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Constitutional Law Readings

9/15/2010 3:27:00 AM

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 Applicants 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 Codes 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

9/15/2010 3:27:00 AM

9/15/2010 3:27:00 AM