Dr Chan Po Sum v. The Medical Council of Hong Kong

CACV 103/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 103 OF 2013

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL

OF HONG KONG MADE ON 24^TH APRIL 2013)

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BETWEEN

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J U D G M E N T

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Hon Kwan JA:

Introduction

1.On 24 April 2013, after hearing four days of evidence, the Medical Council of Hong Kong found Dr Chan Po Sum, a registered medical practitioner, guilty of misconduct in a professional respect in relation to the following charges:

“He, being a registered medical practitioner, disregarded his professional responsibility to his patient Mr A (“the Patient”) in that:

(1)   he failed to obtain informed consent from the Patient before performing the Stapled Haemorrhoidopexy (“the Operation”) on the Patient on 23 February 2010 in St Teresa’s Hospital (“the Hospital”);

(2)   during the post-operative period up to the time of discharge from the Hospital, he failed to properly examine and investigate the Patient despite his repeated complaints of severe abdominal pain after the Operation;

(3)   on 24 February 2010, he failed to properly examine and investigate the Patient before he was discharged from the Hospital despite his repeated complaints of persistent abdominal pain;

(4)   from 25 February 2010 to 1 March 2010, he failed to properly advise the Patient when the Patient repeatedly complained of persistent abdominal pain.”

2.In the judgment of the Medical Council, the terms “Stapled Haemorrhoidopexy”, “Stapled Haemorrhoidectomy” and “Procedure for Prolapse and Haemorrhoids” were used interchangeably to mean the same procedure and were referred to collectively in short as “PPH”.  I will adopt the same terminology here.

3.Having found the charges of professional misconduct established, the Council ordered that in respect of Charge (1), a warning letter be served on Dr Chan and that the order be published in the Gazette.  For Charges (2), (3) and (4), the Council ordered that Dr Chan’s name be removed from the General Register for one month on each charge, and that the removal orders on all three charges to run concurrently.

4.Dr Chan brought this appeal to set aside the findings of misconduct and the sentences imposed.  He indicated he will not appeal the sentence in relation to Charge (1).  And if all the findings of the Council in respect of Charges (2), (3) and (4) are upheld, he will not appeal against the sentence of the same.  It is only if this court should quash some but not all of the charges then Dr Chan would seek a corresponding and proportionate reduction of the sentence.  Mr Huggins, SC, who appeared for Dr Chan on appeal, made clear that the only circumstance in which Dr Chan will pursue any appeal against the sentence in respect of Charges (2), (3) and (4) will be if this court accepts his submissions in relation to the Council’s findings that the Patient complained of severe and persistent abdominal pain and that Dr Chan was aware of those complaints and ignored them, but for some distinct and free-standing reason nevertheless upholds one or more of Charges (2), (3) and (4).

The background

5.The relevant background matters, taken largely from the judgment of the Council, may first be related as follows.

6.The Patient was a 33 year old male who enjoyed good health all along.  He first consulted Dr Chan on 7 December 2009 for his haemorrhoid problem.  Dr Chan advised the Patient to try conservative treatment by medication first.  He also advised the Patient that the haemorrhoids could be treated by two surgical options: PPH or conventional open haemorrhoidectomy.  In his medical records, Dr Chan wrote: “Operation of PPH Mentioned asso. [associated] risks explained.”  The evidence in respect of the explanation of associated risks was not much in dispute.  Dr Chan explained to the Patient that PPH would have the advantages of significantly less pain, less post-operative wound care, shorter recovery, and not much risk involved.

7.On 4 February 2010, the Patient returned for a consultation and indicated he was considering surgery.  After further explanation by Dr Chan, the Patient decided to undergo PPH.  In Dr Chan’s medical records, he recorded: “Operation Risks S.E. [side effects] Explained again”.  As the Patient had decided to undergo PPH, Dr Chan gave a more detailed description of the PPH procedure, with little mention of conventional haemorrhoidectomy.  According to the Patient’s evidence, and agreed to by Dr Chan, throughout the second consultation, Dr Chan impressed upon him that conventional haemorrhoidectomy was very painful and PPH was a newer procedure with less pain.  Some of the risks were mentioned.  There was however no mention of two risks associated with PPH: rectal perforation and the higher rate of recurrence of internal haemorrhoids.

8.When the Patient was admitted to the Hospital on 23 February 2010, he signed a “Checklist of Possible Common and Important Complications (General Surgery)” and a “Surgery/Medical Procedure/Treatment Consent Form” with no further explanation.

9.Regarding the risks associated with PPH, the Council made these relevant findings on the expert evidence:

“25. Rectal perforation is a known risk of PPH. Although the probability is low[1], it is a serious risk which is life-threatening. However, by reason of the nature of the operation, there is no risk of rectal perforation involved in conventional haemorrhoidectomy. …

26.   PPH is a relatively new procedure which, at the beginning of its development, was hailed as a superior treatment option for haemorrhoids. As time went on, more reliable studies revealed that there are disadvantages of PPH which were not known before. By July 2007, it was known that PPH is associated with a higher long-term recurrence rate of internal haemorrhoids than conventional haemorrhoidectomy, and a reliable study concluded that conventional haemorrhoidectomy is superior to PPH for prevention of post-operative recurrence of internal haemorrhoids. …”

10.Dr Chan performed PPH on the Patient between 12:30 pm and 1:05 pm on 23 February 2010.  When the Patient woke up from the anaesthesia, Dr Chan had left.  According to the Patient, he complained of severe abdominal pain to the nurse.  At 2:40 pm, a nurse gave him an injection of an analgesic called pethidine.

11.The Patient was not able to pass urine after the operation.  He continued to complain of lower abdominal pain after the analgesic effect waned off.  This entry was made in the Nurses’ Report: “Pt [Patient] still complained he could not pass urine after operation and lower abdominal pain.  Dr P S Chan was inform [sic] at 02:35 [on 24 February].  Cath [catheter] once was prescribed but patient refused.  Pethidine 75 mg IMI was injected at 03:10. Pt insisted to try passing urine by himself.”

12.The Nurses Report showed that the Patient agreed to be catheterized at 6:45 a.m. and 660 ml of urine was drained from the bladder.

13.At 8:30 a.m. on 24 February, Dr Chan saw the Patient when he did the ward round.  He spoke to the Patient but did not carry out a clinical examination.  After having passed urine successfully by himself, the Patient was discharged from the Hospital at 2:40 p.m with pain-killers and laxatives.

