In medical school, we doctors learnt about the doctor-patient relationship. In law, this relationship is classified under the special category of relationship known as fiduciary relationship. It is of paramount importance to understand what a fiduciary relationship means because that imposes special obligations on the doctor.

A fiduciary relationship exists when one party of the relationship places trust in the other party so that the latter has influence over the first party. Such a relationship therefore also exists between a solicitor and his client, a parent and child, a trustee and beneficiary, and a principal and agent.

In the presence...

A duty of care means a legal obligation imposed on an individual to maintain a reasonable standard of care while performing acts that could cause foreseeable harm to another.

Such a duty serves in the law of tort to define the interests protected and whether a loss is actionable.

It may be of interest to briefly describe the origin of the concept of duty of care. This was in the landmark case of Donoghue v Stevenson (1932) where one Mrs. Donoghue fell ill after drinking half a bottle of ginger beer. The remains of a dead snail were then noticed...

An awareness of the standard duty of care owed by doctors to patients is relevant because that is what the court uses as the gauge to measure whether we are discharging our duties properly.

What is required is the degree of competence usually to be expected of an ordinary skilled member of the profession. This is the reason why following usual practice is often regarded as a safe course of action.

What, then, if there are differences of opinion as to what is the best practice? This issue was addressed in 1957 in the English decision in Bolam v Friern...

Not infrequently doctors find themselves among friends and relatives on social occasions such as at family gatherings and dinner parties. In this situation, they are often bombarded with questions about health and for medical advice, which can not only prevent them from fully enjoying the event but also at times makes it difficult for them to deal with the questioning properly.

The problem underlying casual advice of this sort lies in its consequence should any damage result and the advice seeker then decide to pursue for liability.

Should a doctor on such occasions keep silent for peace of mind? Is...

When more senior doctors become too busy to take up everything under them, or when they exercise their leadership and wish to confer a certain degree of autonomy for their team members’ development, or simply when it is more appropriate, they delegate their duties. This is common practice.

What is relevant here is the liability issue when duties are delegated. Thus, for example, when one of your staff has ended up not doing a job properly, would you be in trouble or just the staff member because he or she is the person whose performance is in question not yours?...

It might be better to present this topic in the form of questions and answers.

Q: How can one lawfully practise medicine in Hong Kong?

A: Be a registered medical practitioner, i.e. obtain a licence to practise medicine.

Q: Why do we need to get registered if we already have a medical degree?

A: A medical qualification or degree from a university is merely evidence of medical education, not a licence to practise medicine.

Q: What penalty is there to practise without registration?

A: Potentially imprisonment for up to 5 years, and if resulting in personal injuries, up to 7...

It is quite well known that there are restrictions on what degrees are quotable on a name card. Who decides this? What is the purpose of doing so?

The source of this restriction is found in Ref MC 8/E of paragraph B (Communication in Professional Practice) in Part II of the ‘Code of Professional Conduct’ promulgated by the Medical Council of Hong Kong. The List of Quotable Qualifications is constantly being updated upon applications received for inclusion and deliberation by the Education and Accreditation Committee. The List consists of qualifications which are allowed to be quoted on name cards, letter...

Junior doctors are often reminded of the importance of documentation in the hospital charts. In some hospitals, there is regular auditing of signatures, dates and hours of orders, legibility, etc.

In addition to merely accurate record keeping, the hospital charts are potential evidence of facts in a litigation dispute. This might perhaps bring home the reminder that obsession with documentation is well warranted and rewarded. The reason is precisely that whatever is not written down was arguably not in the doctor’s mind at the time the record was made! The medical practitioner thus assumes the burden of proving what he...

What is so magical about a signature? Why do we have to sign our orders and notes? Couldn’t my colleagues recognise my hand-writing?

A signature is something of immense implication in the law. It is, in simple terms, your official verification of what lies above your signature in the same document. In other words, once signed, the person who signs approves of what is there. It is a sign of endorsement. There are therefore no grounds to go back and refute what was written or printed above the signature unless there is fraud or mistake. For the same reason, any...

Medical notes are to medical practitioners a record of the patient’s treatment for his management purpose. It allows the retrieval of information in this regard so that references can be made in the future when there is a need.

Incidentally, the medical notes are also an important source of information when there is a claim of liability against the medical treatment offered. The high importance accorded to the medical notes in law is due to the fact that they are a contemporaneous documentation of facts and opinion and are thus of high probative value as compared with recalls from memory...

This is a question of obvious relevance in our practice of medicine but is one to which we do not usually give a lot of attention.

Help in answering the question may be found in Part II Section A paragraph 1 of the Code of Professional Conduct of the Medical Council of Hong Kong, where details are provided about medical records.

In essence, the medical notes represent the documentation of a patient’s medical management. For this purpose, they must be systematic, comprehensive, true, adequate, clear and contemporaneous. Notes have to be detailed enough to allow comprehension and continuity of care...

What is a chaperone?

In former times in western societies, an adult person often accompanied a young unmarried man or woman on social occasions in order to prevent inappropriate social or sexual interactions or illegal behaviour. This person was usually answerable to the parents of the accompanied. ‘Chaperone’ is derived figuratively from the French word ‘chaperon’, meaning ‘hood’, using the analogy of a hood covering a bird’s head so that it looses its desire to fly away.

The word is thus borrowed in medical practice to refer to a third party to the doctor and the patient who acts as...

It may surprise the reader to know that there are medical practitioners who deliberately avoid treating friends and relatives. Indeed, this is not unique to the medical profession.

Many lawyers also avoid accepting their own relatives and friends as clients and prefer to refer them to reliable colleagues.

