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CACV 103/2013
COURT OF APPEAL
BETWEEN
H
DR CHAN PO SUM
Appellant
and
Respondent
JUDGMENT
Introduction
1.
R
(1)
(2)
(3)
F
(4)
H
2.
3.
letter be served on Dr Chan and that the order be published in the Gazette.
O
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
4.
Council in respect of Charges (2), (3) and (4) are upheld, he will not
appeal against the sentence of the same.
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
D
sentence in respect of Charges (2), (3) and (4) will be if this court accepts
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was aware of those complaints and ignored them, but for some distinct
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The background
5.
K
The Patient was a 33 year old male who enjoyed good health
all along.
haemorrhoid problem.
explained.
post-operative wound care, shorter recovery, and not much risk involved.
7.
In Dr Chans medical
again.
D
Some of the
associated with PPH: rectal perforation and the higher rate of recurrence
of internal haemorrhoids.
8.
9.
S
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.
10.
E
The Patient was not able to pass urine after the operation.
[Patient] still complained he could not pass urine after operation and
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by himself.
12.
catheterized at 6:45 a.m. and 660 ml of urine was drained from the
bladder.
P
13.
clinical examination.
the Patient was discharged from the Hospital at 2:40 p.m with pain-killers
and laxatives.
T
14.
Dr Chans clinic.
Dr Chan.
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abdominal pains and inability to defecate but once more was only able to
speak to the clinic assistant.
Patient felt severe pains in the abdomen and telephoned the Hospital.
F
He tried immersing in
hot water as advised by Dr Chan but this brought no relief to the pain.
End
16.
S
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
with PPH.
C
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
E
In support of
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.
I
He and his peer group would not have advised patients of the risk
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
T
2
20.
United Kingdom 5.
K
21.
asked why he was of the opinion that the risk of rectal perforation in PPH
M
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.
23.
I will
22. In this respect, we must point out that patients are not
medically trained and rely on doctors to give them proper
S
S
6
Joining two parts of the bowel together, the procedure required in PPH.
10
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.
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.
obtaining consent for PPH and thus the Patients consent was not
U
informed consent.
11
The evidence and findings in relation to Charges (2), (3) and (4)
E
25.
during his post-operative stay in the Hospital, Charge (3) concerns his
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Hospital.
I
26.
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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
L
27.
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.
28.
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.
12
Nurse Chan Lui, who was on duty, was called to support Dr Chan that the
29.
several times after discharge from hospital but the discussion was about
E
30.
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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
I
recorded.
31.
(i)
(ii)
T
9
Judgment, 34
13
(b)
(c)
32.
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)
33.
14
As for Charge (4), the Council also found this established for
34.
L
35.
is an issue of law.
15
36.
37.
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.
S
10
The solicitor of Howse Williams Bowers appearing for Dr Chan in the disciplinary inquiry
11
12
16
39.
F
the Council in law in advising them that the Bolam principle is not
relevant to professional misconduct.
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.
J
40.
judgment to suggest that the Council had weighed the evidence adduced
The Council
did not say in its judgment whether or not the evidence from Dr Chung
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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
other considerations.
17
evidence there was no need to explain to patients the risks of using PPH.
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misconduct.
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41.
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42.
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
However,
it does not necessarily follow that the doctor should be held guilty of
D
He contended that
43.
informed consent for treatment and see how this impacts on the Bolam
principle.
44.
19
45.
20
46.
21
Leaving aside for the time being what the Legal Adviser said
47.
48.
And the Council was entitled to take the view that the
two alternatives for the Patient to make an informed decision, in line with
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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
its judgment that it rejected the evidence of Dr Chung and accepted the
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evidence of Dr Cheung.
have set out in some detail the evidence given by Dr Chung and
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informed consent.
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50.
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Registration Ordinance, Cap 161, the Council was to inquire into whether
O
In
before obtaining consent for PPH and the Patients consent was not an
Q
informed consent, the Council was satisfied this is conduct below the
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correct test, namely, whether the doctors conduct has fallen short of the
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23
51.
Council should not have found Dr Chans conduct has fallen below the
E
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
where there are two suitable options of surgery, the standard expected
to a balanced explanation which should cover the pros and cons of both
options and the significant difference between the options, especially the
52.
It would be better if he
had not said that the Bolam principle is not relevant to professional
negligence.
Judgment, 24
to take into account what was in substance the Bolam test, even though
15
misconduct.
24
not prejudiced.
C
53.
54.
55.
Council which formed the basis on which it found Charges (2), (3) and (4)
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.
factual evidence given by the Patient on one side and by Dr Chan and
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Council accepted the Patients evidence and did not accept the evidence
of Dr Chan and Nurse Chan.
