cacv 92/2004
in the high court of the
hong kong special administrative region
court of appeal
civil appeal no. 92 of 2004
(on appeal from the order of the medical council of
hong kong made on 25 february 2004 and
dated 26 february 2004 and served on 6 march 2004)
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BETWEEN
| DR LEUNG SIK CHIU | Appellant |
| and | |
| The Medical Council of Hong Kong | Respondent |
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Before: Hon Rogers VP, Hartmann and Reyes JJ in Court
Date of Hearing: 17 December 2004
Date of Judgment: 17 December 2004
Date of Handing Down Reasons for Judgment: 4 January 2005
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REASONS FOR JUDGMENT
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Hon Rogers VP:
1. This is an appeal from an order of the Medical Council of Hong Kong dated 25 February 2004. The appeal was brought under the provisions of section 26 of the Medical Registration Ordinance, Cap. 161. The charges before the Medical Council were that the appellant, Dr Leung Sik Chiu, being a medical practitioner:
| “ | (i) | between 29 August 2000 and 31 August 2000, at his practice premises in Shanghai Street, Kowloon, instituted on his patient, the late Mr. HUI Shui See Willy, a treatment, namely ‘hydrogen peroxide oxytherapy’, which was inappropriate to the patient’s medical condition; and | |
| | | | |
| | (ii) | on 31 August 2000, he failed to institute prompt and proper treatment on his patient, the said late Mr. HUI Shui See Willy, while he was under Dr LEUNG’s care at his practice premises, or to arrange for him to receive prompt and proper treatment, when the patient developed respiratory failure. | ” |
2. The Council ordered that the name of Dr Leung should be removed from the General Register for a period of 18 months. At the conclusion of the hearing of this appeal this appeal was dismissed with reasons to be given in writing.
Background
3. Although the deceased was only 56 years old he was by no means in a good state of health. Some 12 years prior to his death he had been diagnosed with diabetes mellitus and it appears that he was under medical supervision for that condition, which was under control. In 1995 he had had a lobotomy of the lung due to lung cancer. In addition, it appears that he suffered persistent recurrence of chest infections; it would also appear that his smoking habit had taken a toll and he suffered pulmonary emphysema. In addition the deceased had, shortly prior to his death contracted a chest infection which was still not properly under control although he had apparently been able to travel to Mongolia. On 29 August 2000 the deceased consulted Dr Leung complaining of shortness of breath. The deceased had been introduced to Dr Leung some time previously and Dr Leung had prescribed chelation therapy treatment. The deceased had had 30 sessions of chelation therapy. However when the deceased had returned from Mongolia he had been on antibiotics for about two weeks and the specialist who had prescribed the antibiotics gave a further prescription for another week.
4. According to Dr Leung, when the deceased consulted him on 29 August 2000 complaining of shortness of breath, he was aware that the deceased had a chest infection which was not under control. Dr Leung then prescribed a course of five consecutive days of hydrogen peroxide therapy. On the third day, 31 August 2000, the deceased arrived at Dr Leung’s surgery at 3 pm. As Dr Leung explained in his letter to the Medical Council of 2 August 2002, the deceased was then experiencing shortness of breath and as a result he was advised to rest. At about 4 pm, when the deceased said he felt better, he requested that the hydrogen peroxide therapy should commence. Dr Leung said in his statement that the rate of transfusion was adjusted during the treatment according to the assessment of the deceased’s condition. The deceased complained of discomfort and the speed of the transfusion was reduced. After a while the deceased said that he had recovered enough that the treatment should continue. Some time around 5:15 pm the transfusion was stopped at the request of the deceased.
5. The deceased’s sister had visited the clinic at about 6:45 pm. The Medical Council found that the sister was an honest and reliable witness and they accepted her evidence although, in respect of the later time when the ambulance was called, they considered that she might have been very anxious and have overestimated the time during which Dr Leung had hesitated before calling an ambulance. In any event the sister had found that the deceased was in a poor condition, was breathless and sweating heavily. She told Dr Leung to be very careful with her brother as he had never had such a reaction before. She then left the clinic. Dr Leung gave the deceased 2 injections of Coenzyme Q-10 one at 7:15 and the other at about 8:30 pm. When the deceased’s condition worsened again at about 9 pm Dr Leung again gave the deceased an injection of Coenzyme Q-10 and L.- Cartinine. It was at about 9:15 pm that the deceased’s sister returned to the clinic. She found the deceased to be very breathless and sweating heavily. She urged Dr Leung to give the deceased oxygen but since there was no oxygen equipment in the clinic Dr Leung requested the sister to go and borrow some oxygen elsewhere. The ambulance was subsequently called and the deceased was admitted to hospital.