Judges are supposed to do justice and to be seen to be doing so and they will declare any possible hint of a conflict of interest. As a sideline, in the infamous UK General Pinochet case of 1998, even the House of Lords was forced to overturn its own ruling. This was...

The author once overheard an interesting story from two colleagues who had practised in the United Kingdom for a number of years. Colleague A was flipping through a medical journal and was suddenly surprised at seeing the name of someone she knew as the author of an article. She explained that she had actually once worked with this doctor, a male, in the same unit. One evening when the doctor was on call, all was very quiet and peaceful. A young nurse, pretty and in her early twenties, was on duty with him; and in the middle of the night...

Insurance is a sharing of risk. If any practitioner is unfortunate enough to be sued and held responsible for damages, every subscribing member of the insurance society pays. The brunt of the damages is thus shared collectively.

Any doctor working on his own in an individual practice should be aware that such protection is valuable and advisable.

The issue with insurance arises when one is an employee, such as when working with the Hospital Authority, and whether having your own individual professional insurance is really necessary. Everyone knows that medical protection fees have escalated astronomically in recent years.

One argument...

The author will illustrate what can happen with remote control medical orders with an incident from his own experience.

One quiet evening I was called by the first on-call doctor and advised that a patient who had sustained a burn injury was being admitted through the Accident and Emergency Department. The victim had suffered the injury 2 days earlier on the mainland and having been repatriated through the SOS system had just arrived. He had neither an intravenous line nor an endotracheal tube. Learning that this history was given over the phone, the reader may well agree that the patient...

It was, and unfortunately sometimes still is, the case that interdisciplinary consultations in public hospitals are seen as something of secondary importance. Often only the most junior staff is deployed to be responsible and such consultations are of the lowest priority in one’s list of duties. The result is that a minor problem is often the reason for prolonging a hospital stay by several additional days just waiting for another specialty to see the patient before discharge.

This should not and need not be the norm.

For one specific reason, the author always sees cases as soon as possible whether...

In his early days as a freshman to the great profession, the author was taught: ‘Do not order any blood if you don’t go back to look at the results.’

This was a remark made by an experienced senior colleague who found a deranged blood coagulation result filed in a patient’s notes without any action having being taken after an on-call night. In fact, it had come to the attention of no one! Whose responsibility was it to look for it? In that situation, it had to be the on-call doctor who asked for the blood. If the results were...

This is a tricky area that is easily overlooked.

Phone-reports can be made by the laboratory for a number of reasons. The test could be urgent and the laboratory is keen to let the clinician know the result. The result may be very abnormal and urgent action is expected. The request may be intra-operative such as a frozen section examination required for immediate decision-making. In any case, the results of phone-reports are likely to be of more than usual importance often calling for instant action.

The obvious risk inherent in verbal phone-reports is of course misunderstanding.

Whatever the reason for...

Gone are the days when male doctors were seen being stared at and scolded by grand authoritative professors in hospital corridors for not wearing ties and female doctors for not being in skirts at work. This was actually not such a distant past and was the dress-code norm when the author was a medical student in the late 70s and early 80s.

No doubt the underlying rationale for such restrictions was related to the image and prestige of the profession in the eyes of the public. Whether the profession now enjoys as much esteem as it used to is not...

One of the privileges of being a doctor is the entitlement to medical fees for professional consultation and treatment. The basis of this entitlement stems from section 16 of the Medical Registration Ordinance, Chapter 161 of the Laws of Hong Kong. Subsection (1) confers the entitlement to a doctor to practise upon registration and to ‘recover reasonable charges for professional aid, advice and visits and the value of any medicine or any medical or surgical appliances rendered, made or supplied to his patients’.

The reader may not at this point realise the privilege and might think that a non-registered doctor...

When the author was a young junior doctor, more than 20 plus years back, he was once told by a senior colleague who had just left the public hospital system for private practice that a lot of specialist doctors actually paid kickbacks in order to get referrals from primary care doctors. Likewise, doctors got kickbacks from laboratories for referrals for investigations. This information was purely hearsay and the author confesses that he has no real idea of the veracity of the allegations. It is simply an honest report of factual statements heard and there is no attempt to defame anyone...

Unlawful restraint is battery and perhaps also false imprisonment .

Patients, however, are not uncommonly restrained in the wards. Obviously, neither the hospital staff nor the medical practitioner enjoys any special powers in the law to restrain others. What then is the authority of the hospital staff to restrain people? How are we to protect ourselves? If we have no clear authority to do so, should we stop restraining patients?

These questions are indeed quite legitimate but we have a defence, and that is ‘necessity’. ‘Necessity’ in law means that damage is inflicted in order to avert more serious damage....

There was once a ‘working practice’ in the public hospitals that patients who wished to leave hospital without the doctor’s agreement were to sign a Discharge against Medical Advice (DAMA) form. The rule was so strongly ingrained that patients were ‘warned’ that a signature was a must and they would not be allowed to go without one. The author has witnessed nurses threatening to inform the police should patients be disinclined to follow the order. Indeed, the signing of the DAMA form was regarded as the more important ‘pass’ to be obtained before patients would be allowed to leave hospital...

The sick leave issue poses special difficulties for the doctor. It is often said that doctors are medically the least well-treated species on Earth. Very often we tend to be ‘brave’ and disregard ‘minor’ symptoms and ailments, telling ourselves they are no big deal. Doctors can also find it embarrassing and somewhat of a disgrace to be seen to be ill since they are viewed as healers and enemies of disease.

Young doctors, in particular, have a tendency to continue to go to work despite sickness. There is understandably pressure from busy schedules, from superiors and from self-image.

