“Dr. X” v. The Education and Accreditation Committee of the Medical Council of Hong Kong and Another

HCAL 106/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 106 OF 2010

____________

____________

AND

HCAL 107/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 107 OF 2010

____________

____________

AND

HCAL 108/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 108 OF 2010

____________

Before: Hon Au J in Court

Date of Hearing: 21 June 2011

Date of Judgment: 7 September 2011

_______________

J U D G M E N T

_______________

A. Introduction

1.In Hong Kong, under the Medical Registration Ordinance (Cap. 161) (“MRO”), a medical practitioner:

(1)  can only be legally permitted to practise medicine if he is registered and with his name included in the General Register (“GR”) kept by the Registrar of the Medical Council of Hong Kong (“the Council”).   

(2)  is only allowed to use the title of a specialist (in the relevant specialty) if his name is included in the Specialist Register (“SR”) kept by the Registrar.   Further, only a registered medical practitioner (thus one who has his name included in the GR) could, when he has also met the other specialist requirements, apply to have his name included in the SR.  The Council could order the name to be so included in the SR upon the recommendation by its committee called the Education and Accreditation Committee (“the EAC”). 

2.Dr X, Dr Y and D Z, the respective Applicant under HCAL 106, 107 and 108/2010, are medical practitioners whose names are included under both the GR and SR.  

3.However, in 2009, they had each and separately been subject to a disciplinary inquiry brought before the Council (the 2^nd Respondent) pursuant to s. 21 of the MRO. After the respective hearing, each of them was found guilty by the Council in relation to certain disciplinary complaints and had been ordered (by way of sentencing) to have their names removed from the GR for a certain period of time.  The disciplinary complaint and inquiry brought against each of them were separate and unrelated.  The nature and substance of the disciplinary complaints are irrelevant to the present applications.

4.Dr Y and Dr Z respectively lodged an appeal to the Court of Appeal against the relevant Council’s order.

5.On the other hand, subsequent to the handing down of these sentences by the Council, the EAC, the 1^st Respondent herein, later separately recommended to the Council for an order to also remove the names of Dr X, Dr Y and Dr Z from the SR permanently, subject to their rights to make fresh applications for inclusion in the SR later.  The EAC’s said recommendations were made pursuant to s. 20N(1)(d)(i) of the MRO.

6.In these judicial review applications, the Applicants challenge the EAC’s said decisions in making the recommendations and the various subsequent decisions of the EAC (for review) and the Council (in relation to the dismissal of their respective appeals from the EAC’s reviews) in confirming the EAC’s recommendations as well as the Council’s subsequent decisions to implement the recommendations to order the removal of the doctors’ names from the SR. 

7.However, when it comes to the substantive hearing of the applications before me, Dr Z no longer pursues the judicial review subject to his seeking costs, as the conviction by the Council against him under the disciplinary inquiry has just been set aside by the Court of Appeal^[1].

8.As a result, the present applications now concern effectively only with Dr X and Dr Y (under HCAL 106 and 107/2010).  

9.To understand their grounds of judicial review in proper context, I would first set out the relevant statutory frameworks under the MRO and then the uncontroversial background relating to Dr X and Dr Y. For convenience, unless otherwise stated, any references to statutory provisions hereafter are references to the relevant provisions of the MRO.

B.      The relevant statutory frameworks under the MRO

B1.    The Council, registered medical practitioners, the EAC and PIC

10.As provided in the long title, the MRO was enacted to “consolidate and amend the law by making more comprehensive provisions regulating the registration of practitioners in medicine and surgery”.

11.The Council is established under s. 3.  It consists of 28 members, which includes 24 registered medical practitioners nominated by different entities and organisations and 4 lay members.  The members are all appointed by the Chief Executive of Hong Kong^[2].

12.The Council is effectively the governing body dealing with and regulating the registration of medical practitioners in Hong Kong.

13.Under s. 20BA, the Council may establish committees for the better performance of its duties and exercise of its powers as it thinks fit.  In particular, under s. 20BA(2), the Council may establish, inter alia, the Preliminary Investigation Committee (“PIC”) and the EAC.

14.A person who wishes to practise medicine in Hong Kong has to be registered under s. 14^[3]. A “registered medical practitioner” is defined to be a person who is so registered.  

15.At the same time, the Registrar of the Council shall cause the GR to be kept to contain the names, addresses and qualifications of all medical practitioners registered under s. 14^[4]. In other words, all registered medical practitioners would have their names included in the GR. 

16.The Registrar shall also cause the SR to be kept which contains the names, addresses, qualifications and experience and other particulars as he thinks necessary of those registered medical practitioners who are entitled to use the title of a specialist as approved by the Council^[5].   It should also be noted that it is the registration under s. 14 and thus the inclusion of the name in the GR which entitle a person to practise medicine.  The inclusion in the SR per se does not entitle the doctor to practise medicine but only allows him to use the title of a specialist. 

17.S. 20I sets out the general functions of the EAC.  They relate to (a) the determination and making recommendations to the Council as to what specialties, qualifications, experience and any other attributes that qualify a registered medical practitioner to have his name included in the SR, and (b) making recommendation to the Council and reviewing the standard and structure of undergraduate medical education and medical training required for a person to become a registered medical practitioner. 

18.S. 20J provides that the Council shall on the recommendation of the EAC approve the qualifications, experience and other attributes that qualify a registered medical practitioner to have his name included in the SR.

B2.    Inquiry, EAC’s determinations and appeals

19.The Council has the power under s. 21(1) to hold a disciplinary inquiry in relation to a registered medical practitioner for matters relating to the 7 statutory grounds provided thereunder, which includes professional misconduct.  If found guilty after such a due inquiry, the Council may order a sanction against him in one of the alternatives further provided under s. 21(1).  Amongst these alternatives is to order the removal of the name of the registered medical practitioner from the GR or SR permanently or for a period of time.

20.However, in relation to any complaints or information made against a medical practitioner that relate to those grounds which could be investigated by a s. 21 inquiry, it is for the PIC to first make preliminary investigations into those complaints or information and to make recommendations to the Council as to whether a disciplinary inquiry shall be held under s. 21^[6].

21.If such a s. 21 inquiry is held, either 5 members of the Council or not less than 3 members of the Council together with 2 assessors shall form a quorum^[7]. The assessors (who are not members of the Council) are appointed by the Council under s. 21B(2).  It is also provided under s.21(4A) that a member of the PIC who is also a member of the Council shall not attend a meeting of the Council whilst it is inquiring into a complaint or information of which that PIC member took part in the preliminary investigations.

22.A registered medical practitioner who is aggrieved by any order made by the Council under, inter alia, a s. 21 inquiry may appeal to the Court of Appeal under s. 26.

23.If an appeal is so made to the Court of Appeal and it relates to a s. 21 order requiring the removal of the doctor’s name from the GR or SR, s. 25(5) provides that the Registrar shall not remove that name from that register until 1 month after the determination of that appeal.  However, there shall be no such a “stay” pending appeal if the Council in making the s. 21 order has also ordered that it should be carried out immediately for the protection of the public or in the best interest of the registered medical practitioner. 

