Peter Cheung and Eugina Lau, who lodged a complaint with the Medical Council over the death of their newborn, waited nine years for a decision. Photo: Edward Wong

Medical complaints must be heard sooner for justice to be served

Neville Sarony suggests ways to speed up Medical Council proceedings

The nine-year delay between the death of a newborn a day after its induced birth and the conclusion of a professional inquiry into the conduct of the doctors involved raises a serious question mark over whether the Medical Council is missing its stated objective.

The mission of the governing body of doctors is to protect the public from those who are unfit to practise medicine and to maintain public confidence by upholding the reputation of the profession.

Of the 30-odd cases heard between October 2012 and last month, the time between lodging a complaint and its conclusion ranges from two to nine years, with an average of more than three.

According to the council's website (which differs from the legal requirements), each complaint is first considered by its chairman, and, where appropriate, also by the deputy chairman of its preliminary investigation committee. If either decides disciplinary procedures are warranted, an inquiry takes place to investigate whether there has been any professional misconduct. That the complaint over Cheung Tin-lam's death in February 2005 was rejected only to be restored in 2009 after the parents sought an expert opinion is less than reassuring.

The outcome of any inquiry can have ramifications not only for the patients but also their families. Equally, having a disciplinary inquiry hanging over a doctor's head for years can exact a heavy toll. The legal adage that "justice delayed is justice denied" applies just as forcefully to disciplinary hearings. Simply stated, it is unfair.

Lengthy delays invariably allow the erring clinician to continue to practise in the meantime, which hardly inspires public confidence, particularly where the clinician persists in maintaining he or she had done nothing wrong: how many more errors will occur before the case is resolved?

Wherein lies the cause of the problem? First, the composition of the hearing panel. The Medical Registration Ordinance requires the disciplinary hearings to be conducted by a panel of five council members, or three members plus two assessors drawn from a panel of 10 doctors and four laymen.

However, the out-of-working-hours hearings create problems for busy practitioners. The panel needs time to consider the evidence and legal submissions, discuss things and then write the judgment.

It is difficult to follow the logic of why the panel must include at least three council members who must already be busy with other professional responsibilities. The council has 28 members, including the four laymen, yet last year, 22 cases were heard. If the ordinance were amended so council members did not have to sit on the inquiry and to expand the panel to include more eligible members, both clinicians and laymen - and a larger pool of the latter - it would remove the artificial constraints on constituting a tribunal.

Another possible improvement would be to allow a retired High Court judge or senior counsel to chair the tribunal. This would provide the panel with built-in legal advice.

There are also grounds for querying the reliability of the Hospital Authority in referring suspected cases of misconduct in public hospitals. In June 2007, a public hospital oncologist administered an injection via the wrong route, leading to the patient's death. Despite the gravity of the case, the authority did not refer the incident to the council, which only learnt of it from an anonymous complainant three years later.

The recalcitrance led the council to comment on "the disproportionally small number of cases" referred by the authority against the number of press reports of medical incidents.

It stands to reason that the medical community and the public should have confidence in the efficacy of a system to investigate suspected professional misconduct in the private and public sectors, and hopefully prevent a recurrence.

It is most undesirable for the public to harbour a perception that the authority would be slow to disclose the shortcomings of its doctors. Nothing could be more destructive of public confidence in, not to mention the reputation of, the medical profession.

This article appeared in the South China Morning Post print edition as: Delays in hearing medical complaints hurt credibility