Administrative and Public Law — Court quashes decision to dismiss legal aid appeal of personal injury claimant suing Hospital Authority for negligence
In the Court’s view, the public law error made by the Master in reaching his conclusion justifies the grant of leave to apply for judicial review as well as substantive relief. Accordingly, the Court quashed the decision of the Master and remitted the matter for reconsideration.
Yousaf Akbar v. The Registrar of the High Court
|Court:||Court of First Instance|
|Before:||Hon Coleman J in Court|
|Appearance:||Mr Damian Wong and Mr Jeffrey Tam, instructed by Ho Tse Wai & Partners, for the applicant|
|Date of Decision:||2 March 2023|
In Yousaf Akbar v. The Registrar of the High Court (HCAL18/2023)  HKCFI 575, the Applicant underwent surgery at the hospital to treat his severe back pain and contractions in both legs. Initially, he refused surgery after doctors told him only of the operation’s high risks and unsuccessful rate without explaining the consequences of not receiving the operation. A letter from the hospital asserted that its doctors did discuss the pros and cons and risk of surgery repeatedly with the Applicant.
Subsequently, the Applicant brought a personal injury claim against the Hospital Authority for negligent medical treatment. However, his application for legal aid was refused. The High Court Master dismissed the Applicant’s appeal, concluding that – based on the hospital’s letter – it would be unreasonable to take the view that all the doctors failed to explain to the Applicant the risks of not receiving the operation.
In the “rolled-up” hearing of the Applicant’s application for leave to apply for judicial review and the substantive application, the Court of First Instance held that the Master made an error by irrationally giving the hospital’s letter considerable weight in the overall assessment. The Court quashed the Master’s decision and remitted the matter for Master’s reconsideration in light of the Judgment. Jeffrey Tam appeared as co-counsel for the successful Applicant.
The Applicant’s hospital stay
The Applicant was admitted to the Pamela Youde Nethersole Eastern Hospital (“the Hospital”) for various complaints including severe back pain and contractions and weakness in both legs. Initially, he did not agree to undergo surgery but later received the surgical treatment proposed by his doctors.
The Applicant only has a primary-level education, and his English and Chinese proficiency is not that high. He complained to the Society for Community Organisation (“SOCO”) about having only been told by the Hospital’s doctors about the operation’s high risks and unsuccessful rate, but not the consequences of not receiving surgery.
Later, SOCO relayed the Applicant’s complaints to the Hospital’s Chief Executive. In its reply (“the Letter”), the Hospital claimed that it had “repeatedly discussed with [the Applicant] the pros and cons and the risk of surgery, that he might still have lower limbs paralysis with or without surgery, but the risk of paralysis would be higher if surgery was not performed, and that the surgery carried significant risk in his situation. After repeated discussion, he still refused surgical intervention …”
It is undisputed that the Hospital’s medical records do not contain any notes as to what advice and explanations were given to the Applicant about having or not having surgery.
Personal injury claim and application for legal aid
Subsequently, the Applicant brought a personal injury claim against the Hospital Authority for having allegedly provided negligent medical treatment to him (“PI Action”). His case is that he was unable to give “informed consent” because the doctors failed to tell him of the risks and possible consequences of not having the surgery. He argues that the surgery eventually performed was too late, whereas earlier surgery would have been more beneficial.
To pursue the PI Action, the Applicant filed an application for legal aid which was refused by the Director of Legal Aid.
The Master’s Decision
The Applicant appealed against the refusal of legal aid. The Deputy Registrar of the High Court (“the Master”) took into account the content of the Letter and reached several key conclusions:
• Given that the medical notes recorded the Applicant’s refusal to undergo surgery, it would not be reasonable to expect that all the doctors failed to explain to the Applicant the risk or likely consequences of not receiving the operation.
• It is reasonable to assume that, despite the medical notes’ lack of details about the discussions between the Applicant and the doctors, it is reasonable to assume that the doctors must have asked the Applicant about his wishes regarding surgery before making the note entry.
• It defies logic for doctors to make the entry without having first explaining the pros and cons of the surgical intervention.
Application for Judicial Review
The Applicant sought leave to apply for judicial review of the Master’s Decision on two grounds: (1) Illegality – material error of fact; and (2) Illegality – failure to take into account materially relevant materials while taking into account irrelevant materials.
It is settled law that where a decision-maker makes a material error of fact, that error may vitiate the decision – provided that there is a real likelihood that, if the truth had been known, a different decision would or might have been reached.
The Honourable Mr. Justice Coleman noted that the Master plainly put considerable weight on the Letter and what it appeared to state as to the discussions had with the Applicant; however, at this stage of the evidential gathering of materials, the Letter is incapable of bearing such weight in the overall assessment:
“The Applicant says that the relevant discussions (necessary to satisfy the Montgomery test) did not happen. The medical notes either support the Applicant’s case, or at the very least do not contradict it. In so far as the Letter asserts a different version of events, [Counsel for the Applicant] is correct in saying that it fails to identify its proper evidential basis. The Letter asserts more than is apparent from the medical notes, and in effect seeks to fill in what is missing from those notes. If the filling in comes from a different source, that source is not identified and its potential evidential weight is therefore impossible to determine for any proper assessment against other materials. At least, it seems to me that it would be perverse or irrational for the content of the Letter as cannot be found in the medical notes to be given any such weight in any process of assessment.” (§42, Judgment)
The learned Judge further observed that whether or not any doctor properly gave the relevant explanations and advice is the core issue to be decided in the PI Action, and it would be perverse or irrational to conclude on the current materials that there is no reasonable chance of the Applicant succeeding on that issue at trial.
In the Court’s view, the public law error made by the Master in reaching his conclusion justifies the grant of leave to apply for judicial review as well as substantive relief.
Accordingly, the Court quashed the decision of the Master and remitted the matter for reconsideration. No order as to costs presumably because the Applicant’s legal representatives represent the successful Applicant on a pro bono basis.
Jeffrey Tam, appearing with Damian Wong and instructed by Ho Tse Wai & Partners, acted for the successful Applicant.
“Jeffrey Tam of Denis Chang’s Chambers stands out in the opinion of several interviewees … he also operates a broad commercial practice, embracing, among other matters, shareholder and securities-related issues.” — Chambers & Partners Greater China Region 2022, Commercial Dispute Resolution: The Bar (Spotlight Table)
Jeffrey Tam, FHKIArb, attended St. Anne’s College at the University of Oxford for a Bachelor of Civil Law (BCL) on a scholarship after reading law at the City University of Hong Kong. He is also named as a “Leading Junior” for Administrative and Public Law in Legal 500 Asia-Pacific 2022.
Jeffrey is a member of the Hong Kong International Arbitration Centre’s Appointment Advisory Board, having been appointed to the position for a three-year term effective from 8 January 2023.
Visit Jeffrey’s profile for more details.
This article was first published on 15 March 2023.
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.