24.Under s. 20N(1), if the EAC comes to the notice of any complaint or information relating to the suitability of a registered medical practitioner to have his name included or removed from the SR, it may, inter alia, recommend to the Council for the removal of the registered medical practitioner’s name from the SR. 

25.Under s. 20N(3), a medical practitioner may within 14 days of a written notice from the EAC of such a recommendation request the EAC to review its decision.   The EAC on such a request shall under s. 20N(4) review its decision and shall notify the registered medical practitioner its decision on the review.

26.Further, under s. 20O of the MRO, the registered medical practitioner may appeal to the Council against the EAC’s said review decision.  The Council on hearing the appeal may affirm, vary or reverse the EAC’s said decision and its decision is final.  

27.The Council may under s. 19B(2) adopt the said EAC’s recommendation and order a registered medical practitioner’s name be removed from the SR.

28.Under s. 26, an aggrieved doctor could appeal to the Court of Appeal against by any order made by the Council against him under ss 19, 19B, 21 or 21A.  The Court of Appeal may affirm, reverse or vary that order on appeal or remit the same to the Council for determination. 

C.      The facts

C1.    Dr X

29.A s. 21 disciplinary inquiry was held before the Council on 11 November 2009 in relation to certain complaints made against Dr X.  The Council found Dr X guilty of a number of charges made, and by way of sentencing, ordered that Dr X’s name be removed from the GR for a period of 2 months.

30.Dr X did not appeal against the Council’s said decision.

31.By way of a letter dated 15 December 2009, the Council informed Dr X that her name would be removed from the GR for 2 months from 18 December 2009, the date on which the Council’s said order be published on the Gazette.  In the letter, Dr X was reminded that her name “will not be automatically restored to the GR upon the expiry of the removal period” and he must apply to the Council for restoration of her name to the GR.  She would remain unregistered until and unless the Council approved the application for restoration and that the name was restored to the GR. 

32.On 1 February 2010, the EAC wrote to Dr X and informed her that at its meeting held on 22 January 2010 (that is, after Dr X’s name had already been removed from the GR), the EAC decided to recommend under s. 20N(1)(d) to the Council to remove her name from the SR permanently as “only medical practitioners [were] entitled to be included in the [SR]”.   It was stated in the letter that the said removal from the SR would not prevent Dr X from making a fresh application for inclusion in the SR when she became suitable for such inclusion again.  I would call this decision to make the recommendation “the EAC’s Recommendation Decision on Dr X”.

33.On 12 February 2010, Dr X through her solicitors, Richards Butler (“RB”), wrote to the EAC asking it to review the EAC’s Recommendation Decision on Dr X.   RB set out in this letter various grounds to support the contention that the EAC had no basis, jurisdictional and on the merits, to make the said decision.  It was one of RB’s contentions that the s. 21 inquiry decision did not show anything which questioned Dr X’s competence as a specialist of her field.   

34.At a meeting held on 19 February 2010, the EAC considered Dr X’s application to review.  The EAC decided to confirm and uphold the EAC’s Recommendation Decision on Dr X (“the EAC’s Review Decision on Dr X”).   By a letter dated 4 March 2010, the EAC communicated to RB the EAC’s Review Decision on Dr X.  In this letter, the EAC stated that the reason for this decision was that, as Dr X had been removed from the GR, she had lost the “prerequisite status” to remain on the SR.  It further said that, as such, Dr X’s specialist competence and qualifications were of no relevance to the EAC’s consideration as to whether or not to recommend removing her name from the SR.   In other words, the said recommendation was not based on looking at Dr X’s competence as a specialist. 

35.Dissatisfied with it, Dr X through RB lodged an appeal against the EAC’s Review Decision on Dr X to the Council under s. 20O.

36.The Council heard the s. 20O appeal on 27 April and 28 June 2010.    The Council hearing the s. 20O appeal consisted of 7 members: 

(1)  2 of them were also members of the PIC who took part in the preliminary investigation of the complaints made against Dr X, which the PIC referred the complaints to the Council for holding a formal s. 21 disciplinary inquiry against Dr X. 

(2)  Another 2 of these 7 members in fact took part in the Council’s said disciplinary inquiry, which found Dr X guilty.  

37.In the meantime, Dr X’s name was, upon her application, restored to the GR on 8 June 2010. 

38.The Council handed down its decision (“the Council’s Appeal Decision on Dr X”) on 28 June 2010, dismissing the appeal and affirming the EAC’s Review Decision on Dr X.  

39.On 7 July 2010, the Council accepted the EAC’s recommendation under s. 19B(2) and ordered the removal of Dr X’s name from the SR permanently (“the Council’s SR Decision on Dr X”).

40.Upon her application, Dr X’s name was subsequently restored to the SR on 6 October 2010.

41.On 6 October 2010, Dr X applied for leave to bring a judicial review under HCAL 106/2010 against the EAC’s Recommendation Decision on Dr X, the EAC’s Review Decision on Dr X, the Council’s Appeal Decision on Dr X and the Council’s SR Decision on Dr X.  She asks for an order of certiorari to bring up these decisions and quash them.

42.Leave was granted on papers by Hon A Cheung J (as he then was) on 14 October 2010.  His Lordship directed that Dr X’s application (under HCAL 106/2010) be heard together with HCAL 107/2010 (see below).

C2.    Dr Y

43.Dr Y was a specialist in plastic surgery. 

44.After holding various hearings of a s. 21 disciplinary inquiry against Dr Y, the Council on 20 December 2009 found him guilty of charges of professional misconduct.    The guilty charges were established on (a) Dr Y’s failure to keep proper medical record of the patient, and (b) the conducts and manner in which he performed the subject matter procedure on the patient and the failure to maintain a reasonable provision of certain facilities in the clinic.   The Council found that these conducts amounted to misconducts in a professional respect.

45.The Council ordered Dr Y’s name to be removed from the GR for 5 months.

46.On 18 January 2010, Dr Y through RB (also his solicitors) filed and lodged an appeal (“the Civil Appeal”) to the Court of Appeal pursuant to s. 26 against the Council’s above inquiry decision, seeking to set aside the order or alternatively to have the sentence reduced.    

47.As the Council did not make any order to implement immediately its above s. 21 order under s. 21(1)(iva), by the operation of s. 25(2), the Registrar did not remove Dr Y’s name from the GR pending the determination of the Civil Appeal.

48.On 22 January 2010, the EAC at its meeting decided to recommend under s. 20N(1)(d)(i) to the Council to remove Dr Y’s name from the SR permanently but without prejudice to his right to make a fresh application to be included in the SR again when he became suitable for such inclusion (“the EAC’s Recommendation Decision on Dr Y”).  

49.By a letter dated 22 February 2010, the EAC informed Dr Y the EAC’s Recommendation Decision on Dr Y.  It was stated in the letter that, having regard to the disciplinary charges made against Dr Y and the Council’s judgment thereof, the EAC considered that Dr Y’s competence as a specialist had fallen below the standard required for a person to remain on the SR.  It had therefore decided to recommend removing his name from the SR.

