. Moreover, the deficiency in labelling was not a result of a lapse but the inevitable result of the very system Dr Kwan had put in place. Clearly, the Council had ample and very good reason, and were perfectly entitled, to reach the conclusion that the failure to label the medicine dispensed was specially serious in this case. In those circumstances I am not able to find any reason to fault the order made by the Council for three months' removal from the register of the appellant's name.

21. I will add this. For myself, the order made does seem to be a severe one. It will prevent the applicant from earning his livelihood for three months. Tacked on to the original period of suspension for 12 months, subsequently reduced on appeal to six months, it will involve a period of nine months' suspension from practice. This can have a very serious effect upon a practising doctor, a matter that has been commented upon in other cases. It would, however, not have escaped the Council. They are the tribunal entrusted by the legislation with the imposition of penalties. They are in the best position to assess that sort of consideration. They are much better placed than this Court in assessing the seriousness of what happened and to assess an appropriate penalty. For myself, I cannot see that this Court would be properly entitled to intervene particularly having regard to the limited scope for that implicit in Lord Hailsham's dictum. I would accordingly dismiss the appeal.

Godfrey, J.A.:

22. The Council, in deciding what sentence to impose on the doctor in this case for professional misconduct, stated that it viewed "the failure to properly label the medicine dispensed as specially serious in this case." It did not say why it considered "the failure to properly label the medicine dispensed as specially serious in this case".

23. In my judgment, that is unfortunate. I venture to suggest it will always be helpful for the Council to state briefly its reasons for sentence when announcing what the sentence is; but it should do so in language which is clear and not cryptic.

24. In the present case, there was, in my opinion, ample justification for the conclusion of the Council that this case was "specially serious". The labelling of dispensed medicines according to what amounts to a secret code defeats its whole purpose, namely to facilitate the identification of the medicine. Apart from hampering patient management in emergency situations involving possible adverse drug reactions, it interferes with the proper assessment of patients seeking a second opinion. There was evidence to that effect before the Council; and, indeed, it is obvious.

25. The problem is that there was also material upon which Mr. Macrae was able to found an argument that the Council may have taken into account matters which it ought not to have taken into account, such as the previous disciplinary history of the doctor, and the possibility that in the present case the Council, despite numerous warnings that it was irrelevant, took into account the suggested "mix-up" which was mentioned in the evidence. However, there is no evidence that the Council did take these irrelevant matters into account; and since there was ample material which they could have taken into account in concluding that the failure to properly label the medicine dispensed was specially serious in this case, I, too, can see no reason to interfere with their conclusion. The matter of sentence is not one in which we should interfere unless it appears that in some way the Council misread the evidence or otherwise went seriously wrong.

26. I, too, would dismiss this appeal.

Rogers, J.A.:

27. This Court is reviewing a decision of a domestic Tribunal dealing with professional misconduct. By reason of its specialised knowledge and experience, in this case, medical, that Tribunal is particularly suited to assess these matters. This Court does not have that specialist knowledge and experience and has to bear that in mind in coming to any decision.

28. This was a case of mislabelling, not just mislabelling in the sense of not putting the name of the patient or the date on which the drug was dispensed, which might in itself be serious, but of not putting the name of the medicine on the label. This was not an isolated occurrence. The position was, in my view, neatly summarised in a submission made by Counsel who appeared before the Tribunal, but who did not appear here, on behalf of the doctor. He said :-

"Our submission is that the importance of labelling is obvious in itself, as are the consequences, as are the risks. There is no need for any witness to come to tell the Council what are the likely consequences of the lack of labels."

29. I do not view the sentence which was imposed as being so excessive as to be wrong. As has been pointed out already, the Chairman of the Council, in giving the decision, said :-

"The Council views the failure to properly label the medicine dispensed as specially serious in this case."

30. I do not resile at all from what I have said in past cases in particular Dr. Ip Kay Lo, Vincent v. The Medical Council or in Fu Ning Dispensary v. Pharmacy and Poisons Board [1995] 3 HKC 497. The giving of reasons is important. This is particularly so in cases where the facts on which the Tribunal is basing its decision are not obvious, or the reasons for the decision are not obvious.

31. In view of the nature of the offences, I do not consider that the Tribunal in this case was saying anything more than it considered that the misconduct was serious. Had this been a case where the Tribunal was imposing an excessively heavy sentence, then I consider that the matter might have been different. It is very undesirable for a Tribunal to allude to matters to which it does not identify. But in this case, I do not consider that the facts are such that it has been shown that the Council has misread the evidence, or misunderstood the evidence, or taken into account facts which it should not.

32. In those circumstance, this Court, in my view, should not interfere with the penalty imposed.

Nazareth, V.-P.:

33. The appeal is accordingly dismissed.

Representation:

Mr Andrew Macrae (M/s Johnson Stokes & Master) for the Appellant

Mr David Fitzpatrick (Department of Justice) for the Respondent