14.On 25 February, the Patient felt unwell and telephoned Dr Chan’s clinic.  He only managed to speak to the clinic assistant, not Dr Chan.  He telephoned again on 26 February complaining of abdominal pains and inability to defecate but once more was only able to speak to the clinic assistant.  On 27 February, which was a Saturday, the Patient felt severe pains in the abdomen and telephoned the Hospital.  Later that afternoon, he attended the Accident and Emergency Department of Tseung Kwan O Hospital.  When he was there, he had a telephone conversation with Dr Chan.  He later received an analgesic injection and medications from that hospital but declined an examination of his anus.

15.In the early hours of 1 March, the Patient had sudden spasm in his pubic area with abdominal pains.  He telephoned and spoke to Dr Chan about the increasing abdominal pain.  He tried immersing in hot water as advised by Dr Chan but this brought no relief to the pain.  At 5 a.m., he was taken to Tseung Kwan O Hospital in an ambulance.  He was diagnosed with peritonitis and emergency laparotomy was performed.  At the operation, a 4 x 3 cm perforation was noted at the anterior wall of the rectum above the peritoneal reflection.  End colostomy and second look laparotomy were performed in the afternoon.  He stayed for one month in hospital.

The evidence and findings in relation to Charge (1)

16.In respect of Charge (1) regarding informed consent, as mentioned above, the evidence was not much in dispute and Dr Chan admitted that he did not explain to the Patient the risk of rectal perforation and the higher recurrence rate of haemorrhoids in connection with PPH.

17.The line of defence taken at the trial was that there was no need to advise patients of either the risk of rectal perforation or the higher recurrence rate of haemorrhoids using the PPH procedure.  In support of this stance, reliance was placed on the evidence of Dr Chan’s expert witness, Dr Chung, who was the chairman of the working group for informed consent for Hong Kong East Cluster of the Hospital Authority.

18.Dr Chung was of the opinion that as rectal perforation due to PPH has exceedingly low incidence, it is not necessary and not mandatory to explain this risk to patients in obtaining consent to undergo PPH.  He and his peer group would not have advised patients of the risk of rectal perforation in PPH before surgery[2].  As for the higher recurrence rate of haemorrhoids with the use of PPH in the treatment of Grade 3 haemorrhoids, Dr Chung was of the view there was no evidence of a material or significant difference in the rate which might have made it necessary to inform the patient of such difference.  His view that there was no evidence of a material or significant difference in the recurrence rate was contrary to the more recent studies referred to by Dr Cheung and was not accepted by the Council, see §26 of the judgment quoted above.

19.Dr Chung said this regarding informed consent in his evidence in chief:

“ “Informed consent” means adequate but not excessive information given to the patient. … We have to agree ourselves what is meant by “essential information”. Essential information given to the patient to obtain informed consent would include the nature of the procedure, anticipated benefits, usual and expected post-operative course and complications, alternatives, and any long-term morbidity. If things are very rare, it need not be included. But if you ask me is it wrong to include these, of course it’s not wrong, but these are not essential information. If a patient asks, you would elaborate. It’s not wrong to include information on rectal perforation, but again it is also not wrong not to include rectal perforation as essential information during the process of gaining informed consent.”[3]

20.Further in support of his opinion that the risks are not considered as essential information given to the patient, Dr Chung referred to the pamphlet issued by the Hospital Authority dated October 2010 dealing with both forms of treatment (conventional surgery and PPH) for use by doctors to explain to patients, which made no reference to the risk of rectal perforation or any greater risk of recurrence with PPH[4], and similar pamphlets produced by a number of hospitals in the United Kingdom[5].

21.When Dr Cheung, the expert witness for the Council, was asked why he was of the opinion that the risk of rectal perforation in PPH should be explained to the patient notwithstanding the occurrence rate is low, he said this:

“It is very simple. There are lots of medical procedures nowadays so-called have very low serious complication risks, like blood transfusion, like a standard colonoscopy. There are lots of these having a complication rate, say, in the range of 0.1 per cent or even less. … Even for a simple anaesthesia induced death, the rate is like one over 600,000, but you still have to explain it because this is a life-threatening condition and the patient has a choice not to do it. No matter how low, if this is really serious, it would be the responsibility of a clinician to explain to the patient, especially when it is known.”[6]

22.Dr Cheung added this:

“Everybody who is a surgeon knows that anastomosis[7] always carries a risk of anastomotic failure, no matter how low that is. This is completely different from a conventional surgery, which doesn’t have this particular feature at all. I can here say it should be the responsibility of the clinician to tell the patient the uniqueness of this procedure, in contrast to a classical procedure which doesn’t carry this risk [of rectal perforation] at all.”[8]

23.In its judgment, the Council referred to the expert evidence on both sides in §19 “as to the comparative advantages and disadvantages of conventional haemorrhoidectomy and PPH, as well as the need to explain the risk of rectal perforation and the recurrence rates”.  I will quote in full its reasoning and findings on informed consent in §§20 to 27 of its judgment, putting in italics the parts I wish to emphasise:

“20. A doctor cannot perform medical treatment on a patient unless the patient has given informed consent for the treatment. Informed consent requires that the doctor has given proper explanation of the nature, effect and risks of the proposed treatment and other treatment options.

21. Where there are equally suitable treatment options, the doctor should explain the advantages and disadvantages of the respective options so that the patient can make an informed choice and decide which option to adopt. The explanation should be balanced and sufficient to enable the patient to make an informed decision. It should cover not only significant risks, but also risks of serious consequences even though the probability is low.

22. In this respect, we must point out that patients are not medically trained and rely on doctors to give them proper professional advice. That the patient is inquisitive and may have done research on his own is not an excuse for not giving proper explanation.

23. In cases of emergency, time may not allow for an explanation as detailed as would be required in a non-emergency situation. In the present case, surgical treatment of the Patient’s haemorrhoids is an elective procedure. There is no reason to rush into a decision without providing the necessary explanation.

24. In the present case, there are two equally suitable options: conventional haemorrhoidectomy and PPH. The explanation should cover the pros and cons of both options and the significant difference between the options, especially the defining difference between the two.

25. Rectal perforation is a known risk of PPH. Although the probability is low, it is a serious risk which is life-threatening. However, by reason of the nature of the operation, there is no risk of rectal perforation involved in conventional haemorrhoidectomy. This is the defining difference between the two options which must be explained to the patient, so that he can make an informed decision.

26. PPH is a relatively new procedure which, at the beginning of its development, was hailed as a superior treatment option for haemorrhoids. As time went on, more reliable studies revealed that there are disadvantages of PPH which were not known before. By July 2007, it was known that PPH is associated with a higher long-term recurrence rate of internal haemorrhoids than conventional haemorrhoidectomy, and a reliable study concluded that conventional haemorrhoidectomy is superior to PPH for prevention of post-operative recurrence of internal haemorrhoids. This is a significant difference between the two options which should be explained in order that the patient can make an informed decision.

