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CACV 103/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION


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COURT OF APPEAL

CIVIL APPEAL NO. 103 OF 2013

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL


OF HONG KONG MADE ON 24TH APRIL 2013)

BETWEEN
H

DR CHAN PO SUM

Appellant

and

THE MEDICAL COUNCIL OF HONG KONG

Respondent

Before: Hon Kwan, Barma JJA and Poon J in Court


Date of Hearing: 25 November 2014

Date of Judgment: 9 December 2014


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JUDGMENT

Hon Kwan JA:

Introduction

1.
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On 24 April 2013, after hearing four days of evidence, the

Medical Council of Hong Kong found Dr Chan Po Sum, a registered


medical practitioner, guilty of misconduct in a professional respect in

relation to the following charges:


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He, being a registered medical practitioner, disregarded his


professional responsibility to his patient Mr A (the Patient) in
that:

(1)

(2)

(3)
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(4)
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2.

he failed to obtain informed consent from the Patient


before performing the Stapled Haemorrhoidopexy (the
Operation) on the Patient on 23 February 2010 in
St Teresas Hospital (the Hospital);

during the post-operative period up to the time of


discharge from the Hospital, he failed to properly
examine and investigate the Patient despite his repeated
complaints of severe abdominal pain after the Operation;

on 24 February 2010, he failed to properly examine and


investigate the Patient before he was discharged from the
Hospital despite his repeated complaints of persistent
abdominal pain;

from 25 February 2010 to 1 March 2010, he failed to


properly advise the Patient when the Patient repeatedly
complained of persistent abdominal pain.

In the judgment of the Medical Council, the terms Stapled

Haemorrhoidopexy, Stapled Haemorrhoidectomy and Procedure for

Prolapse and Haemorrhoids were used interchangeably to mean the


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same procedure and were referred to collectively in short as PPH.

will adopt the same terminology here.

3.

Having found the charges of professional misconduct

established, the Council ordered that in respect of Charge (1), a warning

letter be served on Dr Chan and that the order be published in the Gazette.
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For Charges (2), (3) and (4), the Council ordered that Dr Chans name be
removed from the General Register for one month on each charge, and

that the removal orders on all three charges to run concurrently.


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4.

Dr Chan brought this appeal to set aside the findings of

misconduct and the sentences imposed.

He indicated he will not appeal

the sentence in relation to Charge (1).

And if all the findings of the

Council in respect of Charges (2), (3) and (4) are upheld, he will not
appeal against the sentence of the same.

It is only if this court should

quash some but not all of the charges then Dr Chan would seek a
corresponding and proportionate reduction of the sentence.

Mr Huggins,

SC, who appeared for Dr Chan on appeal, made clear that the only
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circumstance in which Dr Chan will pursue any appeal against the

sentence in respect of Charges (2), (3) and (4) will be if this court accepts
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his submissions in relation to the Councils findings that the Patient


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complained of severe and persistent abdominal pain and that Dr Chan

was aware of those complaints and ignored them, but for some distinct
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and free-standing reason nevertheless upholds one or more of Charges (2),


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(3) and (4).

The background

5.
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The relevant background matters, taken largely from the

judgment of the Council, may first be related as follows.


6.

The Patient was a 33 year old male who enjoyed good health

all along.

He first consulted Dr Chan on 7 December 2009 for his

haemorrhoid problem.

Dr Chan advised the Patient to try conservative

treatment by medication first.


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He also advised the Patient that the

haemorrhoids could be treated by two surgical options: PPH or


conventional open haemorrhoidectomy.

In his medical records,

Dr Chan wrote: Operation of PPH Mentioned asso. [associated] risks


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explained.

The evidence in respect of the explanation of associated

risks was not much in dispute.

Dr Chan explained to the Patient that

PPH would have the advantages of significantly less pain, less


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post-operative wound care, shorter recovery, and not much risk involved.
7.

On 4 February 2010, the Patient returned for a consultation

and indicated he was considering surgery.

After further explanation by

Dr Chan, the Patient decided to undergo PPH.

In Dr Chans medical

records, he recorded: Operation Risks S.E. [side effects] Explained


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again.
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As the Patient had decided to undergo PPH, Dr Chan gave a

more detailed description of the PPH procedure, with little mention of


conventional haemorrhoidectomy.

According to the Patients evidence,

and agreed to by Dr Chan, throughout the second consultation, Dr Chan


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impressed upon him that conventional haemorrhoidectomy was very


painful and PPH was a newer procedure with less pain.

Some of the

risks were mentioned.


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There was however no mention of two risks

associated with PPH: rectal perforation and the higher rate of recurrence
of internal haemorrhoids.
8.

When the Patient was admitted to the Hospital on

23 February 2010, he signed a Checklist of Possible Common and


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Important Complications (General Surgery) and a Surgery/Medical

Procedure/Treatment Consent Form with no further explanation.

9.

Regarding the risks associated with PPH, the Council made

these relevant findings on the expert evidence:


25. Rectal perforation is a known risk of PPH. Although the
probability is low 1, it is a serious risk which is life-threatening.
However, by reason of the nature of the operation, there is no
risk of rectal perforation involved in conventional
haemorrhoidectomy.

26. PPH is a relatively new procedure which, at the beginning


of its development, was hailed as a superior treatment option
for haemorrhoids. As time went on, more reliable studies
revealed that there are disadvantages of PPH which were not
known before. By July 2007, it was known that PPH is

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1

It was 0.08% according to the opinion of Dr Chung Chi Chiu Cliff, consultant surgeon of the
Department of Surgery of the Pamela Youde Nethersole Eastern Hospital, the expert witness called by
Dr Chan. It was in the range of 0.1% according to the opinion of Dr Cheung Ho Yin Michael,
consultant of the Department of Surgery of the North District Hospital, the expert witness called by the
Council.

associated with a higher long-term recurrence rate of internal


haemorrhoids than conventional haemorrhoidectomy, and a
reliable study concluded that conventional haemorrhoidectomy
is superior to PPH for prevention of post-operative recurrence
of internal haemorrhoids.

10.
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Dr Chan performed PPH on the Patient between 12:30 pm

and 1:05 pm on 23 February 2010.


anaesthesia, Dr Chan had left.

When the Patient woke up from the

According to the Patient, he complained

of severe abdominal pain to the nurse.


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The Patient was not able to pass urine after the operation.

He continued to complain of lower abdominal pain after the analgesic


effect waned off.

At 2:40 pm, a nurse gave him an

injection of an analgesic called pethidine.


11.

This entry was made in the Nurses Report: Pt

[Patient] still complained he could not pass urine after operation and
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lower abdominal pain.


24 February].

Dr P S Chan was inform [sic] at 02:35 [on

Cath [catheter] once was prescribed but patient refused.

Pethidine 75 mg IMI was injected at 03:10. Pt insisted to try passing urine


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by himself.
12.

The Nurses Report showed that the Patient agreed to be

catheterized at 6:45 a.m. and 660 ml of urine was drained from the

bladder.
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13.

At 8:30 a.m. on 24 February, Dr Chan saw the Patient when

he did the ward round.


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clinical examination.

He spoke to the Patient but did not carry out a


After having passed urine successfully by himself,

the Patient was discharged from the Hospital at 2:40 p.m with pain-killers

and laxatives.
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14.

On 25 February, the Patient felt unwell and telephoned

Dr Chans clinic.

He only managed to speak to the clinic assistant, not

Dr Chan.
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He telephoned again on 26 February complaining of

abdominal pains and inability to defecate but once more was only able to
speak to the clinic assistant.

On 27 February, which was a Saturday, the

Patient felt severe pains in the abdomen and telephoned the Hospital.
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Later that afternoon, he attended the Accident and Emergency


Department of Tseung Kwan O Hospital.