50.On 5 March 2010, Dr Y through RB wrote to and invited the EAC to review the EAC’s Decision on Dr Y.    In the review application, Dr Y raised various grounds to oppose the EAC’s Decision on Dr Y, which included the challenges on EAC’s lack of jurisdiction under s. 20N to make a recommendation.  It was contended that under s. 20N, the EAC only had jurisdiction to consider whether the specialist was in compliance of all the qualifications and experience requirements but not his competence as a specialist.  RB also submitted that the EAC should in any event withhold its recommendation pending the outcome of the Civil Appeal.

51.At its meeting held on 19 March 2010, the EAC considered the review application.  It decided to uphold the EAC Recommendation Decision on Dr Y (“the EAC’s Review Decision on Dr Y”).   

52.The EAC communicated to Dr Y the EAC’s Review Decision on Dr Y in its letter dated 12 April 2010.  It was stated in the letter that the EAC (a) maintained the view that Dr Y’s competence as a specialist had fallen below the standard required for a person to remain on the SR, and (b) decided not to postpone putting up its recommendation to the Council until the outcome of the Civil Appeal.

53.On 22 April 2010, Dr Y through RB lodged an appeal (“the s. 20O Appeal”) under s. 20O to the Council against the EAC’s Review Decision on Dr Y.  In lodging the s. 20O Appeal, Dr Y also expressed the view that members of the Council who had considered or heard the disciplinary inquiry against Dr Y should not hear the s. 20O Appeal by reason of bias.

54.The s. 20O Appeal was heard before the Council on 12 August 2010.   The Council panel consisted of 6 members.  2 of these 6 members had previously sat on the PIC which carried out the preliminary investigation of the complaints made against Dr Y.  Another 2 of these 6 members in fact sat on the disciplinary inquiry which eventually found Dr Y guilty of professional misconduct.

55.At the hearing of the s. 20O Appeal, other than arguing the appeal on merits, Dr Y through his counsel again made his application to ask these 4 members to recuse themselves from hearing the s. 20O Appeal on the basis of apparent bias.

56.The Council handed down its decision (“the Council’s Appeal Decision on Dr Y”) on 14 September 2010.  The Council (a) refused the recusal application as it was of the view that there was no apparent bias, and (b) dismissed the s. 20O Appeal on merits.

57.On 6 October 2010, the Council accepted the EAC’s recommendation and ordered under s. 19B(2) that Dr Y’s name be removed from the SR permanently with effect from 6 October 2010 (“the Council’s SR Decision on Dr Y”).   At that time, Dr Y’s name was still included in the GR given the pending Civil Appeal. 

58.By its letter dated 7 October 2010, the Council informed Dr Y the Council’s SR Decision on Dr Y. 

59.On the same day (i.e., 7 October 2010), Dr Y brought its application under HCAL 107/2010 for leave to apply for judicial review against (a) the EAC’s Recommendation Decision on Dr Y, (b) the EAC’s Review Decision on Dr Y, (c) the Council’s Appeal Decision on Dr Y, and (d) “a threatened decision of the Council on a date unknown under s. 19B of MRO to hear and determine the EAC’s recommendation to permanently remove Dr Y from the SR”.   Apparently, at the time of the filing of the application, Dr Y or his solicitors was not yet aware of the Council’s SR Decision on Dr Y, and did not include this in the Form 86, but instead referred to the said threatened decision.

60.On 14 October 2010, upon the joint application by Dr Y and the Council, Rogers VP made an order by consent to dismiss the Civil Appeal and vacate the scheduled hearing dates fixed for 28 and 29 October.

61.Also on this day, A Cheung J granted leave to Dr Y to apply for judicial review only on the EAC’s Recommendation Decision on Dr Y, the EAC’s Review Decision on Dr Y and the Council’s Appeal Decision on Dr Y but not the “threatened decision”.  A Cheung J further directed that HCAL 106 and 107/2010 be heard together^[8].

D.      The present judicial review

62.Dr X and Dr Y advance similar grounds in support of the judicial review.  They have also advanced grounds specific to their own case.  I will now deal with them in turn as follows.

D1.    Apprehension of Bias/breach of Article 10 of the Hong Kong Bill of Rights Ordinance

63.As mentioned above, it is common ground that:

(1)  In relation to Dr X, there were 7 Council members who heard the s. 20O appeal.  2 of these 7 members had sat on the PIC which referred the relevant complaints to the Council for holding a s. 21 inquiry.  Another 2 of these 7 members also sat on the Council’s s. 21 inquiry which had found Dr X guilty of professional misconduct.  In fact, the chairman of the Council hearing the s. 21 inquiry was also the chairman for hearing the s. 20O appeal.

(2)  In relation to Dr Y, 6 Council members heard his s. 20O appeal.  Again, 2 of these 6 members had sat on the relevant PIC meeting dealing with the preliminary investigation of the complaints against Dr Y. Another 2 sat at the Council’s s. 21 inquiry which had found Dr Y guilty of professional misconduct.  Similarly, the chairman of the s. 21 inquiry was also the chairman for hearing the s. 20O appeal.

64.The Applicants submit that the above overlapping of memberships of the Council who heard the s. 20O appeal, the PIC and the Council hearing the s. 21 inquiry gave rise to an apparent bias under common law and/or a breach of the right to an independent and impartial tribunal under Art 10 (“Art 10”) of the Hong Kong Bills of Rights Ordinance (Cap 383).  On this ground, the Council’s respective s. 20O appeal decisions should be quashed.   

65.There appears to be no quarrel that the following principles apply under this issue.

66.Generally, the standard of a fair hearing by an independent and impartial tribunal under Art 10 is the same as at common law:  Lawal v Northern Spirit [2004] 1 All ER 187 (HL) at 193e-f per Lord Steyn; Wong Tak Wai v Commissioner of Correctional Services [2010] 4 HKLRD 409 at para 37 (pp 423-424) per Kwan JA. 

67.In assessing whether a decision is tainted by apparent bias, the Court will ask whether “a fair-minded and informed observer” would apprehend or suspect a “real possibility” of bias:  Deacons v White & Case (2003) HKCFAR 322 at 332.

68.In dealing with this issue, it is helpful to first set out s. 20N(1) which provides as follows:

“20N Complaints against specialists

(1) Where the Education and Accreditation Committee comes to the notice of any complaint or information relating to the suitability of a registered medical practitioner to have his name included in, or removed from, the Specialist Register, including but not limiting to anything about qualification, experience, or failure of the registered medical practitioner to comply with section 20L, the Committee may, after considering all the circumstances of the case before it-

(a) invite the registered medical practitioner to give an explanation in writing or to appear before it personally;

(b) dismiss the matter, with or without giving the registered medical practitioner an opportunity to explain under paragraph (a);

(c) refer the matter to the Preliminary Investigation Committee, as it thinks appropriate, with or without giving the registered medical practitioner an opportunity to explain under paragraph (a);

(d) with or without having given the registered medical practitioner an opportunity to explain under paragraph (a), recommend to the Council-

(i) where the registered medical practitioner's name is included in the Specialist Register, that the name of the registered medical practitioner be removed from the Specialist Register, permanently or for such period as the Committee recommends, with or without referring the matter to the Preliminary Investigation Committee at the same time; or

(ii) where the registered medical practitioner is applying for the inclusion of his name in the Specialist Register, that his application be rejected.” (emphasis added)

69.Further, under s. 20O(3), the Council on hearing an appeal from the EAC’s decision may “affirm, vary or reverse the decision of the [EAC]”. 

