Medical Council must act to defuse the image of protecting doctors rather than public interest ("Letter to Hong Kong" -- Radio Television Hong Kong)
The recent media reports of the Medical Council imposing an apparent light
penalty -- in the form of a warning letter -- on a medical practitioner
found guilty by the same body to have perform an "unnecessary and
inappropriate operation" raised a lot of concern.
The aggrieved patient cried foul, after all, as reported, she was given only
five hours to make a major decision that left her completely maimed and
sterile for the rest of her life.
The Chairman of the Medical Council was, however, as quoted to say that it
was just an issue of minor communicating problem. He was further quoted as
remarking that those not present at the hearing do not have enough knowledge
to afford blame or criticism? It would be difficult to judge who is right or
wrong as there is, up to date, no details of what transpired at the hearing.
The public is thus put in disarray.
Whilst it may be prejudicial to cast a vote on the verdict, it does raise
the issue of the roles and functions of the medical practitioners' statutory
disciplinary body.
Functions of Medical Council
The Medical Council is empowered by law to register doctors, determine and
maintain standards of medical practice, and impose disciplinary measures on
any registered doctor found guilty of professional misconduct, in the
interest of public protection. The penalty ranges from the issuing of a
"warning letter" to an indefinite period of
"de-registration".
On standard setting and monitoring, few would dispute that the function
should not be entrusted with the profession themselves. After all, who could
have the expertise to determine the benchmark for competent medical
practice. Nor should the role be entrusted with the Government for fear of
autocracy. It would be doomsday for any profession if Government is the body
to determine who have the right to practise.
As a professional disciplinary body, the Medical Council functions like a
court with members acting as judges and jury, conducting hearings, passing
judgement ands determining penalties.
Peer Assessment adopted in judging
Yet, it is not exactly a court for it is a judging body where peer
assessments and peer determinations are taken in preference to the actual
letters of the law.
To wit, a surgeon could have performed the most successful operation, having
received prior consent both orally and in writing from the patient. But he
could still be judged as committing a professional misconduct should the
peers consider the operation unnecessary and uncalled for. On the other
hand, an operation may end up with the most complex complications and the
patient succumbed. Yet, the surgeon could be found not guilty if the peers
believe that all those complications were unavoidable; that the surgeon had
done his utmost as any of his competent peers would have done so.
On penalties, this peer assessment also takes into consideration of
defamation of the good name of the profession. If a doctor in a fit of
temper assault someone even outside professional duties, the court of law
may consider him guilty of bodily injury, impose a fine and bind him over
for good behaviour. The Medical Council could take a different and stronger
view. That doctor could be considered as having committed a serious
professional misconduct through bringing the profession into disrepute, for
which a heavy penalty could be imposed.
To carry out these duties with efficiency, few would disagree that members
of the Medical Council should consist of a significant number of members of
that profession. This is not only the norm and conventional practice on a
world wide basis, but also out of the practical requirement for insider
expertise. It would thus be most unfair to accuse the Medical Council of
being a "closed door club", when as by law it has four lay members
out of a total of 28.
Problems faced by Medical Council
Regrettably, much of the deliberations, in particular the decisions on
disciplinary activities, have led the public to perceive that this
professional body exist for the profession's interest. To wit, of the 245
cases that went to the Medical Council in 1998, only 6 were convicted on the
proposed charges. Yes, 5 were given the heavier penalty of a limited period
of deregistration, but 2 had their sentence suspended. In short, very few
were actually asked to pack their bag irrespective of their
"crime".
It may be argued that the Medical Council suffers from a lack of experienced
prosecutors from the Department of Justice. Experience have shown that those
assigned to the task by the Department are usually inexperienced in the
nature of work of the Medical Council, ill prepared and crumbled when
confronted by legal heavy-weights representing the accused. This David
against Goliath situation cannot be allowed to persist for few would rejoice
when obvious wrong doers run away scott free on a point of law.
The Medical Council has always lamented that it is pointless imposing heavy
penalties only to be squashed by the Court of Appeal. Yet, this is no excuse
to be lenient, for the Medical Council, as entrusted by the law, must do its
utmost to set its standard undeterred by what might be the decision of any
high court. Furthermore, it would be up to the Council and the Government to
clarify with the Judiciary the nature of this peer assessment body, that the
seriousness of any offence is very much related to professional misbehaviour
rather than on a point of law!
Medical Ombudsman not desirable
Some in the public have thus called for the establishment of a Medical
Ombudsman to overlook all medical incidents and mishaps. Yet, can there be
enough professional expertise and knowledge in one body to deliver judgement
involving professional standards and conducts of all the professions in the
health care team?
If not, then this body may end up as yet another duplicated machinery in the
professional disciplinary structures. At best, it could act like a mail box
or sorting out station referring the case to the relevant professional
Councils or Boards concerned.
The way forward must be to increase the transparency of all professional
disciplinary bodies by opening up most of their hearing, increase public
participation through increasing the number of lay members, providing more
detail explanation on the decisions of such disciplinary councils, and
demonstrate to the public its user-friendliness.
Medical Council should not be agent for protecting doctors
All these only showed that we do have a system to judge, vet, convict and
discipline doctors and other health care providers that is created for the
best of public protection. It is up to each and every councils and their
members to uphold that trust.
For the Medical Council, it must not only perform its role as defender of
public interest but made to be seen so, instead of being perceived to be an
agent to protect the doctors' vested interest.
This much the Medical Council owes to the people of Hong Kong. This much the
Medical Council owes to the profession too -- to weed out their "black
sheep" and "undesirable elements" that may denigrate the hard
earned good name that the medical profession deserve.
by Dr. Leong Che Hung
4 June 2000