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CACV 373/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 373 OF 2006
(ON APPEAL FROM HCAL NO. 46 OF 2006)
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BETWEEN
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Dr. KWOK-HAY KWONG |
Applicant |
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and |
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THE MEDICAL COUNCIL OF HONG KONG |
Respondent |
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Before : Hon Ma CJHC, Tang VP & Stock JA in Court
Dates of Hearing : 24 and 25 October 2007
Date of Handing Down Judgment : 24 January 2008
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J U D G M E N T
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Hon Ma CJHC :
1. The present appeal raises important issues for the medical profession in relation to practice promotion (that is, advertising). The Applicant, a medical practitioner (formerly the Assistant Medical Superintendent of the Hong Kong Sanatorium and Hospital and whose position mirrors that of the Hospital and many other doctors in Hong Kong), has sought in these judicial review proceedings to challenge certain restrictions contained in the Professional Code and Conduct for the Guidance of Registered Medical Practitioners, as updated from time to time, (“the Code”) as being contrary to the freedom of expression guaranteed under the Basic Law, the International Covenant on Civil and Political Rights (“the ICCPR”) and the Bill of Rights contained in the Hong Kong Bill of Rights Ordinance, Cap. 383. The freedom of expression includes as one of its facets the right to advertise.
2. For its part, the Respondent (the Medical Council) has maintained in the relevant decisions in these proceedings that the restrictions are consistent with the said constitutional right and are considered by a Medical Council (as the governing body for doctors) to be appropriate. This considered view, says the Respondent, ought to be given due respect by the courts. However, as will presently be seen, the Respondent has in this appeal somewhat retreated in its stance in at least one respect.
3. Both parties rely on the public interest to justify their positions. Essentially, while the Respondent recognizes that the public is entitled to be provided with relevant information about doctors to enable informed choices to be made by patients, it is anxious that practice promotion should not be permitted to reach a stage where commercialism takes over at the expense of public confidence and trust in the medical profession or, worse still, gives rise to the exploitation or manipulation of the sick and the vulnerable. For its part, the Applicant is not advocating a free for all in terms of practice promotion for doctors. Far from it, the intention is merely to provide the public in more media forms with the same information to which the public now has access and which is expressly permitted under the Code, and also to remove unreasonable restrictions on the freedom of speech. The basic legal issue for the court to resolve in these proceedings becomes whether the dividing line between what is acceptable and what is not (these being the restrictions maintained by the Respondent) is constitutionally justified.
4. Before going into the issues that still divide the parties, it is right to point out that the evidence before this court has changed substantially from the position that prevailed before Reyes J in the court below. The evidence on appeal, substantial in both content and volume, provides for the first time the thinking and reasoning behind the Respondent’s decision to maintain the restrictions. In an earlier judgment on 5 September 2007 (the Reasons for Judgment were handed down on 27 September 2007), this court had given leave to the Respondent to adduce this evidence for the purposes of the appeal.
The Restrictions
5. There are four restrictions under challenge in the present proceedings. All are found in the Code. These restrictions mark the four issues which divide the parties in this appeal.
The first restriction : the medium of information
6. In the course of counsel’s arguments, it became clear that this was the main issue on appeal. At present, certain basic information about doctors (name, address, qualifications, specialities, consultation hours, languages spoken and telephone and fax numbers) may be notified to the public on signboards or service information notices outside medical surgeries, stationery, telephone directories, doctor’s directories and medical practice websites. In the case of doctor’s directories, websites and service information notices, fee schedules are also permitted. This is the effect of paragraph 5 and Appendices E and F of the Code.
7. The Applicant’s complaint is that doctors are, however, forbidden from providing the same information to the public if such appears in newspapers, magazines or other print media. The only occasion permitted under the Code when doctors are able to advertise in newspapers (but not any other form of print media) is to announce the commencement of practice or changes in the conditions of practice (meaning changes in address, telephone number, partnership details etc.) Mr David Pannick QC (for the Applicant) has emphasized that the information which his client wishes to be able to advertise is information that is accurate and basic. There is no question or danger of any misleading or potentially misleading information being provided to the public; the Applicant seeks only to be able to provide to the public in newspapers, magazines and other printed media the same information as is currently available (and sanctioned by the Respondent to be made available) to the public.
8. It is important to bear in mind that this was the limit of the Applicant’s challenge on this ground. He does not in these proceedings seek to advance any argument to the effect that doctors should be allowed to promote themselves by providing material that is not accurate, basic or objectively verifiable.
The second restriction : the number of services
9. At present, doctors are permitted to inform the public (limited of course by the methods of doing so referred to above) of the medical services they provide in and out of their surgeries (or ‘offices’ as they are known in the Code) and the medical procedures and operations they perform. However, in relation to each of these aspects, a doctor is limited to a maximum of five items : - see paragraphs 5.2.3.5 (practice websites), 5.2.3.6 (service information notices), 5.2.3.7 (doctors directories) and Appendices E and F of the Code. In other words, a maximum of five items can be identified for each of the medical services provided in surgeries, medical services provided outside surgeries, and medical procedures and operations – a maximum, as the Respondent has reminded the court, of 15 items. The Applicant’s complaint is simply to question the restriction to five items for each of the three aspects : his case is that there is no logic or justification to restrict the numbers in this way.
The third restriction : educational vehicles
10. This issue involves the aspect of public health education, which it is accepted by both parties should be encouraged. Paragraphs 5.1 and 5.2 of the Code state : -
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5. |
Books, lectures, mass media appearances, electronic publications |
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5.1 |
Doctors in their capacity as registered medical practitioners may give public lectures, participate in radio or television programmes, or publish in print or electronically for the fulfilment of public health education. Doctors’ full names, identifiable photographs, together with the specialist title, qualifications, and appointments approved by the Council, may be used. However, doctors should ensure that reference is not made to the doctor’s experience, skills and reputation, or practice, in a manner which can be construed as promotional.
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5.2. |
Doctors should ensure the material in whatever form does not imply that he is especially recommended for patients to consult.” |
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(emphasis added) |
11. The complaint was that the highlighted words of paragraph 5.1 rendered it virtually impossible for a doctor to reveal details of (in particular) his experience, skills, qualifications and reputation without falling foul of the prohibition on practice promotion in that paragraph. This is particularly so given the broad definition of “practice promotion” contained in section 5.2.2 of the Code (as updated in March 2006) : -
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5.2.2 |
Practice promotion |
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5.2.2.1 |
Practice promotion means publicity for promoting the professional services of a doctor, his practice or his group, excluding communication with registered medical and dental practitioners, Chinese medicine practitioners, chiropractors, nurses, midwives, pharmacists, medical laboratory technologists, radiographers, physiotherapists, occupational therapists and optometrists. Practice promotion in this context will be interpreted by the Medical Council in its broadest sense, and includes any means by which a doctor or his practice is publicized, in Hong Kong or elsewhere, by himself or anybody acting on his behalf or with his forbearance (including the failure to take adequate steps to prevent such publicity in circumstances which would call for caution), which objectively speaking constitutes promotion of his professional services, irrespective of whether he actually benefits from such publicity.” |
12. This issue can in a sense be said to be academic in that it is clear from the Respondent’s evidence now before the court that the highlighted words will in due course be deleted. There appears to be an amendment that the Respondent has in mind. In the first affidavit of Dr David Fang (the Chairman of the Ethics Committee of the Respondent), it is said that as part of the Respondent’s continuing review process of the Code, it was proposed on 5 October...
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