When he was there, he had a

telephone conversation with Dr Chan.


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He later received an analgesic

injection and medications from that hospital but declined an examination


of his anus.
15.

In the early hours of 1 March, the Patient had sudden spasm

in his pubic area with abdominal pains.


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He telephoned and spoke to

Dr Chan about the increasing abdominal pain.

He tried immersing in

hot water as advised by Dr Chan but this brought no relief to the pain.

At 5 a.m., he was taken to Tseung Kwan O Hospital in an ambulance.


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He was diagnosed with peritonitis and emergency laparotomy was


performed.

At the operation, a 4 x 3 cm perforation was noted at the

anterior wall of the rectum above the peritoneal reflection.

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colostomy and second look laparotomy were performed in the afternoon.


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He stayed for one month in hospital.

The evidence and findings in relation to Charge (1)

16.
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In respect of Charge (1) regarding informed consent, as

mentioned above, the evidence was not much in dispute and Dr Chan
admitted that he did not explain to the Patient the risk of rectal

perforation and the higher recurrence rate of haemorrhoids in connection

with PPH.
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17.

The line of defence taken at the trial was that there was no

need to advise patients of either the risk of rectal perforation or the higher
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recurrence rate of haemorrhoids using the PPH procedure.

In support of

this stance, reliance was placed on the evidence of Dr Chans expert

witness, Dr Chung, who was the chairman of the working group for
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informed consent for Hong Kong East Cluster of the Hospital Authority.

18.
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Dr Chung was of the opinion that as rectal perforation due to

PPH has exceedingly low incidence, it is not necessary and not


mandatory to explain this risk to patients in obtaining consent to undergo
PPH.

He and his peer group would not have advised patients of the risk

of rectal perforation in PPH before surgery 2 .

As for the higher

recurrence rate of haemorrhoids with the use of PPH in the treatment of

Grade 3 haemorrhoids, Dr Chung was of the view there was no evidence


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of a material or significant difference in the rate which might have made


it necessary to inform the patient of such difference.

His view that there

was no evidence of a material or significant difference in the recurrence


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rate was contrary to the more recent studies referred to by Dr Cheung and

was not accepted by the Council, see 26 of the judgment quoted above.

19.

evidence in chief:
Informed consent means adequate but not excessive
information given to the patient. We have to agree ourselves
what is meant by essential information. Essential information
given to the patient to obtain informed consent would include

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2

Dr Chung said this regarding informed consent in his

Transcript [C4/1131 lines 4 to 24]

the nature of the procedure, anticipated benefits, usual and


expected post-operative course and complications, alternatives,
and any long-term morbidity. If things are very rare, it need not
be included. But if you ask me is it wrong to include these, of
course its not wrong, but these are not essential information. If
a patient asks, you would elaborate. Its not wrong to include
information on rectal perforation, but again it is also not wrong
not to include rectal perforation as essential information during
the process of gaining informed consent. 3

Further in support of his opinion that the risks are not

20.

considered as essential information given to the patient, Dr Chung


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referred to the pamphlet issued by the Hospital Authority dated October


2010 dealing with both forms of treatment (conventional surgery and

PPH) for use by doctors to explain to patients, which made no reference


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to the risk of rectal perforation or any greater risk of recurrence with


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PPH 4, and similar pamphlets produced by a number of hospitals in the

United Kingdom 5.
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21.

When Dr Cheung, the expert witness for the Council, was

asked why he was of the opinion that the risk of rectal perforation in PPH
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should be explained to the patient notwithstanding the occurrence rate is


low, he said this:
It is very simple. There are lots of medical procedures
nowadays so-called have very low serious complication risks,
like blood transfusion, like a standard colonoscopy. There are
lots of these having a complication rate, say, in the range of
0.1 per cent or even less. Even for a simple anaesthesia
induced death, the rate is like one over 600,000, but you still
have to explain it because this is a life-threatening condition

Transcript [C4/1124 line 14 to 1125 line 1]

The risk of rectal perforation was added in the later version of a patient pamphlet published by the
North District Hospital in 2013 and the rate of recurrence was added as an operation related
complication in the pamphlet in about 2009, see Dr Cheungs evidence at Transcript [C4/622 line 15 to
625 line 25]

Oxford Radcliffe Hospitals NHS Trust, Doncaster and Bassetlaw NHS Foundation Trust,
Heatherwood and Wexham Hospitals NHS Foundation Trust

and the patient has a choice not to do it. No matter how low, if
this is really serious, it would be the responsibility of a clinician
to explain to the patient, especially when it is known. 6

22.

Dr Cheung added this:

Everybody who is a surgeon knows that anastomosis 7 always


carries a risk of anastomotic failure, no matter how low that is.
This is completely different from a conventional surgery, which
doesnt have this particular feature at all. I can here say it
should be the responsibility of the clinician to tell the patient
the uniqueness of this procedure, in contrast to a classical
procedure which doesnt carry this risk [of rectal perforation] at
all. 8

23.

In its judgment, the Council referred to the expert evidence

on both sides in 19 as to the comparative advantages and disadvantages

of conventional haemorrhoidectomy and PPH, as well as the need to


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explain the risk of rectal perforation and the recurrence rates.

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quote in full its reasoning and findings on informed consent in 20 to 27

of its judgment, putting in italics the parts I wish to emphasise:


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20. A doctor cannot perform medical treatment on a patient


unless the patient has given informed consent for the treatment.
Informed consent requires that the doctor has given proper
explanation of the nature, effect and risks of the proposed
treatment and other treatment options.

21. Where there are equally suitable treatment options, the


doctor should explain the advantages and disadvantages of the
respective options so that the patient can make an informed
choice and decide which option to adopt. The explanation
should be balanced and sufficient to enable the patient to make
an informed decision. It should cover not only significant risks,
but also risks of serious consequences even though the
probability is low.

22. In this respect, we must point out that patients are not
medically trained and rely on doctors to give them proper
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6

Transcript [C2/617 lines 12 to 33]

Joining two parts of the bowel together, the procedure required in PPH.

Transcript [C2/618 line 34 to 619 line 6]

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professional advice. That the patient is inquisitive and may


have done research on his own is not an excuse for not giving
proper explanation.

23. In cases of emergency, time may not allow for an


explanation as detailed as would be required in a
non-emergency situation. In the present case, surgical treatment
of the Patients haemorrhoids is an elective procedure. There is
no reason to rush into a decision without providing the
necessary explanation.

24. In the present case, there are two equally suitable options:
conventional haemorrhoidectomy and PPH. The explanation
should cover the pros and cons of both options and the
significant difference between the options, especially the
defining difference between the two.

25. Rectal perforation is a known risk of PPH. Although the


probability is low, it is a serious risk which is life-threatening.
However, by reason of the nature of the operation, there is no
risk of rectal perforation involved in conventional
haemorrhoidectomy. This is the defining difference between the
two options which must be explained to the patient, so that he
can make an informed decision.

26. PPH is a relatively new procedure which, at the beginning


of its development, was hailed as a superior treatment option
for haemorrhoids. As time went on, more reliable studies
revealed that there are disadvantages of PPH which were not
known before. By July 2007, it was known that PPH is
associated with a higher long-term recurrence rate of internal
haemorrhoids than conventional haemorrhoidectomy, and a
reliable study concluded that conventional haemorrhoidectomy
is superior to PPH for prevention of post-operative recurrence
of internal haemorrhoids. This is a significant difference
between the two options which should be explained in order
that the patient can make an informed decision.

27. The Defendant admits that he has not explained the risk
of rectal perforation and the recurrence rates to the Patient. In
our view, from the beginning he was promoting PPH to the
Patient, emphasizing that conventional haemorrhoidectomy was
very painful and PPH involved little pain and few risks. This is
not a balanced explanation.

