A few days ago, another private doctor was arrested by the police for suspected of spamming the "New Crown Vaccination Medical Exemption Certificate". At least six people were arrested and one person was wanted. .
The government also announced the professional registration numbers and clinic addresses of the seven doctors involved in the case, and the verification QR code scanners that cooperated with the "Vaccine Pass" arrangement will no longer accept the exemption certificates issued by them from October 12.
The Chief Executive, Mr. Lee Ka-chiu, took the initiative to speak up on the matter before attending the Executive Council on Tuesday (September 28), criticizing the irregularities for bringing uncertainty and undermining the overall anti-epidemic work, and reiterating the hope that every member of the public would abide by the law and condemn the offenders.
The government's follow-up statement also emphasized that it "will continue to closely monitor the issuance of medical exemption certificates by doctors", and will "appropriately forward relevant information to the Hong Kong Medical Council and law enforcement agencies for follow-up" in the case of abnormal circumstances suspected of violations.
Existing legislation lacks direct charges
It is worth noting that a doctor who has already been charged has been charged by the police with dishonest intent to defraud access to a computer under section 161 of the Crimes Ordinance, and a newly arrested person may also be charged under the Crimes Ordinance. Conspiracy to defraud prosecution under section 159A and section 16 of the Theft Ordinance.
These broad charges are clearly not specific to abuse.
At present, the Prevention and Control of Disease (Vaccine Pass) Regulation only stipulates the format of the certificate of exemption, and does not designate the relevant abuse as a crime.
In order to improve the efficiency of law enforcement, the authorities need to revise the law to include such crimes as soon as possible, and in this way, the Director of Medical and Health can also directly authorize public officials of the health department to carry out prosecutions, not limited to the police to enforce the law.
In addition, because the doctor did not fabricate the "automendacity" about the facts of the document itself, such as the maker, authorizer, and style of the document, the Court of Final Appeal in June this year in the Chen Kam-ching case (FACC 10/2021) also ruled This principle applies to the crime of false documents. Therefore, after the government has announced that it will not accept the certificate of exemption issued by the doctor involved, other citizens will have the opportunity to commit the more serious crime of using false documents. This penalty gap will also be subject to future legislation or Amendment resolved.
The implementation of clinic regulation can no longer be delayed
In addition to the limitation of the crime of spamming documents, this incident also reminds us of the insufficient supervision of private medical institutions by the Department of Health.
Regarding the professional registration qualifications of individual doctors, the public can accept that the industry bodies are responsible for follow-up. However, the government has no power to decide whether the clinics can continue to operate.
The Food and Health Bureau's 2014 Consultation Paper on the Regulation of Private Healthcare Facilities has stated that most clinics are "not directly regulated by statutory law".
The Private Healthcare Facilities Ordinance was subsequently passed in November 2018, but clinics are still free from regulation.
Because the original timetable of the authorities was to implement three phases for private hospitals, day care centers and clinics in batches, it was initially expected that applications for clinic licenses and exemptions would be accepted in the last phase last year, but probably due to the impact of the new crown epidemic There is no time to implement it, and the implementation date continues to be "announced later". In disguise, today the authorities have lost the statutory power to regulate the operation of clinics.
As the local new crown epidemic gradually eases, and the incident of indiscriminate issuance of vaccination exemption certificates has surfaced, the authorities must step up the regulatory measures for private medical clinics, grasp the power to ban clinics that have violated regulations, and also review how to remedy the situation. Relevant legal loopholes, including the need to deal with the issue of the penalty gap arising from the determination of "false documents" in the above-mentioned matters, and the consideration of specifying the procedures for the prevention and control of diseases (Vaccine Passes) Regulations to make abusive offences and even invalidate certificates of immunity and justifications.
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