6. Although the deceased originally refused to be intubated, that procedure was eventually carried out at about 11 pm after which the deceased’s condition stabilised. Unfortunately, the deceased’s condition worsened and he died at about 5:15 am in the morning.
7. The conclusion reached by the Medical Council was that the deceased was in a critical condition of respiratory failure on 31 August 2000 and required emergency treatment. The Council was satisfied that the “hydrogen peroxide oxytherapy” was an inappropriate treatment for the deceased’s serious condition. The council went on to say:
“We are also of the view that the Defendant’s conduct in disregarding the dangerous condition has fallen far below the standard expected of registered medical practitioners. Therefore, we find the Defendant guilty of misconduct in a professional respect in respect of Charge (a).”
8. The first point taken on the appeal by Mr Sarony SC, who appeared on behalf of Dr Leung, was that Dr Leung had not been in a position to recognise that the deceased was suffering from respiratory failure. Indeed this court was taken to much of the evidence in order to try to establish that it was not apparent that the deceased, Mr Hui, had been suffering from respiratory failure during the course of the afternoon of 31 August.
9. In paragraph 6 of its decision, the Medical Council stated that it arrived at the conclusion that the deceased had been suffering from respiratory failure not only based upon the evidence from the deceased’s sister but also upon the evidence of Dr Yu, who as the Council pointed out, based his evidence not merely on the evidence of Mr Cheung, who might have been unreliable as a witness, but on the uncontested evidence including the medical findings in relation to the deceased on his arrival at hospital and on the condition of the deceased in the afternoon.
10. To the above, it might also be added that, as already noted, in his letter of 2 August 2002 Dr Leung had said that on 29 August 2000 when the deceased consulted him he had complained of shortness of breath. It was thus, not just on 31 August that the deceased had complained of shortness of breath and was suffering therefrom, but that condition had lasted for some time. It was thus of no avail for Mr Sarony to refer to the fact that respiratory failure was a condition which was likely to have lasted over an extended time and not something which would necessarily have occurred suddenly. But, in any event, in my view, the events which occurred on 31 August in Dr Leung’s clinic were sufficient to alert even a layman that the deceased was having considerable breathing difficulties. The history as recounted by Dr Leung in his letter of 2 August 2002 demonstrates clearly that over a prolonged period, and particularly on that afternoon, the deceased had considerable respiratory difficulties.
11. There was thus ample evidence for the Council to find, as it did in paragraph 9 of its decision, that it was satisfied that the deceased was in a critical condition of respiratory failure on 31 August 2000 and not only required emergency treatment but that Dr Leung’s conduct in disregarding the dangerous condition had fallen far below the standard expected of registered medical practitioners.
12. Mr Sarony also sought to argue that it had not been established that the hydrogen peroxide therapy which Dr Leung had administered was unsuitable. In this respect reliance was sought to be placed upon the evidence of Dr Ron Kennedy and upon the various extracts from medical journals and textbooks referring to hydrogen peroxide treatments. None of the extracts which were produced would indicate that hydrogen peroxide therapy was appropriate treatment in respect of respiratory failure. The extracts were inconclusive as to the benefits of hydrogen peroxide therapy as any form of treatment, at best showing that it had been used, perhaps 80 years ago, in experimental treatment of pneumonia at a time when antibiotics had not been discovered. Even Dr Kennedy could not say that hydrogen peroxide therapy was an appropriate treatment in respect of respiratory failure.
13. The first charge against Dr Leung related to his use of “hydrogen peroxide oxytherapy” between 29 August and 31 August at his clinic, at a time when the deceased was suffering from respiratory failure. The second charge, which is clearly linked to it, relates to the failure of Dr Leung to institute prompt and proper treatment for the deceased when he was under his care at his clinic. This aspect did not relate to the positive treatment which Dr Leung administered but related to the failure to ensure that the deceased was given emergency treatment at hospital at the earliest time. Again, I see no valid ground for complaint in respect of the finding on this matter. Nor was there duplication in the charges.
14. Mr Sarony argued that the standard which should be applied in respect of professional misconduct had to be adjusted according to the seriousness of the charge. In this respect, whilst accepting that in respect of a professional misconduct charge in circumstances where a death has occurred it is appropriate that the tribunal concerned should apply the strictest standards, in my view there can be no ground of complaint in this respect. The charges against Dr Leung were fully made out.
15. Mr Sarony argued that the Tribunal in considering the matter should apply the same test as was applied in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 586. That is a test which applies the standards of a doctor of ordinary skill and as to whether he had acted in accordance with a practice accepted at that time as proper by a responsible body of medical opinion skilled in the particular form of treatment in question. Here, again, I can see no ground for complaint that the Council did not apply the appropriate test. There was no evidence which could be pointed to on behalf of Dr Leung which would show that the particular treatment of “hydrogen peroxide oxytherapy” would have been approved by a responsible body of a medical opinion as a treatment for respiratory failure.
