Date
23 May 2017
As one-half of the Medical Council is elected by doctors and most of the other half also comes from the medical community, the public has reason to be concerned that council members are all "members of the same club". Photo: HKEJ
As one-half of the Medical Council is elected by doctors and most of the other half also comes from the medical community, the public has reason to be concerned that council members are all "members of the same club". Photo: HKEJ

Problems of Medical Council’s complaints mechanism – Part 2

Besides the issues outlined in the first part of this column, another problem related to the Medical Council’s complaints and disciplinary mechanism has to do with its personnel aspect.

At present, the Chairperson and the Deputy Chairperson of the preliminary investigation committee (PIC) are also responsible for screening complaints at the initial stage; that is, they are screeners at the same time.

Under the current system, a complaint can be dismissed only if both the Chair and the Deputy Chair of the PIC concur. If one of them disagrees that a complaint should be dismissed, the complaint has to proceed to the PIC stage.

This dual role of the Chair and the Deputy Chair raises a concern about fairness. Would a Chair or Deputy Chair who has dismissed a complaint at the screening stage look upon the same case with a sufficiently open mind and consider it afresh at the PIC stage? How likely is it that the person involved will change his/her mind at the PIC stage and support referring the complaint to the Council inquiry stage? Would the screening and investigation personnel be able to keep their separate roles in the screening stage and the PIC stage distinct? Could it be possible that the more stringent standards for assessing cases at the PIC stage have been subconsciously or mistakenly adopted for the screening stage?

Concerns of fairness also arise from the present personnel arrangement under which almost all persons involved in the decision-making of the complaints and disciplinary mechanism are members of the Council. This arrangement suggests that the Council performs the functions of prosecution and adjudication at the same time. The prosecutor and the judge of a doctor charged of misconduct are of the same organization. Would accused doctors consider this dual role of the Council unfair to them? Would they perceive this arrangement as depriving them of the right to a fair trial – the right to a fair and public hearing by an independent and impartial tribunal in the determination of their civil rights and obligations – which is protected by human rights laws?

For members of the public, given one-half of the Council is elected by doctors while most of the other half also comes from the medical professionals, wouldn’t it appear in the eyes of the public that council members are actually all “members of the same club”? Furthermore, as half of the council is elected and thus very likely beholden to their doctor electorate, wouldn’t this group of council members see themselves more as representatives of the profession than as servants of the public? Would council members feel under some subconscious pressure to lean towards protecting the interests of fellow members of the same club and their electorate when making “judicial” decisions on accused doctors?

On the part of doctors, given the way the Council is currently constituted, would doctors perceive it more as an organization representing rather than regulating them? Would there also be a danger of a vicious circle in that the more doctors perceive the council as a representative body, the more the Council really takes on this role and puts doctors’ interests first, resulting in further public mistrust of the Council’s fairness?

We are worried about how much the mistaken legal approach uncovered by the judicial review mentioned above was influenced by the Council’s inclination to protect doctors’ interests.

A further issue in need of review relates to disciplinary sanctions. As mentioned before, if a doctor is found guilty of professional misconduct, one of several sanctions may be imposed: 1) removal from the register, 2) removal from the register for a period of time, 3) reprimand, 4) suspension of the application of 1, 2, or 3 for a period of time, subject to certain conditions, 5) warning letter. It is important to note that doctors sentenced to sanctions other than removal from the register can continue to practise or resume practice after a certain period of time despite blemishes in their practices. In other words, such doctors remain a risk to patients. Thus, unless doctors guilty of misconduct are also required to undertake remediation or re-education so that they improve their practices, sanctions other than removal from the register are meaningless in protecting the public. To effectively protect the public, sanctions other than removal from the register must carry a requirement of remediation or re-education.

From publicly available information, however, the Medical Council does not seem to have a comprehensive remedial program for doctors guilty of misconduct. While a requirement of peer audit is normally imposed in cases of failure to keep dangerous drugs properly, there appears to be no mandatory re-education requirement for offences relating to substandard practice. If this is really the case, the complaints and disciplinary mechanism is severely inadequate in its capacity to protect the public.

The issues we have raised are of a fundamental nature. They call for a fundamental review of the complaints and disciplinary mechanism. When highlighting the importance of these issues, we are not suggesting that current concerns about delays in the handling of complaints and insufficient participation of lay persons in the Council’s decision-making are misplaced; we are saying that focusing on these alone is unlikely to increase the mechanism’s effectiveness in protecting the public.

We would like to emphasize that even when all the aforementioned issues have been properly addressed, the protection that a complaints mechanism can provide to the public remains inadequate because it is essentially a reactive system.

Under a complaint-driven regulatory system, so long as doctors can avoid getting into trouble with the regulator, they are assumed by the system to be “good” or “competent”. This assumption is obviously untrue. In order to protect the public adequately, instead of waiting for someone to make a complaint, a more proactive approach to identify under-performing doctors is needed.

To this end, one possible approach is periodic re-validation of doctors’ skills and competence. In addition to reviewing the current complaint mechanism, we urge that an introduction of a system of periodic re-validation be also considered.

– Contact us at [email protected]

RC

Member of Hong Kong Democratic Foundation

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