24.

For the above reasons, the Council was satisfied in 28 that

Dr Chan has failed to give a proper explanation to the Patient before

obtaining consent for PPH and thus the Patients consent was not
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informed consent.

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The Council was satisfied this is conduct below the

standard expected amongst registered medical practitioners and


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therefore found him guilty of professional misconduct on Charge (1).


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The evidence and findings in relation to Charges (2), (3) and (4)
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25.

Charge (2) concerns Dr Chans failure to examine the Patient

during his post-operative stay in the Hospital, Charge (3) concerns his
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decision to discharge the Patient without examination, and Charge (4)


concerns his failure to advise the Patient properly after discharge from the

Hospital.
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26.
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There were disputes of facts in a number of areas: whether

during the post-operative stay in the Hospital, the Patient had repeatedly
complained of severe abdominal pain; if he had complained of severe

abdominal pain, whether the nurses had notified Dr Chan of his repeated
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complaints; whether during the telephone calls to Dr Chans clinic, the

Patient had complained of severe abdominal pain.

27.

The Patient gave evidence that apart from complaining of

pain to the nurse, he complained of severe pain in the front abdomen to

Dr Chan when the doctor did the ward round in the morning of
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24 February, and asked why the pain was in the front given that the
operation was in the anus.

According to the Patient, Dr Chan told him it

was his illusion, and the operation was very successful.


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28.

Dr Chan denied that the Patient had complained of

abdominal pain during the post-operative stay in the Hospital.


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He gave

evidence that the Patient only complained of mild discomfort in the lower
abdomen, and inability to pass urine, have bowel motions or to pass flatus.

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Nurse Chan Lui, who was on duty, was called to support Dr Chan that the

Patient did not complain of severe abdominal pain.


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29.

Dr Chan admitted that the Patient telephoned his clinic

several times after discharge from hospital but the discussion was about
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the dosage of laxative, not abdominal pain.

30.
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Nurse Chan admitted she had no independent memory of the

Patient and that her memory came back on reading the Nurses Report.
The Council took the view that the Nurses Report is clearly inadequate,

given that some significant events which had taken place were not
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recorded.

The Council found it could not rely on Nurse Chans

evidence as it was based on such incomplete record, especially in relation


to events which were not recorded.

31.

The Council accepted the evidence of the Patient that he

complained of severe abdominal pain during his stay in the Hospital,


having considered the oral evidence of all witnesses and the documentary
evidence.

These reasons were given in 35 of the judgment for

accepting the Patients evidence:


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(a) The Patients evidence of severe abdominal pain is


consistent with, and corroborated by, the following
facts: -

(i)

a potent analgesic, pethidine, was injected on two


occasions, respectively 1.5 hours and 14 hours after
the operation;

(ii)

the Patients subsequent diagnosis of rectal


perforation and acute peritonitis on 1 March 2010;

(iii) an entry in the Nurses Report that: Pt still


complained he could not pass urine after operation

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9

Judgment, 34

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and lower abdominal pain. Dr P S Chan was inform


[sic] at 02:35. Cath once was prescribed but patient
refused. Pethidine 75 mg IMI was injected at 03:10.
Pt insisted to try passing urine by himself.

(b)

There is no reason for the Patient not to tell the doctor


when he was experiencing severe pain.

(c)

The Patient had to go to the Accident and Emergency


Department of a public hospital and receive analgesic
injection and medications on 27 February 2010.

32.

The Patient had to be taken by ambulance to the public


hospital on 1 March 2010, at which acute peritonitis was
diagnosed.

Based on its acceptance of the Patients evidence, the

Council found Charges (2) and (3) established for the following reasons:
36. Severe abdominal pain after an operation is a danger sign,
particularly when the pain persists for a significant period. It is
incumbent upon the doctor to immediately examine the patient
to find out the cause of the pain and to rule out any
complications.
37. In the present case, given that rectal perforation is a
known risk of PPH, and that the Patient was having severe
abdominal pain and was unable to pass flatus, a competent
doctor exercising reasonable care should examine the Patient
immediately. There is no reason, and it is unacceptable, for the
Defendant to say that the Patient was having illusion. It is
entirely unacceptable for the Defendant to do nothing other
than telling the Patient that the operation was very successful.
38. Even according to the Defendants version, the Patients
inability to pass flatus after the operation was a danger sign that
something untoward could have happened which would
warrant immediate abdominal examination.

(d)

39. It is a simple task of performing abdominal examination


to find out whether there was any guarding or rebound
tenderness. We can see no reason why the Defendant did not
even take this measure.
40. In any case, even without signs of abdominal pain, before
a patient is discharged after a surgical operation a doctor should,
at least as a matter of good practice, examine the patient to
ensure that he/she is fit for discharge. Where the patient is
complaining of severe abdominal pain, as is in the present case,

it is mandatory for the doctor to examine the patient before


allowing him/her to be discharged.

33.

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As for Charge (4), the Council also found this established for

the following reasons:

42. While the Defendant might not be able to speak to the


Patient immediately, he should have returned the call after he
had finished seeing his other patients. It is entirely improper to
rely on a clinic assistant who was not medically trained to give
advice to the Patient, especially when the Patient had called up
a number of times.

43. When the Patient complained of abdominal pain after


discharge, the Defendant should have directly communicated
with the Patient and insisted that he either return to his clinic or
the private hospital to be followed up by him, or to immediately
go to the Accident and Emergency Department of a public
hospital to seek immediate treatment. Even if the Patient had
refused, the Defendant should have advised him of the danger
involved and the consequence of delay in treatment. The
Defendant had not done any of these.

34.
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Having considered each of the Charges (2), (3) and (4)

separately and independently, the Council was satisfied that Dr Chans


conduct in respect of each charge is seriously below the standard

expected amongst registered medical practitioners and found him guilty


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of professional misconduct on each of the three charges.

The appellants arguments on Charge (1)


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35.

Mr Huggins raised two broad arguments on Charge (1)

(grounds 1A and 1 of the amended notice of appeal).


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is an issue of law.

The first argument

He complained of misdirection in law by the

Councils Legal Adviser.

The second complaint is that the Council had

ignored and failed to make finding on significant evidence relating to


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informed consent, applying the correct test in law.

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36.

The argument on misdirection in law was along these lines.

37.

The relevant direction in law given by the Legal Adviser was

as follows:
You have heard Mr Howses submission 10 about the Bolam
principle 11. Now, that principle is not relevant to professional
misconduct, it is relevant to negligence. Nevertheless, I think
an analogy is if the defendants conduct is consistent with a
responsible body of medical opinion, that should play a
weighty factor in your consideration of whether or not the
defendants conduct is below the standard expected amongst
registered medical practitioners. I emphasise it is a responsible
body of medical opinion, not just the opinion of individual
doctors.12

38.

To put this quote in context, what Mr Howse had submitted

earlier about the Bolam principle was as follows:


What we say is that the view that we put forward is
representative of a responsible body of medical opinion, and I
would suggest to you that a combination of the Hospital
Authority in Hong Kong, various divisions of the National
Health Service in Britain, and Dr Chung, who I would suggest
to you is a leading man in this field, he was accepted as such,
they all advised you that in their view there is no need to advise
of the risk of rectal perforation with PPH, even if such a higher
risk exists, which Dr Chung says it does not.