27.   The Defendant admits that he has not explained the risk of rectal perforation and the recurrence rates to the Patient. In our view, from the beginning he was promoting PPH to the Patient, emphasizing that conventional haemorrhoidectomy was very painful and PPH involved little pain and few risks. This is not a balanced explanation.”

24.For the above reasons, the Council was satisfied in §28 that Dr Chan has failed to give a proper explanation to the Patient before obtaining consent for PPH and thus the Patient’s consent was not informed consent.  The Council was satisfied this is “conduct below the standard expected amongst registered medical practitioners” and therefore found him guilty of professional misconduct on Charge (1).

The evidence and findings in relation to Charges (2), (3) and (4)

25.Charge (2) concerns Dr Chan’s failure to examine the Patient during his post-operative stay in the Hospital, Charge (3) concerns his decision to discharge the Patient without examination, and Charge (4) concerns his failure to advise the Patient properly after discharge from the Hospital.

26.There were disputes of facts in a number of areas: whether during the post-operative stay in the Hospital, the Patient had repeatedly complained of severe abdominal pain; if he had complained of severe abdominal pain, whether the nurses had notified Dr Chan of his repeated complaints; whether during the telephone calls to Dr Chan’s clinic, the Patient had complained of severe abdominal pain.

27.The Patient gave evidence that apart from complaining of pain to the nurse, he complained of severe pain in the front abdomen to Dr Chan when the doctor did the ward round in the morning of 24 February, and asked why the pain was in the front given that the operation was in the anus.  According to the Patient, Dr Chan told him it was his illusion, and the operation was very successful.

28.Dr Chan denied that the Patient had complained of abdominal pain during the post-operative stay in the Hospital.  He gave evidence that the Patient only complained of mild discomfort in the lower abdomen, and inability to pass urine, have bowel motions or to pass flatus.  Nurse Chan Lui, who was on duty, was called to support Dr Chan that the Patient did not complain of severe abdominal pain.

29.Dr Chan admitted that the Patient telephoned his clinic several times after discharge from hospital but the discussion was about the dosage of laxative, not abdominal pain.

30.Nurse Chan admitted she had no independent memory of the Patient and that her memory came back on reading the Nurses’ Report.  The Council took the view that the Nurses’ Report is “clearly inadequate, given that some significant events which had taken place were not recorded”.  The Council found it could not rely on Nurse Chan’s evidence as it was based on such incomplete record, especially in relation to events which were not recorded.[9]

31.The Council accepted the evidence of the Patient that he complained of severe abdominal pain during his stay in the Hospital, having considered the oral evidence of all witnesses and the documentary evidence.  These reasons were given in §35 of the judgment for accepting the Patient’s evidence:

“(a) The Patient’s evidence of severe abdominal pain is consistent with, and corroborated by, the following facts: -

(i) a potent analgesic, pethidine, was injected on two occasions, respectively 1.5 hours and 14 hours after the operation;

(ii) the Patient’s subsequent diagnosis of rectal perforation and acute peritonitis on 1 March 2010;

(iii)   an entry in the Nurses’ Report that: “Pt still complained he could not pass urine after operation and lower abdominal pain. Dr P S Chan was inform [sic] at 02:35. Cath once was prescribed but patient refused. Pethidine 75 mg IMI was injected at 03:10. Pt insisted to try passing urine by himself.”

(b) There is no reason for the Patient not to tell the doctor when he was experiencing severe pain.

(c) The Patient had to go to the Accident and Emergency Department of a public hospital and receive analgesic injection and medications on 27 February 2010.

(d)   The Patient had to be taken by ambulance to the public hospital on 1 March 2010, at which acute peritonitis was diagnosed.”

32.Based on its acceptance of the Patient’s evidence, the Council found Charges (2) and (3) established for the following reasons:

“36. Severe abdominal pain after an operation is a danger sign, particularly when the pain persists for a significant period. It is incumbent upon the doctor to immediately examine the patient to find out the cause of the pain and to rule out any complications.

37. In the present case, given that rectal perforation is a known risk of PPH, and that the Patient was having severe abdominal pain and was unable to pass flatus, a competent doctor exercising reasonable care should examine the Patient immediately. There is no reason, and it is unacceptable, for the Defendant to say that the Patient was having illusion. It is entirely unacceptable for the Defendant to do nothing other than telling the Patient that the operation was very successful.

38. Even according to the Defendant’s version, the Patient’s inability to pass flatus after the operation was a danger sign that something untoward could have happened which would warrant immediate abdominal examination.

39. It is a simple task of performing abdominal examination to find out whether there was any guarding or rebound tenderness. We can see no reason why the Defendant did not even take this measure.

40.   In any case, even without signs of abdominal pain, before a patient is discharged after a surgical operation a doctor should, at least as a matter of good practice, examine the patient to ensure that he/she is fit for discharge. Where the patient is complaining of severe abdominal pain, as is in the present case, it is mandatory for the doctor to examine the patient before allowing him/her to be discharged.”

33.As for Charge (4), the Council also found this established for the following reasons:

“42. While the Defendant might not be able to speak to the Patient immediately, he should have returned the call after he had finished seeing his other patients. It is entirely improper to rely on a clinic assistant who was not medically trained to give advice to the Patient, especially when the Patient had called up a number of times.

43.   When the Patient complained of abdominal pain after discharge, the Defendant should have directly communicated with the Patient and insisted that he either return to his clinic or the private hospital to be followed up by him, or to immediately go to the Accident and Emergency Department of a public hospital to seek immediate treatment. Even if the Patient had refused, the Defendant should have advised him of the danger involved and the consequence of delay in treatment. The Defendant had not done any of these.”

34.Having considered each of the Charges (2), (3) and (4) separately and independently, the Council was satisfied that Dr Chan’s conduct in respect of each charge is “seriously below the standard expected amongst registered medical practitioners” and found him guilty of professional misconduct on each of the three charges.

The appellant’s arguments on Charge (1)

35.Mr Huggins raised two broad arguments on Charge (1) (grounds 1A and 1 of the amended notice of appeal).  The first argument is an issue of law.  He complained of misdirection in law by the Council’s Legal Adviser.  The second complaint is that the Council had ignored and failed to make finding on significant evidence relating to informed consent, applying the correct test in law.

36.The argument on misdirection in law was along these lines.

