There is no formally recognised specialty of Cosmetic Surgery (and / or Medicine) in Hong Kong. Unsurprisingly, there are no formal training programs in cosmetic surgery or aesthetic medicine. If a graduate from one of the two medical schools in Hong Kong wishes to develop a career in cosmetic surgery, they have two options. One is to go overseas to learn from some of the best cosmetic plastic surgeons in the world who practice in South Korea and Thailand . The other option is to “be Economical with the Truth” . This was unfortunately, but not unsurprisingly, the position taken by the Plastic Surgery Expert in the prosecution of Dr Vanessa Kwan. There are several areas of concern here, not the least is that lying whilst under Oath is a crime. Perjury. In the Rules of the High Court (RHC)_ Cap 4A Appendix D contains a code of conduct for expert witnesses. In paragraph 13 mention is made of “contempt of court” :
“Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false declaration or a false statement in a document verified by a statement of truth without an honest belief in its truth.”
Remember this spot.
Dr Jimmy Chan was lying in order to protect an entitlement he does not have. He was not trained in cosmetic surgery during his training as a specialist plastic surgeon. He is a good technical surgeon, with good hands and control but his political judgement does not match his technical skills. He aligned himself with one of the original batch of 1993 Hong Kong plastic surgery specialists. By-Law 16 facilitated a back door route to specialisation in plastic surgery with no formal training or assessment of competence in the specialty . This is not a problem if it is acknowledged. Appropriate training can be arranged and some formal accreditation in cosmetic surgery could be arranged. Unfortunately, this has not happened and instead there has been an attempt to rewrite history in the website of the Hong Kong Society of Plastic, Reconstructive and Aesthetic Surgery . This leaves Dr Jimmy Chan in an awkward position when having to state his training and experience, in public, under oath.
If we look at the Hong Kong Crimes Ordinance (Cap 200 Criminal Ordinance Para 31.) we find the following:
If any person lawfully sworn as a witness or as an interpreter, either generally or in a particular judicial proceeding, wilfully makes a statement in any judicial proceeding which is material in that proceeding and which he knows to be false or does not believe to be true, he shall be guilty of perjury and shall be liable on conviction upon indictment to imprisonment for 7 years and to a fine.”
Yes. That is bad news for Dr Chan. The fact is that his “opinion” was pretty scathing with regard to Dr Kwan. It was certainly not “unbiased and independent”. As Louise Andrew says in the paper I mentioned in the previous blog, about the ethics of the medical expert witness: “The entire system of expert testimony rests on the assumption that the expert witnesses are independent of the retaining counsel, and that they testify sincerely.”
But it gets worse. The Court had received documents that clearly showed that Perjury was going to happen! The Department of Justice, the Prosecution Counsel and the presiding Judge were all aware, or should have been aware, that the trial was at risk. Indeed, the testimony of the Prosecution expert (the person committing the perjury) was so prejudicial that the Jury was irrevocably tainted. There should have been a mistrial declared. A medical professional, who had so little respect for the Law, that they are “economical with the Truth” in a criminal trial in a High Court sets a very bad example to others. This breach of ethics is so great that a custodial sentence for the perjury would be appropriate, indeed mandated. That is a very serious consequence for not telling the truth but so is the sentencing a young lady to six and half years in prison without due process.
The role of expert witnesses has always been fraught and the focus of much discussion by the legal profession. However, the discussion should not be one sided and there is a need for reform on both sides, Medicine and the Law. I shall conclude this blog on a lighter but still serious note regarding the language of the Law.
Following the second paragraph of this blog is a completely random sentence “Remember this spot”. It is the paragraph above that I want to discuss. The language, the legal language is terrible; it is sexist “..a person if he makes…”, pedantic “or causes to be made..”, and wordy “a false declaration or a false statement” But it is the last bit that takes the proverbial biscuit: “ a statement of truth without an honest belief in its truth…”. What does the “its” refer to? So, we need precision in terminology and language, yet at the same time we need to use words and concepts which are simple enough for non-professional readers to understand what is being communicated. Another relevant example occurs in Para 20.1 of the Prosecutors code .
