In Leung Tsan Chung v Dr Tony Ko Pat-sing, Chief Executive of Hospital Authority [2023] HKCFI 2433, the Applicant sought leave to apply for judicial review against a decision of the Public Complaints Committee (“PCC”) of the Hospital Authority (“HA”). The HA handles complaints against public hospitals by a two-tier complaints management system. The first-tier handler is the public hospital against which the complaint is made. The second-tier handler is the PCC. The PCC acts as an appeal body for complainants who are not satisfied with the outcome of the hospital’s handling of the complaint.
In short, the Applicant received right ankle surgery at a public hospital and complained about (i) lack of necessity and consent for the surgery, (ii) surgical failure, (iii) poor post-operative management and (iv) alleged forced withdrawal of his claim and complaint. All these were considered but rejected by the public hospital as well as the PCC on two occasions, with reasons articulated and given to the Applicant.
The Honourable Mr Justice Coleman refused to grant leave and gave guidance on the Court’s judicial review jurisdiction, particularly in the context of a citizen’s complaint against a public authority.
First and foremost, whilst expressing sympathy and understanding for the Applicant’s distress, his Lordship emphasised that judicial review does not provide a way of appealing from the decision made by the original decision-maker. It is not a venue for scrutinising general complaints citizens may experience in their dealings with a public authority. The Court’s judicial review jurisdiction is only engaged when the complaints are capable of giving rise to or identifying public law wrongs. In the present context, the Court is not concerned about medical matters, the appropriateness of which could be made subject to an investigation by the Medical Council or in a negligence claim. Whether a surgical option should be pursued, whether the surgery has attained its treatment objectives, and whether the post-operative patient care has been sufficient are all professional issues, or private law questions, far removed from the Court’s public law supervisory role. This is fatal to the Applicant’s application.
Secondly, his Lordship reiterated that an application for leave to apply for judicial review must be made promptly and in any event within the three-month long stop period. In the present case, there is a delay of almost one year after the expiry of the long stop period which would require a commensurately cogent reason for extending time (for which there was none).
Thirdly, his Lordship considered there was no proper factual basis for the Applicant to allege forced withdrawal of his claim and complaint (which was not pursued at the hearing ultimately), and noted that the Applicant was less than forthcoming in the information he provided to the Court.
Last but not least, his Lordship pointed out that Dr Ko, who had no involvement in the PCC’s Decision, was plainly inappropriately named as putative respondent.
Jenkin Suen SC instructed by Kennedys, acted for the Putative Respondent.
The full judgment is accessible here: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=156777&currpage=T
