Dr. Chau Kwok on Gordon and Others v. The Medical Council of Hong Kong

[2011] HKCA 44; CACV 63/2006
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A group of doctors appealed from a decision by a Medical Council of Hong Kong finding them guilty of  failing to ensure that a reference made to the doctors in a magazine article was not promotional, contrary to the Professional Code and Conduct for the Guidance of Registered Medical Practitioners (”Professional Code”).

In 2003, a magazine published an article introducing an eye institute in Hong Kong. The article described and emphasized the institute’s state of the art technology and included a brief CV for each doctor in the group. The article implied that this particular institute was the only place to receive LASIK surgery and that this institute was superior to others.

The Medical Council alleged three charges:(1) failure to ensure reference was not made to the doctors in a way that could be understood as promotional; (2) the content of the article implied that any member in that group of doctors was especially recommended for patients to consult; and (3) the article constituted practice promotion that exceeded that permitted by the Professional Code.

At the Medical Council of Hong Kong, the doctors were found guilty and were ordered to be served with a warning letter. The doctors appeal to the High Court of the Hong Kong Special Administrative Region Court of Appeal.

On the first charge of failing to ensure the article was not promotional, the Court allowed the appeal. The Court reasoned that, in the course of public health education, reference to a doctor’s experience, skills, qualification and reputation may be vital to justify the expertise of the doctor when talking about a new medical device. The Court held that the articles may have had the effect of giving publicity to the doctors, but that effect could be merely incidental. Because the Medical Council did not prove that the article’s promotion of the doctors was not incidental and had not charged that the article provided misleading information, conviction for the first charge would be an overbroad interpretation of paragraph 5.1 of the Professional Code. Such an interpretation had been declared unconstitutional in a previous case.

Similarly, on the second charge, the Court held that claims of superiority were not focused on the equipment but rather the expertise of the doctors. The doctors had to have some level of expertise in order to deliver public health information that is believable and accepted by the public.

On the third charge, the Court held that provisions 4.2.2 and 4.2.3 of the Professional Code, restricting promotion to signboards and signs, was too restrictive if interpreted to convict the doctors. Such a restrictive interpretation  that does not accommodate a public health education context had also been held to be unconstitutional in a previous case.

“The Appellants were not charged with failing to correct inaccurate factual statements in either the draft or in the published version of the Article. Nor was there a charge of ’allowing factually incorrect statement to be made or to remain uncorrected’, but only of failing to ensure that statements were made about their experience, skills and reputation or practice in a way other than those permitted by para. 4.2.3 of the 2000 Code. In other words, the appellants were again convicted on a basis which has been found to be unconstitutional in Dr Kwong Kwok Hay.” Para. 32.

“There is much force in these arguments. I agree with the judge below that in order for the public (or fellow doctors) to attach any weight to what is being said about, say new medical developments or techniques, a reference to a doctor’s experience, skills, qualifications and reputation may well be essential.” Para 54.

“In my judgement, this restriction is not justifiable. The effect of paragraphs 5.1 and 5.2 of the Code does put any doctor at risk of disciplinary proceedings on charges of unacceptable practice promotion whenever reference is made to his experience, skills, qualifications or reputation. I accept nevertheless the legitimacy of the Respondent’s concerns, namely, that the giving of lectures, participating in radio or TV programmes or publication of articles may sometimes merely be a transparent or shambolic cloak to disguise an ulterior motive (blatant advertising). However, the wording of paragraphs 5.1 and 5.2 goes too far and constitutes a disproportionate response.” Para. 55.

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