Application for judicial review to challenge Medical Council PIC’s decision dismissed by Hong Kong Court

The Hong Kong Court dismissed the Applicant’s application for judicial review challenging the decision made by the Preliminary Investigation Committee (PIC) of the Medical Council of Hong Kong (Medical Council), on the ground that the application was not reasonably arguable and without any realistic prospect of success.

Background

The patient had died from lung and liver cancer, which she had suffered from for several years. Following the patient’s death, the Applicant (granddaughter of the patient) took issue with the treating doctor’s prescription of a chemotherapy drug, Sunitinib. The Applicant lodged a complaint against the doctor with the Medical Council. The Applicant asserted that the prescribed drug had been unnecessary or inappropriate to treat the patient’s cancer and that the doctor had failed to obtain the patient’s consent to the use of Sunitinib. 

The Medical Council’s PIC, having sought the opinion of an independent expert, held that the Applicant’s complaint did not demonstrate a case for referral to the Medical Council. The Applicant sought a review of the PIC’s decision, however, the PIC maintained its view, albeit for slightly different reasons. The Applicant applied for leave to apply for judicial review, which was granted.

Legal principles

Under the Medical Registration Ordinance (Cap. 161) and Medical Practitioners Registration and Disciplinary Procedure Regulation (Cap. 161E), the PIC screens complaints to determine if there is a prima facie case of professional misconduct by a doctor. It serves as a second-layer filter in the Medical Council as to whether an inquiry should be held. 

In the case of Law Yiu Wai Ray v the Medical Council of Hong Kong [2016], the Court ruled that the PIC should examine whether the complaint has any real prospect of being established, and may refuse to refer the complaint to the Medical Council if that real prospect is not present. 

The function of the Court, however, does not involve re-examining whether the PIC’s decision was correct or not. The Court can only consider whether the decision was without legal basis, or one which is Wednesbury unreasonable (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947]), or one which is procedurally unfair. In a subsequent case, Lord Diplock observed that Wednesbury unreasonableness “applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”).

Was the PIC’s decision Wednesbury unreasonable? 

The Applicant contended that the decision of the PIC was unreasonable because it did not refer the following three issues to the Medical Council: 

1. whether the prescription of Sunitinib in view of non-small cell lung carcinoma was necessary and appropriate;
2. whether the use of Sunitinib as “off-label” (or second line) treatment was necessary and appropriate in light of the patient’s hepatocellular carcinoma; and
3. whether the doctor had obtained proper consent from the patient as to the “off-label” use of Sunitinib. 

Decision

The Court held that the three grounds advanced by the Applicant were not reasonably arguable with any realistic prospect of success. Regarding the first ground, the Court held it was not properly put before the PIC and thus this was not an issue which the PIC had to deal with. 

As to the second ground, although there were conflicting expert opinions between the Applicant’s and the Medical Council’s experts, the Court held it was not unreasonable for the PIC to concur with one of the experts. The Court held that it should not interfere with the PIC’s conclusion, and its choice to prefer one expert over another in matters of professional and medical judgment. Also, the Court observed that it would not lightly impose its views on the appropriate weight to be attributed to the evidence on the views of the PIC.

On the third ground advanced by the Applicant, the Court accepted that it was reasonable for the PIC to have concluded that there had been implied consent by the patient on the evidence before it. There was no requirement at the time that a doctor must explain to the patient that a particular medication was being used in an “off-label” manner, or as a “second-line” treatment. The Court considered that if no particular requirement can be identified, it is difficult to see how the doctor could be said to have committed professional misconduct. 

The Applicant’s counsel further submitted that the PIC had failed to exercise its powers to request a complete set of the patient’s medical records and consent forms. The Court accepted that such failure is indeed something for the Applicant to allege that the PIC reached a Wednesbury unreasonable decision and that it did not carry out its statutory functions properly. However, this was not part of the argument advanced by the Applicant in his notice of application and thus the Court did not entertain this.

Comment

The decision highlights the role of the PIC of the Medical Council and the restrictions on the power of the Court in reviewing a PIC decision. As demonstrated in this case, the Court will not lightly interfere with a decision of a professional tribunal, such as one made by the Medical Council, unless the case for judicial review is a highly exceptional one that the Court would conclude that the PIC had acted contrary to public law principles.  This is especially so when the decision turns on the assessment of evidence concerning the medical profession, which has already been commented on by an appropriate medical expert(s) and evaluated by the Medical Council.