When experimental treatments lead to death, prosecution is not always simple

South China Morning Post

2 days ago

The medical profession is one of the pillars of Hong Kong society and its doctors, as well as other professionals, are expected to, and often do, uphold the highest standards of professional conduct.
But a dark corner of the healthcare industry exists in the grey area between medical treatment and experimental procedure.
Over the years there have been a number of tragic cases where the administering of experimental treatments has led to the patient's death. As with medical negligence more generally, conduct of this character is prosecuted under the crime of gross negligence manslaughter, which remains a common law offence.
In fact, developments in this area of the Hong Kong common law have often come from the medical sector, with the leading case on gross negligence manslaughter being the prosecution of Dr Mak Wan-ling, which led to a decision in 2019 from the Court of Final Appeal that clarified the elements of the offence.
Questions were also raised in that series of cases about the legal relationship of the companies running the clinic (also known as the 'DR Group') and whether that was relevant to the law of gross negligence manslaughter.
Indeed, these cases may often serve to shine a spotlight on areas where more regulation is required. To clarify the legal responsibilities of other forms of health treatment centres, the government enacted the Private Healthcare Facilities Ordinance (Cap 633) in 2018, which now imposes a number of legal duties on persons who operate private healthcare facilities, clinics and so on.