So even if you are against me, if you disregard the advice of


Dr Chung, you dont pay any attention to the papers from the
Hospital Authority or from the National Health Service, I
would still say to you that you should not make a finding
against Dr Chan, and the reason for that is there is judicial
authority on this point and Im not going to hand up any cases
because I dont think its necessary because I should think
everyone in this room is familiar with the Bolam principle. I
have included a direct quote from the leading judgment of one

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10

The solicitor of Howse Williams Bowers appearing for Dr Chan in the disciplinary inquiry

11

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 586

12

Transcript [C4/1276 line 31 to 1277 line 6]

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of the Lords in one of the relevant decisions 13, Lord Scarman,


who tells us, and I quote:

The Bolam principle may be formulated as a rule that a


doctor is not negligent if he acts in accordance with a
practice accepted at the time as proper by a responsible body
of medical opinion even though other doctors adopt a
different practice. 14

39.
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Mr Huggins submitted that the Legal Adviser misdirected

the Council in law in advising them that the Bolam principle is not
relevant to professional misconduct.

This is contrary to two decisions

of the Court of Appeal: Dr Leung Sik Chiu v The Medical Council of


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Hong Kong, CACV 92/2004, 4 January 2005, 15; Dr Leung Shu Piu v
The Medical Council of Hong Kong, CACV 374/2008, 8 March 2011,

21 to 23.
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40.

He contended that the next statement of the Legal Adviser (if

the defendants conduct is consistent with a responsible body of medical


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opinion, that should play a weighty factor in considering whether or not


the defendants conduct is below the standard expected amongst

registered medical practitioners) only made it confusing and did not


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correct or remove the earlier misdirection.

There was nothing in the

judgment to suggest that the Council had weighed the evidence adduced

on behalf of Dr Chan regarding the opinion and practice of his peers


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whether there was a need to explain the risks concerned.

The Council

did not say in its judgment whether or not the evidence from Dr Chung

was accepted or rejected, and, if it was accepted, whether the Council


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regarded that evidence as weighty or whether it was outweighed by

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13

Sidaway v Bethlem Royal Hospital Governors [1985] 1 AC 871 at 881F, a medical negligence case
in which Lord Scarman dissented from the view of the majority that the Bolam test applied in a case
where the alleged negligence is a failure to warn the patient of a risk in the treatment proposed.

14

Transcript [C4/1239 line 19 to 1240 line 19]

other considerations.

17

This tied in with the other complaint of

Mr Huggins that the Council made no finding in relation to Dr Chungs


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evidence there was no need to explain to patients the risks of using PPH.
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So it would appear the Council had accepted the Legal Advisers

misdirection that the Bolam principle is not relevant to professional


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misconduct.
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41.
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Mr Huggins submitted the Bolam test was not overruled or

disapproved by the House of Lords in Chester v Afshar [2005] 1 AC 134.


A surgeons duty to warn a patient of risk as a result of the surgery is in

relation to significant risk which would affect the judgment of a


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reasonable patient to give informed consent to the proposed treatment


(Chester v Afshar, 15).

The present case was not a case where it would

be appropriate to say that the disclosure of the risks of perforation or a


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higher rate of recurrence are so obviously necessary to an informed


decision of the patient that no reasonably prudent medical man would fail
to disclose to the patient.

To the contrary, there was evidence here of a

difference of opinion amongst responsible members of the medical

profession in Hong Kong.

42.

For the purpose of deciding whether a doctor is guilty of

professional misconduct in failing to warn a patient of a risk of injury

involved in the proposed treatment, as distinct from deciding whether he


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is negligent in the law of tort, Mr Huggins submitted it would be harsh to


find him guilty of professional misconduct if he is following a practice
and holding an opinion shared by a responsible body of his peers.

In

deciding whether there was negligence, the court is the arbiter of that
issue and is entitled to say notwithstanding that a responsible body of

medical men held that opinion and carried out that practice, the court
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18

considers it does not withstand logical analysis and is unacceptable for


the purpose of determining the doctors liability to his patient.

However,

it does not necessarily follow that the doctor should be held guilty of
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professional misconduct if a responsible body of medical opinion


amongst his peers would have done the same thing.

He contended that

this court should be slow to uphold any castigation of conduct as


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professional misconduct when this was in line with a body of responsible

medical practitioners in Hong Kong at the material time.


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Discussion of the arguments on Charge (1)

43.

To address the issue whether there was misdirection in law

by the Legal Adviser, it is appropriate to start with the current law of a

doctors duty to advise his patient of a significant risk of injury to obtain


K

informed consent for treatment and see how this impacts on the Bolam
principle.
44.

The statements of principle on informed consent are set out

in the judgment of Lord Steyn in Chester v Afshar:


N

14. The starting point is that every individual of adult


years and sound mind has a right to decide what may or may
not be done with his or her body. Individuals have a right to
make important medical decisions affecting their lives for
themselves: they have the right to make decisions which
doctors regard as ill advised. Surgery performed without the
informed consent of the patient is unlawful. The court is the
final arbiter of what constitutes informed consent. Usually,
informed consent will presuppose a general warning by the
surgeon of a significant risk of the surgery.
15. How a surgeon's duty to warn a patient of a serious
risk of injury fits into the tort of negligence was explained by
Lord Woolf M.R., with the agreement of Roch and Mummery
L.JJ., in Pearce v United Bristol Healthcare NHS Trust [1999]
PIQR P53 . After reviewing a trilogy of decisions in Bolam v
Friern Hospital Management Committee [1957] 1 WLR 582;

Sidaway v Board of Governors of the Bethlem Royal Hospital


and the Maudsley Hospital [1985] AC 871 and Bolitho v City
and Hackney Health Authority [1998] AC 232, Lord Woolf
observed [1999] PIQR P53, 59:

In a case where it is being alleged that a plaintiff has been


deprived of the opportunity to make a proper decision as to
what course he or she should take in relation to treatment, it
seems to me to be the law, as indicated in the cases to which
I have just referred, that if there is a significant risk which
would affect the judgment of a reasonable patient, then in
the normal course it is the responsibility of a doctor to
inform the patient of that significant risk, if the information
is needed so that the patient can determine for him or herself
as to what course he or she should adopt.

16. A surgeon owes a legal duty to a patient to warn him or


her in general terms of possible serious risks involved in the
procedure. The only qualification is that there may be wholly
exceptional cases where objectively in the best interests of the
patient the surgeon may be excused from giving a warning.
In modern law medical paternalism no longer rules and a
patient has a prima facie right to be informed by a surgeon of a
small, but well established, risk of serious injury as a result of
surgery.

17. Secondly, not all rights are equally important. But a


patient's right to an appropriate warning from a surgeon when
faced with surgery ought normatively to be regarded as an
important right which must be given effective protection
whenever possible.

18. Thirdly, in the context of attributing legal responsibility,


it is necessary to identify precisely the protected legal interests
at stake. A rule requiring a doctor to abstain from performing
an operation without the informed consent of a patient serves
two purposes. It tends to avoid the occurrence of the particular
physical injury the risk of which a patient is not prepared to
accept. It also ensures that due respect is given to the autonomy
and dignity of each patient.

19

45.

As to how the above statements of principle would have

impacted on the Bolam test, this was discussed by Cranston J in Birch v


S

University College London Hospital NHS Foundation Trust [2008]


EWHC 2237 (QB):

20

73. I had asked for additional closing submissions on the


issue of consent partly because I was troubled on reading
Sidaway v Board of Governors of the Bethlem Royal Hospital
[1985] 1 AC 871 which Mr Aldous QC had referred me to
during the course of the hearing. That decision appears to
contain differences as to how a court is to assess whether risks
are to be conveyed to the patient, even putting to one side the
dissent of Lord Scarman. Lord Diplock's approach, based
firmly on Bolam [1957] 1 WLR 582, asks what a reasonable
body of medical opinion would regard as proper to be disclosed
(at 893). At least three of their Lordships added the gloss that in
some circumstances the proposed treatment may involve a
substantial risk of serious consequences which, notwithstanding
reasonable medical opinion, must be disclosed to the patient.
That seems consistent with Bolitho v City and Hackney Health
Authority [1998] AC 232, in that notwithstanding what a
reasonable body of clinicians would have done, a failure to
inform of certain risks may not be reasonable, responsible or
logical. In any event, in Pearce v United Bristol Healthcare
NHS Trust, Lord Woolf MR was fully aware of the differences
in Sidaway in articulating what he stated to be the law.
Admittedly Chester v Afshar was primarily concerned with
causation but, as indicated, Lord Woolf MR's statement of the
law was endorsed in the House of Lords. Given that
Lord Woolf's approach is advanced by the defendant as a
current statement of the law perhaps any discussion of those
legal nuances may be regarded as unduly pedantic. I can only
plead that for this judge the matter is not as straightforward as it
could be.