This behaviour,...

Leave, or, more specifically annual leave, is something of an entitlement to an employee under suitable circumstances. Under section 41AA(1) of the Employment Ordinance, Chapter 57 of the Laws of Hong Kong, ‘every employee who has been in employment under a continuous contract for not less than 12 months shall, in respect of each leave year, be entitled to paid leave’.

Doctors under employment should therefore refer to their employment contract to determine the specific details of their entitled rights.

An employer is under a duty to ensure that arrangements are made so that employees can take leave as agreed....

The author once overheard the head of a clinical department boasting how devoted and committed his staff was. He claimed that his staff would all volunteer to work 7 days a week despite the introduction of the 5-day week. Another story relating to off-duty work was that of a hospital executive instructing one of her senior staff members who had accumulated surplus leave to take leave on alternate days and to take work home on those leave days!

Whether these represent good management strategies or mean staff handling is entirely personal opinion. What is more interesting perhaps is the legal...

An attending doctor of course has a duty to issue a sick leave certificate when requested by a patient who is unfit to work. As in so many of the given privileges to the members of the profession, a high standard of ethics is presumed. We are, however, not talking about the obvious here. Thus, it needs no reminder that issuance for monetary return without a genuine belief of unfitness to work is dishonest conduct.

The issue the author wants to raise here is whether the doctor should put down the exact medical diagnosis on the sick leave certificate. The...

These days it is customary for doctors to print standard documents from their desk-top computers in relation to their work. One of these many standard documents often requested by patients is the sick leave certificate. Some patients, though, specifically ask for attendance certificates instead. What actually is the difference between these two documents?

A ‘sick leave’ certificate is evidence issued by a registered medical practitioner conferring entitlement to be absent from work by reason of a person being unfit to work on account of injury or sickness. An ‘attendance’ certificate, on the other hand, is a certification of the patient...

Newly qualified doctors on completion of their internship and registration will in no time find themselves involved in writing medical reports. This is more often likely if they work in specialties treating acute injuries and accidents, although practically no one engaged in clinical practice is immune.

Medical reports can be for a variety of purposes. They can be for the patient’s continuation of treatment upon referral or after emigration. They may be for claiming compensation from insurance companies. They may also be for the purposes of court proceedings.

In the old days, when medical facts such as the nature of...

Sexual harassment may potentially occur in any employment context and knowledge of the issue should be of relevance to the medical practitioner as much as it is to any ordinary citizen. It has been defined by the courts as ‘unwanted conduct of a personal nature or other conduct based on sex affecting the dignity of women and men at work’ (British Telecommunications v Williams [1997]).

A form of direct discrimination, sexual harassment can range from sex-based comments which make the recipient feel degraded to serious sexual assault.

Classic cases where the motivation is sexual fit easily into the Sex Discrimination...

Harassment is a word in vogue and we hear it being used all the time. To give a good universal definition is, however, not so easy because it is used frequently in daily spoken English to mean different things and its law meaning also differs according to the jurisdiction under consideration. Generally harassment refers to a wide range of offensive behaviour which alarms, distresses, upsets, threatens, or disturbs.

It is the conduct that offends and this can be non-verbal, verbal, or physical, or combinations of these. Whether the conduct offends will in turn depend on the subjective interpretation of the...

Let us begin with a true story. A young, attractive air hostess was seen in the plastic surgery out-patients for a follow-up. She had sustained a fracture to the mandible from a fall after fainting at 3am on the way home following a drink with friends. The fracture was well fixed but she had to abstain from eating hard food for 6 weeks to allow time for the fracture to heal properly.

At the follow-up consultation she asked the doctor whether he could go out to dinner with her to ‘teach’ her what to eat. She then moved her chair...

Doctors are intelligent people. There is no doubting that. The author still recalls the previous dean of the medical school of the University of Hong Kong on the occasion of an annual prize giving day ceremony. In his introductory speech he said, ‘Every year the top 2 per cent of the cohort of secondary school students enters the university. The top 2 per cent of that lot enters the medical faculty. The top 2 per cent of those who enter the medical faculty each year end up here tonight. I must call you the cream of the ivory tower.’ The...

As mentioned in the previous chapter, honesty is a basic human virtue. No one would dispute that.

Even a cunning person should have no reason to act in a dishonest manner unless it is for a ‘good’ purpose.

No one should therefore choose to be dishonest.

Doctors are professionals highly regarded in the eyes of the public. Any dishonesty found in a doctor’s practice is inexcusable.

How does the profession itself look at dishonesty? The answer can be found in the Code of Professional Conduct under Misconduct in a Professional Respect. Dishonesty is regarded as misconduct.

Obviously, dishonesty is highly...

This time the author wants to start with the question, ‘Is the law rigid?’ Some may say yes, some may say no. But please be reminded that ‘rigid’ is not the same as ‘harsh’.

For those who answer ‘yes’, they have a point. That is that the law has to provide certainty. This is a very important criterion of a good legal system because people must be able to foretell what is and what is not an infringement and how serious any breach of the law is going to be.

On the other hand, the characteristic of a common law...

No one these days should be unfamiliar with the term ‘drink driving’. Incidentally, doctors often have the occasion to go out to meet friends and colleagues or to attend lectures and seminars which involve some degree of social drinking. At the same time, many doctors have to travel between hospitals and very often at a very early stage of their career they become addicted to driving themselves.

Two potential consequences can arise from drink driving for doctors.

The first is infringement of the traffic offences. In addition to section 38 ‘careless driving’ and section 39 ‘dangerous driving’, there are also...

