Curbs on medical ads flout Law, court told

PUBLISHED : Tuesday, 01 August, 2006, 12:00am
UPDATED : Tuesday, 01 August, 2006, 12:00am

Restrictions on doctors' ability to notify the public of their services violated the Basic Law and ran counter to the public interest, a court heard yesterday.

Kwong Kwok-hay, assistant medical superintendent of the Hong Kong Sanatorium and Hospital, is seeking a declaration in the Court of First Instance that certain aspects of the Medical Council of Hong Kong's rules regarding the promotion of doctors' practices are unlawful.

But the council has countered that the restrictions protect the public and the medical profession from potentially misleading and unfair promotion by medical professionals.

Dr Kwong claims specifically that the wording of restrictions within sections of the council's Professional Code of Conduct dealing with practice promotion is so broad as to prevent the effective dissemination of information to the public that it would be in their interests to know.

According to Dr Kwong, the code also violated Articles 27 and 39 of the Basic Law.

Article 27 guarantees Hong Kong people 'freedom of speech, of the press and of publication' and Article 39 gives effect to the International Covenant on Civil and Political Rights, which guarantees freedom of expression.

David Pannick QC, for Dr Kwong, said that strong justification was required for a restriction to be placed upon rights guaranteed to all Hongkongers under the Basic Law. He also questioned how the public was to be informed of new developments if the doctors involved in applying them were unable to explain how they were an improvement on older techniques.

'It's very difficult to do any of that without breaching the provisions of the code,' Mr Pannick said.

The effect of the provisions was to 'prohibit doctors from talking even generally about experiences around the world with new procedures'.

Michael Blanchflower SC, for the council, countered that the rules and restrictions protected those in the market for medical services, who, by the very fact they were seeking medical help, were some of the more vulnerable members of the public.

Mr Justice Anselmo Reyes reserved his decision.