74. If patients must be informed of significant risks it is


necessary to spell out what, in practice, that encompasses. In
this case the defendant informed the patient of the probabilities,
the one percent, and the nature of the harm of this risk
becoming manifest, the stroke. But these were the objectively
significant risks associated with the procedure which was
performed, the catheter angiogram. Was it necessary for the
defendant to go further and to inform Mrs Birch of comparative
risk, how this risk compared with that associated with other
imaging procedures, in particular MRI? No authority was cited
to this effect but in my judgment there will be circumstances
where consistently with Lord Woolf MR's statement of the law
in Pearce v United Bristol Healthcare NHS Trust the duty to
inform a patient of the significant risks will not be discharged
unless she is made aware that fewer, or no risks, are associated
with another procedure. In other words, unless the patient is
informed of the comparative risks of different procedures she
will not be in a position to give her fully informed consent to
one procedure rather than another. The difficulty is in
delineating, in general terms, the circumstances in which the

46.

21

duty arises to inform of comparative risks. In my judgment, in


the special circumstances of Mrs Birch's case, that duty arose.

Leaving aside for the time being what the Legal Adviser said

when he directed the Council on the law, it seems to me that on a fair

reading of 20 to 27 of the judgment, the Council had directed itself


E

correctly in accordance with the current state of the law on informed


consent.

As I have quoted in full the relevant paragraphs and put in

italics those parts I wish to emphasise, they will not be repeated.


G

47.

As stated in the judgment, the explanation should cover risks

of serious consequences even though the probability is low, in line with


I

the statement of principle in Chester v Afshar that a patient has a prima


facie right to be informed by a surgeon of a small, but well established,

risk of serious injury as a result of surgery.


K

48.

And the Council was entitled to take the view that the

explanation given by Dr Chan was not balanced in that his explanation


M

did not cover the defining difference between the options of


conventional surgery and PPH and a significant difference between the

two alternatives for the Patient to make an informed decision, in line with
O

the passages quoted above in Birch v University College London Hospital


that consistently with Lord Woolfs statement of the law in Pearce v

United Bristol Healthcare, which was endorsed in Chester v Afshar, the


Q

duty to inform a patient of the significant risks will not be discharged


unless she is made aware that fewer, or no risks, are associated with

another procedure and unless the patient is informed of the comparative


S

risks of different procedures she will not be in a position to give her fully
informed consent to one procedure rather than another.

49.

22

I do not agree with Mr Huggins that the Council did not

appear to have considered the evidence of Dr Chung that there was an


C

opinion shared by a responsible body of medical men it was not necessary


D

to explain the risks in question to a patient undergoing PPH to obtain


informed consent.

It is correct that the Council did not say expressly in

its judgment that it rejected the evidence of Dr Chung and accepted the
F

evidence of Dr Cheung.

But the purport of the judgment is clear.

have set out in some detail the evidence given by Dr Chung and
G

Dr Cheung regarding the need to explain to patients the risks of rectal


H

perforation and the recurrence rates.

The Council could not have come

to the views expressed in 20 to 27 of the judgment unless it has

rejected the evidence of Dr Chung on informed consent and accepted the


J

evidence to the contrary of Dr Cheung.

I reject the contention that the

Council had failed to make finding on significant evidence relating to

informed consent.
L

50.
M

What then of the distinction between a finding of

professional misconduct and a determination of a doctors legal liability


to a patient in negligence?

Pursuant to section 21(1)(b) of the Medical

Registration Ordinance, Cap 161, the Council was to inquire into whether
O

Dr Chan has been guilty of misconduct in any professional respect.


P

In

finding that Dr Chan failed to give a proper explanation to the Patient

before obtaining consent for PPH and the Patients consent was not an
Q

informed consent, the Council was satisfied this is conduct below the
R

standard expected amongst registered medical practitioners and found


him guilty of professional misconduct.

The Council had applied the

correct test, namely, whether the doctors conduct has fallen short of the
T

standard expected amongst doctors, in finding Dr Chan guilty of

23

professional misconduct (Koo Kwok Ho v The Medical Council of Hong

Kong, CACV 23/1988, 30 March 1988, 10 to 12).


C

51.

It seems to me Mr Huggins real complaint is that the

Council should not have found Dr Chans conduct has fallen below the
E

standard expected amongst registered medical practitioners as he was


following a practice and holding an opinion shared by a responsible body
of his peers, as submitted by his solicitor before the Council.

But it was

for the Council to decide in all the circumstances whether there had been
a falling short of these standards, not for any expert witness (Dr Tan

Ronald Francis v The Medical Council of Hong Kong, CACV 50/2010,


I

13 June 2011, 55).

The Council was entitled to take the view that

where there are two suitable options of surgery, the standard expected

amongst registered medical practitioners is such that a patient is entitled


K

to a balanced explanation which should cover the pros and cons of both
options and the significant difference between the options, especially the

defining difference between the two 15.


M

52.

I do not think the Legal Advisers direction of law was a

misdirection, properly understood in its entirety.


O

It would be better if he

had not said that the Bolam principle is not relevant to professional
negligence.

But the Legal Adviser went on to say that if the

defendants conduct is consistent with a responsible body of medical


Q

opinion, that should play a weighty factor in [the Councils] consideration


of whether or not the defendants conduct is below the standard expected
amongst registered medical practitioners.

this was not a determination of liability for negligence but professional

Judgment, 24

That was asking the Council

to take into account what was in substance the Bolam test, even though

15

misconduct.

24

I agree with Mr Ismail for the Council that Dr Chan was

not prejudiced.
C

53.

Even if there was misdirection, quite clearly it was not of

sufficient significance to the result to invalidate the Councils decision


E

(Libman v General Medical Council [1972] AC 217 at 221D; Haikel v

The General Medical Council [2002] UKPC 37 at [17]).

54.

For the above reasons, I reject the grounds of appeal

advanced in relation to Charge (1).

An overview of the appellants arguments on Charges (2), (3) and (4)

55.

Attack was made on appeal of three findings of fact by the

Council which formed the basis on which it found Charges (2), (3) and (4)

established, namely, that during the post-operative stay in the Hospital,


L

the Patient had repeatedly complained of severe abdominal pain, to the


nurses repeatedly and once to Dr Chan when he did the ward round; that

the nurses would have notified Dr Chan of the Patients repeated


N

complaints; and that the Patient had complained of abdominal pain during
his telephone calls to Dr Chans clinic after his discharge from the

Hospital.
P

56.

As mentioned earlier, there were acute conflicts in the

factual evidence given by the Patient on one side and by Dr Chan and
R

Nurse Chan on the other side.

Council accepted the Patients evidence and did not accept the evidence
of Dr Chan and Nurse Chan.

Having seen and heard the witnesses, the

Even though it was not expressly stated in

the judgment that the Council found the Patient a credible witness and did

25

not find the contrary evidence of Dr Chan and Nurse Chan credible, that

is clearly the effect of its findings in the judgment.


