Judge cites doctors' 'unmerited appeals'

PUBLISHED : Friday, 23 April, 2010, 12:00am
UPDATED : Friday, 23 April, 2010, 12:00am

A recent spate of appeals against Medical Council disciplinary findings was 'something of an open season' on the role of the body's legal adviser, a judge said as he dismissed an appeal from a doctor who was found guilty of misconduct for overcharging a patient for laboratory tests.

The judge was writing as he and two other judges at the Court of Appeal turned down an appeal from Dr Ip Wing-kin, whom the council had found guilty of professional misconduct for charging a 79-year-old man suspected of having herpes HK$4,180 for tests that laboratories conducted for HK$1,575 in 2006.

The council had come to the decision after a disciplinary hearing. According to regulations, the council may have a legal adviser present.

The doctor had argued in his appeal that an adviser should restrict himself to assisting on questions of law, and that the adviser in this case had not done so. The Court of Appeal disagreed.

In his written judgment dismissing the doctor's appeal, Mr Justice William Stone said: 'Whilst in recent months there appears to have been something of an 'open season' on the role of the legal adviser to the council, with the alleged 'transgressions' of that adviser becoming the vehicle for argument in otherwise substantively unmeritorious appeals, in my judgment there is room for a substantial dose of realism and common sense in the application of the existing legislation to the facts of any particular case.'

The judge said he 'deprecated' a trend towards microscopic analysis of transcripts of proceedings to formulate a technical argument that the legal adviser had 'crossed the line', thereby rendering an otherwise sensible and well-run disciplinary proceeding as potentially susceptible to subsequent judicial interference.

The point of substance raised in the appeal related to the role of the legal adviser, and three conversations the adviser had before the council retired to consider its verdict and during the deliberations.

In those conversations, the adviser spoke about the statements of fees, what the council should consider in deciding whether the fee Ip charged was excessive, and whether the fee had been presented to the patient as that charged by the lab or as including Ip's fee for taking the test samples and explaining the results.

Ip's lawyer had argued that, under the Medical Registration (Miscellaneous Provisions) Regulation, the adviser should only comment on points of law.

Moreover, he claimed the adviser had acted beyond his powers and that he had been wrong in restricting consideration to receipts for the tests.

However, yesterday Mrs Justice Doreen Le Pichon disagreed that the adviser had overstepped his power, saying: 'To confine his role to advising on questions of law only would be unduly restrictive, given the rationale for having a legal adviser in the first place.'

Moreover, she wrote, 'issues of mixed law and fact arise more frequently than those of purely law, and the legislation could not have intended for the adviser to be confined to the latter. Hence, it must be able to embrace both. Any other approach would emasculate the legal adviser's role and render it impossible to perform'.

The judgment was delivered by Le Pichon, Stone, and Mr Justice Mohan Bharwaney.

Medical Association president Dr Tse Hung-hing, who is also a Medical Council member, said there had indeed been more appeals against the rulings of the council, and they reflected doctors' dissatisfaction with the opinions of the legal adviser.

He said a number of council members also had doubts on the adviser's opinions, but they had no alternative.

'He is the only lawyer in the council; if we do not listen to him, who else can we listen to?' Tse said.