I wonder what Vanessa is thinking right now. If she can even think. A torrent of images, regrets, what ifs. The onslaught must be so great, no wonder the normal response is for the mind and the body to shut down? Depression.
One month ago today, 4 October 2021, Dr Vanessa Kwan was sentenced to six and a half years in prison. In the words of the Judge, “After 27 days of trial, the jury unanimously found the defendant guilty of manslaughter.”
This was no trial. I was there. I am deeply disturbed by what I observed. The lies, the misinformation, the misdirection. This was a shameful betrayal of the principles of Justice. It was a travesty of Justice on so many levels. When a prosecution becomes a persecution, you know that there are dark forces at work behind the façade of respectability of the Law. This was a trial like no other I have experienced in over thirty years of medico-legal practice. I was engaged as a medical expert, by the defendant, to give my opinion on the case. At the outset I declared that: “I have no conflicts of interest in this case. I have retired from clinical practice and focus more as a patient advocate promoting safe clinical practice. As an Expert my duty is, only, and always has been, to the truth. Both its presence and its absence.”
This shocking case requires an in-depth analysis to demonstrate how hopelessly inadequate the Law is when faced with complex medico-legal matters. Indeed, this trial has all the ingredients of a fictional drama with twists and turns and unexpected revelations and an inexplicable collapse of any defence strategy. Perhaps it was the realisation amongst the defence counsel that the prosecution was prepared to do whatever was needed to drive home a conviction. “Whatever was needed”? Well, never before have I had my independent expert opinion ‘censored’ by both the Judge and the opposing counsel. It just so happens that I had been a police expert in two previous inquests concerning deaths in the course of cosmetic surgery performed in private clinics in Hong Kong. This was the third such death in eighteen years and I think it was highly relevant to look at the other cases. The Department of Justice and the prosecution counsel were very much against this. I will explain why in due course. I had also made comments on the Duty of Care both as a Medical concept and a Legal concept. The Judge was very much put out and rejected any mention of legal concepts. This touches on one of the fundamental problems with the Law. Arrogance. It is fine for Judges to comment on medical matters but not for medical experts to comment on the Law. As was to become apparent in this case, the arrogance of the Judge allowed her to reveal her ignorance when “directing” the Jury on the evidence as she understood it. Not the facts of the case. Facts did not seem to matter in this trial. Opinions and prejudice carried more weight.
Now we have within the span of one year, two young, female doctors in Hong Kong sent to prison for gross negligence manslaughter. Both cases have extremely worrying dimensions which render the convictions both unsafe and indeed, absurd.
Let me be fair, the fault is not just within the arrogance of the Law. In both cases, medical experts betrayed the fundamental principle of sincerity. The role and conduct of the medical expert witness has long been a matter of concern. A wonderful paper on this topic was written by Dr Louise B Andrew. The title of the paper was ‘Expert Witness Testimony: The Ethics of Being Medical Expert Witness’. It is every bit as fresh and relevant today as it was when originally published in 2006. (Andrew LB. Expert witness testimony: the ethics of being a medical expert witness. Emergency Medicine Clinics 2006;24(3):715-31.)
In the UK many doctors are familiar with the Bond Solon Expert Witness training. Whilst I think this is very necessary, I am concerned that the medical profession appears to be taking a passive role in developing what should, and must be, a co-professional approach in the more complex and serious medico-legal matters. This concerns the criminal law and in particular the processes and procedures of law when considering gross negligence manslaughter in the health professions. I see that this year’s keynote speaker at the Bond Solon Annual Conference is the Rt Hon Sir Geoffry Vos, The New Master of the Rolls and the Head of the Civil Division since January of this year. This is a position with a long history dating back to around 1286. Sir Vos is committed to a radical rethink of civil justice in the UK. As mentioned, my particular concern lies in the criminal justice system, but one hopes that there is a similar enthusiasm to undertake a ‘radical rethink’ in this area of law. Not only in the UK but also in Hong Kong.
Hong Kong was granted legal autonomy from the UK in 1997. As such, it has had the opportunity to determine and define its own laws. The Law, by nature, is very conservative and despite over 20 years of autonomy, the HK legal system still shadows the UK system. As such, to make progress in the field of medico-legal practice we must look at a multi-jurisdictional approach that is based on science, logic and pragmatism.
Two young doctors in Hong Kong are in prison. This is despite the statement of intent in the Basic Law: “The principle of trial by jury previously practiced in Hong Kong shall be maintained. Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs. (BL Articles 86-87)” (https://www.basiclaw.gov.hk/en/basiclaw/facts.html)
Both doctors were convicted many years after the supposed criminal events. A fair trial assumes ethical probity in the prosecution. Without that, the “rule of law” becomes a farcical notion. The case against Dr Vanessa Kwan is a catalogue of disasters ending up with a Judge being fooled into allowing a medical expert for the prosecution lie under oath, whilst another medical expert was so prejudicial and biased that they lost sight of the science behind hypoxia.
So, what was the big lie that the Jury were told and why is it so relevant to this case?
(To be continued…)
Andrew Burd, Hong Kong, 4 November 2021