Dr Leung Shu Piu v. The Medical Council of Hong Kong

FAMV No. 17 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 17 OF 2014 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 374 OF 2008)

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Between:

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REASONS FOR DETERMINATION

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Mr Justice Bokhary NPJ:

1.Dr Leung Shu Piu sought leave to appeal to the Court of Final Appeal from a judgment by the Court of Appeal (Tang Ag CJHC and Yeung and Yuen JJA) dismissing his appeal against a decision of the Medical Council by which he was convicted on three charges of misconduct in a professional respect.  At the conclusion of the hearing, leave was refused for reasons to be handed down later. These are those reasons.

Charges

2.The three charges (being Charges (a)(i), Charge (a)(ii) and Charge (b)) were:

“That he, being a registered medical practitioner, disregarded his professional responsibility to his patient A, a minor, in that:­-

(a) in the period between May 2004 and May 2006,

(i) without proper justifications, he prescribed to the patient Celestamine which contained steroid for treating the patient's upper respiratory tract infection on about 26 occasions;

(ii) he prescribed to the patient Celestamine which contained steroid without advising the patient's parent about the nature and side effects of Celestamine;

(b) on or about 24 May 2006, upon enquiry of the patient's father on whether Celestamine contained steroid, he did not reply him in the positive and instead, he told him that Celestamine was not regarded as a steroid.

In relation to the facts alleged, he has been guilty of misconduct in a professional respect.”

3.Leave to appeal to the Court of Final Appeal was sought primarily under the “question of great general or public importance” limb of s.22(1)(b) of the Court’s statute. But, in reliance on the matters put forward under that limb, leave was sought also under the “or otherwise” limb of that provision, it being urged on Dr Leung’s behalf that those matters point to a significant injustice which only the Court of Final Appeal can remedy.

Questions put forward

4.Three questions were put forward on Dr Leung’s behalf as questions of law of great general or public importance, being:

“(Q.1) Where a medical practitioner forms a clinical judgment that the treatment of the health of a minor patient would best be served by the prescription of a medicine which will not harm the minor patient and which presents no risk of adverse side-effects, does he commit professional misconduct if he fails to advise the minor patient's parents of the nature of the medicine (plus the absence of side effects), if, in his professional judgment, doing so may not be in the best interests of the health of the minor patient?

(Q.2) Can a medical practitioner be convicted of professional misconduct because, having made an initial diagnosis of his patient's condition, during subsequent treatments he (orally or by conduct) made the same diagnosis, but he failed specifically to make ­another record repeating his initial diagnosis?

(Q.3)   Is a verdict of dishonest professional misconduct vitiated if no charge of dishonesty was unambiguously formulated and/or put to the medical practitioner during the Medical Council's Inquiry hearing?”

5.Counsel for Dr Leung said: that Question 1 is directed to Charge (a) (ii); that Question 2 is directed to Charge (a) (i); and that Question 3 is directed to Charge (b). It is to be observed that: Question 1 goes to failure to advise; Question 2 goes to record-keeping; and Question 3 goes to dishonesty. 

Charge (a)(i)

6.It is to be observed at once that the misconduct charged under Charge(a)(i) is unjustified prescription and, contrary to the submission of Dr Leung’s counsel, not failure to keep proper records.  The issue under Charge (a)(i) was simply whether or not the prescription of Celestamine on the 26 occasions involved was justified.  The Medical Council convicted Dr Leung on this charge on the basis that it was not justified on 22 of those 26 occasions.  In so far as the Medical Council had regard to what was or was not in the records kept by Dr Leung, it did so properly in the ordinary course of fact-finding. 

Charge (a)(ii)

7.Charge (a)(ii) is based on failure to advise.  But Dr Leung’s immediate difficulty is this.  Question 1 is premised on an assertion made on his behalf that he had formed a professional judgment to the effect that giving the advice in question may not have been in the best interests of the health of the minor patient.  There is, however, no finding in Dr Leung’s favour that he had formed such a judgment.  These charges were fact-sensitive, and Question 1 is not actually reached in regard to Charge (a)(ii) even though both concern failure to advise.

8.What the Medical Council said on failure to advise is contained in paras 13 to 15 of its decision.  Those paragraphs read:

“13. We then turn to the second question of whether it was necessary to advise the minor patient's parents that Celestamine contained steroid and its side effects. There are two elements here: nature of the medicine and side effects of the medicine.

14. For a medicine which has known potential side effects, patients should be advised of its nature so that they can make an informed choice as to whether to accept the medicine. Steroid is such a medicine, as it has been shown to have some significant side effects. There is general concern about the use of steroid, and patients should be given the proper advice before it is prescribed. This is so even if the dosage prescribed does not have any side effect. It must be borne in mind that patients are not medically trained and so are unlikely to understand technical medical terms. While it is neither necessary nor helpful to advise patients of the chemical composition of the medicine, patients should be informed in laymen terms what the medicines are.