Doctors do appear in newspapers and magazines as everyone knows. This can be as a result of the doctor or his medical institution releasing some information of public importance, or, the press approaching the medical profession for information on what they want to report.

There are a number of tricky areas which a doctor intending to approach the public may need to take note of:

Make very sure that what is reported is what you said

Make very sure that what is reported is not only part of what you said

Make very sure that what you said is not...

Doctors are used to taking photographs of their clinical findings, e.g. interesting physical signs, operative procedures, pre- and postoperative pictures, etc. These pictures are taken for a variety of purposes such as record keeping, teaching, presentations, and for use in publications and books.

Strictly speaking it is a form of data collection in taking pictures where the identity of the person being photographed can be traced. Even if the face does not appear on the picture, if the photos are filed in a collection and under a system from which the identity of the individual can be traced and retrieved,...

One day in the medical officers’ office of his department, the author was ‘disturbed’ by a loud cry of surprise from a female colleague. She was reading a newspaper. A young male doctor, who had been a classmate of hers at medical school, had been charged by the police for secretly videotaping gynaecological examinations of patients, which he performed in his clinic, and keeping them on his computer.

The immediate issue which was raised was what legal grounds there were to incriminate such a person or conduct. In simple words, what was wrong?

What are the possible legal grounds for...

A young professor in the hospital in which the author worked once came up with an interesting innovation. The laboratory assistant was for some reason refusing to process specimens at the expected speed and claimed to be very busy all the time. The professor ‘wisely’ attached to his desktop computer a surveillance camera, which he placed in the laboratory to monitor her. The laboratory assistant was extremely annoyed and threatened to sue him, although no action was ever actually taken. She was dismissed subsequently.

It is not difficult to see the conflict between an employer’s monitoring, on the one hand,...

It is a matter of routine to request a reference from one’s superior at work when applying for a new post, such as an appointment to a more senior position in an institution. A reference can and often does affect success in the new appointment. However, a reference can also be inaccurate, incomplete, or maliciously written to be misleading.

Where someone receives a bad reference the contents of which he or she disagrees with, is there a remedy? What if the employer refuses to write the reference altogether?

The usual first step is to see if there is an element...

Not uncommonly in public hospital settings patients returning for follow-up request to see a particular doctor. If that particular doctor is around and on duty, quite often we allow them the convenience. On the other hand, do patients have such a right in the first place?

The answer obviously depends on whether the scenario is one which concerns a private institution or clinic, or whether it is the public service. In the private sector, the customer is always right as they are the source of your income. In the public hospitals, however, this is not the case although the trend...

This is more a politics exercise and is indeed a very sensitive topic. What should one do and how should one respond in this difficult situation?

The possibilities are four:

Situations A and D are uncommon.

Situation B is also unlikely as your boss should have better experience.

Therefore, the usual case is of a Situation C scenario. The answer is then straightforward and obvious. Listen and think thrice before a protest is made. Go back and research. Obtain further third party advice. No hurried reaction is advisable. Do not forget that although the boss may be wrong, he thinks...

In the not too distant past, it was not uncommon to think that more authors were better when submitting scientific papers. You have more friends who may include you next time in their work. You please your seniors. Your paper seems more important because it is a collaborative work.

At the same time, there were indeed practitioners who thought that since the material of the work belonged to the Department, the Department heads deserved to have their names on the paper, and demanded so.

This is bad as it confuses who the real contributors are. In a more critical sense,...

Equipment is provided in employment for the performance of duties at work. There are a number of rules regulating the use of such equipment. The area that we go into here is the opposite: the misuse of such equipment by the employee.

One example is the provision of computers in hospitals for work. Are there restrictions as to the use we put them to? The answer is a clear yes. Justification for the rules is obvious. The computers are there for one or more purposes related to the institution’s work. They are not there for personal affairs. Use of such...

Complaints are annoying. Complaints are disgusting. Complaints are distressing. Complaints are insulting. Complaints are disheartening.

Honestly, no one wants complaints, although modern management theories see complaints as ‘opportunities for improvement’. Certainly, if a doctor receives complaints all the time, the supervisors will be wondering what is wrong with that doctor.

Can we avoid complaints? The answer is perhaps not too encouraging because it is no. A complaint is basically something arising out of a mutual relationship between two parties. You can be prudent and professional. The other party, however, can always be insane and unreasonable.

But we can reduce the...

Doctors, as a result of their work, often win appreciation from patients and relatives. Sometimes this is in the form of gifts and presents. As they are personal, why can’t we just take them, as is often said?

The reason is that we have to stay clear from any hint of accepting a bribe, or at the least, any conflict of interest.

What is meant by bribery? Bribery is defined in detail in the Prevention of Bribery Ordinance (Chapter 201 of the Laws of Hong Kong) sections 3 to 10 to which the reader is referred. Briefly, it is the...

Increasingly, the internet is becoming an integral part of the life of the modern citizen. Communication, in particular, has been radically revolutionalised in the past decade. Never before in mankind’s recorded history has there been seen such speed and long-distance dissemination of information.

The development of the internet is definitely bringing with it implications for the practice of medicine. Thus, many colleagues are receiving e-mails seeking advice from new potential patients. Others are creating websites for their practice or clinics. There are agents soliciting medical practitioners to enrol in their listings to attract patients. There are even vendors seeking to...

An interesting aspect of modern communication which has a potentially serious impact on how medical practice is conducted is the use of telemedicine. Telemedicine is the application of telecommunication technology to provide medical information and services. Teleradiology and telepathology are becoming fashionable in some quarters and these involve the transmission of stored information to and fro. Realtime face-to-face video conferencing, on the other hand, allows the opportunity for discussion among professionals. It might not be long therefore before medical consultation for patients takes place employing the latter platform.

