Case Commentary

Privacy Law — Medical Council’s preliminary investigation committee not able to compel disclosure of medical records, Court of Appeal holds

Given the Chairman’s limited function of conducting a preliminary assessment rather than a full inquiry, the Court of Appeal held that there is no reasonable necessity for him to be endowed to compel medical records from the Hospital Authority when screening complaints.

Chairman and Deputy Chairman of the Preliminary Investigation Committee of the Medical Council of Hong Kong v. Hospital Authority

Reference: CACV184 & 185/2018; [2021] HKCA 1793
Court:        Court of Appeal
Before: Hon Kwan VP, Barma JA and Au JA in Court
Appearance: Tim Parker appeared for the Hospital Authority (led by Abraham Chan SC and with Kim McCoy), instructed by Mayer Brown
Date of Decision:   1 December 2021


The Chairman of the Preliminary Investigation Committee (“PIC”) of the Medical Council of Hong Kong performs the role of screening out groundless or frivolous complaints against medical practitioners. After the Hospital Authority (“HA”) denied the Chairman’s request for further information related to two complaints, the Chairman and Deputy Chairman of the PIC applied unsuccessfully for a mandatory injunction to compel the HA to disclose the requested information.  

On appeal, the Court of Appeal held that, given the Chairman’s limited function of conducting a preliminary assessment rather than a full inquiry, there is no reasonable necessity for him to be endowed to compel medical records from the HA when screening complaints.


The Plaintiffs are respectively the Chairman and Deputy Chairman of the Preliminary Investigation Committee (“the PIC”) of the Medical Council of Hong Kong (“the Council”).

Three-stage complaints handling process

Under section 21 of the Medical Registration Ordinance (Cap 161) (“the MRO”), the Council is vested with disciplinary jurisdiction over registered medical practitioners in Hong Kong.

The MRO, together with the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (Cap 161E) (“the Regulation”), sets out a three-stage process for handling complaints against registered medical practitioners. In essence:

• All complaints are first submitted to the Chairman or the Deputy Chairman of the PIC, who assess whether the complaint is groundless or frivolous and ought not proceed further.

• Complaints which are not screened out by the Chairman in the first stage will be referred to the PIC for consideration.

• If the PIC considers that there is a prima facie case of professional misconduct against the medical practitioner, it may refer the complaint to the Council for consideration on the merits. An inquiry may be held, and disciplinary sanctions may be imposed on medical practitioners who are found guilty of professional misconduct.

At the first stage, the Chairman is empowered by section 8(1) of the Regulation to require a complainant to set out the specific allegations in writing, provide clarifications, or support the allegations by way of a statutory declaration.

Chairman’s requests for further information

The Chairman received complaints concerning the treatment of two patients in hospitals managed by the Hospital Authority (“the HA”). The complaints were lodged respectively by an anonymous group of healthcare workers and a hospital laboratory employee.

In both cases, the Chairman thought that he did not have sufficient materials to fairly decide whether the complaints were frivolous and groundless. He sought further information from the HA and suggested that the patients’ personal information – if mentioned in the report – could be masked or anonymised for confidentiality considerations.

The HA rejected the Chairman’s requests, citing doctor/patient confidentiality and a lack of power on the Chairman’s part to require access to such information and documents. The Plaintiffs therefore applied to the High Court for a mandatory injunction compelling the HA to produce certain documents related to the treatment of those two patients.

Decision of the Court of First Instance

Au-Yeung J dismissed the applications, holding that the Chairman is not empowered by the statutory scheme to compel the disclosure of the records, and nor does the Court have any common law power to order disclosure to the Chairman.

Notwithstanding the need for the requested documents and the strong public interest in the proper administration of disciplinary proceedings, the Court took the view that compelling the production of documents would be an unlawful interference with the patients’ right to privacy under Article 14 of the Hong Kong Bill of Rights. The Plaintiffs appealed.

Ruling of the Court of Appeal

Section 40(1) of the Interpretation and General Clauses Ordinance (Cap 1) (“IGCO”) provides that:

Where any Ordinance confers upon any person power to do or enforce the doing of any act or thing, all such powers shall be deemed to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.

Having regard to this provision, the Court of Appeal began its analysis by holding that the standard to be applied is that of reasonable necessity. In other words, the issue is whether it is reasonably necessary for the Chairman to have the power to compel the production of documents sought.

The Chairman contended that his express powers (under section 8 of the Regulation) to seek clarifications and confirmation from the complainant did not preclude him from having the deemed general powers under section 40(1) of the IGCO.

Rejecting this view, Hon Barma JA pointed out that, while the Chairman’s function of filtering out frivolous and groundless complaints is an essential component of the statutory scheme, it is ultimately a limited function:

“… the Chairman’s function is not one which envisages or requires significant investigation. The examples given of complaints which the first-stage screener is responsible for filtering out are all matters which should be capable of summary determination. Further, all that the Chairman is required to decide is the negative question of whether there is no need for the complaint to proceed further. If he is unable to satisfy himself of this based on the material available to him, then what he should do (and is indeed obliged to do) is to refer the complaint to the PIC. The need for further investigation would, it seems to me, be one reason why a complaint should be allowed to proceed further.” (Judgment §28)

The Court further observed that, while it is reasonably necessary for the Chairman to have the power to seek assistance and obtain documents from third parties in order to perform his functions, this fact does not give rise to the power to compel compliance with his requests.

Given the limited scope of the function being performed by the Chairman – essentially a negative screening function to screen out cases which ought not proceed further – his Lordship took the view that there is no reasonable necessity for the Chairman to be endowed with the coercive power that he contends for.

In light of the above conclusion, the Court found it unnecessary to consider whether ordering disclosure in the present case would involve a disproportionate interference with the fundamental rights to privacy of the subject parties.

The Plaintiff’s appeals were dismissed, and costs awarded to the HA on a party and party basis.

Tim Parker

“Utterly brilliant: his drafting is elegant and concise, and he has an excellent sense of how to present an argument.” Legal 500 Asia-Pacific 2021:  Hong Kong Bar – Commercial Disputes

Tim Parker’s practice spans advocacy and advisory work in public international law, constitutional and administrative law, competition, and civil / commercial matters. He practices both in Hong Kong and the United Kingdom, where he is a member of Blackstone Chambers.

Tim is ranked as a leading junior in Chambers and Partners 2021 for Hong Kong and the United Kingdom, and in Legal 500 Asia-Pacific 2021.

He has acted in a number of landmark constitutional and administrative law cases before the Hong Kong Court of Final Appeal and the Privy Council. Recently, he and Geoffrey Yeung (led by Abraham Chan SC) acted for the Applicants in Tam Sze Leung & Ors v Commissioner of Police [2021] HKCFI 3118, where it was held that the “No Consent Regime” under which Police informally freeze bank accounts suspected of containing the proceeds of crime by issuing “no consent letters” to banks and financial institutions is unlawful.

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This article was published on 6 January 2022.

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.