“A court may receive the evidence of an expert that provides it with information that is likely to be outside its experience and knowledge. Expert evidence can only be given by a person with the requisite qualifications, knowledge and experience in the relevant field of expertise. An expert witness has an overriding duty to assist the court and should provide it with independent evidence in the form of objective unbiased opinion on matters within his or her expertise. In the interests of justice, a prosecutor should ensure that these requirements are always met.”
When I initially looked at the first sentence of the paragraph above, I found it very confusing. I still do. We have a “court” with their “experience and knowledge” and we have an “expert” with “information” and we have an “it” and an “its”. The juxtaposition of terms makes the meaning unclear. Consider an alternative, “If a court is faced with a situation outside/beyond its experience and knowledge it may seek both facts and opinion from an expert in the relevant field.”
It is ironic to note that it was language that set the original professionals apart from the common person in Medieval England. The Church, the Law and Medicine used Latin to protect their professional status.
What I shall do in the future blogs is to go through this trial in some detail and focus on some major teaching points on the way.
The following are some of the relevant aspects of the case, some of which were discussed in the trail and should not have been, whilst others were not discussed and should have been:
- Perjury (part 6)
- Informed consent
- Risk assessment
- Supplemental oxygen
- Prone positioning
- Drug combinations
- Levels of sedation and brain activity monitoring
- Postoperative monitoring
- Clinical signs
Additional reading material:
- Meggitt G. Expert evidence: The new rules. Law Lectures for Practitioners
- Burd A. Plastic surgery and aesthetic medicine: specialties and specialists. PMFA News 2015;2(3). https://www.thepmfajournal.com/features/features/post/plastic-surgery-and-aesthetic-medicine-specialties-and-specialists
- Burd A. From PIP to DC-CIK to the Sorcerer’s Apprentice: a medico-political minefield. PMFA News 2013;1(1). https://www.thepmfajournal.com/features/features/post/from-pip-to-dc-cik-to-the-sorcerer-s-apprentice-a-medico-political-minefield
Finally, please feel free to comment on any aspect of this evolving blog.
1. I will expand on this later but looking at medical tourism and in particular cosmetic surgery tourism South Korea and Thailand are both very popular destinations. Why this is so? The answer is complicated and involves various factors including skills, training, facilities, regulatory oversight, good safety records and active government support.
2. This was a wonderful phrase used by a British Civil Servant during the 1986 Spycatcher trial in Australia when the British Government was trying to prevent the publication of a book written by a “whistle-blower”. It is a euphemism for “to lie”.
3. Details can be found at https://www.elegislation.gov.hk/. This is the official database of Hong Kong legislation.
4. This is discussed in the article ‘Plastic surgery and aesthetic medicine: specialties and specialists’ published in 2015. Details are in the reading list. The point is that there is a problem which cannot be resolved until it is acknowledged. Not all specialists in plastic surgery in Hong Kong have had any formal training in cosmetic surgery and there is no independent accreditation for such training.
5. The website contains the following in the introduction; “The majority of plastic surgery work is reconstructive” but some is “aesthetic or ‘cosmetic’” to “change form or appearance”. http://www.plasticsurgery.org.hk/node/20. The information for patients (http://www.plasticsurgery.org.hk/node/49) contains a list of cosmetic procedures with an unstated implications that they form part of the competences of a specialist plastic surgeon whilst the disclaimer (http://www.plasticsurgery.org.hk/node/85) states that all specialists have undergone a “a defined course of training in recognised centres, assessments and the satisfactory passing of an exit examination”. Which was not the case with the Founding Fellows. This is not a problem if acknowledged. The problem is the cover up.
6. This can be found on the government website: https://www.doj.gov.hk/en/publications/prosecution_ch20.html