How does one come to terms with this new situation? The point...

Everyone knows that it is now necessary to obtain consent from patients before procedures are undertaken. The topic has been hotly debated for a number of years for a variety of reasons. Let us reflect on certain questions.

Why is consent relevant anyway? The answer is simple. Everyone is entitled to the fundamental human right of autonomy over what can be done to one’s body. This right is as basic as a mere touching of the body of a person. This is no exaggeration. We increasingly see newspaper reports of indecent assault on the underground. Many of these cases involve...

A minor in law in Hong Kong is one who has not attained the age of 18 (Age of Majority (Related Provisions) Ordinance, section 2).

Imagine a 15-year-old girl, i.e. a minor in law, coming into your clinic one day asking for advice on contraception. You may or may not approve of sexual activity at that age but, in the event, what would you do?

You may denounce the conduct on immoral grounds. But do you inform the police? Do you inform the parents? Sexual intercourse with a girl under 16 is a crime in the law irrespective of whether...

First, here’s a story to start this chapter. A junior colleague paged the author one Saturday morning. A frail, elderly gentleman with dementia who was totally dependent on his not so elderly wife was suspected, after an episode of facial herpes zoster, to have developed a cavernous sinus thrombosis. An urgent MRI scan was indicated but the wife was strongly opposed to it, probably a little upset with the husband and really wanting to follow a strategy of non-intervention to enable him to pass away peacefully. Recognising that something was wrong, the young doctor in showing great concern for the...

Consent is a prior necessity to treatment. That is a well-known and accepted standard practice. That is why we sign consent forms with patients before surgery, before interventional procedures and before we initiate anything other than the most basic investigation.

There is, however, an exception to the rule. This is where the circumstances are such that it is not feasible to get consent and yet it is necessary to take immediate action to save life or limb.

An example of such a situation would be an unconscious head injury patient with an epidural haematoma on CT scan when no relatives...

The author once listened to a talk delivered by a chief of a hospital department on quality management in his department. He was drawing the relevance of the components of the ISO 2000 requirements to his clinical situation and was illustrating to the audience how useful the analogy was in the re-engineering of processes in his department. One interesting issue was his comment on ‘contract making’ in relation to the obtaining of consent in the medical context.

It is thus enlightening to examine if obtaining consent is a form of contracting.

To proceed any further, the reader will be aware...

When the author started his career in medicine in the early 80s, his surgeon-mentors used to perform incidental surgeries. By that is meant surgical procedures done on patients which are not exactly indicated or necessary.

To cite an example, if a patient labelled pre-operatively as having a perforated appendix turns out on laparotomy to have a perforated peptic ulcer, the surgeon might think that leaving the unaffected appendix behind would cause diagnostic confusion in future abdominal emergencies and he therefore removes that as well.

Strictly speaking, what was indicated during that scenario was a procedure for the peptic ulcer and...

In the author’s early days in the 80s, patients were not always recruited into trials with their prior knowledge. Many went through treatment without being aware that they had assisted in a clinical study. A personal example which the author can cite is a study which involved the testing of antibiotics for the prevention of wound infection after operation. Patients in different arms of the study received different drugs according to a random design. However, in reality some of the junior doctors picked through slips repeatedly until they found one for the drug which they thought was the most efficacious....

Can patients withdraw their consent at the last moment?

There is no reason why not.

The basis of consent is a freewill agreement to something being done on one’s body so as to confer a restricted right on the doctor to perform that which is agreed. As a result, so long as the patient of his own freewill thinks otherwise and wants to retract that right, he is fully entitled to do so at any point in time.

Once a clear withdrawal of consent is made, the right to intervene is immediately stopped from that specific point on. The former...

Data protection and privacy have become very hot topics in the past few years and it is very important for members of the medical profession to grasp clearly the important concepts inherent in this area.

Privacy means the control of information revealing an individual or body. The concept without doubt is derived from the liberal-democratic cultures of the west where it is widely accepted that it is a basic human right to be left alone. Physical privacy refers to the freedom from intrusion into one’s physical space in general; informational privacy means the right to access and correct collected data...

There are two aspects in which this duty could be examined.

The medical practitioner enjoys special rights to learn about matters of patients which are in the realm of the private, personal sphere. This privilege arises out of necessity as a result of the doctor-patient relationship to enable accurate diagnosis and appropriate treatment. It is also a reflection of the trust and confidence inherent in the relationship due to its very nature. A psychiatrist may come to know about a patient’s secretive life. A physician might get to know about sensitive past medical history.

It is widely understood even to...

It was once a common practice for the ward staff to put in big letters on the front of patients’ folders the above ‘warning’ message. Is such a warning correct in the eyes of the law?

Basically the folder is indeed hospital property. It follows that you cannot read what is in my ‘diary’ without my permission. That sounds perfectly rational.

However, it is not to be forgotten that the information inside contains ‘data’ relating to an individual. It is collected, recorded and then filed and stored in a retrievable manner, identifiable and accessible in relation to the person concerned,...

It might appear at first sight obvious and straightforward that relatives are to be informed and kept updated of a patient’s condition. That is very often done by many doctors.

Have we ever asked the question whether this practice is right?

The majority of doctors as well as patients or their relatives undoubtedly don’t have a legal background and so the issue of talking to relatives about a patient’s medical condition is not often considered at all. Properly speaking, however, a medical practitioner should obtain the patient’s consent before the medical details of a patient are disclosed, even to the...

