Health Care Complaints Commission v Chen

Admissions

1. At all times Mr Chen has been legally represented by counsel. In written submissions prepared by his counsel, Ms Garsia, dated 14 July 2021 Mr Chen: 1. accepted that based on the facts as found by the Tribunal in the Primary Decision that the Commission had established Complaints One, Two and Four; 2. did not wish to file any further evidence in these Stage 2 proceedings, and to the extent relevant to sanction and orders, relied on the evidence already before the Tribunal.
2. The Stage 2 hearing was held on 18 October 2021. Mr Chen appeared, and was represented by Ms Garsia. We enquired of Mr Chen through Ms Garsia whether he still proposed not to give evidence at the hearing, noting that the Tribunal was entitled to draw inferences from the failure of a practitioner to attend the hearing and from his "silence": Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 326 at [42]-[50]; Lucire v Health Care Complaints Commission v Health Care Complaints Commission [2011] NSWCA 99 at [124]-[141]; Meakes v NSW Bar Association [2006] NSWCA 340 at [70]-[78].
3. We note that in Wingate the NSW Court of Appeal, per Basten JA, with whom McColl JA and Harrison AJA agreed, stated at [47]: "In Bowen-James [Bowen-James v Walton (NSWCA, 5 August 1991, unrep)], after referring to passages in Edelsten and passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued: … we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts."
4. Ms Garsia indicated that this had been explained to Mr Chen and that he did not wish to give evidence at the Stage 2 hearing.

Are the complaints established?

1. While the Complaints are admitted, independently of those admissions, we are satisfied that each complaint is proved.
2. We summarise briefly the facts that we found in the Primary Decision.
3. The Complaints involved Patients A, B and C.
4. In relation to Patient A, we found, in general summary, that Mr Chen failed to observe appropriate professional boundaries during consultations with Patient A in that he:

• said words to the following effect on one or more occasion "were you busy with your boyfriend on the weekend?".
• said words to the following effect on one or more occasion "in China women always have affairs and many boyfriends".
• touched her breasts over her clothes and a towel on one or more occasion without informed consent or clinical indication.

1. In relation to Patient B, we found, in general summary, that Mr Chen failed to observe appropriate professional boundaries during consultations with Patient B in that he:

• failed to provide a proper diagnosis to Patient B at any time during her consultations from February to May 2011.
• made a false and/or misleading statement to Patient B regarding his access to herbal products in that he said words to the following effect: "I am the only person who has access to these herbal products."
• failed to obtain informed consent prior to providing massage treatment to Patient B in that he did not discuss his assessment of Patient B's condition or proposed treatment.
• failed to observe appropriate professional boundaries in that he touched Patient B's breasts and nipples under her clothing during massage treatments on numerous occasions without informed consent or clinical indication.
• engaged in inappropriate conduct of a sexual nature towards Patient B.

1. In relation to Patient C, we found, in general summary, that Mr Chen failed to observe appropriate professional boundaries during consultations with Patient C in that he:

• on or around 17 February 2014 during a consultation with Patient C, inquired whether she was married. After Patient C confirmed that she was married, Mr Chen inappropriately and contrary to appropriate professional boundaries said words to the following effect: "Do you have any other husbands?"
• on or around 17 February 2014 during a consultation with Patient C, failed to observe appropriate professional boundaries in that he rubbed Patient C's breasts for approximately three seconds without informed consent or clinical indication.
• engaged in inappropriate conduct of a sexual nature towards Patient C.

Relevant Law

1. It is appropriate to set out the relevant provisions of the National Law. These are as follows.
2. Section 3, which provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; and (b) the registration of students undertaking - (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
3. Section 3A of the National Law, which is an additional provision for NSW, provides: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note - This section is an additional New South Wales provision.
4. A "NSW provision" is defined in s 5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note - This definition is an additional New South Wales provision.
5. Section 139B of the National Law, which is an additional provision for NSW, relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
6. Section 139E of the National Law, which is an additional provision for NSW, provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
7. Section 144 of the National Law, which is also an additional provision for NSW, relevantly provides: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - … (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.

