Tracy Cheung, MPS panel lawyer and Counsel at Kennedys, Hong Kong, assesses the latest round of proposals to reform complaints handling at the Medical Council of Hong Kong
A recent case sparked public outcry and intense criticism against the Medical Council of Hong Kong (MCHK) for its handling and processing of complaints and perceived protectionism. In this article, we examine some of the challenges faced by the MCHK and what has been done to address the criticisms made against them.
The MCHK was thrust into the spotlight following the well-publicised case of the nine-year wait to find an obstetrician guilty of four charges of professional misconduct, barring her from practising for two years for her management of a celebrity and her baby, who died shortly after birth back in 2005.
The media seized on the heart-wrenching story of the struggles by the celebrity couple over the years to pursue the complaint, following the MCHK’s initial dismissal of the complaint on the ground that infant mortality was common. The matter was only referred to a full inquiry before the MCHK after a second complaint was filed in 2009, supported by an expert report obtained from the civil claim against the doctors.
On the rise
To put things into perspective, it must be recognised that the number of complaints received by the MCHK in the last decade has almost doubled from 236 in 2001 to 452 in 2013. More than half of the complaints received fall into the category of disregard of professional responsibility. The public’s growing concern for patient safety, and their subsequent readiness to lodge complaints against the medical profession, comes against a backdrop of increased demands for quality healthcare services and a shortage of doctors. These factors contribute towards rising numbers of complaints and, unfortunately, this trend is likely to continue unless appropriate measures are implemented.
The need for reform is nothing new
To be fair, the MCHK has long recognised the need for reform. A Working Group on the Reform of the Council was established back in May 2001, chaired by its former chairperson, Professor Felice Lieh-Mak, to make proposals to reform the MCHK. This was with a view to restoring public confidence and satisfying public expectations for more transparency, accountability and fairness.
The MCHK proposed a reform plan to the government in 2002, which included recommendations to add four more lay Council members (increasing them to eight). The reform plan was circulated among various government departments. However, it did not go to the Legislative Council for a Bill to pass to enact the legislative amendments required to implement the reform proposals.
The current chairman, Professor Joseph Lau Wan Yee, has made another attempt. A dedicated taskforce was set up to explore and recommend proposals to address the shortcomings of the MCHK, and address the recent public outcry.
The MCHK accepted the proposals of the taskforce and Professor Lau submitted proposed reforms to the Food and Health Bureau (FHB) in June 2014. The proposed reforms include:
- Cutting ten months off the time to set up a hearing of a complaint against a doctor (average waiting time is 38-40 months)
- Shortening the time allowed for lawyers and expert witnesses to prepare papers from three months to one month
- Increasing the MCHK’s inquiries from two to four days
- Increasing the number of lay people on its Panel of Assessors from four to 14.
Cutting down the waiting time
Figures released show an average waiting time of 38 to 40 months to set up a hearing of a complaint before the MCHK, after referral by the Preliminary Investigation Committee. In practice, the process can take longer depending on the complexity of the issues involved.
This proposal would certainly be welcomed by practitioners. From our discussions with practitioners, many feel the worst aspect of the experience is not the complaint itself and prospect of appearing before the MCHK, but the waiting period, which can be for many years.
Shortening the time for preparation
Although this may seem like a reasonable proposal, in practice this is neither feasible nor practicable. The complexity of the issues in many cases involving professional misconduct requires careful preparation. Coupled with the MCHK’s wide powers over the conduct of the inquiry, to make amendments to the charges means that it is of utmost importance that defendants’ solicitors/counsel and experts are allowed adequate time to prepare the defence case, so that defendants are not prejudiced in having a fair hearing by lack of preparation time. This is particularly so in face of the severity of the sanctions they face if found guilty of professional misconduct – which is having their names removed from the register.
Setting aside more time
This is a sensible proposal as many hearings involving professional conduct very often overrun. The MCHK then has to continue the hearing over weekends, as many Council members are full-time practitioners. This also highlights the need for more resources to process and hear the rising number of inquiries.
Increasing the number of lay people
We consider this is a sensible proposal to achieve a more objective and representative panel to take the public interest into account. This can be seen in the composition of the General Medical Council, which is the independent regulator of doctors in the UK, where half of the 12 members are doctors and half are lay people. The rationale for that balance is to ensure that public concerns are effectively reflected in the regulatory body.
Arguably, lay people may not have the medical background and technical expertise to fully appreciate some aspects of the allegations of professional misconduct from a clinical point of view. However, the benefits of increasing the number of lay members outweigh the negatives. It would certainly help to address criticism that the MCHK is overtly protecting the profession, and would ease the workload on existing members and improve accountability, as well as making the disciplinary process more efficient.
What lies ahead?
The call for reform of the MCHK is, in fact, nothing new. With increasing complaints and public distrust in the medical profession, there is, however, a definite and immediate need for reform. We welcome reports out in July 2014 that the government has approved the reforms to the MCHK in principle, and aims to table the reform proposal to the Legislative Council within the year. A spokesman for the FHB announced they were actively considering the proposal to increase the number of lay assessors in August 2014. How long it will take for the Bill to be passed is another story, but these are positive signs.
Whilst the implementation of these reforms will go some way towards addressing some of the shortcomings of the MCHK’s regulatory system, by reducing delays, improving efficiency and reducing costs, there is a clear need to also address the long-term problems faced by the profession and healthcare system. The shortage of medical professionals, healthcare workers and resources in this sector must be addressed by the MCHK and the government, as these contribute towards the rising number of complaints.
There is a clear need to restore the public’s confidence in the medical profession and healthcare systems. We wait to see whether this time round the reforms will be accepted. Hopefully we will see progress soon.