C

57.

When reviewing the findings of fact made by a disciplinary

tribunal, the appeal court acknowledges the advantage enjoyed by the


E

first instance body in judging the credibility of witnesses which it does


not have and adopts a restrained approach.

It will tend to be unable

properly to differ from the decisions as to fact reached by the tribunal


G

except in the kinds of situation mentioned in Watt or Thomas v Thomas


[1947] AC 484 at 487 to 488 (Gupta v General Medical Council [2002] 1

WLR 1691 at 1697, 10; Dr Fong Ka Yeung v The Medical Council of


I

Hong Kong, CACV 159/2007, 15 March 2011, 24(1) and (2)).

58.
K

As stated by Langstaff J in Bhatt v General Medical Council

[2011] EWHC 783(Admin) at 9, although the appeal court will correct


errors of fact or approach of a disciplinary tribunal,
i)

ii)
O

it will give appropriate weight to the fact that the Panel is


a specialist tribunal, whose understanding of what the
medical profession expects of its members in matters of
medical practice deserves respect;

that the tribunal has had the advantage of hearing the


evidence from live witnesses;

iii)

the court should accordingly be slow to interfere with the


decisions on matters of fact taken by the first instance
body;

iv)

findings of primary fact, particularly if founded upon an


assessment of the credibility of witnesses, are close to
being unassailable, and must be shown with reasonable
certainty to be wrong if they are to be departed from.

59.
T

Mr Huggins acknowledged these constraints in seeking to

ask this court to interfere with the findings of fact of the Council.

He

sought to attack the reasoning given by the Council in accepting the


U

26

Patients evidence and submitted that it had failed to take into account
important considerations.

He contended that the Council had

misdirected [itself] as to the effect of certain evidence which [it]


D

understood to support [its] conclusion (Universal Dockyard Ltd v Trinity

General Insurance Co Ltd [1989] 2 HKLR 160 at 167I), and that is a


E

recognized ground for an appeal court to interfere with a finding of fact.


F

He submitted that at the very least, the findings should be set aside and a

re-trial ordered.
G

60.

To deal with the very detailed submissions on the evidence

made by both sides, it is best that I consider each ground of appeal


I

separately, in the order submitted by Mr Huggins.

Ground 2: finding corroboration in three particular facts


K

61.
L

In 35(a) of the judgment, the Council stated that the

Patients evidence of severe abdominal pain is consistent with, and


corroborated by three facts: (i) a potent analgesic, pethidine, was

injected on two occasions, respectively 1.5 hours and 14 hours after the
N

operation; (ii) the Patients subsequent diagnosis of rectal perforation and


O

acute peritonitis on 1 March 2010; and (iii) an entry in the Nurses Report

that: Pt still complained he could not pass urine after operation and
P

lower abdominal pain.


Q

Dr P S Chan was inform [sic] at 02:35.

once was prescribed but patient refused.


injected at 03:10.

Cath

Pethidine 75 mg IMI was

Pt insisted to try passing urine by himself.

62.

Mr Huggins acknowledged that the Council was not using

the word corroborated in a technical sense.


T

As pointed out by

Mr Ismail, there is no requirement in law that the Patients evidence


should be corroborated by or consistent with other evidence (Medical

27

Practitioners (Registration and Disciplinary Procedure) Regulation

sections 31(1) and (6); Dr To Chun Fung Albert v The Medical Council of
C

Hong Kong, CACV 23/2011, 22 December 2011, 18 and 21).


D

Nevertheless, Mr Huggins submitted that the reasoning process in 35(a)

was in error and that amounted to a misapprehension of the effect of the


E

evidence.

His argument was along these lines.

63.
G

Fact (i) could not be supportive of the Patients evidence for

these reasons.

At the relevant time, pethidine was the only parenteral

analgesia usually available in hospitals in Hong Kong.

So the fact that

pethidine was given would not of itself indicate that the Patient was in
I

severe pain because that was all that was available for pain relief

administered intravenously.

64.

As to fact (ii), the Councils finding of corroboration in the

subsequent diagnosis of rectal perforation and acute peritonitis on

1 March must be premised on the assumption that rectal perforation had


M

occurred at the time of surgery which would have caused severe pain.
That was the evidence of Dr Cheung who opined in his report that

perforation is highly likely due to instrumentation at the time of


O

introduction of stapler device into the anal canal during the PPH, which
would have explained the immediate and severe pain complained of by
the Patient.

However, there was evidence to the contrary by Dr Chung,

who stated in his report that it is possible that at the time of the PPH
operation the patient suffered a partial thickness injury to his rectal wall

and this subsequently developed into a full thickness perforation in the


S

following few days.

When he gave evidence, Dr Chung expressed the

view that both rectal perforation during PPH and stercoral ulceration

28

leading to perforation are equally possible 16.

The Council did not

make a finding in relation to this conflict between the two expert


C

witnesses.

And there was simply no finding of when the perforation

occurred and when the peritonitis arose.

65.

As for the relevant entry in the Nurses Report in fact (iii), it

does not refer to severe pain.

Nor was it clear from the entry Dr Chan

was informed at 02:35 hours that the Patient complained of lower


G

abdominal pain, contrary to the oral evidence of Dr Chan 17.

66.
I

In my view, none of the above complaints, whether

separately or taken as a whole, would provide sufficient basis for this


court to interfere with the findings of fact of the Council.
67.

As submitted by Mr Ismail, the Councils finding here is a

matter of common sense.


L

Regardless of whether pethidine was the only

parenteral analgesia usually available in hospitals in Hong Kong at the


time, a patient would not be given this potent analgesic on two occasions

1.5 hours and 14 hours after the operation, if he did not suffer severe
N

abdominal pain and complain about this.


O

was clear 18.

The Patients evidence on this

Further, his evidence was supported by Dr Cheung who

said these in answer to the questions from the Chairman:


P

Chairman: So if it is PRN 19 and its Pethidine, how would


you comment on the degree of pain or the
intensity of pain?

R
16

Transcript [C4/1158 lines 23 to 27]

17

Transcript [C3(i)/893 lines 39 to 41, 896 lines 11 to 22]

18

Transcript [C1(ii)/507 lines 11 to 16]

19

Pro re nata, i.e. when necessary

Dr Cheung: Its likely very intense. The patient was already


given two potent analgesics to start with, oral, and
then on top of that the pain was still not controlled
and required further injection.

Chairman:

Regardless of what is in or not in the record about


pain, the fact that the patient was given two
injections, one shortly after the operation, which is
14.20 or 14.30, and then in the early morning of
the next day, about 03.30 or something like that,
judging from that, what would you say would be
the level of pain of the patient?

Dr Cheung: Its very severe, very severe.

Chairman:
H

29

68.

Now, the other thing is the Q6H 20. You did say
that the Pethidine effect would last for two hours.
Then why Q6H?

Dr Cheung: I usually give it more frequent in my practice. I


usually give it four hours, every four hours, rather
than six hours. Six hours is a bit too wide an
interval for us, too wide.

Chairman:

I agree with that.

I agree also with Mr Ismail it matters not that Dr Chan

asserted in evidence he was not told by the nurses that the Patient
M

complained of lower abdominal pain.

Dr Chan admitted he was aware

when he noted the chart during the ward round in the morning that the
Patient had received two injections of pethidine 21.

He should draw his

own conclusions from that even if he had made no inquiries with the

nursing staff.

69.

It is not material that the relevant entry in the Nurses Report

did not record that the lower abdominal pain complained of by the Patient

was severe.
S

20

Every 6 hours in the prescription given by the anaesthetist.

21

Transcript [C3(i)/889 lines 5 to 14, 894 lines 11 to 19]

70.

