Hospital Authority's secretive handling of medical misconduct damages trust in public health care
Neville Sarony says the Hospital Authority's practice of keeping medical misconduct out of public view creates unnecessary doubts about the professional standards of our public doctors
The failure of the Hospital Authority to refer a single case of potential misconduct to the Medical Council for investigation in the past two years is deeply disturbing. Rather than indicating a faultless level of competence of our public doctors, who generally are of high quality, it speaks of the arrogance of their employer in bypassing the professional governing body of all doctors in Hong Kong.
Shielding or even appearing to shield its doctors by in-house determination of what constitutes misconduct brings the authority into conflict with the council.
Doctors in the authority's employ are just as answerable to the council as doctors in private practice. However, the authority's established practice is to refer only cases it regards as "appropriate" for the council to look into.
The net result of this secretive filtering is that for 2012 and 2013, not one case was referred for independent investigation. The absurdity of the authority's lame excuse that it is safeguarding patients' privacy is self-evident.
The absence of referrals is not evidence of an absence of incompetence or gross negligence among its doctors. The recent case of a United Christian Hospital pathologist is a timely reminder.
Misconduct in the clinical context includes the obvious, such as indecent assaults and gross breaches of accepted professional norms. Though the same instance may render the doctor liable to pay damages for professional negligence, what is under consideration is misconduct as a breach of the professional code of practice. The two should not be confused.
To understand the present controversy, it is essential to grasp the fact that the council is the guardian of sound medical practice in the interests of its members and so has to underpin the public's confidence in the profession. Doctors guard their reputation jealously, and rightly so. The prescription of drugs and performance of surgical procedures oblige the patient to place himself wholly in the hands of the clinician. The patient relies on the doctor's adherence to the Hippocratic oath to "do no harm".
Put simply, unless a drug prescription or surgery is clinically justifiable, the physician is guilty of a criminal offence against the person. All of which makes it essential that all reasonable steps are taken to ensure doctors adhere to the profession's exacting standards.
Seen against this background, the authority's practice is outrageous. Its inertia seems to be entrenched, since the council has twice urged it to be more proactive, first in a confidential letter in 2010 and then in an open remark in 2012. But these pleas were ignored.
Council figures record two referrals in 2009, and one each in 2010 and 2011.
In comparison with an average of about 500 complaints a year from the private sector, the authority's intransigence is a cause for genuine concern and public disquiet, creating a perception that public doctors are outside the remit of the council. What is manifestly unacceptable is the difference of approach between a private doctor who makes an error, which is referred to the council, and a public doctor who makes the same error which is investigated in-house.
It is invidious to be instructing the authority's investigating panel to make an objective determination; one cannot be judge and jury in one's own cause. Each hospital has a vested interest in protecting its image and nowhere is this more extensive than with the authority's hospitals.
That justice must not only be done but seen to be done is not limited to courts of law. The devil in the authority's defensive mindset is that behind its iron shutters, incompetence and gross negligence may be concealed. The hierarchical nature of the authority - with its career structure for doctors - imposes stresses upon professional ethics which should play no part in the practice of medicine.
Suppose a surgical registrar observes his head of department making an error, about which he is told to say nothing or is even left with the impression that it should go no further. His career is at risk if he tries to blow the whistle.
The current practice does a grave disservice to the employed clinicians merely by giving the impression that there may be a cover-up. Concealment is inimical to professional ethics.
The mechanics of the current system dictate that the council only investigates complaints made or referred to it, as distinct from having a proactive role to seek out misconduct.
When there is an adverse outcome to treatment in the public sector, the patient or his relatives face an institutional barrier to their inquiries as the authority's defensive shield is raised. By way of contrast, patients who pay for their treatment in the private sector are probably more likely to complain when something appears to have gone wrong.
It is axiomatic that a lack of transparency creates suspicion. Such an attitude is neither in the interests of the public nor the medical profession. The serious flaw in the current situation is not so much in the council's disciplinary procedure (though the proposals by its chairman, Professor Joseph Lau Wan-yee, would certainly improve it), as in the authority's in-house filtering.
In my experience, all many patients are looking for is an apology. This is something to which Lau's proposed mediation procedure could well make a salutary contribution - by obviating litigation where confrontation between patient and the treating hospital can impinge upon the clinical outcome. Voluntary referral by the authority manifestly does not work.
Outsourcing the investigation is a necessary expedient. Lau's proposal for a central complaints system would be a distinct improvement on the present arrangement. However, given the backlog of pending cases, it will also require more manpower to speed up the investigative process.
One possible solution is to empower the council to audit public hospitals with a remit to seek out instances of potential misconduct. Audits, coupled with educating the public to an increased awareness of their right to complain directly to the council, may well force a change in the authority's lamentable mindset.
Hong Kong is a centre for excellence in many fields. The medical profession cannot afford to be brought into disrepute by administrative sleight of hand.
Neville Sarony is a silk practising in both civil and criminal work in Hong Kong