37.The relevant direction in law given by the Legal Adviser was as follows:

“You have heard Mr Howse’s submission[10] about the Bolam principle[11]. Now, that principle is not relevant to professional misconduct, it is relevant to negligence. Nevertheless, I think an analogy is if the defendant’s conduct is consistent with a responsible body of medical opinion, that should play a weighty factor in your consideration of whether or not the defendant’s conduct is below the standard expected amongst registered medical practitioners. I emphasise it is a responsible body of medical opinion, not just the opinion of individual doctors.”[12]

38.To put this quote in context, what Mr Howse had submitted earlier about the Bolam principle was as follows:

“What we say is that the view that we put forward is representative of a responsible body of medical opinion, and I would suggest to you that a combination of the Hospital Authority in Hong Kong, various divisions of the National Health Service in Britain, and Dr Chung, who I would suggest to you is a leading man in this field, he was accepted as such, they all advised you that in their view there is no need to advise of the risk of rectal perforation with PPH, even if such a higher risk exists, which Dr Chung says it does not.

So even if you are against me, if you disregard the advice of Dr Chung, you don’t pay any attention to the papers from the Hospital Authority or from the National Health Service, I would still say to you that you should not make a finding against Dr Chan, and the reason for that is there is judicial authority on this point and I’m not going to hand up any cases because I don’t think it’s necessary because I should think everyone in this room is familiar with the Bolam principle. I have included a direct quote from the leading judgment of one of the Lords in one of the relevant decisions[13], Lord Scarman, who tells us, and I quote:

“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice.” ”[14]

39.Mr Huggins submitted that the Legal Adviser misdirected the Council in law in advising them that the Bolam principle is “not relevant to professional misconduct”.  This is contrary to two decisions of the Court of Appeal: Dr Leung Sik Chiu v The Medical Council of Hong Kong, CACV 92/2004, 4 January 2005, §15; Dr Leung Shu Piu v The Medical Council of Hong Kong, CACV 374/2008, 8 March 2011, §§21 to 23.

40.He contended that the next statement of the Legal Adviser (if the defendant’s conduct is consistent with a responsible body of medical opinion, that should play a “weighty factor” in considering whether or not the defendant’s conduct is below the standard expected amongst registered medical practitioners) only made it confusing and did not correct or remove the earlier misdirection.  There was nothing in the judgment to suggest that the Council had weighed the evidence adduced on behalf of Dr Chan regarding the opinion and practice of his peers whether there was a need to explain the risks concerned.  The Council did not say in its judgment whether or not the evidence from Dr Chung was accepted or rejected, and, if it was accepted, whether the Council regarded that evidence as “weighty” or whether it was outweighed by other considerations.  This tied in with the other complaint of Mr Huggins that the Council made no finding in relation to Dr Chung’s evidence there was no need to explain to patients the risks of using PPH.  So it would appear the Council had accepted the Legal Adviser’s misdirection that the Bolam principle is “not relevant to professional misconduct”.

41.Mr Huggins submitted the Bolam test was not overruled or disapproved by the House of Lords in Chester v Afshar [2005] 1 AC 134.  A surgeon’s duty to warn a patient of risk as a result of the surgery is in relation to significant risk which would affect the judgment of a reasonable patient to give informed consent to the proposed treatment (Chester v Afshar, §15).  The present case was not a case where it would be appropriate to say that the disclosure of the risks of perforation or a higher rate of recurrence are so obviously necessary to an informed decision of the patient that no reasonably prudent medical man would fail to disclose to the patient.  To the contrary, there was evidence here of a difference of opinion amongst responsible members of the medical profession in Hong Kong.

42.For the purpose of deciding whether a doctor is guilty of professional misconduct in failing to warn a patient of a risk of injury involved in the proposed treatment, as distinct from deciding whether he is negligent in the law of tort, Mr Huggins submitted it would be harsh to find him guilty of professional misconduct if he is following a practice and holding an opinion shared by a responsible body of his peers.  In deciding whether there was negligence, the court is the arbiter of that issue and is entitled to say notwithstanding that a responsible body of medical men held that opinion and carried out that practice, the court considers it does not withstand logical analysis and is unacceptable for the purpose of determining the doctor’s liability to his patient.  However, it does not necessarily follow that the doctor should be held guilty of professional misconduct if a responsible body of medical opinion amongst his peers would have done the same thing.  He contended that this court should be slow to uphold any castigation of conduct as professional misconduct when this was in line with a body of responsible medical practitioners in Hong Kong at the material time.

Discussion of the arguments on Charge (1)

43.To address the issue whether there was misdirection in law by the Legal Adviser, it is appropriate to start with the current law of a doctor’s duty to advise his patient of a significant risk of injury to obtain informed consent for treatment and see how this impacts on the Bolam principle.

44.The statements of principle on informed consent are set out in the judgment of Lord Steyn in Chester v Afshar:

“14. … The starting point is that every individual of adult years and sound mind has a right to decide what may or may not be done with his or her body. Individuals have a right to make important medical decisions affecting their lives for themselves: they have the right to make decisions which doctors regard as ill advised. Surgery performed without the informed consent of the patient is unlawful. The court is the final arbiter of what constitutes informed consent. Usually, informed consent will presuppose a general warning by the surgeon of a significant risk of the surgery.

15. … How a surgeon's duty to warn a patient of a serious risk of injury fits into the tort of negligence was explained by Lord Woolf M.R., with the agreement of Roch and Mummery L.JJ., in Pearce v United Bristol Healthcare NHS Trust [1999]PIQR P53 . After reviewing a trilogy of decisions in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 and Bolitho v City and Hackney Health Authority [1998] AC 232, Lord Woolf observed [1999] PIQR P53, 59:

“In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt.”

16. A surgeon owes a legal duty to a patient to warn him or her in general terms of possible serious risks involved in the procedure. The only qualification is that there may be wholly exceptional cases where objectively in the best interests of the patient the surgeon may be excused from giving a warning. … In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.

17. Secondly, not all rights are equally important. But a patient's right to an appropriate warning from a surgeon when faced with surgery ought normatively to be regarded as an important right which must be given effective protection whenever possible.

18.   Thirdly, in the context of attributing legal responsibility, it is necessary to identify precisely the protected legal interests at stake. A rule requiring a doctor to abstain from performing an operation without the informed consent of a patient serves two purposes. It tends to avoid the occurrence of the particular physical injury the risk of which a patient is not prepared to accept. It also ensures that due respect is given to the autonomy and dignity of each patient.”

