Medical Council wrong to bar lawyers, court finds

A law that denies legal representation to a doctor whose fitness to practise is being considered by the Medical Council's health committee is unconstitutional, a judge has held.

The ruling came in the case of a doctor identified only as Dr Q, who was asked by the council to explain his conduct after being found semi-conscious in a hospital changing room. The doctor had injected himself with the hypnotic anaesthetic propofol.

In a judicial review in the Court of First Instance, Gerard McCoy challenged sections of the Medical Registration Ordinance that did not give the committee discretion to allow the doctor legal representation during a hearing on January 26.

Mr Justice Joseph Fok held that Article 10 of the Bill of Rights, which guarantees the right to a fair hearing, was infringed.

Fok granted a declaration sought by Dr Q that sections of the ordinance were unconstitutional.

He also held that the proceedings of the committee so far had been unlawful and in breach of the doctor's constitutional rights and ordered it to pay the cost of the review.

But he said the court was not entitled to quash any decision of the committee on the grounds of unfairness because the refusal of legal representation was sanctioned by law.

Dr Q, who had suffered from a depressive disorder since 2004, was found semi-conscious in a changing room at United Christian Hospital on November 4, 2008.

The committee can recommend to the Medical Council that a doctor found mentally unfit to practise be struck off the register.

But it has made no recommendation on Dr Q since the hearing was adjourned on January 26.

Godfrey Lam, for the committee, said such a recommendation did not in itself remove the right of a registered medical practitioner to practise because the decision-making power rested with the Medical Council.

But Fok said: 'It is clear that Dr Q's right to practise his profession would be directly at stake in the decision to be made by the council ... and would be irretrievably prejudiced by the recommendation of the health committee.'

Had Dr Q been represented by a lawyer, a number of the questions that were asked during the hearing by the committee would have been objected to, such as questions that had exposed Dr Q to a risk of self-incrimination, he said.

The Medical Council could not be reached for comment.

Last year, Lam Siu-po was reinstated in the police force after the Court of Final Appeal ruled that a ban on legal representation for officers at disciplinary proceedings was unconstitutional. The constable was forced to retire in 2002 after an internal hearing convicted him of misconduct.