70.Applying the principles set out in paragraphs 66 and 67 above and looking at these two statutory provisions, I agree with the Applicants that the Council’s Appeal Decision on Dr X and the Council’s Appeal Decision on Dr Y are tainted with apparent bias. These are my reasons:

(1)  The EAC has a discretion[9] under s. 20N(1) to decide whether or not to make a s. 20N(1)(d) recommendation.  In considering whether or not and how to exercise the discretion, it should take into account all the circumstances of the case before it.

(2)  Under a s. 20O appeal, the Council is entitled to exercise the discretion afresh to affirm, vary or reverse the EAC’s recommendation.   

(3)  In relation to Dr X and Dr Y, the EAC’s respective s. 20N(1)(d) recommendation was made based on the result of the respective s. 21 inquiry.

(4)  However, 4 members who sat in the Council to hear Dr X’s and Dr Y’s respective s.20O appeals were persons who had previously either been involved in the preliminary investigations (through the PIC) or the subsequent inquiry hearing of the complaints made respectively against Dr X and Dr Y.   

(5)  These members had already formed a view (in the previous investigation or s. 21 hearings) on Dr X’s and Dr Y’s professional conducts based on the underlying facts related to the respective complaints.   These were also the facts which had led the Council to make the respective order against Dr X and Dr Y after the inquiry.  These orders and/or the very same underlying facts as considered by the EAC had then further led to the relevant s. 20N recommendations.   In these circumstances, I believe objectively a fair-minded and well informed observer would apprehend and suspect that there is a real risk these previous views may well slip into and affect these members’ minds in hearing the s. 20O appeals against the EAC’s recommendations. These previous views may then unfairly affect these members’ views in deciding (a) whether the EAC had properly exercised its discretion after taking into account of all the circumstances of Dr X’s and Dr Y’s respective case before it in making the recommendations, and/or (d) whether the Council on appeal should exercise the discretion differently.

(6)  In the premises, I am of the view that objectively a fair minded and well informed observer would apprehend or suspect that there was a real possibility of bias of the Council with the above composition in hearing the s. 20O appeals. 

71.Mr Bleach SC for the Council raises effectively two grounds to argue why the challenge on apparent bias or breach of Art 10 should not succeed.   

72.First, he says given the nature of the EAC’s recommendation regarding respectively Dr X and Dr Y, there was simply no question of any bias despite of the said overlapping of memberships.  This is so because:

(1)  The role of the Council in the s. 21 inquiry and the role of the EAC under s. 20N are entirely separate.  The order made in the professional misconduct decision (in an inquiry) to remove a registered medical practitioner from the GR is the starting point for the SR removal decision process.  The issue in the latter was: in light of that professional misconduct decision, and the order for removal from the GR, what are the ramifications for the inclusion of the person’s name on the SR. 

(2)  Accordingly, where the EAC and the Council (under a s. 20O appeal) are both concerned on the SR removal decision with the impact of the s. 21 order to remove the doctor from the GR, with no need for investigation or assessment of other factual circumstances, the fair-minded and informed observer should not apprehend any real possibility of bias.  This is particularly so as there is only one possible decision that could be made, i.e., if removed from the GR, a person must be removed from SR.

73.With respect to Mr Bleach, I do not agree.  I will explain why.

74.Although the EAC’s s. 20N decision may be of something different in nature from the s. 21 disciplinary decision, given that they are both decisions made from the same set of facts as found and concluded in the s.21 inquiry, I am not satisfied that a fair-minded observer would not (as I said above) apprehend that there is a real possibility that the views formed by those common members while dealing the disciplinary complaints as to the professionalism of the doctor would at least subconsciously affect the said members’ assessment of and view on the propriety of the EAC’s assessment.  

75.Further, I am not convinced that the removal from the SR was the only conclusion that could be made.  Mr Bleach’s submissions appear to have premised on the reading of ss. 20J and 20K(1) which provide as follows:

“20J Qualification for inclusion in Specialist Register

The Council shall, on the recommendation of the Education and Accreditation Committee, approve the qualifications, experience and other attributes that qualify a registered medical practitioner to have his name included in the Specialist Register under a particular specialty.

20K Inclusion in Specialist Register

(1)     A registered medical practitioner who wishes to have his name included in the Specialist Register shall apply to the Registrar in such form as may be determined by the Registrar.”

76.Because of the reference to “registered medical practitioners” in these provisions, Mr Bleach submits that when a specialist whose name has been removed from the GR (even for a very short period of time), his name must also be removed from the SR as he is no longer for that period of time a registered medical practitioner. 

77.I however do not read these provisions to have this effect.  All ss. 20J and 20K say are that when a doctor applies to have his name included in the SR, he must be a registered medical practitioner at that time.  I do not read these two provisions to also mean and require that, where the doctor’s name is already included in the SR, whenever and for whatever reason his name is removed from the GR for whatever period of time, he must also be so removed from the SR.    If that was what the legislature had intended, in my view they would have spelt it out expressly. It must be borne in mind that when a doctor’s name is removed from the GR, he is no longer entitled to practise medicine at all during that period of time even though his name remains on the SR.  Whether his name should then also be recommended to be removed from the SR, it should be left to the EAC to consider in the exercise of its discretion under s. 20N(1) in light of all the circumstances of the case.

78.Further, as I mentioned above, the EAC (and the Council on appeal) is exercising a discretion and it should look at all the circumstances of the case before it.   In light of my conclusion above that there was apparent bias of the Council which dealt respectively with the subject s. 20O appeals, one cannot say at this stage that a differently constituted Council hearing the s. 20O appeal must come to the same view as that of the previous s. 20O appeal Council.

79.Moreover, Mr Bleach’s above submission is not entirely correct factually in relation to Dr Y.  The EAC’s only ground stated in support of the EAC’s Recommendation Decision on Dr Y was that Dr Y had fallen below the competence of a specialist.  The EAC did not rely on the ground that as Dr Y’s name had been removed from the GR, his name also needed to be so removed from the SR.  The EAC did not rely on that ground for the obvious reason that when the recommendation was made (and in fact even at the time when his name was eventually removed from the SR by reason of the Council’s SR Decision on Dr Y), Dr Y’s name was still not yet removed from the GR given the pending Civil Appeal. As such, there was simply no question that it was a necessary consequence (as submitted) that Dr Y’s name had to be removed from the SR as his name was removed from the GR.  

80.Mr Bleach’s second ground, which is alternative to his first ground, is this.  He says even if there was apparent bias of the Council hearing the s. 20O appeals by reason of the overlapping memberships, the rule against bias has to give way to the common law principle of necessity.

81.Mr Bleach submits that given the statutory framework for the composition of the Council, the PIC and the EAC, and the quorum requirements, it “would not always be possible” to have entirely different tribunals for each decision being made in respect of professional misconduct and removal from the SR. 