30

Nor do I think it matters that the Council did not make an

express finding when the perforation and the peritonitis occurred.

There

was undisputed evidence that rectal perforation is a known risk of PPH.


D

As stated in 36 of the judgment, severe abdominal pain after an

operation is a danger sign, particularly when the pain persists for a


E

significant period.
F

It is incumbent upon the doctor to immediately

examine the patient to find out the cause of the pain and to rule out any
complications.

And at 38, even according to the Defendants version,

the Patients inability to pass flatus after the operation was a danger sign
H

that something untoward could have happened which would warrant


immediate abdominal examination.
71.

There was ample evidence for the Council to find that the

Patient had repeatedly complained of severe abdominal pain after his


K

operation.

There is no substance about the complaints as to the

reasoning process.

Ground 2A: important considerations not taken into account

72.
O

The complaint here is that the Council failed to take into

account important evidence: (i) the Patients vital signs (blood pressure

and pulse) would have provided objective evidence had there been severe
P

pain 22 ; (ii) pethidine was the usually available parenteral analgesia


available in hospitals in Hong Kong at the time; (iii) the Patient
maintained in his evidence he felt severe pain at 4:30 pm on 23 February

and was given an injection of pethidine, contrary to the hospital records


S

22

Report of Dr Chung dated 29 June 2011, p 4; evidence of Dr Chung [C4/1137 line 24 to 1138 line27,
1144 lines 14 to 1145 line 5]; evidence of Dr Chan [C3(i)/790 lines 22 to 29]; evidence of Nurse Chan
[C3(ii)/1033 line 35 to 1034 line 11]

31

that he was given an injection at 2:40 pm 23; and (iv) Dr Chan did not get

a report from either of his nurses that the Patient was suffering from
C

severe pain during 25 to 27 February 24.

73.
E

I have already dealt with (ii) in the earlier part of this


E

judgment.

74.
G

As for the absence of objective evidence of the Patients

vital signs that would bear out his complaints of severe abdominal pain,
there is no requirement at law for the Patients pain to be supported by
such objective evidence.

The Patient was questioned

extensively about his problems with pain by a member of the tribunal


who is a doctor .

After all, pain is subjective and its tolerance

differs from one person to another.


25

It was for the Council to assess the evidence of the

Patient and come to a finding if he was suffering from pain and, if so, the
nature and extent of the pain.

As discussed earlier, the Council was

entitled to find on its assessment of the Patients evidence that he was


M

suffering from severe pain.

75.
O

The Patients evidence that he was given the first pethidine

injection at 4:30 pm, in the face of the record shown to him that the time

according to the record was 2:40 pm, could hardly count as an important
P

piece of evidence that the Council must take into account.


Q

confused when he woke up from anaesthesia 26.

R
23

That he had got the

He was very

Transcript [C1(ii)/425 line 24, 505 line 9 to 506 line 33]

24

Transcript [C3(i)/813 lines 15 to 35]

25

Transcript [C1(ii)/539 line 14 to 545]

26

Transcript [C1(ii)/504 line 16]

32

timing wrong is not a matter of such significance to cast doubt on the

Councils assessment of his credibility as a whole.


C

76.

Likewise, that according to Dr Chan he did not get a report

from the nurses in his clinic that the Patient was suffering from severe
E

abdominal pain is hardly a matter of substantial importance that would


make a difference to the Councils overall assessment of the credibility of

the witnesses.
G

77.

I do not think there is any matter of substance in this ground

of appeal.

I reject the contention of Mr Huggins that the finding of fact

that the Patient repeatedly complained of severe abdominal pain was


irrational or was not supported by evidence.

Ground 3: irrationality, patently bad and unfair reasoning

78.

This ground relates to the reason given in 35(b) of the

judgment for accepting the Patients evidence (that there is no reason for

him not to tell the doctor when he was experiencing severe pain).
N

Mr Huggins attacked this as patently bad reasoning as it assumed what


needed to be proved and was therefore irrational.

He argued that

equally, there would be no reason for the nurse and the doctor to ignore a
P

patients complaint of severe pain, if such a complaint had indeed been

made.

79.

There is no substance in this ground.

80.

The Patient gave evidence he complained of severe

abdominal pain to Dr Chan when the latter did the ward round, but

33

Dr Chan told him it was his illusion 27.

Dr Chan had also told him on the

telephone on 27 February when he was in Tseung Kwan O Hospital that


C

his abdominal pains were just minor problems, and were his illusions and
D

imaginations 28.

The Council was entitled to accept that evidence and

found that his complaints of severe pain were ignored by Dr Chan.


E

Ground 4: irrationality, patently bad and unfair reasoning

Ground 5: material considerations not taken into account

81.

These two grounds are taken together.

They relate to

35(c) and (d) of the judgment for accepting the Patients evidence (that

he had to go to the Accident and Emergency Department of Tseung Kwan


J

O Hospital and receive analgesic injection and medications on


27 February, and that he had to be taken by ambulance to that hospital on

1 March, at which acute peritonitis was diagnosed).


L

82.

Mr Huggins submitted that this reasoning was patently bad

because there was no finding when perforation occurred and when


N

peritonitis arose.

83.

This is similar to the submission made in Ground 2, which I

have rejected.

84.

He also contended that the Council was wrong in failing to

take into account it was inherently unlikely that: (a) the hospital nurses

would have omitted to record any complaints of severe pain; (b) Dr Chan
S

would have discharged the Patient from the Hospital if he had been
27

Judgment, 31

28

Transcript [C1(ii)/542 to 543]

34

complaining of severe abdominal pain; (c) if the Patient had been

suffering from perforation or peritonitis prior to 28 February, when he


C

was admitted to the Accident and Emergency Department of Tseung


D

Kwan O Hospital, there would have been objective medical signs

recorded in the hospital notes of St Teresas Hospital 29 and in the notes of


E

the Accident and Emergency Department; and (d) had he been suffering
F

from severe pain on 27 February when he went to the Accident and

Emergency Department he would have reported that and the hospital


G

would have recorded that and he would not have refused an examination
H

of his anus.
85.

I reject the submission of Mr Huggins.

The considerations

in (a) and (b) must have been obvious to most of the members of the
specialist tribunal.

The Council was entitled to give no credence to the

evidence of Nurse Chan 30 and to accept the Patients evidence that he had

complained of severe abdominal pain to Dr Chan who said it was his

illusion and decided to discharge him without an examination.


M

86.

As for the matter in (c), counsel had made a mistake about

the date of admission to the Tseung Kwan O Hospital.


O

In any event, I do

not think the matter here is of material consequence.


Q

before

discharge

and subsequently developed

full thickness

The Council was entitled to come to the view that there

Dr Chung had

opined that the Patient probably suffered a partial thickness perforation


perforation 31.

The Patient was

admitted to Tseung Kwan O Hospital through the Accident and


Emergency Department on 1 March, not 28 February.

S
29

Report of Dr Chung dated 29 June 2011, pages 5 and 6

30

Judgment, 34

31

Report of Dr Chung dated 18 January 2013, 9

35

was a danger sign even according to Dr Chans version in that the Patient

was unable to pass flatus after the operation and that would warrant
C

immediate abdominal examination 32.

87.
E

The consideration postulated in (d) was contrary to the

Patients evidence.

He had a telephone conversation with Dr Chan

when he attended the Accident and Emergency Department on

27 February and was led to believe by what Dr Chan said that he only had
G

minor problems.

Hence, he just requested an analgesic injection and

refused to have his anus examined 33.

The Council was entitled to prefer

the Patients evidence.


I

88.

I reject the contentions in grounds 4 and 5.

Ground 6: failure to give sufficient or sound reasons for rejecting Nurse

Chans evidence
L

89.

