I wonder how fast time goes in prison?

2022.This was Vanessa’s first New Year in prison. Dr Mak’s second.

Two female doctors, both in their thirties. Dr Mak graduated from the Chinese University of Hong Kong (CUHK) and Dr Kwan, Vanessa, from Hong Kong University (HKU). Both are now incarcerated on the basis of myths. It is a disgrace.

This is a catch-up blog, outlining the story so far. Dr Mak, a CUHK graduate and, incidentally an ex-student of mine, was involved in a myth concerning “informed consent”. The reality is that she was just unlucky enough to be on duty on the day that four samples of contaminated blood were injected into patients, one of whom died.

In the second blog in this series, I quoted from the justification for sentencing written by Justice Barnes and outlined in court on 8 December 2020:

“Para 45. In the case of the victim ChanYL, she was a healthy woman of 46 at the time, running a Hong Kong style café (Char Charn Tien) with her husband and the two of them had two teenaged children. She was a customer of the beauty centre part of the DR Group business and before she consulted the defendant, she already had one CIK Therapy administered by another doctor employed by the DR Group. When ChanYL consulted the defendant on 12 September 2012, before her blood was extracted, ChanYL was not told that the CIK Therapy was an experimental treatment for cancer patients and its efficacy had not be proven; she was not told that there was no scientific proof that CIK therapy was of benefit to a healthy person; she was not told of the risk of bacterial contamination during the processing at a laboratory; nor was she told of the risk of adverse reaction upon infusion due to contamination or infection; she was also not advised that there were simple and non-invasive alternative methods for boosting her immunity instead of the CIK Therapy. If ChanYL had been told of all of the above, I venture to say it would be highly unlikely that she would have consented to the treatment.”

I have highlighted one sentence that underlines the ridiculous nature of this line of logic. The treatment was safe and effective as demonstrated by the response of the clients. Over 35 previous treatments had been successfully undertaken and indeed Madam Chan YL was so pleased with the initial treatment that she was returning for a second treatment. It was absolutely tragic that her blood sample became contaminated in the laboratory but that was NOTHING to do with Dr Mak. It was the myth of the medical experts that a doctor with the background and training of Dr Mak should have the prescient knowledge that they have acquired through a retrospective assessment of the situation. In addition, the added indictment that Dr Mak should have personally ensured the laboratory samples were free from contamination before injecting them into the body is another myth. This is not part of the training of undergraduate medical students and is just not part of routine medical practice. The contamination was absolutely tragic, but it was a matter of pure chance that it occurred when Dr Mak was administering the sample. The legal profession gets itself so confused when it talks about “objective” and “subjective” tests, when it talks of “reasonable foreseeability”. Dr Mak was convicted of a crime because she was unlucky enough to be on duty. Not because she is a criminal. And that is not right. That is not Justice.

The Judge was misinformed, and she gave her assent to a false narrative on which bogus claims of negligence were constructed. This is a failing of both the medical profession (in providing false testimony) and the legal profession (in allowing false testimony).

The second trial is a very different matter. Dr Kwan is a graduate of Hong Kong University. I was engaged to provide an opinion as a Medical Expert on the case. I was involved. I was there and breathed the same air as the Judge and the Jury. I was there and saw a Medical Expert engaged by the prosecution brazenly lie, whilst the other was more subtle in her deceptions. This blog series is a collection of aide memoirs for inclusion in the book I am proposing to write. I have had some interesting correspondence with a commissioning editor at a leading publisher in the field of Ethics. I have clarified that the aim is to illustrate how the current system is failing. Using two real life cases, the fundamental principles that guide ethical, moral and legal duty of care need to be contextualised. There are significant similarities in the two cases but many differences too and yet the process of Law churned out a result like a fast-food restaurant. A greasy and smelly, fast food restaurant.

What I have outlined thus far is the way in which the prosecution knowingly and wilfully misinformed the Judge regarding the training, or lack of it, of cosmetic surgery in Hong Kong. The Judge did not act on the basis of an uncontested claim. Published, verified, evidence was presented to the Judge affirming that there was no such training at the material time and that the prosecution claim to the contrary was false. The Judge made a decision, a highly subjective decision and she gave her assent to the prosecution’s lie. This is a toxic combination of an unethical medical expert and a gullible judiciary.

We then come to the second prosecution medical expert, an anaesthetist from Australia. A major problem was her practice of stating opinion as fact. This indeed resulted in indictments that were completely without merit. False, baseless accusations of clinical negligence. Guidelines. They are not a legal requirement. They are not compulsory and yet this anaesthetist misinformed the Judge and the Jury as to the relevance of the guidelines to clinical practice. The expert claimed that if the guidelines were not followed this was evidence of negligent behaviour and failure of duty of care. This is fundamentally false and yet it is there in para 6 of the sentencing report: “The defendants breach of duty of care as framed in the indictment ………… 6(ii)(c) failing to follow the paragraphs 3.3.1 to 3.3.3, 3.3.7, 3.4, 4, 5.1 to 5.3, to, 7.3, 7.5, 10 and 11.2 of the “Guidelines of Procedural Sedation” of the Hong Kong Academy of Medicine endorsed by the Hong Kong Academy of Medicine Council on 22 December 2009…”

It does not matter who endorsed these guidelines. They carry zero legal weight and the quoted guidelines do not give evidence-based criteria on which to judge clinical practice. Dr Mainland was perversely unethical when she misinformed the Judge about the guidelines. They were actually based on an understandably biased view of a professional speciality group in Hong Kong, the Anaesthetists. They were poorly written, not evidence based, and were more a series of opinions on restrictions and regulations concerning who and where sedation should be given rather than clinical guidelines on how to perform procedural sedation. The framing of the indictment was very sloppy and indeed dishonest. But the Judge gave her assent to the lie being planted in the minds of the Jury. That is not a “miscarriage” of Justice. That is an abrogation of Justice.

So, to conclude, I am going to have to make this book a scholarly treatise if it is to be published with the current front runner. Basically, that means evidence. Evidence that the current system is broken. Evidence that the court is being misinformed and evidence that the court does not have the training, ability and / or political will to objectively assess the veracity of the “facts” presented. Of necessity, I must be harsh, but also fair, in my critique of both medical and legal professionals in this situation. The issue is not one of apportioning blame but to identify problems and explore potential solutions. Both professions need to engage in serious reflective practice and reforms are needed to ensure that the professional, moral and ethical conduct of participants is without reproach.

Final word. The current, adversarial system, for dealing with unexpected deaths in medical practice is not the way to reduce risk in the complex, interconnected, world of medical interventions. Doctors are made, not born. Flawed systems create flawed doctors. Modify the systems to reduce risk and be very cautious of passing the buck and blaming individual doctors.

Andrew Burd (Prof)

The Chinese University of Hong Kong.

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