The Personal Data (Privacy) Ordinance (Chapter 486 of the Laws of Hong Kong) is a very important piece of statute, the provisions of which have far reaching consequences to everyone and most institutions in society. It also has direct and indirect bearings on the daily practice of all medical practitioners.

The following account is a brief summary of the essential features of the statute highlighting the salient features which the medical practitioner should be aware of.

Section 4 states that a data user shall not do an act, or engage in a practice, that contravenes the data protection principles stipulated...

Medical negligence is a term so often heard that it is easy to think that the two always go together. Actually, negligence is not something unique to the medical profession.

Medical negligence means negligence in relation to medical care. It is simply a special case of professional negligence. The word ‘professional’ does not necessarily mean only the traditionally regarded professionals such as the clergyman, the doctor or the lawyer. Any person who professes special skill in his particular trade is a professional. The word is construed widely.

A defendant who falls short of the standard of competence expected of a...

This is a test the courts in Hong Kong are using for deciding whether a doctor defendant is negligent. The origin of the test is the case of Dr. Koo v The Medical Council of Hong Kong 1988.

A medical practitioner was ordered by the Medical Council to be removed from the Register for 3 months on the grounds that he had been guilty of ‘misconduct in a professional respect’. The Hong Kong Court of Appeal was to decide if the Medical Council erred in making the judgment of what is ‘misconduct in a professional respect’.

The charge on which...

What does this term mean? Why do doctors need to know about the term?

No exaggeration. If you ask anyone in hospital management or colleagues involved with risk management issues such as those in the patient relations department, you will be surprised as to why everyone knows the term so well. Of course, the reader who is less restricted in his general knowledge might also have come across the term.

Briefly, vicarious liability refers to the liability owed by an employer to a claim arising as a result of his employee’s negligence or otherwise at work. In other words, the...

Every modern-day doctor is familiar to varying degrees with the issue of negligence. To recapitulate, negligence in a professional sense means breach of the standard duty of care expected for a reasonable average person in the trade, i.e. the practice of medicine. To be a claimable negligence, the plaintiff will also need to prove the existence of a duty in the first place, the breach, damage and a causal relationship between the breach and the damage suffered. In essence, one can roughly take it that the layman’s understanding is that simple negligence is carelessness.

This is perhaps all what most...

Doctors are highly educated intellectuals and are often proud of their achievements. This is what they rightly deserve. No doubt about that. The author’s personal experience with his colleagues and doctor friends therefore tells him that doctors are quite frequently of the view that, should there be a need for them to appear in court as a result of being sued, they are themselves the most able persons to explain and defend their case. Many would even think that they do not need to speak through the mouth of a lawyer.

There is, however, only some truth in this belief...

Doctors are mostly good natured and are kind and honest at heart. This is no surprise in view of their voluntary choice in taking up the profession and from their upbringing.

When things unfortunately turn out to be wrong or unexpected, doctors will have a tendency or urge to assume responsibility. There is nothing wrong with this. However, it is paramount to remember that one should never admit that there is wrong or fault on any party in making a humble response. This does not mean telling lies but it should be emphasised that whether someone is liable or not...

Causation is an interesting issue in the law and it is both necessary and interesting for the doctor to understand a little more of this topic.

Let us start with an example. X injured Y by hitting him. X would not have hit Y had Y not been drinking and become out of control. However, Y had hit X first because X took Y’s pocket money the month before. Y, on the other hand, would not have been so angry had he not been scolded bitterly by his mother that morning for his failure in his school test. Y failed...

There is a time limit by which a claim must be initiated or the liability will expire. The time limits for different claims are different and are dictated and found in the Limitation Ordinance, Chapter 347 of the Laws of Hong Kong. The most relevant for the medical practitioner is section 27 which governs personal injuries actions for damages for negligence, nuisance or breach of duty. ‘Personal injuries’ include any disease and any impairment of a person’s physical or mental condition, subsection 2.

Subsection 3 stipulates that such actions are not to be brought after the expiration of the period...

Why is it that we do not want to be involved in litigations? Maybe it is entrenched tradition. Maybe we do not understand much of the law as a layman to that field. Maybe we have better things to do. But a very real worry is often legal cost.

Legal cost means the money expenditure involved in litigation in relation to legal advice, investigation, preparation and representation. This is in turn divisible into retainer fees and expenses, and disbursements, and an estimate with costs on account is usually payable in advance. Besides the final bill, interim bills may also be...

A medical practitioner may be summoned to attend the court for various reasons.

The most common reason is to provide evidence of fact. This is the case of an Accident and Emergency Department doctor attending court to describe the nature of an injury or a doctor from an Orthopaedics Department to inform the court of the recovery during follow-up. A doctor may be summoned if he is a material witness for either the prosecution or the accused in a criminal prosecution, or as a witness in a civil litigation such as to describe in a probate dispute the mental capacity...

Young doctors are often involved in a court summons. This is because they are usually the first front-line person in charge of patients coming either to the Accident and Emergency or when patients are admitted into a hospital.

When a doctor is summoned to the court to give evidence of facts, they are in the strict sense not experts but ordinary fact witnesses. They are no different in this scenario from the man on the street who saw what happened. They are standing in the witness box merely to help the court to understand the facts in relation to the...

Doctors are well trained to perform examinations on patients. They are, however, not much trained, if at all, for cross-examination. Of course, doctors do not have to be able to cross-examine but it is preferable, at least, for them to understand what cross-examination is. This is because they might be subject to cross-examination at some time in their career and this is often, for the many who are caught unprepared, not only a difficult time but also an embarrassing experience.