45.As to how the above statements of principle would have impacted on the Bolam test, this was discussed by Cranston J in Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB):

“73. I had asked for additional closing submissions on the issue of consent partly because I was troubled on reading Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] 1 AC 871 which Mr Aldous QC had referred me to during the course of the hearing. That decision appears to contain differences as to how a court is to assess whether risks are to be conveyed to the patient, even putting to one side the dissent of Lord Scarman. Lord Diplock's approach, based firmly on Bolam [1957] 1 WLR 582, asks what a reasonable body of medical opinion would regard as proper to be disclosed (at 893). At least three of their Lordships added the gloss that in some circumstances the proposed treatment may involve a substantial risk of serious consequences which, notwithstanding reasonable medical opinion, must be disclosed to the patient. That seems consistent with Bolitho v City and Hackney Health Authority [1998] AC 232, in that notwithstanding what a reasonable body of clinicians would have done, a failure to inform of certain risks may not be reasonable, responsible or logical. In any event, in Pearce v United Bristol Healthcare NHS Trust, Lord Woolf MR was fully aware of the differences in Sidaway in articulating what he stated to be the law. Admittedly Chester v Afshar was primarily concerned with causation but, as indicated, Lord Woolf MR's statement of the law was endorsed in the House of Lords. Given that Lord Woolf's approach is advanced by the defendant as a current statement of the law perhaps any discussion of those legal nuances may be regarded as unduly pedantic. I can only plead that for this judge the matter is not as straightforward as it could be.

74.   If patients must be informed of significant risks it is necessary to spell out what, in practice, that encompasses. In this case the defendant informed the patient of the probabilities, the one percent, and the nature of the harm of this risk becoming manifest, the stroke. But these were the objectively significant risks associated with the procedure which was performed, the catheter angiogram. Was it necessary for the defendant to go further and to inform Mrs Birch of comparative risk, how this risk compared with that associated with other imaging procedures, in particular MRI? No authority was cited to this effect but in my judgment there will be circumstances where consistently with Lord Woolf MR's statement of the law in Pearce v United Bristol Healthcare NHS Trust the duty to inform a patient of the significant risks will not be discharged unless she is made aware that fewer, or no risks, are associated with another procedure. In other words, unless the patient is informed of the comparative risks of different procedures she will not be in a position to give her fully informed consent to one procedure rather than another. The difficulty is in delineating, in general terms, the circumstances in which the duty arises to inform of comparative risks. In my judgment, in the special circumstances of Mrs Birch's case, that duty arose.”

46.Leaving aside for the time being what the Legal Adviser said when he directed the Council on the law, it seems to me that on a fair reading of §§20 to 27 of the judgment, the Council had directed itself correctly in accordance with the current state of the law on informed consent.  As I have quoted in full the relevant paragraphs and put in italics those parts I wish to emphasise, they will not be repeated.

47.As stated in the judgment, the explanation should cover risks of “serious consequences even though the probability is low”, in line with the statement of principle in Chester v Afshar that “a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery”.

48.And the Council was entitled to take the view that the explanation given by Dr Chan was not “balanced” in that his explanation did not cover “the defining difference” between the options of conventional surgery and PPH and a “significant difference” between the two alternatives for the Patient to make an informed decision, in line with the passages quoted above in Birch v University College London Hospital that consistently with Lord Woolf’s statement of the law in Pearce v United Bristol Healthcare, which was endorsed in Chester v Afshar, “the duty to inform a patient of the significant risks will not be discharged unless she is made aware that fewer, or no risks, are associated with another procedure” and “unless the patient is informed of the comparative risks of different procedures she will not be in a position to give her fully informed consent to one procedure rather than another”.

49.I do not agree with Mr Huggins that the Council did not appear to have considered the evidence of Dr Chung that there was an opinion shared by a responsible body of medical men it was not necessary to explain the risks in question to a patient undergoing PPH to obtain informed consent.  It is correct that the Council did not say expressly in its judgment that it rejected the evidence of Dr Chung and accepted the evidence of Dr Cheung.  But the purport of the judgment is clear.  I have set out in some detail the evidence given by Dr Chung and Dr Cheung regarding the need to explain to patients the risks of rectal perforation and the recurrence rates.  The Council could not have come to the views expressed in §§20 to 27 of the judgment unless it has rejected the evidence of Dr Chung on informed consent and accepted the evidence to the contrary of Dr Cheung.  I reject the contention that the Council had failed to make finding on significant evidence relating to informed consent.

50.What then of the distinction between a finding of professional misconduct and a determination of a doctor’s legal liability to a patient in negligence?  Pursuant to section 21(1)(b) of the Medical Registration Ordinance, Cap 161, the Council was to inquire into whether Dr Chan “has been guilty of misconduct in any professional respect”.  In finding that Dr Chan failed to give a proper explanation to the Patient before obtaining consent for PPH and the Patient’s consent was not an informed consent, the Council was satisfied this is conduct “below the standard expected amongst registered medical practitioners” and found him guilty of professional misconduct.  The Council had applied the correct test, namely, whether the doctor’s conduct has fallen short of the standard expected amongst doctors, in finding Dr Chan guilty of professional misconduct (Koo Kwok Ho v The Medical Council of Hong Kong, CACV 23/1988, 30 March 1988, §§10 to 12).

51.It seems to me Mr Huggins’ real complaint is that the Council should not have found Dr Chan’s conduct has fallen “below the standard expected amongst registered medical practitioners” as he was following a practice and holding an opinion shared by a responsible body of his peers, as submitted by his solicitor before the Council.  But it was for the Council to decide in all the circumstances whether there had been a falling short of these standards, not for any expert witness (Dr Tan Ronald Francis v The Medical Council of Hong Kong, CACV 50/2010, 13 June 2011, §55).  The Council was entitled to take the view that where there are two suitable options of surgery, the standard expected amongst registered medical practitioners is such that a patient is entitled to a balanced explanation which should cover “the pros and cons of both options and the significant difference between the options, especially the defining difference between the two”[15].

52.I do not think the Legal Adviser’s direction of law was a misdirection, properly understood in its entirety.  It would be better if he had not said that the Bolam principle “is not relevant to professional negligence”.  But the Legal Adviser went on to say that “if the defendant’s conduct is consistent with a responsible body of medical opinion, that should play a weighty factor in [the Council’s] consideration of whether or not the defendant’s conduct is below the standard expected amongst registered medical practitioners”.  That was asking the Council to take into account what was in substance the Bolam test, even though this was not a determination of liability for negligence but professional misconduct.  I agree with Mr Ismail for the Council that Dr Chan was not prejudiced.

53.Even if there was misdirection, quite clearly it was not of sufficient significance to the result to invalidate the Council’s decision (Libman v General Medical Council [1972] AC 217 at 221D; Haikel v The General Medical Council [2002] UKPC 37 at §[17]).

54.For the above reasons, I reject the grounds of appeal advanced in relation to Charge (1).

An overview of the appellant’s arguments on Charges (2), (3) and (4)

55.Attack was made on appeal of three findings of fact by the Council which formed the basis on which it found Charges (2), (3) and (4) established, namely, that during the post-operative stay in the Hospital, the Patient had repeatedly complained of severe abdominal pain, to the nurses repeatedly and once to Dr Chan when he did the ward round; that the nurses would have notified Dr Chan of the Patient’s repeated complaints; and that the Patient had complained of abdominal pain during his telephone calls to Dr Chan’s clinic after his discharge from the Hospital.