Complaint One

1. Complaint 1 involved conduct that occurred before Mr Chen was a registered health practitioner; accordingly, the complaint was not framed with reference to s 139B, but rather s 144(e), of the National Law.
2. The term "not suitable" in s 144(e) is not defined. That is to ensure that "bodies such as this Tribunal and the Boards charged with the important responsibility of ensuring high standards are maintained in registered professions are able to consider each case on its individual merits": Health Care Complaints Commission v Bosanquet [2012] NSWDT 2 at [103].
3. The approach to be adopted in considering s 144(e) was discussed in Health Care Complaints Commission v Elshaimy [2019] NSWCATOD 17 as follows "27. The expression "not a suitable person to hold registration" is not defined by the National Law. Section 55 of the National Law provides some guidance as to its meaning. Headed "Unsuitability to hold general registration", s 55 of the National Law states that a National Board may decide that an individual is not a suitable person to hold general registration, if, among other things: ... (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or ... (h) in the Board's opinion, the individual is for any other reason - (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely.
4. The meaning of the expression "not a suitable person to hold registration" was also considered by the Tribunal in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [72]-[73]: "[I]n considering whether [the practitioner] "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law). While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills."
5. That interpretation was cited with approval by the Tribunal in Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116 at [116]-[118] and by the Court of Criminal Appeal in Jung v R [2017] NSWCCA 24 at [56].
6. As submitted by the Commission, the comments of the Tribunal in Health Care Complaints Commission v Cheng (No 2) [2017] NSWCATOD 93 at [33]-[35] are apposite: sexual boundary violations represent an abuse of the patient's trust and the practitioner's position of authority. They may be impulsive and opportunistic, planned and predatory or a combination of the two. Sexual boundary violations may sometimes be attributed to impaired judgment as a consequence of illness or intoxication, or occur in combination with personality characteristics in a practitioner that increase the risk of recurrent offending. In very general terms: "35. … the contribution of an individual practitioner's personality characteristics and traits may be a significant factor. Personality disorders or difficulties are understood to include longstanding pervasive patterns of impairment in a number of situations and across the related domains of 'self' which includes identity, self-direction and emotional regulation; and the 'interpersonal' domain which includes the capacity for empathy and intimacy. Recurrent sexual boundary violations in a professional context may indicate longstanding impairments in both self and interpersonal functioning. This can include antisocial disregard for lawful and ethical frameworks, reduced capacity for intimacy in that exploitation is the primary means of relating to others and a callous disregard and lack of empathy for the consequences of the predatory behaviour. Narcissistic personality traits include a vulnerable and/or over inflated self-esteem with an associated sense of entitlement and lack of empathy for the patient/victim."
7. We have no hesitation in finding that Mr Chen is not "a suitable person to hold registration" within the meaning of s 144(e) of the National Law.

Complaint Two

1. Complaint Two is that Mr Chen is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law, in that he engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of Chinese medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or engaged in improper or unethical conduct relating to the practice or purported practice of Chinese medicine.
2. The particulars the subject of Complaint Two which we found established are set out above. We have no hesitation in finding that that conduct was both: 1. conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience: National Law, s 139B(1)(a); and 2. engaged in improper or unethical conduct relating to the practice or purported practice of Chinese medicine: National Law, s 139B(1)(l).
3. As to s 139B(1)(a), given the nature of the conduct, the opinions of the expert relied on by the Commission, Dr Sue Cochrane, the admissions of Mr Chen and our own judgment, we are satisfied that unsatisfactory professional conduct in accordance with s 139B(1)(a) of the National Law is established.
4. As to the meaning of "improper and unethical conduct", the Tribunal noted in Health Care Complaints Commission v Sinnathurai [2021] NSWCATOD 102 at [19] that: "The words "improper" and "unethical" are not defined in the National Law. They have an ordinary English meaning. Dictionary definitions provide a guide to that meaning. As the Tribunal held in Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [31]: The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession"."
5. Given the nature of the conduct, the opinions of the expert relied on by the Commission, Dr Sue Cochrane, the admissions of Mr Chen and our own judgment, we are satisfied that unsatisfactory professional conduct in accordance with s 139B(1)(l) of the National Law is established.

Complaint Three

1. Complaint Three is that Mr Chen is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that Mr Chen has contravened a provision of the National Law.
2. Section 139B(1)(b) of the National Law is set out above at [24].
3. Mr Chen has admitted, and we find, that: 1. on 21 September 2016 the NSW Police laid charges against him arising from allegations from Patients C, D and E of indecent assault pursuant to s 61L of the Crimes Act 1900 (NSW) (now repealed); 2. Mr Chen failed to advise the National Board that on 21 September 2016 he was charged with those offences, contrary to s 130(1) of the National Law.
4. We accept the Commission's submissions that compliance with the statutory requirements for self-reporting are a significant matter and in this case may have led to Mr Chen having conditions imposed on his practice at an earlier point in time. Given the underlying purpose of reporting requirements (namely protection of the health and safety of the public, and protecting the reputation of the profession) ignorance of his obligations does not assist Mr Chen.
5. We find Complaint Three established.