What is meant by cross-examination? Cross-examination refers to the questioning process done by the opposite party’s lawyer after the examination-in-chief...

Doctors, particularly the more junior ones, are often required to write medical reports. Depending on the specialty in which one works, there can be at times quite a number lining up for completion before prescribed deadlines.

For a number of the medical reports written, a doctor may also be required in due course to attend the court in relation to the cases.

It is an often-asked question whether a doctor who has attended court should be entitled to receive the fees for attendance of court.

The answer here lies in the capacity in which one is attending the court.

If...

When a medical practitioner picks up the phone to find that he/she is being asked to act as an expert in a court case, often the following issues will arise:

Are you eligible to be an expert and to accept an offer of writing up an expert opinion?

Are you free to charge as much as you wish so long as the party requesting the report agrees?

Are you subject to liability for negligence as a result of writing an unsatisfactory report?

The requesting party might be a law firm, the police, or the Legal Aid Department, etc, and will...

A close colleague of the author once jokingly offered to pay the author one dollar to read a letter the colleague was about to send out, which, according to him, was to be ‘without prejudice’. His assumption was that that act would give the contents of his letter privilege by establishing a lawyer-client relationship between himself and the author.

Total mistake! Not only was the author not a registered practising solicitor, the court looks at the substance of things rather than mere procedures and, in any event, it is not a matter of whether a lawyer is involved but whether...

This is an illustration of the complexities of the law and its procedures and serves as a warning to doctors not to overlook the importance of legal advice.

Litigants are often unaware of the significance of legal advice, preparation and representation. Costs of legal service are very often very high and, not uncommonly, can exceed the amount of compensation sought.

Security for costs means payment by order of the court as security for anticipated costs in legal proceedings when the court has reasonable grounds to believe that a litigant is unlikely to be able to pay the same if the...

We read or hear about Medical Council judgments every now and then and we also hear about court decisions. Which cases are which? How is it determined which case belongs to which body?

This requires an explanation of the role of the Medical Council.

The Hong Kong Medical Council is established under the Medical Registration Ordinance, Chapter 161 of the Laws of Hong Kong. The Council’s functions cover the registration of medical practitioners, the conduct of the Licensing Examination and the maintenance of ethics, professional standards and discipline in the profession. The latter is detailed in the Code of Professional...

The Medical Council of Hong Kong is a statutory body under the Medical Registration Ordinance, Chapter 161 of the Laws of Hong Kong, established for the purpose of regulating the professional conduct of registered medical practitioners in Hong Kong. As stated on its web page, it was founded to ‘to assure and promote quality in the medical profession in order to protect patients, foster ethical conduct, and develop and maintain high professional standards’.

Its functions include:

Registration of medical practitioners and maintenance of the list of medical practitioners;

Maintenance of the list of quotable qualifications;

Licensing matters including the licentiate...

The natural reaction for a careful medical practitioner would be what offences would the Medical Council look at? Certainly not every little offence matter or we all have to start worrying.

‘Conviction of an offence punishable with imprisonment’ is the criterion under Part II of the 1994 Professional Code and Conduct. In the 2009 Code of Professional Conduct, this is under Section H, ‘Criminal Conviction and Disciplinary Proceedings’.

‘Punishable’ implies that an offender is caught by the rule even if he is not actually taken into prison, such as when he is not so sentenced or merely given a...

Also referred to as ‘misconduct in a professional respect’, the term ‘professional misconduct’ has been defined by the Medical Council of Hong Kong in the 1994 Professional Code and Conduct as:

‘If a medical practitioner in the pursuit of his profession has done something which will be reasonably regarded as disgraceful, unethical or dishonourable by his professional colleagues of good repute and competency, then it is open to the Medical Council of Hong Kong, if that be shown, to say that he has been guilty of professional misconduct.’

We are fortunate now to have, since January 2009, the new revised...

This is an area of serious conflict and, very often, embarrassment.

The Declaration of Geneva says, ‘… my colleagues will be my brothers…’. In The International Code of Medical Ethics, we have, ‘A physician shall behave towards colleagues as he/she would have them behave towards him/her.’

At the same time, under The International Code of Medical Ethics, a physician shall ‘respect the local and national codes of ethics’, he shall also ‘deal honestly with patients and colleagues, and report to the appropriate authorities those physicians who practice unethically or incompetently or who engage in fraud or deception’. Further, under The...

In 2007, the British Medical Association and the Royal College of Nursing issued a joint set of guidelines on decision-making relating to cardio-pulmonary resuscitation (CPR).

The guidelines emphasise that:

an informed, non-coerced, advance directive must be respected;

in the absence of such, the presumption should be in favour of attempting resuscitation;

views of the relatives of incompetent adults must be taken into account but their role is not to take decisions on behalf of the patient;

adequate documentation of the decisions must be made including how they were reached;

non-treatment decisions in the incapacitated should normally be taken by health...

A person may have preferences as to what he would like to have done to his body by medical practitioners when he is no longer able to indicate those wishes in the terminal stages of his illness. A colleague of the author used to stress that he would not want needles and puncture holes in his heart and young energetic doctors fracturing his ribs before he was allowed to die.

Can one ensure his ‘will’ in such a context?

Two terms are becoming important to the medical practitioner. Substitute decision-making refers to decisions as to medical treatment being made on...

Euthanasia refers to the premature termination of life for the purposes of a ‘better death’. Up to the present, the law in both the United Kingdom and in Hong Kong does not allow euthanasia. The basis of this of course lies in the fundamental respect for human life and the profession’s role to help rather than to destroy.

