Re Neil Garnham Qc

HCMP 3364/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3364 OF 2013

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REASONS FOR JUDGMENT

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1.The applicant, a London silk specialising in professional disciplinary work with extensive experience in clinical negligence, sought admission under section 27(4) of the Legal Practitioners Ordinance (Cap 159) to appear for two medical doctors facing charges in a Medical Council disciplinary inquiry. The court heard and dismissed the application on 23 December 2013, and these are the reasons for the decision.

2.Very briefly, there are 8 charges, which concern the treatment of a patient and her baby before, during and after delivery – the baby died within 24 hours of delivery – against the two doctors, an obstetrician and gynecologist, and a paediatrician respectively :

“(1) Whether it was appropriate to perform an amniotomy on the patient; this requires a detailed examination of the medical evidence which was available to [the obstetrician] on 18^th February 2005 when the decision to perform an amniotomy was made.

(2) Whether, if an amniotomy was properly indicated, it was appropriate for the amniotomy to be performed in a clinic setting as occurred in this case, alternatively, was it practical and/or appropriate and/or proper medical practice for the amniotomy to be performed in a clinic setting. This involves consideration of a number of potential complications including cord prolapse and infection.

(3) The use of the drug syntocinon during labour specifically whether it was appropriate for [the obstetrician] to prescribe syntocinon without prior examination of the patient; whether the syntocinon infusion was prescribed at an appropriate time; whether the regime for syntocinon infusion was appropriate; whether the changes that were made to the regime of syntocinon infusion were appropriate; whether an error was made in the prescription of the syntocinon infusion and if so by whom was that error made. This involves detailed examination of the evidence on these issues which is contained not only in [the obstetrician’s] notes but also in the relevant hospital records and an understanding of the syntocinon procedure.

(4) Whether [the obstetrician] failed to arrange for a paediatrician to standby for resuscitation at the time of the birth of the patient’s baby when she should have anticipated that the baby would be born depressed. This involves a detailed consideration of the medical records and medical evidence which was available to [the obstetrician] in the period leading up to the delivery in order to determine the issue as to whether a paediatrician should have been on standby at delivery; it also involves consideration as to the relevant arrangements and procedures as to when a paediatrician is required to be on standby for resuscitation.

(5) Whether [the obstetrician] failed to recognise the presence of fetal distress in the first and second stages of labour. This involves, again, a detailed examination of the medical evidence and medical records to determine whether the foetus was suffering fetal distress at any time and/or in the first and second stages of labour and whether the clinical evidence as set out in the medical documentation supports a finding of fetal distress. If so, whether [the obstetrician] failed in her duty to the patient in failing to identify and take appropriate steps in respect of the treatment of such fetal distress.

(6) Whether [the obstetrician] failed to perform proper and effective resuscitation for the patient’s baby. This involves consideration as to the condition of the patient’s baby at birth; interpretation of video evidence concerning the baby’s condition and vital signs, consideration of the medical evidence and medical records as to the baby’s condition and as to whether the resuscitation which took place was proper and appropriate.

(7) Whether [the obstetrician] failed to arrange a paediatrician to resuscitate the patient’s baby when the baby was born depressed. This charge largely covers evidence to which reference is made in Charges (4) – (6) namely whether the baby was born depressed; in this event whether a paediatrician should have been on standby to arrange resuscitation; alternatively, were the facilities and other personnel who were present at the hospital when the baby was born appropriately qualified to perform resuscitation.

(8) Whether [the paediatrician] disregarded his professional responsibility to the patient’s baby who had a subaponeurotic haemorrhage in that he failed to properly transfer the patient to a neonatal intensive care unit as and when it was required.”

3.Originally, the doctors were represented by Howse Williams Bowers, solicitors specialising in Medical Council disciplinary inquiries.  They had represented the two doctors in a related civil claim. That claim was subsequently resolved.  A complaint was then made to the Medical Council and the solicitors continued to represent the doctors.  In February 2013, the medical charges were laid against the doctors and there were some amendments made to the charges in September.  The inquiry was originally scheduled for 16 October 2013, but shortly before that hearing, the obstetrician decided to hire a leading counsel to represent her, and since it was going to be a joint inquiry, the other doctor also decided to be represented by the same counsel.  The reasons given for this last minute change of representation were that given the new expert evidence relied on to support the charges, the case had become complex and difficult, the amendments had enlarged the scope of inquiry and the doctors’ professional reputations were at stake.  The doctors therefore applied for an adjournment of the inquiry, and the Medical Council reluctantly granted it.

4.According to the evidence, the doctors through their solicitors approached a total of 4 local leading counsel, but three of them were unavailable to appear for the doctors at the adjourned hearing scheduled to start on 5 January 2014 (for four consecutive Sundays), and the fourth one lacks relevant experience in Hong Kong.  Two other leading counsel specialising in personal injuries (including medical negligence) were suggested by the solicitors, but somehow the doctors considered them to be unsuitable.  According to the evidence, in late October 2013, the doctors decided to retain a London silk – the applicant.

5.However, due to the solicitors’ misconception of the legal requirement on admission, they did not approach the Bar and the Secretary for Justice for consent to the admission of the applicant until 10 December 2013.  The notice of originating motion was only taken out on 16 December 2013, and given the urgency of the matter, the application was heard on 23 December 2013.