Complaint Four

1. Complaint Four is that Mr Chen is guilty of professional misconduct under s 139E of the National Law. Here the Commission relies on: 1. each of particulars 2 and 3 of Complaint Two individually; and 2. Complaints Two and Three and the particulars thereof cumulatively.
2. Basten JA explained the concept of professional misconduct in Health Care Complaints Commission v Chen [2017] NSWCA 186 at [20] as follows: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome."
3. As the Tribunal explained in Sinnathurai at [205], the following points are taken from the cases of Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200; Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 at [18]-[24] and Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3: 1. the essential task in determining whether relevant conduct is professional misconduct is the characterisation of it; 2. the characterisation requires a focus on the nature of the conduct in terms of its seriousness and not its consequences; 3. the seriousness of unsatisfactory professional conduct depends on the extent to which it departs from proper standards, though additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public; 4. the characterisation of conduct is not to be determined by working backwards from a view that the Tribunal does or does not ultimately wish to suspend or cancel a respondent's registration. Rather, the characterisation of the conduct must come first; 5. to constitute professional misconduct, the relevant conduct must be found to have the capacity to justify an order for suspension or cancellation of registration, though that does not necessarily mean that such an order should be made in a particular case; and 6. "misconduct in a professional respect" (although that language is no longer used under s 139E of the National Law) means conduct that incurs the strong reprobation of colleagues of good repute and competence.
4. And, as the Tribunal also observed in Sinnathurai at [206]: "As the Court of Appeal stated in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264: 'Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe.'"
5. Given the very nature of the conduct that has been admitted, we find Complaint Four established.

Protective Orders

1. We turn now to consideration of the appropriate protective orders.
2. We accept the submissions of the Commission that: 1. in respect of each of Patients A, B and C the Tribunal has found that Mr Chen engaged in conduct of a sexual nature. The conduct included touching the breasts of Patients A and C through clothing or a towel, and touching Patient B's breasts under her clothing. It also included asking inappropriate questions of the patients; 2. Mr Chen's conduct plainly involves serious boundary violations as between practitioner and patient. On the spectrum of seriousness of sexual boundary violations, the conduct falls in the medium range. In particular, the fact that the conduct occurred over a period of five years, and continued after Mr Chen had been made aware of the complaint by Patient B, suggests either a wilful disregard for his female patients, and their right to attend for treatment without being subjected to this kind of violating conduct, or suggests a determination to engage in the conduct irrespective of the impact on his patients; 3. given the limits of Mr Chen's admissions, and the fact that he has elected to call no further evidence, the Tribunal has no basis to conclude that Mr Chen has any insight into his conduct, or that he has any remorse for the impact of his conduct on the three patients concerned.
3. We further accept the Commission's submissions that: 1. in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration: National Law, s 3A; 2. orders are not intended to punish the practitioner, but to protect the public: Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40; ; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWSC 297; ; and Health Care Complaints Commission v Gillett [2007] NSWNMT 7. 3. disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession: Litchfield at 637; 4. the public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. 5. protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]. 6. although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83].
4. Applying those principles the Commission submits that the appropriate protective orders include: 1. an order pursuant to s 149C(4)(a) of the National Law that, had Mr Chen still been registered, his registration would have been cancelled; 2. an order pursuant to s 149C(4)(b) that Mr Chen not make an application for review under Division 8 of Part 8 of the National Law for a period of three years from the date of these orders; 3. an order pursuant to s 149C(5) and (5A) that, unless and until Mr Chen is registered as a health practitioner, Mr Chen is prohibited from providing Health Services as defined in s 4 of the Health Care Complaints Act 1993 (NSW). We note that those services include the following services, whether provided as public or private services: 1. medical, hospital, nursing and midwifery services; 2. dental services; 3. mental health services; 4. pharmaceutical services; 5. ambulance services; 6. community health services; 7. health education services; 8. welfare services necessary to implement any services referred to in paragraphs (a)-(g); 9. services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices; 10. Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services; 11. (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services; 12. services provided in other alternative health care fields; 13. (k1) forensic pathology services; and 14. a service prescribed by the regulations as a health service for the purposes of the Health Care Complaints Act (NSW) 1993.
5. We agree. The conduct is plainly very serious, involving sexual boundary violations and a gross betrayal of trust by Mr Chen. The conduct was repeated, and continued for a number of years. The conduct should rightly be condemned in the harshest possible terms.
6. In conclusion, we find that: 1. Mr Chen has engaged in unsatisfactory conduct pursuant to s 139B(1)(a) and (l) of the National Law in respect of Complaints Two and Three; 2. Mr Chen has engaged in professional misconduct pursuant to s 139E of the National Law in respect of Complaints Two and Three; 3. Mr Chen is otherwise not a suitable person to practise as a Chinese medicine practitioner pursuant to s 144(e) of the National Law in respect of Complaint One.

Orders

1. The Tribunal orders that: 1. Had Mr Chen still been registered, his registration would have been cancelled; 2. Mr Chen may not make an application for review for a period of three years from the date of these orders; 3. Unless and until Mr Chen is registered as a health practitioner Mr Chen is prohibited from providing all Health Services as defined in s 4 of the Health Care Complaints Act 1993 (NSW); 4. Mr Chen pay the complainant's costs as agreed or, if not agreed, then the amount of costs be assessed by a costs assessor under the legal costs legislation as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW). 5. The Chinese Medicine Board is to record in the National Register kept by the Board that had Mr Chen been registered the Tribunal would have suspended or cancelled Mr Chen's registration.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2021