Euthanasia can be voluntary or involuntary. Where a terminally ill patient specifically requests that his life be ended, it is voluntary euthanasia. Non-voluntary euthanasia involves the avoidance of undue suffering of someone who can no longer express any views and whose position...

This is an often confused topic and it is important to a cautious medical practitioner to be quite clear what quality of death is and what euthanasia is.

Euthanasia is medical assistance in the peaceful passing away of a patient in terminal illness where death is inevitable. It may be active, which is illegal in most parts of the world as yet, or, passive, meaning withholding necessary treatment usually in the form of vital support like hydration, nutriment, or ventilatory assistance.

Quality of death is a totally different issue. By this term we mean the maintenance of a reasonable or...

The term medical futility may not be new to the up-to-date reader but it was certainly not a widely discussed topic until a decade or so ago. Obviously there are a lot of controversies about many aspects of the concept and the author is not attempting to resolve them or to take sides in this discussion. One sure observation is that the medical practitioner is no longer to be regarded as an instrument of healing without at the same time exercising judgment. There exists a line beyond which we should acknowledge our limitations and wave the white flag.

Medical futility...

Doctors who have been practising for some time will say that postmortem examination can be in two forms: the clinical post-mortem and the coroner’s post-mortem.

This is actually somewhat a misconception of the situation. More accurately speaking, a post-mortem is an autopsy requested by the attending doctor of the deceased who wishes to understand more of the death of the latter by further examination of the dead body. A referral to the coroner, on the other hand, is a duty imposed by law under the Coroners Ordinance, Chapter 504 of the Laws of Hong Kong.

The indications for a referral...

Assuming that the reader is a medical practitioner, have you ever thought about this question? Or in the event that the reader is not a medical practitioner, what would you expect in that respect of a doctor?

The author considers that the patient is the centre of a wide scope comprising various stakeholders to whom a doctor has a duty of responsibility. In no order of importance, these are:

The government – in terms of the provision of health care services

The hospital – as an employee of that institution

The patient – inherent and central in the doctor-patient relationship

The public – as...

It might easily appear to an ordinary person that what is moral must be legal and vice versa, because they are both inclined towards the good side of things.

In reality, this is not absolutely the case.

It might be interesting to cite the example of a real incident. A man owning a transport business suffered a severe attack of angina and collapsed. He was driven in a truck by his son and business partner to a nearby hospital. They knew how to get to the hospital but because of the size of their vehicle they went to the main...

It is increasingly common to come across the term ‘good medical practice’ these days and guidelines for what constitutes good medical practice are regularly issued by authoritative professional bodies such as the General Medical Council.

It may be useful to be clear in one’s mind the purpose for stating what is good medical practice. Good practice is, as its name suggests, what is regarded as good in medical practice. To be ‘good’ often actually implies a degree of ‘better’ practice in the presence of alternative ways of doing things.

Many a time good practice incorporates what is legally required. Indeed,...

The author can still recall vividly one occasion when he was a medical student attending a forensic medicine lecture. When the lecture was over, the lecturer remained to chat with the class.

The lecturer was telling us students never to stop if driving by a road accident and not to be heroic in going out to help, proclaiming that you are a doctor coming to give assistance. His rationale was that since equipment would be lacking and help nowhere about there would be no guarantee of being able to do an adequate job. One thus exposes oneself unnecessarily to potential...

With so many rules and regulations, items of codes of practice, guidelines, standing orders, good practice, ethics and the law, are we bound hand and foot?

Why should we, as professional people, submit to all these restrictions and strictures?

Is there any infringement on the grounds of our inalienable fundamental human rights?

Is the autonomy of the profession being trampled upon?

Are there justifications for these interventionist sanctions?

The answer is to be found in the well-known ‘excuse’, the ‘public interest’, i.e. that the need is there all because the interests of the public require it.

Why? The medical profession...

Managed care refers to health care delivery systems that contractually link employers and patients with medical services provider organisations. They often strive to achieve cost-containment through education and prevention and control measures geared at the primary care level. The managed care system has become more important as a model of health care delivery as a result of escalating medical costs over the past few decades.

Because medical treatments are sanctioned, and incentives or penalties are employed by health plan managers to influence medical services utilisation, a potential conflict exists in relation to the duty of care of providers towards patients...

When it comes to difficult situations when a medical practitioner is faced with issues of ethical concern, it often puzzles even the somewhat experienced as to what the most appropriate course of action should be.

What follows is the general outline of an approach which may be worth adopting.

Further patient counselling – Talk repeatedly, taking time, employing different members of the medical team, perhaps with the more experienced ones, to seek consensus, if the patient is mentally competent. Help the patient to balance the risks and the benefits in his circumstances to make the most appropriate decision in his interests....

This is another true story.

A lady in her 40s came into the out-patient clinic of a public hospital for a follow-up after having had cosmetic laser treatment on her face for syringoma a year before. The latter is a skin condition affecting the eyelids where subtle nodular lesions appear as a result of sweat duct swelling. It is very common in middle-aged ladies.

Without wasting a second, she came straight to the point, ‘Doctor, it didn’t work at all.’

The doctor, a consultant who was experienced in cosmetic laser treatment but a newcomer to the hospital, looked at the...

In the Legislative Council meeting on 14 January 2009, a ‘motion not intended to have legislative effect’ was passed concerning the medical and health care profession. The title of the motion was ‘Establishing an independent statutory office of the Health Service Ombudsman’.

First of all, what is a ‘motion not intended to have legislative effect’? The Legislative Council Rules of Procedure have the following:

‘Through debating motions which are not intended to have legislative effect, Members express their views on issues of public concern or call on the Government to take certain actions. Members may also move motions for the...