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