82.For the necessity principle to apply, it demands in reality and all practicality (whether factually or statutory-rise) an impossibility to require someone else other than the complained person (or for the present purposes the panel as constituted) to hear or decide the subject matter.   Mere administrative inconvenience does not suffice[10].

83.For the present purposes, the statutory composition and relevant quorum requirements for the Council, PIC and EAC can be summarised as follows:

(1)  The Council has 28 members, 24 of whom are registered medical practitioners and 4 are lay persons[11].

(2)  For meetings of the Council to hear a s. 21 inquiry, 5 members of the Council or 3 members of the Council together with 2 assessors (who are not members of the Council) shall form a quorum[12].  In other words, a minimum of 3 Council members are required to form the necessary quorum for a s. 21 inquiry.

(3)  For meetings of the Council to hear a s. 20O appeal, the minimum quorum is 5 Council members[13].

(4)  PIC consists of 7 members, with the chairman and deputy chairman to be elected from the members of Council and 1 lay member to be nominated from the 4 lay members of the Council.  Thus, 3 out of the 7 members of the PIC must be from the 28 members of the Council[14].

(5)  The quorum of the PIC meetings is 3, with at least 1 to be a lay member and 1 to be the chairman or the deputy chairman[15]. Therefore, the minimum number of Council members required to form a quorum is 2.

(6)  The EAC shall consist of 14 members, of whom 5 are from the members of the Council.  The chairman of the EAC is to be elected from the Council members.  The quorum of EAC meetings is 5 which must include the chairman[16]. The minimum number of Council member required to form a quorum is thus 1.  

84.In light of the above quorum requirements on the presence of Council members, and the fact that the Council has 28 members, I cannot see how it could realistically and practically be said that by reason of necessity, the Council hearing a s. 20O appeal has to have overlapping membership with the PIC and the Council hearing the relevant s. 21 inquiry. 

85.At paragraphs 36 to 40 of Prof Felice Mak’s Affidavit filed on behalf of the Council, she tries out set out various scenarios to show that it is impossible not to have overlapping of memberships in the various hearings in order to enable the Council, the PIC and the EAC to perform their statutory functions.   I would quote these paragraphs in full as follows:

“36. While an inquiry requires not less than 3 Council members and 2 assessors, normally 5 Council members and 2 assessors would be arranged to form a panel in order to avoid adjournment and consequent delay of the inquiry for want of a quorum in case any member/ assessor has to drop out of any reason. Such an arrangement is important to ensure the efficient proceeding of the inquiry, bearing in mind that it is not an easy task to fix a mutually agreed schedule by all relevant parties again if the inquiry is adjourned.

37. If members who have taken part in a disciplinary case cannot take part in the proceedings relating to the specialist registration of the same practitioner, the statutory functions of the Council will be frustrated and the Council will be rendered non-functional for lack of a quorum, as is apparent from the following analysis using usual attendance numbers rather than the very minimum statutory requirements (in chronological sequence of events):

(a) Preliminary investigation: 3 members involved, 25 remaining;

(b) Disciplinary inquiry: 5 members involved, (usually including Council Chairman), 20 remaining;

(c) EAC recommendation: 3 members involved, 17 remaining;

(d) EAC appeal to the Council: minimum 5 members (including Council Chairman) involved, 12 remaining;

(e) Council meeting to consider EAC recommendation: 13 members (usually including Council Chairman) required, insufficient members to form a quorum.

38. If the bare statutory minimum of Council members was used, theoretically, 25 out of 28 Council members could be involved in the above decisions without an overlap (i.e. 3 for PIC, 3 for inquiry, 1 for EAC recommendation, 5 for appeal from EAC to Council, 13 for Council meeting to consider EAC recommendation, totalling 25 members). However, save and except for a disciplinary inquiry and subject to the rule that no one should be a judge in his own cause, all Council members would be invited to attend the above meetings, and their attendance would usually exceed the statutory minimum.

39. If the practitioner appeals to the Court of Appeal against the disciplinary order under s.26(1) of the Ordinance, i.e. following stage (b) in paragraph 37 above, the situation will be even more pronounced. The Council will have to make decisions on matters raised in the appeal (such as whether to contest or concede the appeal, what instructions to give in reply to the matters raised by the practitioner in the appeal). Such decisions can only be made by the full Council (with a quorum of 13) (not the inquiry panel, as the inquiry has already concluded). This would have the following impact on the analysis at paragraph 37 above:

(a) Preliminary investigation: 3 members involved, 25 remaining;

(b) Disciplinary inquiry: 5 members involved (usually including Council Chairman) involved, 20 remaining;

(c) Council decision on matters raised in appeal to Court of Appeal: minimum 13 members (including Council Chairman) involved, 7 remaining,

(d) EAC recommendation: 3 members involved, 4 remaining;

(e) EAC appeal to the Council: minimum 5 members (including Council Chairman) required, insufficient members to form a quorum;

(f) Council meeting to consider EAC recommendation: 13 members (usually including Council Chairman) required, insufficient members to form a quorum.

40. Even if the Council and its committees simply used the statutory minimum to achieve quorate meetings, and assuming that members who have participated in the PIC (paragraph 39(a) above) and in the inquiry (paragraph 39(b) above) may take part in the Council meeting to consider appeal to Court of Appeal (paragraph 39(c) above), the Council could not perform its statutory functions without having an overlap of membership in the scenario outlined at paragraph 39 above, as there would be a shortage of 4 Council members (i.e. 13 for Council meeting to consider appeal to Court of Appeal, 1 for EAC recommendation, 5 for appeal from EAC to Council, 13 for Council meeting to consider EAC recommendation, totalling 32 members).”

86.On a closer examination of these scenarios, it can be seen that they are based on (a) the practice of the Council and these committees to have more than the minimum requirement of Council members to attend the various hearings, and (b) also asserting that it is not permissible to have members sitting in the PIC and the s.21 inquiry to take part in the Council’s meeting to decide whether or not to oppose an appeal to the Court of Appeal lodged by a medical practitioner  under s. 26 following a s. 21 inquiry.   

87.However, basis (a) is more a matter of practice and convenience.  This is not evidence of impossibility and thus necessity.   Moreover, the reference to the minimum requirement on the number of Council members to form a quorum for the PIC meetings (which says to be 3) is in any event not consistent with the statutory requirements as I summarised above (which should be 2).   

88.Basis (b) is without justification.  I cannot see why there is a basis and thus the need to avoid some of the Council members who have previously taken part in the PIC investigation, the s. 21 inquiry, the EAC recommendation, the appeal from EAC to Council and the Council consideration of the EAC recommendation to also take part in the Council’s meeting to decide whether or not to oppose an civil appeal lodged by a doctor to the Court of Appeal.  The said requirement is a result of the practice of the Council instead of necessity. 

89.In my view, the weakness of the necessity argument is underlined by Mr Bleach’s own submission (which is a fair one) that it “would not always be possible” (emphasis added) to have entirely different tribunals.  This is more a contention for administrative inconvenience rather than practical impossibility. 