15. We bear in mind that Celestamine in the dosage prescribed has no significant side effects. However, there was a danger that the patient might see other doctors and if the other doctors also prescribed steroid this might result in a dosage which would increase the risk of side effects. In the present case, the Defendant must have been well aware of the parents' concern about the use of particular medicines with side effects. In the circumstances, it was particularly obvious to the Defendant that the parents should be informed of any medicine with significant side effects before prescribing it. By failing to do so for 26 occasions when Celestamine was prescribed, the Defendant's conduct had fallen short of the standard expected. We are satisfied that this is professional misconduct. We find him guilty of charge (a)(ii).”

9.It is said on Dr Leung’s behalf that what the Medical Council said about the patient being seen by other doctors is speculative, theoretical, wrong in law and unworkable in the actual practice of medicine.  Having regard to the weight which the courts rightly accord to the views of expert tribunals on matters within their expertise and experience, there is no reasonable prospect of the Court of Final Appeal being persuaded that the Medical Council’s concerns in this connection are to be treated as speculative, theoretical or unworkable in the actual practice of medicine.  And that puts an end to the assertion that those concerns are wrong in law.

10.A proposition contended for on Dr Leung’s behalf under Question 1 is that a doctor can, if he has formed a professional judgment that it would be in the best interests of a minor patient’s health, withhold  from  the parents or guardians of that minor patient information that he would not be justified in withholding from a adult patient. We see no reasonable prospect of the Court of Final Appeal laying down a sweeping proposition such as that. In any case, as we have already said, there is no finding in Dr Leung’s favour that he had formed any such judgment.

Charge (b)

11.We come now to Charge (b) and the matter of dishonesty.  In para. 18 of its decision, the Medical Council said this:

“Having considered the entirety of the evidence, we are satisfied that the Defendant answered the question by saying that Celestamine was not regarded as steroid. We do not accept that the Defendant misunderstood such a simple question. Furthermore, the Defendant's subsequent advice in the same conversation about Prednisolone being a steroid was clearly prompted by the question. We are satisfied that the evasive answer was intended to conceal the fact that he had been prescribing a steroid for many times without informing the patient's parents. It is unethical for a doctor to give such an evasive and misleading answer to a patient's parent who has shown concern for the medicine in question, and the Defendant's conduct has certainly fallen below the standard expected. We are satisfied that this is professional misconduct. We find him guilty of charge (b).”

When dealing with the matter of penalty, the Medical Council said this in para. 23 of its decision:

“On the other hand, patients depend on doctors for protection of their health, and doctors have a heavy duty to act professionally and not to abuse their trust. Patients know little about medicines, and doctors' advice is all they can rely upon in deciding what medicine to take and whether to accept a particular medicine. The Defendant not only has failed that duty, but has also acted dishonestly when the patient's father asked whether the medicine contained steroid. This is a serious matter, and we must send a strong message to members of the profession.”

12.Under Charge (b), the Medical Council had a primary issue of fact to resolve.  On that issue, they had to weigh Dr Leung’s testimony and come to a conclusion on it. And that, as was realized by all concerned at the disciplinary hearing, involved taking a view on the honesty or otherwise of Dr Leung’s testimony.  Question 3 is not to the point.

Relating questions of law to the actual circumstances

13.In applications for leave to appeal to the Court of Final Appeal under the “question of great general importance” limb of s.22(1)(b) of the Court’s statute, it is important to avoid raising questions unrelated to the actual circumstances of the case and also, of course, to avoid treating questions of fact as questions of law.

Relying on the “or otherwise limb” further or alternatively

14.Where leave to appeal to the Court of Final Appeal is sought under the “question of great general importance” limb of s.22(1)(b) of the Court’s statute, it is not uncommon, nor is it always inappropriate, for the legal advisers of leave applicants to rely on matters put forward under that limb as, further or alternatively, a basis for leave under the “or otherwise” limb of that provision.  But the decision whether or not to adopt this further or alternative course should be approached with some circumspection.  And if it is pursued, care should be taken to state with clarity why it is suggested that the matters in question may support leave to appeal under the “or otherwise” limb even they fail to do so under the “question of great and general importance” limb.  That should be addressed in the written Application itself. Such Applications are studied with care by the Appeal Committee before leave hearings, and they should be prepared with care in the interests of justice to both sides.

Conclusion

15.In the present case, there is no basis for leave to appeal under either limb of s.22(1)(b).  We appreciate what is at stake for Dr Leung, but for the foregoing reasons leave to appeal had to be – and was – refused.  Costs were rightly not resisted by Dr Leung and were awarded to the Medical Council.

Mr Barrie Barlow SC, instructed by Wong & Fok, for the Applicant

Mr Robin McLeish, instructed by the Department of Justice, for the Respondent