This relates to the reasons in 34 of the judgment for

rejecting the evidence of Nurse Chan.


N

Nurse Chan has no independent

memory of the Patient and she relied on the Nurses Report.

It was

stated here that the Nurses Report is clearly incomplete, given that
some significant events which had taken place were not recorded.

The

Council took the view it cannot rely on Nurse Chans evidence as it was
based on such incomplete record, especially in relation to events which

were not recorded.


R

90.

The complaint here is that the judgment did not identify

what significant events were not recorded, in the absence of which it is


T

32

Judgment, 38

33

Transcript [C1(ii)/542 to 543]; witness statement of the Patient dated 10 January 2013, 12

36

not possible for the appeal court to assess whether this was an acceptable
reason for rejecting Nurse Chans evidence.

Nurse Chan had explained

why there was no record of the first pethidine injection in the Nurses
D

Report, as there was a record of that in the Injection Record Sheet 34.

She had also explained why there was no record of a telephone call to
E

Dr Chan in the evening of 23 February to inform the doctor that the


F

Patient had difficulty in passing urine 35.


91.

Mr Huggins also submitted that in relation to the telephone

call to Dr Chan in the evening informing him about the Patients

difficulty in passing urine, this is a false point as it was based on the


I

assumption there were two telephone calls to Dr Chan, one in the evening
of 23 February and one in the early hours of 24 February.

The Nurses

Report had a record of a call to Dr Chan at 02:35 hours.

Mr Huggins

submitted that insofar as Dr Chan mentioned in his statement the


telephone call was in the evening, he must have been wrong about the

timing and there was only one telephone call made to him as his
M

description of the call in the evening matched the description of the call

at 02:35 hours in the Nurses Report.

92.

I do not agree with his submission that there was only one

telephone call to Dr Chan from the nursing staff of the Hospital.

The

witness statement of Dr Chan is clear:


Q

23. I was not in the Hospital in the evening on the day of the
operation. Some time in the evening, the nursing staff informed
me by phone that the patient had difficulty in passing urine and
they asked me if I would consider ordering catheterization
before night shift began. There was no other complaint. As

34

Transcript [C3(ii)/1043 lines 30 to 31]

35

Transcript [C3(ii)/1045 lines 17 to 20]

temporary difficulty in urination is common after haemorrhoid


operations, I decided not to order catheterization immediately.

24. At about 0235 hours (on 24 February 2010), the nursing


staff contacted me again and informed me that the patient was
still unable to pass urine. I ordered catheterization once for the
patient. (Emphasis supplied)

Clearly, there were two telephone calls to Dr Chan in which

93.

37

he was informed about the Patients difficulty to pass urine and the earlier

call to him was not recorded in the Nurses Report.


G

94.

In any event, there is no substance about this ground of

appeal.
I

95.
J

It was for the Council to assess Nurse Chans evidence

whether the explanations given by her were satisfactory to explain the


absence of any record of the events she was asked about in
cross-examination or by the members of the tribunal.

The Council was

entitled to come to the view that she could not give a satisfactory
explanation why significant events which had taken place were not

recorded and to reject her evidence based on such an incomplete record.


N

The Council cannot be faulted for not spelling out the significant events.
As stated in Dr Wu Hin Ting v Medical Council of Hong Kong [2004] 2

HKC 367 at 380F, a professional judge may have given more reasons as
P

to why the evidence of one witness was to be preferred to that of another

or have conducted a more detailed analysis but this is not the test.

Ground 7

96.
T

This is in relation to Charge (4).

grounds 2 to 5 in the context of Charge (4).

Mr Huggins relied on
I have already dealt with

grounds 2 to 5 in the context of Charges (2) and (3).


U

38

Ground 8: making an unwarranted assumption without evidential

foundation
C

97.

It was contended that the Council, having made no finding

of fact as to what the nurse in the clinic told Dr Chan when the Patient
E

spoke to her on telephone on 25 and 26 February, wrongly assumed that


the nurse had communicated to Dr Chan the Patient was complaining of

severe and persistent pain as distinct from some discomfort in the lower
G

abdomen.

This error was compounded by the fact that it was not even

put to Dr Chan his nurse had communicated to him that the Patient had
complained of severe or persistent pain.

Dr Chans evidence was that

the nurse only told him the Patient complained of a problem with
defecation and had discomfort of the abdomen 36.

And it would not be

fair to say now that Dr Chan could and should have called his nurse in the
K

clinic to support his evidence.

98.
M

The allegation in Charge (4) is simply that Dr Chan failed to

advise the Patient properly from 25 February to 1 March when the Patient
repeatedly complained of persistent abdominal pain.

It was not

alleged that the Patient had complained of severe abdominal pain in his
O

telephone calls to Dr Chans clinic in this period, nor was it his


evidence 37 .

The Council found that the Patient had complained of


38

abdominal pain after discharge .


Q

I agree with Mr Ismail there was

evidence on which an inference could properly be drawn that the nurse in


the clinic had communicated to Dr Chan what the Patient complained of,

even though there was no express finding to that effect by the Council.
S

S
36

Transcript [C3(i)/856 lines 18 to 25]

37

Transcript [C1(ii)/541 line 30]

38

Judgment, 43

99.

39

I see nothing in the point that it was not expressly put to

Dr Chan in cross-examination his nurse had communicated to him that


C

the Patient had complained of persistent abdominal pain.


D

Dr Chan had

already denied in his evidence in chief he had been told by the nurse in

his clinic that on 25 and 26 February the Patient had persistent,


E

continuous, severe, serious abdominal pain 39.

Ground 9: failure to take account of relevant consideration


G

100.

Mr Huggins submitted that the Council was wrong not to

take account of Dr Chans clinical record in relation to 25 February 2010,


I

which was to the effect that when the Patient spoke to the clinic nurse, he
refused to attend the clinic for follow up in spite of the fact that he was
asked to do so.

He contended this was material evidence which

supported Dr Chans case that the Patient was not complaining of severe
or persistent pain.
101.

I have already mentioned that the allegation in Charge (4)

was not that the Patient was complaining of severe pain.


N

102.

The Patients evidence was that he requested to see Dr Chan

when he spoke to the nurse on 26 February (not 25 February) and


P

requested to see the doctor at the earliest as he wanted to deal with the
problems at once and the nurse gave him an appointment of 1 March at
the earliest.

ways or solutions 40.


39

He could not confirm an appointment with her as he found

he had to wait so long and was considering if there were other possible

Regardless of whether a follow up appointment

Transcript [C3(i)/813 line 37 to 814 line 6]

40

Statutory declaration of the Patient dated 30 July 2010, point numbered 5; Transcript [C1(ii)/526
line 35 to 527 line 30]

40

was offered to the Patient on 25 or 26 February, this ground of appeal is


not a point of substance.

The Council was entitled to accept the

Patients evidence.
D

Conclusion
E

103.

For the reasons given above, none of the grounds of appeal

against the findings of professional misconduct in Charges (1) to (4) are


G

of merit.

Mr Huggins has indicated if all the findings in respect of

Charges (2) to (4) are upheld, Dr Chan will not appeal against the
sentence imposed for these charges.

I would dismiss the appeal and

make an order nisi that Dr Chan is to pay the Council its costs of this
appeal.

Hon Barma JA:

104.

she proposed.

Hon Poon J:

105.

I agree with the judgment of Kwan JA and the costs order

I agree with the judgment of Kwan JA and the costs order

she proposed.

41

(Susan Kwan)
Justice of Appeal

(Aarif Barma)
Justice of Appeal

(Jeremy Poon)
Judge of the
Court of First Instance

Mr Adrian Huggins SC, instructed by Howse Williams Bowers, for the


Appellant
Mr Anthony Ismail, instructed by the Department of Justice, for the
Respondent