90.For the above reasons, I hold that the Council’s Appeal Decisions on Dr X and Dr Y are tainted by apparent bias.  They should therefore be quashed and the s. 20O appeals should be sent back for an afresh determination by a differently constituted Council. 

91.Given that the appeal decisions are quashed and the relevant s. 20O appeals have to be reconsidered afresh, it must follow that the Council’s SR Decisions on Dr X and Dr Y must also be similarly quashed as a necessary consequence.

D2.    The other grounds advanced in support of the judicial review applications

92.Dr X and Dr Y have advanced a number of other grounds in support of the judicial review. 

93.Given my above conclusion that the previous s. 20O appeal decisions by the Council should be quashed on the basis of apparent bias, and the relevant appeals be remitted back to a differently constituted Council to consider afresh, I would only deal with these other grounds insofar as I need to.

D2.1  The EAC recommendations made under s. 20N are illegal, ultra vires and/or an abuse of power

94.This is a ground raised by both Dr X and Dr Y.  In summary, it is advanced by Mr Dykes SC as follows:

(1)  Under s. 21 of the MRO, the Council cannot impose more than one sanction after a “due inquiry”. 

(2)  It is a principle of statutory interpretation that, even though no express prohibition appears in an enactment, powers may not be used to circumvent a provision (in the present case, s. 21) that imposes a limitation on the use of those powers[17].

(3)  Moreover, on a proper construction of s. 20N (together with s. 20I), the EAC can only act on it if the matter relates solely to a discrete compliance issue, or at least so where there has already been a “due inquiry” into the matter that concerns the EAC.  The EAC cannot invoke s. 20N for matters relating to a competence issue[18].

(4)  In the premises, the EAC was wrongfully exercising the power under s. 20N(1) by contravening the prohibition against evasion when it made a recommendation based on the subject matter of the due inquiry when the Council had already made a sanction under s. 21.   This amounts to “double punishment” under the same subject matter of inquiry, something which is expressly not allowed under s. 21. 

95.Mr Dykes’ submissions naturally involve a closer examination of ss. 20N and 20I. 

96.I have already quoted the relevant parts of s. 20N(1) above at paragraph 68, while s. 20I provides as follows:

“20I Functions of Education and Accreditation Committee

The [EAC] has the following functions-

(a) to determine, upon the recommendation of the Academy of Medicine, the specialties under which names of registered medical practitioners may be included in the Specialist Register;

(b) to recommend to the Council, upon the recommendation of the Academy of Medicine, the qualification, experience and any other attributes that qualify a registered medical practitioner to have his name included in the Specialist Register under a particular specialty determined by the Committee under paragraph (a);

(c) to recommend to the Council the procedures, documentations and fees payable for including the name of a registered medical practitioner in the Specialist Register;

(d) to recommend and review the standard and structure of undergraduate medical education and medical training required for a person to become a registered medical practitioner;

(e) to recommend to the Council whether the name of a registered medical practitioner should be included in or removed from the Specialist Register.”

97.Insofar as s. 20N(1) is concerned, in my view, the plain and ordinary meaning of the words “any complaint or information relating to the suitability of a registered medical practitioner to have his name included, or removed from the [SR], including but not limiting to anything about qualification, experience or [compliance with s. 20L]” do not connote a limitation of the EAC’s consideration to be based solely on compliance matters as submitted by Mr Dykes.  In particular:

(1)  The ordinary meaning of the word “suitability” provides a wide and general scope for the EAC to look into any matters and qualities (but not just compliance matters) relating to a registered medical practitioner that would make him fit for or appropriate to being included in the SR.

(2)  In expressly providing in the section that “suitability” includes but is not limited to matters concerning qualifications and experience (which are matters that could be described as falling within the issue of compliance), it must be the objective intention of the legislature that the EAC under this statutory provision is entitled to consider other matters in addition to those relating to compliance.

98.Mr Dykes contends that s. 20N should be construed with reference to or in light of the functions provided for the EAC under s. 20I.  He submits that that all these functions are related to compliance matters (such as the requisite qualifications and experiences).  Given that it could not be the intention of the legislature to give the EAC powers exceeding its statutory functions, s. 20N must be construed to limit the exercise of that power relating solely to complaints and information concerning compliance matters.

99.I do not agree that the functions of the EAC provided under s. 20I relate only to compliance matters, such as qualifications and experience.  

100.On a proper and fair reading, each of the subsections under s. 20I provides for a separate function given to the EAC.  They are not, and it is not so provided that they should be read subject to each other.

101.Thus, although subsections (1) to (4) of s. 20I may be said to relate principally to compliance matters, s. 20I(5) is different. It provides that the EAC shall have the function to “recommend to the Council whether the name of a registered medical practitioner should be included in or removed from the Specialist Register”.  This gives the EAC a wide and general function to deal with anything that relates to all the necessary attributes of a registered medical practitioner to enable him to have his name included in the SR.  This is a “catch-all” provision.  These attributes must include matters other than compliance matters, which have already been set out under the other four subsections. 

102.This interpretation corresponds and is consistent with s. 20J which provides that the Council shall, on the recommendation of the EAC, approve “the qualifications, experience and other attributes that qualify a registered medical practitioner to have his name included in the SR under a particular specialty” (emphasis added). 

103.In the premises, reading ss. 20N and 20I together does not support Mr Dykes’ submissions on the construction of s. 20N.  In my view, the general and wide function provided under s. 20I(5) fortifies my above conclusion that s. 20N permits the EAC to consider anything (including but not limited to compliance matters) that relates to the “suitability” of a registered medical practitioner to have his name included or removed from the SR.  The EAC is therefore entitled under s. 20N to look into matters relating to the competence of a specialist.

104.With this in mind, I also do not accept the Applicants’ contention that the EAC’s present s. 20N recommendations amount to a “contravention” of the legislative intention under s. 21 to have only one sanction or punishment after a s. 21 inquiry.   My reasons are as follows.

105.S. 21(1) provides 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) order the registered medical practitioner to be reprimanded; or

(iiia) order that the name of the registered medical practitioner be removed from the Specialist Register; or

(iiib) order that the name of the registered medical practitioner be removed from the Specialist Register for such period as it may think fit; or

(iv) make any such order as aforesaid but suspend the application thereof, subject to such conditions as the Council may think it, for a period, or periods in the aggregate, not exceeding 3 years; or

(iva) make any such order as aforesaid (except an order under paragraph (iv)) and further order that such order take effect upon its publication in the Gazette if the Council is satisfied that it is necessary to do so for the protection of the public or in the best interest of the registered medical practitioner; or

(ivb) refer the case to the Health Committee; or

(v) order that a warning letter be served on the registered medical practitioner;

and may, in any case, make such order as the Council thinks fit with regard to the payment of the costs of the Registrar, the Secretary, any complainant or any person presenting the case to the Council or of the registered medical practitioner, and any costs awarded may be recovered summarily as a civil debt in accordance with the provisions of section 67 of the Magistrates Ordinance (Cap 227).”

106.It is not disputed that under s. 21(1), the Council could only impose one of the listed alternative sanctions provided therein if it finds the doctor guilty after a due inquiry. 