56.As mentioned earlier, there were acute conflicts in the factual evidence given by the Patient on one side and by Dr Chan and Nurse Chan on the other side.  Having seen and heard the witnesses, the Council accepted the Patient’s evidence and did not accept the evidence of Dr Chan and Nurse Chan.  Even though it was not expressly stated in the judgment that the Council found the Patient a credible witness and did not find the contrary evidence of Dr Chan and Nurse Chan credible, that is clearly the effect of its findings in the judgment.

57.When reviewing the findings of fact made by a disciplinary tribunal, the appeal court acknowledges the advantage enjoyed by the first instance body in judging the credibility of witnesses which it does not have and adopts a restrained approach.  It will tend to be unable properly to differ from the decisions as to fact reached by the tribunal except in the kinds of situation mentioned in Watt or Thomas v Thomas [1947] AC 484 at 487 to 488 (Gupta v General Medical Council [2002] 1 WLR 1691 at 1697, §10; Dr Fong Ka Yeung v The Medical Council of Hong Kong, CACV 159/2007, 15 March 2011, §§24(1) and (2)).

58.As stated by Langstaff J in Bhatt v General Medical Council [2011] EWHC 783(Admin) at §9, although the appeal court will correct errors of fact or approach of a disciplinary tribunal,

“i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;

ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;

iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body;

iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from”.

59.Mr Huggins acknowledged these constraints in seeking to ask this court to interfere with the findings of fact of the Council.  He sought to attack the reasoning given by the Council in accepting the Patient’s evidence and submitted that it had failed to take into account important considerations.  He contended that the Council had “misdirected [itself] as to the effect of certain evidence which [it] understood to support [its] conclusion” (Universal Dockyard Ltd v Trinity General Insurance Co Ltd [1989] 2 HKLR 160 at 167I), and that is a recognized ground for an appeal court to interfere with a finding of fact.  He submitted that at the very least, the findings should be set aside and a re-trial ordered.

60.To deal with the very detailed submissions on the evidence made by both sides, it is best that I consider each ground of appeal separately, in the order submitted by Mr Huggins.

Ground 2: finding “corroboration” in three particular facts

61.In §35(a) of the judgment, the Council stated that the Patient’s evidence of severe abdominal pain is “consistent with, and corroborated by” three facts: (i) a potent analgesic, pethidine, was injected on two occasions, respectively 1.5 hours and 14 hours after the operation; (ii) the Patient’s subsequent diagnosis of rectal perforation and acute peritonitis on 1 March 2010; and (iii) an entry in the Nurses’ Report that: “Pt still complained he could not pass urine after operation and lower abdominal pain.  Dr P S Chan was inform [sic] at 02:35.  Cath once was prescribed but patient refused.  Pethidine 75 mg IMI was injected at 03:10.  Pt insisted to try passing urine by himself.”

62.Mr Huggins acknowledged that the Council was not using the word “corroborated” in a technical sense.  As pointed out by Mr Ismail, there is no requirement in law that the Patient’s evidence should be corroborated by or consistent with other evidence (Medical Practitioners (Registration and Disciplinary Procedure) Regulation sections 31(1) and (6); Dr To Chun Fung Albert v The Medical Council of Hong Kong, CACV 23/2011, 22 December 2011, §§18 and 21).  Nevertheless, Mr Huggins submitted that the reasoning process in §35(a) was in error and that amounted to a misapprehension of the effect of the evidence.  His argument was along these lines.

63.Fact (i) could not be supportive of the Patient’s evidence for these reasons.  At the relevant time, pethidine was the only parenteral analgesia usually available in hospitals in Hong Kong.  So the fact that pethidine was given would not of itself indicate that the Patient was in severe pain because that was all that was available for pain relief administered intravenously.

64.As to fact (ii), the Council’s finding of corroboration in the subsequent diagnosis of rectal perforation and acute peritonitis on 1 March must be premised on the assumption that rectal perforation had occurred at the time of surgery which would have caused severe pain.  That was the evidence of Dr Cheung who opined in his report that perforation is “highly likely” due to instrumentation at the time of introduction of stapler device into the anal canal during the PPH, which would have explained the immediate and severe pain complained of by the Patient.  However, there was evidence to the contrary by Dr Chung, who stated in his report that “it is possible that at the time of the PPH operation the patient suffered a partial thickness injury to his rectal wall and this subsequently developed into a full thickness perforation in the following few days”.  When he gave evidence, Dr Chung expressed the view that both rectal perforation during PPH and stercoral ulceration leading to perforation are “equally possible”[16].  The Council did not make a finding in relation to this conflict between the two expert witnesses.  And there was simply no finding of when the perforation occurred and when the peritonitis arose.

65.As for the relevant entry in the Nurses’ Report in fact (iii), it does not refer to severe pain.  Nor was it clear from the entry Dr Chan was informed at 02:35 hours that the Patient complained of lower abdominal pain, contrary to the oral evidence of Dr Chan[17].

66.In my view, none of the above complaints, whether separately or taken as a whole, would provide sufficient basis for this court to interfere with the findings of fact of the Council.

67.As submitted by Mr Ismail, the Council’s finding here is a matter of common sense.  Regardless of whether pethidine was the only parenteral analgesia usually available in hospitals in Hong Kong at the time, a patient would not be given this potent analgesic on two occasions 1.5 hours and 14 hours after the operation, if he did not suffer severe abdominal pain and complain about this.  The Patient’s evidence on this was clear[18].  Further, his evidence was supported by Dr Cheung who said these in answer to the questions from the Chairman:

“Chairman: So if it is PRN[19] and it’s Pethidine, how would you comment on the degree of pain or the intensity of pain?

Dr Cheung: It’s likely very intense. The patient was already given two potent analgesics to start with, oral, and then on top of that the pain was still not controlled and required further injection.

Chairman: Regardless of what is in or not in the record about pain, the fact that the patient was given two injections, one shortly after the operation, which is 14.20 or 14.30, and then in the early morning of the next day, about 03.30 or something like that, judging from that, what would you say would be the level of pain of the patient?

Dr Cheung: It’s very severe, very severe.

Chairman: Now, the other thing is the Q6H[20]. You did say that the Pethidine effect would last for two hours. Then why Q6H? …

Dr Cheung: I usually give it more frequent in my practice. I usually give it four hours, every four hours, rather than six hours. Six hours is a bit too wide an interval for us, too wide.

