Constitutional Law Readings 16/09/2010
Dr. Kwok-Hay Kwong v The Medical Council of Hong Kong
Facts:
Applicant: medical practitioner
Sought in judicial review proceedings to challenge certain
restrictions contained in the Professional Code and Conduct for
the Guidance of Registered Medical Practitioners as being
contrary to the freedom of expression guaranteed under the
Basic Law, the ICCPR and the Bills of Rights contained in the
Hong Kong Bill of Rights Ordinance, Cap. 383
The Applicant’s intention is merely to provide the public in more
media forms with the same accurate and basic information to
which the public now has access and which is expressly
permitted under the Code, also to remove unreasonable
restrictions on freedom of speech
The Medical Council recognizes that the public is entitled to be
provided with relevant information abut 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
There are four restrictions found in the Code:
o The medium of information
o The number of services
A doctor is limited to a maximum of five items in
relation to the medical services provided in and out
of their surgeries and the medical procedures and
operations they perform
o Educational vehicles
A doctor would fall foul of the prohibition against
advertising almost every time he referred to his
personal experience, skills, qualifications or
reputation
o Individual responsibility for organization advertising
Concern the relationship between doctors and
organizations e.g. private hospitals
Issue:
The basic legal issue for the court to resolve becomes whether
the dividing line between what is acceptable and what is not
(these being the restrictions maintained by the Respondent) is
constitutionally justified.
Decision:
The Court of Appeal dismissed the appeal of the Medical Council.
Certain restrictions contained in the Code were ruled contrary to
the freedom of expression, which included the right to advertise,
guaranteed under the Basic Law etc.
Reasons:
Regarding the first restriction
o If it is accepted that such basic and objectively verifiable
information benefits the public by enabling informed
choices to be made, then surely making the same
information more accessible to more members of the public
must be acceptable?
o The first restriction is not constitutionally justifiable
o There must be less intrusive means of dealing with the
concerns of the Respondent other than a total ban
Regarding the second restriction
o The restriction cannot be justified
o There is no sense or logic in a doctor being restricted to
just five items when he or she can, legitimately and
accurately, point to more.
o There is simply no good reason for interfering with the
freedom of expression by imposing a limit of 5 items
Regarding the third restriction
o The restriction is not justifiable
o 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.
o The wording of the paragraphs mentioned above goes too
war and constitutes a disproportionate response
Regarding the fourth restriction
o The last sentence of paragraph 14.1.1 of the Code imposes
strict liability for the defaults of an organization even where
a doctor has taken all due diligence to ensure that the
Code’s rules on advertising are followed by an organization
o The imposition of strict liability in these circumstances is
another disproportionate response to dealing with
unacceptable practice promotion
15/09/2010 19:27
15/09/2010 19:27