107.Read as such, this one sanction intention relates and can only relate to the 7 grounds to be investigated under the inquiry as provided under s. 21(1)(a) to (g).   In other words, it is the legislative intent that insofar as there is a guilty conclusion made after a due s. 21 inquiry held for any of the 7 grounds provided therein, the Council could only impose one sanction.    

108.However, these 7 grounds do not necessarily overlap with matters relating to the “suitability” of the same registered medical practitioner to have his name included (or removed) in the SR as provided under s. 20N.

109.In other words, the same set of facts which have been investigated under a s. 21 inquiry for any of the grounds set out therein may also give rise to matters concerning the suitability of the registered medical practitioner to have his name included in the SR, which does not overlap with those 7 statutory grounds provided under s. 21(1). 

110.Therefore, as along as the related suitability considerations are in nature different from the s. 21 grounds that have been or could be investigated under a s. 21 inquiry, the EAC’s exercise of power under s. 20N to make a recommendation to the Council for any further sanction does not and could not amount to a circumvention of the one sanction intention under s. 21 as explained above. 

111.With s. 20N’s power understood as such, I now turn to consider EAC’s exercise of that power in the present case.

112.In relation to Dr X, the EAC’s s. 20N recommendation made was based on the basis that he did not fulfill the prerequisite requirement that only a registered medical practitioner whose name is included in the GR could be included in the SR.   This is a compliance matter.  Therefore, even taking Mr Dyke’s position to the highest, the EAC was entitled to exercise the power under s. 20N to make a recommendation.  The EAC’s Decision on Dr X is thus not based on an illegal or wrongful exercise of the EAC’s power under s.20N. 

113.In relation to Dr Y, he was investigated at the inquiry for professional misconduct.  On the other hand, EAC came to the view that, the facts as proved and found at the inquiry also showed that he fell below the competence expected of a specialist of his specialty[19]. In my view, the professional misconduct as investigated by the Council under the inquiry and the competence as a specialist are matters of a different nature. In other words, the “competence” issue was something different in nature from the 7 statutory grounds that could be investigated by the Council under s. 21.   As such, EAC’s Recommendation Decision on Dr Y is also not based on an illegal or ultra vires exercise of the EAC’s power under s. 20N.

114.The judicial review applications based on this ground must fail. 

D2.2  Disproportionate response of permanent removal from the SR

115.This ground is also common to both Dr X and Dr Y. 

116.In essence, Mr Dykes says the recommendation (and the decisions to confirm the same) that Dr X and Dr Y be removed from the SR permanently is disproportionate to the Council’s order only to remove them for a short period of time (respectively 2 and 5 months).

117.I am not convinced by this argument and accept the Respondents’ contention that the recommendations to remove Dr X’s and Dr Y’s names permanently are necessary (and thus not disproportionate) for the following reasons:

(1)  Once their names are removed from the SR, (subject to their fulfilling of the specialist qualifications and experience requirements) upon their applications, Dr X’s and Dr Y’s names could only be included back in the SR if they also comply with the prerequisite that they are registered medical practitioners, which mean that they have to be first included in the GR.

(2)  Although the Council only ordered that their names be removed from the GR respectively for a limited period, as a matter of law, they did not have an automatic right to have their names restored to the GR once those periods expired[20]. They must re-apply to have their names included in the GR which was subject to the Council’s afresh assessment and scrutiny.  There was thus no guarantee as to whether and when their names would be restored to the GR.

(3)  In the circumstances, the EAC at the time of the recommendations could not and was not in a position to know or predict whether and when Dr X’s and Dr Y’s names would be restored to the GR. Therefore, once the EAC decided to recommend their names to be removed from the SR, it was not in position and could not recommend the removal only for a period of time.  The recommendation to remove their names from the SR permanently,but without prejudice to their right to apply for inclusion again, was thus necessary and not disproportionate to the Council’s sanctions.

118.I therefore also reject this ground of judicial review.

119.However, as to the question of whether, after taking into account of all the circumstances of the case concerning Dr X and Dr Y, including the fact that they were only ordered to be removed from the GR for a few months, it was a proper exercise of the discretion to recommend the removal of their names from the SR, I would leave it to the differently constituted Council to decide afresh under the s. 20O appeals.

D2.3  The EAC does not have jurisdiction over unregistered medical practitioners under s. 20N

120.This is an independent ground advanced by Mr Dykes for Dr X, and can be summarised as follows:

(1)  As provided under s. 20N, it is only engaged when the EAC comes to notice of any complaint or information relating to the suitability of “a registered medical practitioner” for his name to be included or removed from the SR.

(2)  A “registered medical practitioner” is someone who is registered and thus included in the GR.

(3)  Given that Dr X was already removed from the GR and thus no longer a “registered medical practitioner” when the EAC made the removal recommendation, the EAC simply did not have any jurisdiction over him at that time under s. 20N.  The purported exercise of the power under s. 20N to make the recommendation was thus illegal or wrong in law.

(4)  Further, given that the Registrar ought to have immediately removed Dr X’s name under s. 20(2) after the removal of his name from the GR, the EAC similarly could not have any power to recommend the removal of Dr X’s name from the SR.

121.With respect to Mr Dykes, I do not agree.

122.On a proper reading of s. 20N, the phrase “complaint or information relating to the suitability of a registered medical practitioner” refers to the time when the said complaint or information is received by the EAC, as this phrase is preceded by the reference to “where the [EAC] comes to the notice of”.  

123.Therefore, the EAC’s jurisdiction under s. 20N is invoked and engaged so long as at the time when it receives the relevant complaint or information, it is related to a “registered medical practitioner”.  The said jurisdiction would not be disengaged even though subsequent to this, the subject registered medical practitioner’s name has already been removed from the GR.

124.Further, s. 20 provides as follows:

“20. Alterations to registers

(1) The Registrar may on payment of the prescribed fee amend any entry in the General Register or the Specialist Register if any alteration in or addition to the address or qualification of or other relevant information relating to the person named in such entry shall have come to his knowledge.

(2) The Registrar shall make such amendments to the General Register or the Specialist Register as are made necessary by any decision of the Council.”

125.It is Mr Dykes’ submissions that, given the Council’s s. 21 order to remove Dr X’s name from the GR, this necessitates the removal of his name from the SR.  This is so because under s. 20J[21], only a registered medical practitioner’s name (and thus someone whose name is on the GR) could be included in the SR.  In the circumstances, the Registrar shall exercise his duty and power under s. 20(2) to “amend” the SR by removing Dr X’s name from it.   

126.Mr Bleach for the Council however contends that on a proper reading, s. 20(2) is not intended to give the Registrar the general power to remove a doctor’s name from the SR after his name has been removed from the GR following a Council’s order.  Mr Bleach’s submissions are premised on reading s. 20 together with s. 19B. 

127.S. 19B provides as follows:

“19B. Power of Council to order removal of names from Specialist Register

(1) If-

(a) the Council orders a removal of the name of a person under section 19(1); and

(b) that person's name is also included in the Specialist Register,

the Registrar shall, at the same time when he removes that person's name from the General Register, also order the removal of his name from the Specialist Register.