Chairman: I agree with that. …”

68.I agree also with Mr Ismail it matters not that Dr Chan asserted in evidence he was not told by the nurses that the Patient complained of lower abdominal pain.  Dr Chan admitted he was aware when he noted the chart during the ward round in the morning that the Patient had received two injections of pethidine[21].  He should draw his own conclusions from that even if he had made no inquiries with the nursing staff.

69.It is not material that the relevant entry in the Nurses’ Report did not record that the lower abdominal pain complained of by the Patient was severe.

70.Nor do I think it matters that the Council did not make an express finding when the perforation and the peritonitis occurred.  There was undisputed evidence that rectal perforation is a known risk of PPH.  As stated in §36 of the judgment, “severe abdominal pain after an operation is a danger sign, particularly when the pain persists for a significant period.  It is incumbent upon the doctor to immediately examine the patient to find out the cause of the pain and to rule out any complications”.  And at §38, “even according to the Defendant’s version, the Patient’s inability to pass flatus after the operation was a danger sign that something untoward could have happened which would warrant immediate abdominal examination.”

71.There was ample evidence for the Council to find that the Patient had repeatedly complained of severe abdominal pain after his operation.  There is no substance about the complaints as to the reasoning process.

Ground 2A: important considerations not taken into account

72.The complaint here is that the Council failed to take into account important evidence: (i) the Patient’s vital signs (blood pressure and pulse) would have provided objective evidence had there been severe pain[22]; (ii) pethidine was the usually available parenteral analgesia available in hospitals in Hong Kong at the time; (iii) the Patient maintained in his evidence he felt severe pain at 4:30 pm on 23 February and was given an injection of pethidine, contrary to the hospital records that he was given an injection at 2:40 pm[23]; and (iv) Dr Chan did not get a report from either of his nurses that the Patient was suffering from severe pain during 25 to 27 February[24].

73.I have already dealt with (ii) in the earlier part of this judgment.

74.As for the absence of objective evidence of the Patient’s vital signs that would bear out his complaints of severe abdominal pain, there is no requirement at law for the Patient’s pain to be supported by such objective evidence.  After all, pain is subjective and its tolerance differs from one person to another.  The Patient was questioned extensively about his problems with pain by a member of the tribunal who is a doctor[25].  It was for the Council to assess the evidence of the Patient and come to a finding if he was suffering from pain and, if so, the nature and extent of the pain.  As discussed earlier, the Council was entitled to find on its assessment of the Patient’s evidence that he was suffering from severe pain.

75.The Patient’s evidence that he was given the first pethidine injection at 4:30 pm, in the face of the record shown to him that the time according to the record was 2:40 pm, could hardly count as an important piece of evidence that the Council must take into account.  He was very confused when he woke up from anaesthesia[26].  That he had got the timing wrong is not a matter of such significance to cast doubt on the Council’s assessment of his credibility as a whole.

76.Likewise, that according to Dr Chan he did not get a report from the nurses in his clinic that the Patient was suffering from severe abdominal pain is hardly a matter of substantial importance that would make a difference to the Council’s overall assessment of the credibility of the witnesses.

77.I do not think there is any matter of substance in this ground of appeal.  I reject the contention of Mr Huggins that the finding of fact that the Patient repeatedly complained of severe abdominal pain was irrational or was not supported by evidence.

Ground 3: irrationality, patently bad and unfair reasoning

78.This ground relates to the reason given in §35(b) of the judgment for accepting the Patient’s evidence (that there is no reason for him not to tell the doctor when he was experiencing severe pain).  Mr Huggins attacked this as patently bad reasoning as it assumed what needed to be proved and was therefore irrational.  He argued that equally, there would be no reason for the nurse and the doctor to ignore a patient’s complaint of severe pain, if such a complaint had indeed been made.

79.There is no substance in this ground.

80.The Patient gave evidence he complained of severe abdominal pain to Dr Chan when the latter did the ward round, but Dr Chan told him it was his illusion[27].  Dr Chan had also told him on the telephone on 27 February when he was in Tseung Kwan O Hospital that his abdominal pains were just minor problems, and were his illusions and imaginations[28].  The Council was entitled to accept that evidence and found that his complaints of severe pain were ignored by Dr Chan.

Ground 4: irrationality, patently bad and unfair reasoning

Ground 5: material considerations not taken into account

81.These two grounds are taken together.  They relate to §§35(c) and (d) of the judgment for accepting the Patient’s evidence (that he had to go to the Accident and Emergency Department of Tseung Kwan O Hospital and receive analgesic injection and medications on 27 February, and that he had to be taken by ambulance to that hospital on 1 March, at which acute peritonitis was diagnosed).

82.Mr Huggins submitted that this reasoning was patently bad because there was no finding when perforation occurred and when peritonitis arose.

83.This is similar to the submission made in Ground 2, which I have rejected.

84.He also contended that the Council was wrong in failing to take into account it was inherently unlikely that: (a) the hospital nurses would have omitted to record any complaints of severe pain; (b) Dr Chan would have discharged the Patient from the Hospital if he had been complaining of severe abdominal pain; (c) if the Patient had been suffering from perforation or peritonitis prior to 28 February, when he was admitted to the Accident and Emergency Department of Tseung Kwan O Hospital, there would have been objective medical signs recorded in the hospital notes of St Teresa’s Hospital[29] and in the notes of the Accident and Emergency Department; and (d) had he been suffering from severe pain on 27 February when he went to the Accident and Emergency Department he would have reported that and the hospital would have recorded that and he would not have refused an examination of his anus.

85.I reject the submission of Mr Huggins.  The considerations in (a) and (b) must have been obvious to most of the members of the specialist tribunal.  The Council was entitled to give no credence to the evidence of Nurse Chan[30] and to accept the Patient’s evidence that he had complained of severe abdominal pain to Dr Chan who said it was his illusion and decided to discharge him without an examination.

86.As for the matter in (c), counsel had made a mistake about the date of admission to the Tseung Kwan O Hospital.  The Patient was admitted to Tseung Kwan O Hospital through the Accident and Emergency Department on 1 March, not 28 February.  In any event, I do not think the matter here is of material consequence.  Dr Chung had opined that the Patient probably suffered a partial thickness perforation before discharge and subsequently developed a full thickness perforation[31].  The Council was entitled to come to the view that there was a danger sign even according to Dr Chan’s version in that the Patient was unable to pass flatus after the operation and that would warrant immediate abdominal examination[32].

87.The consideration postulated in (d) was contrary to the Patient’s evidence.  He had a telephone conversation with Dr Chan when he attended the Accident and Emergency Department on 27 February and was led to believe by what Dr Chan said that he only had minor problems.  Hence, he just requested an analgesic injection and refused to have his anus examined[33].  The Council was entitled to prefer the Patient’s evidence.

88.I reject the contentions in grounds 4 and 5.