The severity of sentence
16. As has been said on a number of occasions in this court, it is not the function of this court to interfere with the sentence imposed by the Medical Council unless this court considers that the penalty imposed was plainly and obviously inappropriate and out of tune with the evidence upon which the Council was acting. Not only is the medical profession entrusted with regulating its own affairs and its own members but the Medical Council is the proper body to know what is the appropriate sentence to be imposed.
17. It was suggested that the sentence was not only inordinately heavy but reflected a view of established medical practitioners that alternative medicine constituted some kind of heresy. In my view that argument is totally misplaced. I see no grounds for suggesting that Dr Leung was being pilloried as a heretic. The conduct complained of happened in extremely serious circumstances. Had it not been for mitigating factors, particularly, perhaps, the fact that the deceased’s health was clearly very bad and that his condition markedly deteriorated whilst he was in hospital after it had initially stabilised, the penalty imposed might likely have been very much more severe. In my view, the sentence was nothing other than appropriate, and if anything lenient, for the particular charges which had been proved.
Hon Hartmann J:
18. I agree.
Hon Reyes J:
I. Introduction
19. On 25 February 2004 the Medical Council found Dr. Leung Sik Chiu guilty of professional misconduct in 2 respects.
20. First, Dr. Leung had inappropriately administered a course of hydrogen peroxide oxytherapy on Mr. Hui Shui See between 29 and 31 August 2000. Such treatment was inappropriate because Mr. Hui, who had a history of emphysema and lobotomy for lung cancer, was experiencing severe respiratory problems at the time, most especially on 31 August 2000.
21. Second, on 31 August 2000 Dr. Leung failed to give Mr. Hui prompt emergency treatment for respiratory failure at about 6.45 pm, while Mr. Hui was undergoing oxytherapy in Dr. Leung’s clinic.
22. Mr. Hui was eventually rushed to the hospital from Dr. Leung’s clinic at about 9.30 pm on 31 August. This was primarily due to Mr. Hui’s sister, a nurse. She passed by the clinic at 9.10 pm to see how her brother was doing and was alarmed by what she saw of his condition. She insisted that an ambulance be called. Mr. Hui died in hospital at 5.15 am on 1 September.
23. Dr. Leung appeals against the Medical Council’s decision.
24. First, he says that the oxytherapy administered had the goal of improving Mr. Hui’s respiratory condition. The treatment (Dr. Leung suggests) led to some improvement. It cannot have been inappropriate.
25. Second, he says that at worst he was guilty of an error of judgment. He believed that Mr. Hui was not experiencing respiratory failure, but only feeling the detoxification effects of the oxytherapy started on 29 August 2000.
26. Third, he says that the Medical Council’s decision reflects bias in orthodox medical circles against hydrogen peroxide oxytherapy, a form of alternative or complementary treatment.
27. Finally, Dr. Leung says that, even if he was rightly found guilty of misconduct, the sanction imposed of removing his name from the General Register for 18 months is excessive.
28. In my view, there is no basis for Dr. Leung’s criticisms of the Medical Council.
II. Discussion
A. Whether oxytherapy appropriate
29. Mr. Sarony SC (appearing for Dr. Leung) argues that the Council ignored evidence from Dr. Kennedy (Dr. Leung’s expert) on the appropriateness of hydrogen peroxide treatment. Dr. Kennedy spoke of the potential benefits of hydrogen peroxide on patients suffering from emphysema and lung infection.
30. But the Medical Council in fact took Dr. Kennedy’s evidence into account. For example, the Council stated (at Decision §7):-
“The Defence however called an expert witness in hydrogen peroxide therapy, Dr. Ron Kennedy to give evidence that in fact the signs and symptoms of the patient were consistent with detoxification reaction after oxidation therapy and not respiratory failure. He was of the view that the therapy was a recognized form of treatment. However, he considered that it was very infrequent for patients who were very ill to arrive at his clinic for treatment with hydrogen peroxide.”
31. The Council continued (at Decision §8):-
“We recognize that some medical practitioners do practise alternative/ complementary treatment modalities. However, in life threatening situations a doctor must deal with the dangerous situation first and adopt appropriate treatment in accordance with evidence-based medicine.”
32. Fully cognisant of Dr. Kennedy’s testimony, the Council was still entitled to accept the evidence of Dr. Yu Wai Cho and Professor Brian Tomlinson. That evidence was to the effect that:-
| (1) | Mr. Hui developed respiratory failure “throughout the time he was in the Defendant’s clinic” on 31 August 2000; and, |
| | |
| (2) | the oxytherapy administered to the patient “might have potentially harmful effects in certain situations”. |
33. On 31 August 2000 Mr. Hui could have been suffering from 2 conditions, one life-threatening (respiratory failure), the other not (detoxification effects). In such situation, the Medical Council reasonably felt that, absent evidence to the contrary, a registered doctor had to treat Mr. Hui based on the worse scenario.