(2) The Council may, upon a recommendation of the Education and Accreditation Committee and without conducting an inquiry under section 21, order the removal of the name of a registered medical practitioner from the Specialist Register permanently or for a period as the Council thinks fit. ”

128.Thus, s. 19B(2) provides a specific power to the Registrar to remove a doctor’s name from the SR following the Council’s order made under s. 19B(1) to remove his name from the GR on the specific grounds as set out therein.

129.Mr Bleach submits that if s. 20(2) provides a general power (as contended by Dr X) to (by way of amendment) remove a doctor’s name from the SR made necessary by any Council’s order (which must include any order to remove a doctor’s name from the GR), s. 19B(2) would become superfluous.  This cannot be right as the statute should be construed to give each provision a due measure of real meaning and substance[22].  Further, it is the structure of the MRO that, where removal of a doctor’s name from the SR is contemplated necessary, the power to do so is provided specifically under s. 19B(1) and (2) or under s. 21(1) after an inquiry. 

130.I accept Mr Bleach’s above submissions.  

131.Further, I will also disagree with Mr Dyke’s submissions that a s. 21 order made by the Council to remove a specialist’s name from the GR must also necessitate the removal of his name from the SR for the reasons I have set out at paragraphs 75 to 77 above.

132.I therefore rejects Mr Dyke’s case that s. 20(2) gives power to and mandates the Registrar to remove a doctor’s name from the SR by way of amendment following a Council’s order made under s. 21 to remove his name from the GR.

133.I would dismiss this ground of Dr X’s judicial review.

D2.4  No jurisdiction to recommend or order removal from the SR pending appeal to the Court of Appeal or otherwise unlawful

134.This ground only applies to Dr Y. 

135.The arguments run as follows.

(1)  As mentioned above, Dr Y lodged the Civil Appeal to the Court of Appeal against the Council’s determination and order made after the s. 21 inquiry. 

(2)  The Council’s order to remove his name from the GR was thus stayed by s. 25(2) until the determination of the Civil Appeal.

(3)  The existence of the statutory stay is the best evidence there is that the legislature intends the status quo to be maintained until after the appeal is dealt with.  The Council should do nothing to disturb that by taking any pre-emptive steps based on the s. 21 due inquiry that could be said to anticipate the dismissal of the appeal.

(4)  Further, if the Council’s decision is pending appeal on the facts, and if the EAC have based their recommendation to remove from the SR on those findings of fact, then any such recommendation can only be entertained after the appeal is concluded.

(5)  It is therefore unlawful for the EAC (as a committee of the Council) to arrogate to itself a power to purport to override the terms of the statutory stay.  The Council hearing a s. 20O appeal must also honour the stay that binds the effectiveness of the Council’s disciplinary order. 

(6)  The decision of the EAC and the Council to press on regardless of the statutory stay was therefore unlawful and/or Wednesbury unreasonable in that it thwarted the policy of the MRO and involved the doctors in proceedings which rested on contingency, namely the dismissal of the appeal to the Court of Appeal.

136.In my view, even if there is a legislative intention to maintain the status quo, the EAC’s Recommendation Decision on Dr Y does not amount to any effective circumvention or infringement of the statutory stay of the Council’s s. 21 order to remove his name from the GR.  It is so because the recommendation itself is only a recommendation and does not carry the effect of removing Dr Y’s name from the SR.  It would only have that effect unless and until the Council accepts and acts upon the recommendation to make an order to that effect.

137.Further, insofar as the so-called “statutory stay” is concerned, Mr Bleach also submits that s. 25(2) only prevents the Registrar from removing a person’s name from the GR where there is an appeal against the s. 21 order.  S. 25(2) is only directed at the Registrar and it is only concerned with the Registrar not making the relevant removal from the GR when there is such an appeal.  Thus, says Mr Bleach, s. 25(2) does not prevent the EAC or the Council from taking any steps such as considering the ramifications of the s. 21 order and making recommendations or orders as to the removal from the SR.

138.Mr Bleach also argues that s. 25(2) is limited to a stay on effecting the s. 21 order for removal from the GR, and has no application to proceedings by the EAC to recommend removal from the SR, nor to any decision by the Council to remove a person from the SR.

139.I agree with Mr Bleach’s above submissions.  S. 25(2) provides as follows:

“(2) Unless an order under section 21(1)(iva) is made at the same time as another order is made under section 21(1) or an order under section 21A(1)(d) is made at the same time as another order is made under section 21A(1), the Registrar shall not remove the name of the registered medical practitioner from the General Register or, as may be appropriate, the Specialist Register, before the expiry of 1 month after the date of service of the order of the Council on the person concerned or, in the case of an appeal made to the Court of Appeal against the order under section 26, before the appeal is finally determined.”

140.The wording of s. 25(2) is clear, it is only intended to stay the s. 21 order from being implemented through the Registrar pending appeal.   One therefore cannot construe this to give an effect that as matter of law, the EAC or the Council is similarly barred or stayed from taking any steps under the other provisions of the MRO if those steps do not amount to giving effect to the order.

141.Notwithstanding my above conclusion, I appreciate that there may be much to be said as to whether, in light of the pending Civil Appeal, it was a reasonable and proper exercise of the discretion under s. 20N by the EAC, given that the Civil Appeal might result in setting aside the s. 21 order and/or the findings of the inquiry.  This is however a matter of the proper exercise of the discretion and I would leave this to the newly constituted Council to decide when it hears the s. 20O appeal afresh.

142.For these reasons, I would reject the judicial review on this basis. 

E.      Conclusion

143.For the above reasons, I would allow the judicial review to the extent that I would:

(1)  quash the Council’s Appeal Decision on Dr X and the Council’s Appeal Decision on Dr Y on the basis of apparent bias, and remit the s. 20O appeal respectively of Dr X and Dr Y back to a differently constituted Council to consider it afresh; and

(2)  quash the Council’s SR Decision on Dr X and the Council’s SR Decision on Dr Y[23].

144.Dr X and Dr Y are partially successful in these applications, I therefore make a costs order nisi that the Respondents are to pay half of the costs of the Applicants, to be taxed if not agreed, with certificate for two counsel.re-

145.As the grounds and reliefs sought by Dr Z are effectively the same as those of Dr X and Dr Y.  Thus, for the same reason, I would also make an order nisi that half of the costs of Dr Z are to be paid by the Respondents to be taxed if not agreed, with certificate for two counsel.

146.The costs order nisi shall become absolute 14 days from today unless any of the parties applies to vary it by way of Summons.

147.It remains for me to thank counsel for their assistance.

Mr. Philip John DYKES S.C., leading Mr. R. Douglas JONES, instructed by Messrs Reed Smith Richards Butler, for the Applicants.

Mr. Nicholas James COONEY, S.C., instructed by Messrs Lo & Lo, for the 1^st Respondent.

Mr. John H.N. BLEACH S.C., leading Ms. Roxanne ISMAIL, instructed by Department of Justice, for the 2^nd Respondent.  

Please refer to CACV205/2011, CACV206/2011 & CACV209/2011 for the relevant appeal(s) to the Court of Appeal.