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
57.
58.
K
ii)
O
iii)
iv)
59.
T
ask this court to interfere with the findings of fact of the Council.
He
26
Patients evidence and submitted that it had failed to take into account
important considerations.
He submitted that at the very least, the findings should be set aside and a
re-trial ordered.
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60.
61.
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injected on two occasions, respectively 1.5 hours and 14 hours after the
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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
Cath
62.
As pointed out by
27
sections 31(1) and (6); Dr To Chun Fung Albert v The Medical Council of
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evidence.
63.
G
these reasons.
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.
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
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.
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
view that both rectal perforation during PPH and stercoral ulceration
28
witnesses.
65.
66.
I
1.5 hours and 14 hours after the operation, if he did not suffer severe
N
R
16
17
18
19
Chairman:
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?
Chairman:
asserted in evidence he was not told by the nurses that the Patient
M
when he noted the chart during the ward round in the morning that the
Patient had received two injections of pethidine 21.
own conclusions from that even if he had made no inquiries with the
nursing staff.
69.
did not record that the lower abdominal pain complained of by the Patient
was severe.
S
20
21
70.
30
There
significant period.
F
examine the patient to find out the cause of the pain and to rule out any
complications.
the Patients inability to pass flatus after the operation was a danger sign
H
There was ample evidence for the Council to find that the
operation.
reasoning process.
72.
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account important evidence: (i) the Patients vital signs (blood pressure
and pulse) would have provided objective evidence had there been severe
P
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
73.
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judgment.
74.
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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.
Patient and come to a finding if he was suffering from pain and, if so, the
nature and extent of the pain.
75.
O
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
R
23
He was very
24
25
26
32
76.
from the nurses in his clinic that the Patient was suffering from severe
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the witnesses.
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77.
of appeal.
78.
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
He argued that
equally, there would be no reason for the nurse and the doctor to ignore a
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made.
79.
80.
abdominal pain to Dr Chan when the latter did the ward round, but
33
his abdominal pains were just minor problems, and were his illusions and
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imaginations 28.
81.
They relate to
35(c) and (d) of the judgment for accepting the Patients evidence (that
82.
peritonitis arose.
83.
have rejected.
84.
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
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would have discharged the Patient from the Hospital if he had been
27
Judgment, 31
28
34
the Accident and Emergency Department; and (d) had he been suffering
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would have recorded that and he would not have refused an examination
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of his anus.
85.
The considerations
in (a) and (b) must have been obvious to most of the members of the
specialist tribunal.
evidence of Nurse Chan 30 and to accept the Patients evidence that he had
86.
In any event, I do
before
discharge
full thickness
Dr Chung had
S
29
30
Judgment, 34
31
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
87.
E
Patients evidence.
27 February and was led to believe by what Dr Chan said that he only had
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minor problems.
88.
Chans evidence
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89.
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
90.
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.
why there was no record of the first pethidine injection in the Nurses
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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
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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
Mr Huggins
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
92.
I do not agree with his submission that there was only one
The
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
35
93.
37
he was informed about the Patients difficulty to pass urine and the earlier
94.
appeal.
I
95.
J
entitled to come to the view that she could not give a satisfactory
explanation why significant events which had taken place were not
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
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or have conducted a more detailed analysis but this is not the test.
Ground 7
96.
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Mr Huggins relied on
I have already dealt with
38
foundation
C
97.
of fact as to what the nurse in the clinic told Dr Chan when the Patient
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severe and persistent pain as distinct from some discomfort in the lower
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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.
the nurse only told him the Patient complained of a problem with
defecation and had discomfort of the abdomen 36.
fair to say now that Dr Chan could and should have called his nurse in the
K
98.
M
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
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even though there was no express finding to that effect by the Council.
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S
36
37
38
Judgment, 43
99.
39
Dr Chan had
already denied in his evidence in chief he had been told by the nurse in
100.
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.
supported Dr Chans case that the Patient was not complaining of severe
or persistent pain.
101.
102.
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.
he had to wait so long and was considering if there were other possible
40
Statutory declaration of the Patient dated 30 July 2010, point numbered 5; Transcript [C1(ii)/526
line 35 to 527 line 30]
40
Patients evidence.
D
Conclusion
E
103.
of merit.
Charges (2) to (4) are upheld, Dr Chan will not appeal against the
sentence imposed for these charges.
make an order nisi that Dr Chan is to pay the Council its costs of this
appeal.
104.
she proposed.
Hon Poon J:
105.
she proposed.
41
(Susan Kwan)
Justice of Appeal
(Aarif Barma)
Justice of Appeal
(Jeremy Poon)
Judge of the
Court of First Instance