34. Literature on the benefits of oxytherapy being equivocal, the Council concluded that it was inappropriate, in a potentially fatal situation, to rely on oxytherapy, without recourse to tried and tested modes of treatment.
35. Considered as a whole, I cannot fault the Council’s conclusion that the oxytherapy was inappropriate in the particular situation in which Dr. Leung found himself.
B. Whether mere error of judgment
36. Mr. Sarony says that Mr. Hui could not have been definitively diagnosed as undergoing acute respiratory failure, until his oxygen saturation levels had been measured with equipment only available at the hospital. Consequently, Mr. Sarony suggests that Dr. Leung cannot be blamed for earlier mistaking Mr. Hui’s shortness of breath as an effect of detoxification.
37. Mr. Sarony warns against the benefit of hindsight based on what was confirmed at the hospital and in a post-mortem. As events were unfolding at Dr. Leung’s clinic, without access to equipment for analysing oxygen levels, Dr. Leung cannot be faulted for having misread the symptoms.
38. I disagree.
39. Dr. Kennedy’s evidence was that patients did not commonly exhibit shortness of breath after infusion of hydrogen peroxide. Even then, when Dr. Kennedy has seen shortness of breath due to oxytherapy, the patients “quickly recover”.
40. In cross-examination Dr. Kennedy said the following:-
“LEGAL OFFICER:-
The sort of difficulty in breathing, which we have heard, or you have read in the evidence, from the evidence of other people[,] like gasping, staggering, using the muscle, moving the chest -- is it a common sign [of detoxification] like that?
DR. KENNEDY:-
No, I think not. I think there was more going on than detoxification. I think there’s no question about that. When the onset of that might have been, I do not know.
LEGAL OFFICER:-
That difficulty in breathing suggests, if I understand you correctly, more than detoxification.
DR.KENNEDY:-
Yes. You know, if detox is the -- if you’re short of breath from detox you should be able to take a few deep breaths and recover.
LEGAL OFFICER:-
Yes. And respiratory failure is it possibly a reason for the difficulty in breathing -- do you agree?
DR. KENNEDY:-
Oh, without question -- you mean in this case?
LEGAL OFFICER:-
Yes.
DR. KENNEDY:-
Yes. There are many possibilities here, and I believe that’s one of them. But again, when that actually occurred, we just cannot know.”
41. Given such evidence from Dr. Leung’s own expert, the Medical Council was fully entitled to conclude that here was no simple error of judgment. Extreme shortness of breath being a rare sign of detoxification, Dr. Leung should have suspected respiratory failure.
42. It is beside the point to say that Dr. Leung could not have known for sure that there was respiratory failure until oxygen levels were actually measured. There was plainly a possibility that Mr. Hui, short of breath over long periods, at times gasping, sweating, was experiencing acute respiratory failure. Dr. Leung should have taken immediate steps to deal with that life-threatening possibility long before 9.30 pm on 31 August. He did not.
C. Whether bias displayed
43. There is no warrant for the suggestion of bias on the part of the Medical Council towards alternative medicine.
44. I have quoted Decision §8 where the Medical Council went out of its way to acknowledge “alternative/complementary treatment modalities”. A similar statement is repeated in Decision §11.
45. More pertinently, the Medical Council stressed that, regardless of whether a physician also practised alternative medicine:-
“registered medical practitioners should be able to recognize life threatening situations and must give emergency treatment as soon as it is required”.
46. The case does not involve any rivalry (whether actual or perceived) between conventional and alternative forms of treatment. Instead, it concerns “the standard required of registered medical practitioners whose fundamental duty is to preserve the life of the patient” (Decision §10). That standard is the same for all doctors, whether or not one also happens to practise alternative medicine.
D. Whether sanction excessive
47. The case involved the appropriate standard of care to be shown by a practitioner in potentially life-threatening situations. For the reasons stated in the judgment of Rogers VP, I do not think that the sanction of 18 months de-registration was excessive.
III. Conclusion
48. For the foregoing reasons, I agreed that the appeal should be dismissed with costs to the Medical Council.
(Anthony Rogers)
Vice-President | (M.J. Hartmann)
Judge of the Court of First Instance | (A. T. Reyes)
Judge of the Court of First Instance |
Mr Neville Sarony SC and Mr Jeevan Hingorani, instructed by Messrs Sit, Fung, Kwong & Shum, for the Appellant
Mr Sanjay A Sakhrani, instructed by Department of Justice, for the Respondent