Ground 6: failure to give sufficient or sound reasons for rejecting Nurse Chan’s evidence

89.This relates to the reasons in §34 of the judgment for rejecting the evidence of Nurse Chan.  Nurse Chan has no independent memory of the Patient and she relied on the Nurses’ Report.  It was stated here that the Nurses’ Report is “clearly incomplete, given that some significant events which had taken place were not recorded”.  The Council took the view it cannot rely on Nurse Chan’s evidence as it was “based on such incomplete record, especially in relation to events which were not recorded”.

90.The complaint here is that the judgment did not identify what “significant events” were not recorded, in the absence of which it is not possible for the appeal court to assess whether this was an acceptable reason for rejecting Nurse Chan’s evidence.  Nurse Chan had explained why there was no record of the first pethidine injection in the Nurses’ Report, as there was a record of that in the “Injection Record Sheet”[34].  She had also explained why there was no record of a telephone call to Dr Chan in the evening of 23 February to inform the doctor that the Patient had difficulty in passing urine[35].

91.Mr Huggins also submitted that in relation to the telephone call to Dr Chan in the evening informing him about the Patient’s difficulty in passing urine, this is a false point as it was based on the assumption there were two telephone calls to Dr Chan, one in the evening of 23 February and one in the early hours of 24 February.  The Nurses’ Report had a record of a call to Dr Chan at 02:35 hours.  Mr Huggins submitted that insofar as Dr Chan mentioned in his statement the telephone call was “in the evening”, he must have been wrong about the timing and there was only one telephone call made to him as his description of the call “in the evening” matched the description of the call at 02:35 hours in the Nurses’ Report.

92.I do not agree with his submission that there was only one telephone call to Dr Chan from the nursing staff of the Hospital.  The witness statement of Dr Chan is clear:

“23. I was not in the Hospital in the evening on the day of the operation. Some time in the evening, the nursing staff informed me by phone that the patient had difficulty in passing urine and they asked me if I would consider ordering catheterization before night shift began. There was no other complaint. As temporary difficulty in urination is common after haemorrhoid operations, I decided not to order catheterization immediately.

24. At about 0235 hours (on 24 February 2010), the nursing staff contacted me again and informed me that the patient was still unable to pass urine. I ordered catheterization once for the patient.” (Emphasis supplied)

93.Clearly, there were two telephone calls to Dr Chan in which he was informed about the Patient’s difficulty to pass urine and the earlier call to him was not recorded in the Nurses’ Report.

94.In any event, there is no substance about this ground of appeal.

95.It was for the Council to assess Nurse Chan’s evidence whether the explanations given by her were satisfactory to explain the absence of any record of the events she was asked about in cross-examination or by the members of the tribunal.  The Council was entitled to come to the view that she could not give a satisfactory explanation why significant events which had taken place were not recorded and to reject her evidence based on such an incomplete record.  The Council cannot be faulted for not spelling out the significant events.  As stated in Dr Wu Hin Ting v Medical Council of Hong Kong [2004] 2 HKC 367 at 380F, “a professional judge may have given more reasons as to why the evidence of one witness was to be preferred to that of another or have conducted a more detailed analysis but this is not the test”.

Ground 7

96.This is in relation to Charge (4).  Mr Huggins relied on grounds 2 to 5 in the context of Charge (4).  I have already dealt with grounds 2 to 5 in the context of Charges (2) and (3).

Ground 8: making an unwarranted assumption without evidential foundation

97.It was contended that the Council, having made no finding of fact as to what the nurse in the clinic told Dr Chan when the Patient spoke to her on telephone on 25 and 26 February, wrongly assumed that the nurse had communicated to Dr Chan the Patient was complaining of severe and persistent pain as distinct from some discomfort in the lower abdomen.  This error was compounded by the fact that it was not even put to Dr Chan his nurse had communicated to him that the Patient had complained of severe or persistent pain.  Dr Chan’s evidence was that the nurse only told him the Patient complained of a problem with defecation and had discomfort of the abdomen[36].  And it would not be fair to say now that Dr Chan could and should have called his nurse in the clinic to support his evidence.

98.The allegation in Charge (4) is simply that Dr Chan failed to advise the Patient properly from 25 February to 1 March when the Patient “repeatedly complained of persistent abdominal pain”.  It was not alleged that the Patient had complained of severe abdominal pain in his telephone calls to Dr Chan’s clinic in this period, nor was it his evidence[37].  The Council found that the Patient had complained of “abdominal pain after discharge”[38].  I agree with Mr Ismail there was evidence on which an inference could properly be drawn that the nurse in the clinic had communicated to Dr Chan what the Patient complained of, even though there was no express finding to that effect by the Council.

99.I see nothing in the point that it was not expressly put to Dr Chan in cross-examination his nurse had communicated to him that the Patient had complained of persistent abdominal pain.  Dr Chan had already denied in his evidence in chief he had been told by the nurse in his clinic that on 25 and 26 February the Patient had “persistent, continuous, severe, serious abdominal pain”[39].

Ground 9: failure to take account of relevant consideration

100.Mr Huggins submitted that the Council was wrong not to take account of Dr Chan’s clinical record in relation to 25 February 2010, which was to the effect that when the Patient spoke to the clinic nurse, he refused to attend the clinic for follow up in spite of the fact that he was asked to do so.  He contended this was material evidence which supported Dr Chan’s case that the Patient was not complaining of severe or persistent pain.

101.I have already mentioned that the allegation in Charge (4) was not that the Patient was complaining of severe pain.

102.The Patient’s evidence was that he requested to see Dr Chan when he spoke to the nurse on 26 February (not 25 February) and requested to see the doctor at the earliest as he “wanted to deal with the problems at once” and the nurse gave him an appointment of 1 March at the earliest.  He could not confirm an appointment with her as he found he had to wait so long and was considering if there were other possible ways or solutions[40].  Regardless of whether a follow up appointment was offered to the Patient on 25 or 26 February, this ground of appeal is not a point of substance.  The Council was entitled to accept the Patient’s evidence.

Conclusion

103.For the reasons given above, none of the grounds of appeal against the findings of professional misconduct in Charges (1) to (4) are of merit.  Mr Huggins has indicated if all the findings in respect of Charges (2) to (4) are upheld, Dr Chan will not appeal against the sentence imposed for these charges.  I would dismiss the appeal and make an order nisi that Dr Chan is to pay the Council its costs of this appeal.

Hon Barma JA:

104.I agree with the judgment of Kwan JA and the costs order she proposed.

Hon Poon J:

105.I agree with the judgment of Kwan JA and the costs order she proposed.

Mr Adrian Huggins SC, instructed by Howse Williams Bowers, for the Appellant

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