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Cliff Buddle

A RULING which gives tax inspectors access to confidential files of 9,000 patients seized from a doctor during a tax investigation came under fire last night.

Mr Justice Sears in the High Court sanctioned an agreement between Dr Patrick Shiu Kin-ying, two of his patients and Inland Revenue in the wake of the department's November raid on his premises and seizure of personal files.

The doctor said he was satisfied that the terms of the court order would protect the privacy of his patients 'to a large extent'.

But under the agreement the department will be able to make copies of patients' names, addresses and other particulars including the fees they paid and the dates they attended the clinic.

Tax inspectors would also examine documents containing confidential information relating to the medical history of patients but only while searching for material relevant to their investigation.

'I am not 100 per cent pleased but in the spirit of the best interests of the community, I think this is a sensible compromise,' Dr Shiu said after the hearing.

'I think the patients' confidentiality is being protected to a large extent.' The doctor said he was still unhappy that tax inspectors would be able to copy details of his patients' names and addresses.

 Yung Wai-mui, of the Hong Kong Patients' Rights Association, said the order fails to protect patients' confidentiality.

'What if I had AIDS?' she said. 'The department is keeping my name and address in order to verify records. But once you contact me for verification, I know you know I have been to a doctor, and I will start wondering whether you know what I am suffering from.' Dr Leong Che-hung, who represents the medical profession in the Legislative Council, said he was 'very disappointed' with the order, which he criticised for providing no guarantee of patients' confidentiality.

'I also don't see why it is necessary for the department to keep patient's particulars such as names and addresses,' he said.

'A patient who consulted a specialist for sex-related diseases may not want that to be known to a third party.' Dr Chu Kin-wah of the Public Doctors' Association said the order was acceptable, but not perfect.

'It would be ideal if patients' names and addresses were kept confidential,' he said.

The Commissioner of Inland Revenue, Anthony Au Yeung Fu, said last night he was pleased that a reasonable agreement had been reached, but denied the department had made a concession.

He maintained it was Dr Shiu who approached the department last week to settle the dispute out of court 'under certain terms and conditions'.

'I consider the arrangement satisfacory because it permits the department to continue its investigation to ascertain whether the return made by the doctor is correct,' he said.

Mr Au Yeung said the department would still ask to see patients' records in future, and maintained its past actions were governed by the Inland Revenue Ordinance.

 'But in carrying out a search, we would certainly observe the so-called confidentiality of patients,' he said.

He said investigators might not insist on getting original copies, unless it was required as evidence for legal proceedings.

'We have seized documents from taxpayers involving all trades and from all walks of life,' he said.

He said patients' particulars such as addresses and names would provide investigators with an 'audit trail' for verification.

The medical records of Dr Shiu's 9,000 patients were seized after an Eastern Court magistrate gave the Inland Revenue Department a warrant to enter his clinic to examine 'books, records, accounts or documents' as part of an investigation into his tax liabilities since 1985.

The seizure triggered an outcry from patients and doctors, and prompted calls for the right to patients' confidentiality to be enshrined in the law.

The court order by Mr Justice Sears made it clear the department had agreed not to copy the medical history of patients, or other information relating to their health.

This material is to be blanked out when the documents are copied by department officers, while most of the files are to remain sealed for as long as is deemed necessary for the purposes of the tax investigation.

Inland Revenue reserves the right, as stated in the court order, to unseal the documents and make use of them in future civil or criminal court proceedings should such a situation arise, but any official breaching yesterday's court order could face contempt of court proceedings and prison.

The department has also agreed to return to the doctor X-ray films, laboratory tests and other documents relating to the health of patients along with files which deal with a time period outside that of their inquiries.

Mr Justice Sears said: 'The parties are to be congratulated on coming to a very sensible solution to this difficult problem and I am sure this is the appropriate way to deal with it.' Gerard McCoy, representing the doctor and two of his patients, Leung Yuet-Ngoi and Anthony Lo Kam-kong, told the judge there was a 'tension' between the Bill of Rights and the duties of Inland Revenue. He added that the parties had reached an agreement and invited the judge to assent to it.

The order made by the judge is not binding on Inland Revenue in relation to any future investigations into the tax affairs of other doctors, but Dr Shiu said an important precedent had been set.

He said he hoped magistrates would bear this in mind when the department applied for warrants to search a doctor's premises.

The doctor said tax inspectors were carrying the files out of his Nathan Road building at the same time as bemused patients arrived at his clinic seeking treatment last November.

He claimed the absence of the medical records had created a potentially life-threatening situation for his patients.

Dr Shui urged the Inland Revenue Department to think twice before taking similar action again.

He called on the Medical Association to press for action to be taken to ensure tax inspectors do not continue to raid clinics in this way.



Ruling angers medical bodies