Procedural flaw helps doctor win on appeal

PUBLISHED : Friday, 01 May, 2009, 12:00am
UPDATED : Friday, 01 May, 2009, 12:00am

A long-standing procedural flaw in Medical Council disciplinary hearings has enabled a doctor to overturn a finding of professional misconduct handed down against her.

Helen Chan Hei-ling, sister of veteran singer Agnes Chan Mei-ling, was disciplined for promoting a vitamin brand owned by a company of which she is a director.

But the Court of Appeal found yesterday that council policy of requiring a legal adviser to be present during the hearing, and to prepare the first draft of its decisions, was unlawful.

The court quashed the order made by the council in November 2006, which imposed a two-month suspension from the medical register, suspended for two years.

But it also criticised Dr Chan's conduct, saying that apart from the procedural point, the appeal had little merit.

In the judgment, Mrs Justice Doreen Le Pichon said her view was that legislation did not authorise the legal adviser to be present during the council's deliberations - which must take place in private - 'save and except when advice is required from the legal adviser'.

It also did not authorise the adviser to prepare a first draft of the decision for the council's review or be involved in the writing of the decision in any way, she said.

Mrs Justice Le Pichon, sitting with Mr Justice Peter Cheung Chak-yau and Mr Justice William Stone, also said the involvement of the legal adviser raised issues of 'breaches of natural justice, bias or the perception of bias, improper delegation and ultra vires [acting outside its power].

'But ultimately, whether or not the statutory arrangements should be revised and, if so, how, are matters for the legislature and not the courts'.

Mr Justice Cheung also held that the legal adviser could tender his advice only when called upon to do so when the hearing had concluded and the council had retired to deliberate its judgment.

Noting there was an understandable wish by the council to have well-written decisions, Mr Justice Cheung added: 'Writing articles in medical journals, preparing expert reports for use in litigation and presenting papers in conference are not unfamiliar' to the council's medical professionals.

Despite the success of her appeal, the court criticised Dr Chan's conduct, saying it involved conflict of interest. Mr Justice Stone said in his judgment that given her seniority in the profession, Dr Chan could not have been unaware of the restriction on promotion of commercial products by practitioners.

'In my judgment, in the factual circumstances of this case this appellant has been fortunate to succeed on this appeal, which, save for the successful procedural point invoked in her favour ... otherwise had little intrinsic merit,' he said.

The Medical Council said its members would study the judgment and declined to comment at this stage.