6.The application for admission was sought on the basis that the inquiry is an unusual one, and involves difficult and complex factual and expert evidence.  A specialist counsel is required and the pool of specialist counsel, particularly one with Medical Council inquiry experience, is limited.  Given the shortage of time, the doctors had not been able to find a suitable local counsel who would be available and therefore they had turned to London to find the right counsel.  Mr Russell Coleman SC, moving the admission, argued that the whole complexion of the inquiry changed only in September when the charges were amended and broadened and further expert evidence was relied on against the doctors.  Mr Coleman also indicated that a local junior would be instructed to appear for the doctors together with the applicant (if admitted).  Mr Coleman explained that the delay was caused by an innocent mistake on the part of the solicitors, and the situation was by no means a “self‑inflicted” one.  The solicitors made the mistake because this was the first case, so far as they were aware, where overseas counsel was instructed to appear before the Medical Council.  They mistakenly thought that no admission was required.

7.The Bar opposed the application and the Secretary for Justice, in a more subtle way, also opposed it.  They submitted that the case is not of unusual difficulty or complexity.  They pointed out that it was a very late application.  They also submitted that no reasonable efforts had been made to locate local counsel to conduct the case.

8.The principles governing admission of overseas counsel are very well established and need not be repeated : Re Flesch QC [1999] 1 HKLRD 506; Re McGregor QC [2003] 3 HKLRD 585.  Each case must turn on its own facts.  However, as the authorities have established, if a case is of unusual difficulty or complexity, that is an important factor to bear in mind.  Another obvious factor is whether suitable local counsel is available to conduct the case.  This leads to the further question of whether genuine and reasonable efforts have been made to locate such counsel to do the case.  Delay is obviously a relevant factor.

9.I am not convinced that the underlying inquiry is one of unusual difficulty or complexity.  No doubt, a lot will turn on expert evidence, and the inquiry is not a straightforward one.  However, this is true with many medical negligence cases, which are, as a rule, handled, and handled well, by local counsel.  I note that the Medical Council, in granting the adjournment reluctantly, has observed that this is not a particularly difficult case.  Given the expertise and experience of the Council, its view is entitled to due weight.

10.I also note that originally, the doctors’ intention was simply to find a leading counsel to represent them.  It was not their case that the case (after the September amendments) had become so complicated and difficult that only overseas counsel would be able to do it competently.  It was only after they found out that the local leading counsel they had in mind would not be available to do the inquiry that they turned to London for representation.

11.Mr Coleman argued that the inquiry is before the Medical Council comprising medical practitioners.  Not every counsel with no medical training or experience in clinical medico‑legal disputes would feel comfortable with appearing before such a panel.  That must be correct as a general statement.  However, one is not talking about any counsel here.  One is only concerned with those practising in the Inner Bar – those who have shown themselves to be successful counsel of skill and experience in conducting heavy litigations, including litigations involving experts.

12.In this regard, I would like to repeat what I have said in Re Lord QC, HCMP 1397/2013, 16 August 2013, paragraph 15, regarding cases involving difficult technical or expert matters :

“In reality, the suggested unusual difficulty and complexity lie with technical or expert matters. What is required is good expert assistance. What is not necessarily required is overseas specialist counsel. I take it as an essential requirement of a good trial counsel the ability to deal with experts and expert evidence in fields which counsel knows very little or practicably nothing about. That is by nature of counsel’s work a requirement of necessity. No counsel can be expected to know everything outside the law. By necessity, counsel, and indeed the court, must possess the ability to deal with experts and expert evidence. In my view, such an ability is certainly not lacking amongst many of our senior counsel (and indeed junior ones as well) practising in the local Bar.”

13.Moreover, whoever eventually appears for the doctors before the Council will be assisted by the solicitors, who, as said, are extremely experienced in handling inquires before the Council.

14.On final analysis, this case does not turn on whether there are suitable and competent counsel in the local Bar who can take up the representation.  For the answer, in my view, must be “yes”.  The case turns on the availability of such counsel to represent the doctors at the adjourned inquiry.  Thus analysed, the question of whether genuine and reasonable efforts have been made to locate suitable local counsel becomes a very important one.

15.In this regard, it is plain that the pre‑hearing efforts made to find such counsel had been limited.  At the hearing, no less than six names were mentioned, they being names of counsel whom the doctors’ solicitors had not approached.  Upon enquiry, at least one of them would appear to be available to represent the doctors at the adjourned inquiry.

16.In any event, the facts of the present case are such that, in my view, even if no such counsel could be found in the short time available, the court should still exercise its discretion against admission.  First, the urgency of the matter and the dilemma the doctors found themselves facing were to a substantial extent of their own making.  Even if one were to start counting time from October, more extensive efforts should have been made to find local counsel well before late December when this application was heard.  Of those counsel who were not, as at the time of hearing, available to appear at the adjourned inquiry, it is not clear, at least in relation to some of them, whether they would not have been available if they had been approached earlier.  And the mistake in relation to the need for admission of overseas counsel only made things worse in terms of delay.

17.Secondly, if no suitable counsel was available for the inquiry when it resumed, the solution would not necessarily lie with this court admitting somebody from overseas in order to give the doctors representation in a situation where otherwise no such admission would have been warranted.  One obvious alternative would be for the doctors to apply for an adjournment of the inquiry before the Council.

18.In any event, given the apparent availability of at least one leading counsel with experience in medical negligence cases, the situation for the doctors was not as bad as what I have just discussed.

19.Having borne in mind all relevant considerations including in particular those mentioned above, I have come to the firm conclusion that the application should be dismissed, and I have so ordered.

Mr Russell Coleman SC, instructed by Howse Williams Bowers, for the applicant

Mr Paul Lam SC and Ms Kay Seto, instructed by Kwok Ng & Chan, for the Hong Kong Bar Association

Ms Leona Cheung SGC, of the Department of Justice, for the Secretary for Justice