In the recent case of Chairman and Deputy Chairman of the Preliminary Investigation Committee of the Medical Council of Hong Kong v Hospital Authority,(1) the High Court dismissed proceedings commenced by the chair and deputy chair (collectively, the chair) seeking to compel the Hospital Authority to disclose confidential patient records in connection with professional disciplinary proceedings. In a robust decision, the High Court judge found that the chair did not have the statutory power to compel the Hospital Authority to disclose the patient records. The decision serves as a good reminder of the tension that exists between the competing interests of preserving client (or patient) privacy rights and the necessity and public interest in the proper administration of professional disciplinary proceedings.
The proceedings arose out of two separate complaints of professional misconduct against registered medical practitioners made to the Hong Kong Medical Council under the Medical Registration Ordinance (Cap 161) and the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (Cap 161E).
Both complaints were at the first-tier stage of the three-tier disciplinary scheme for handling complaints under the ordinance. The chair, as the first-tier screener, was carrying out an initial assessment of the complaints to determine whether they:
- were groundless or frivolous and should be dismissed; or
- should be referred to the preliminary investigation committee for full consideration.(2)
The chair was hampered in his screening of the complaints by a lack of information relating to the underlying incidents. He instructed the Hong Kong Medical Council's secretary to seek further information and documents from the Hospital Authority with the relevant patient's consent. However, the patient's consent was not forthcoming (with one patient having passed away). The Hospital Authority rejected the request on the basis of doctor-patient confidentiality and the chair's lack of statutory power to require access to the information and documents.
The chair commenced proceedings seeking the documents and a mandatory injunction ordering the Hospital Authority to produce them for inspection. The grounds relied upon by the chair were as follows:
- the documents were necessary to enable him to perform his statutory duties in handling the complaints;
- there is strong public interest in the proper administration of professional disciplinary proceedings, which outweighs the confidentiality of patients save in exceptional cases;
- the chair had power at common law to compel the Hospital Authority to provide the documents in the absence of patient consent;
- the chair had power under Section 40(1) of the Interpretation and General Clauses Ordinance (Cap 1) to compel the Hospital Authority to provide documents "reasonably necessary" to enable the carrying out of his statutory functions; and
- the Hospital Authority's disclosure of the documents would not breach patient confidentiality and privacy because the exemption under Section 58(2) of the Personal Data (Privacy) Ordinance (Cap 486) applies to the use of personal data for the Hong Kong Medical Council's disciplinary proceedings.
The Hospital Authority resisted production on the following grounds:
- the right to privacy is guaranteed by the Bill of Rights Ordinance (Cap 383). The Hospital Authority cannot provide documents without patient consent in breach of this constitutional right;
- on a proper construction of the Medical Registration Ordinance and Medical Practitioners (Registration and Disciplinary Procedure) Regulation, even the full Hong Kong Medical Council has no power to compel the production of documents prior to an inquiry under the ordinance; and
- even if the exemption under Section 58(2) of the Personal Data (Privacy) Ordinance were to apply, that would not give rise to a legal obligation on the Hospital Authority to provide the documents to the chair.
In reaching its decision, the court considered the constitutional right to privacy and the chair's statutory powers.
Article 14 of the Bill of Rights Ordinance provides there should be no unlawful or arbitrary interference with a person's privacy. However, the court recognised this right is not absolute and that a tension exists between:
- a patient's right to privacy; and
- the need to protect the public from incompetent or unfit practitioners(3) and the high public interest in the proper administration of professional disciplinary hearings.(4)
Accordingly, a balance must be struck between these competing interests to see if there is a compelling public interest for disclosure which would also satisfy the criteria of necessity and proportionality.
The court found there was no question that the documents sought were necessary to enable the chair to discharge his statutory functions, but that the Hospital Authority owed a positive duty of confidentiality to protect a patient's personal information.(5) The question was whether the chair had the power to compel disclosure.
Following an analysis of the relevant provisions under the Medical Registration Ordinance and the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, the court concluded that the chair and the preliminary investigation committee had limited investigatory powers, which did not include the ability to compel disclosure. The plain legislative intention was that the power to summon witnesses and compel disclosure arises only after a case is referred by the preliminary investigation committee to the Hong Kong Medical Council for inquiry.
While the court accepted that the chair required the documents to carry out his function and that there was a strong public interest in the proper administration of professional disciplinary proceedings, this alone could not justify disclosure. The governing legislation did not provide the chair with the power to request the documents.
The chair's reliance on the common law was subject to the same considerations and was akin to seeking a Norwich Pharmacal order without having to satisfy the relevant threshold test. Further, the reliance placed on Section 40(1) of the Interpretation and General Clauses Ordinance did not assist the chair, as without the necessary statutory power to request documents, such a power could not be "reasonably implied" to override the legislative intent and enable him to perform his statutory functions.
Finally, the exemption under Section 58(2) of the Personal Data (Privacy) Ordinance did not apply as it was relevant only to the use of personal data already in the chair's possession.
The court dismissed the proceedings accordingly.
The outcome of this case is likely to be of interest and relevance with respect to disciplinary investigations in other professions.
Documents generated during the provision of professional services will often contain confidential client or patient information. Obtaining consent to use these documents in professional disciplinary proceedings (although not always observed) is not inevitably problematic. Clients and patients may want to see disciplinary proceedings pursued where there is a complaint relating to the professional services that they have received. Their personal information can be masked or anonymised to address confidentiality concerns.
However, where consent is not obtained and the issue of disclosure comes before a court, it will be necessary to balance the competing interests of client or patient privacy against those of necessity and the public interest in the proper administration of professional disciplinary proceedings.
In this decision, the court determined – following its analysis of the relevant provisions in the legislation – that the chair did not have the necessary power to compel disclosure of confidential patient records from the Hospital Authority. While the legislative intention no doubt reflects the importance of individual privacy rights, it imposes significant restrictions on the ability to pursue a complaint through the disciplinary system where the patient's consent to use the documents is not obtained.
As a result, the doctor involved in the first complaint might conceivably count him or herself fortunate that the chair was unable to pursue the disciplinary complaint further. At the time of the first complaint, the media reported that:
- the hospital concerned had allegedly substantiated the complaint;
- an apology had been issued to the patient; and
- follow-up action had been taken against the doctor.
It would have been interesting to see what decision the court might have reached had a full consideration of the tension between the patients' privacy rights and those of necessity and the public interest been required. It seems likely that the chair's delay in the application to the court (which was criticised in strong terms by the court)(6) might have been a factor in the court's balancing of the competing interests.
For further information on this topic please contact Michael Maguiness or David Smyth at RPC by telephone (+852 2216 7000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
Endnotes
(1) [2018] HKCFI 843 in respect of actions HCMP 2745/2016 and HCMP 2747/2016. At the time of writing, there does not appear to be a notice of appeal (based on publicly available sources).
(2) The second stage in the process, with the third stage being a full hearing of the complaint by the Hong Kong Medical Council.
(3) Dr Li Wang Pong Franklin v Medical Council [2009] 1 HKC 352 at paras 41 and 42.
(4) A Health Authority v X (No 1) [2002] 2 All ER 780 at para 19.
(5) The obligation arguably survives the death of the patient as it is one of conscience, not property: Lewis v Secretary of State for Health [2008] EWHC 2196 (QB) at paras 18 to 30.
(6) Paragraph 95 of the decision. The delay is described as "appalling", albeit not such that it affected the court's ruling on matters of principle.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
