Health Care Complaints Commission v Chen - [2021] NSWCATOD 71 - NSWCATOD 2021 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Chen

[2021] NSWCATOD 71

NCAT Occupational|2021-02-25

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Court

NCAT Occupational

Decision date

2021-02-25

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Original judgment source is linked above.

Judgment (44 paragraphs)

[1]

Introduction

These proceedings concern a complaint brought by the Director of Proceedings of the Health Care Complaints Commission (the Commission) against Mr Peter Che Nan Chen pursuant to ss 39(2) and 90B(1) of the Health Care Complaints Act 1993 (NSW) and s 145A of the Health Practitioner Regulation National Law (NSW) (National Law).
Mr Chen was a registered Chinese health practitioner. He no longer holds registration.
By an Application for Disciplinary Findings and Orders filed 1 November 2019, the Commission seeks orders that Mr Peter Che Nan Chen is not a suitable person to hold registration as a Chinese medicine practitioner, and is guilty of unsatisfactory professional conduct and professional misconduct.
Attached to the Application was a Complaint, which was subsequently amended during the course of the hearing.
The Amended Complaint is attached to these reasons. In summary, the Commission alleges that Mr Chen, being a Chinese medicine practitioner formerly registered under the National Law: 1. is not a suitable person to hold registration as a Chinese medicine practitioner under s 144(e) of the National Law (Complaint One); 2. is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law (Complaint Two); 3. 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 (Complaint Three). Mr Chen admits this complaint; 4. is guilty of professional misconduct under s 139E of the National Law.
The complaints involve Mr Chen's conduct in respect of three female patients, Patients A, B and C.

[2]

Section 150 proceedings

These proceedings follow a hearing conducted by the Chinese Medicine Council of New South Wales (Council) on 23 November 2016. For the reasons appearing in its decision dated 20 December 2016, the Council imposed the following conditions on Mr Chen's registration: 1. Mr Chen was not to treat female patients in any capacity; 2. Mr Chen was to submit to an audit of his records by a person or persons nominated by the Council; and 3. within five days of the end of each calendar month, Mr Chen was to provide the Council with a statutory declaration affirming that he had not treated any female patients during the preceding month.
In addition, the matter was referred to the Commission for investigation in accordance with s 150D of the National Law.
In its written decision, the Council relevantly stated: "On 23 September 2016, the Council became aware of a Police media release, which appeared to relate to Mr Chen. The media release reported that a 54 year old "alternative medicine practitioner" situated at Parramatta Rd, Annandale, was charged with three counts of indecent assault. Council asked the Health Care Complaints Commission (HCCC) to use their MOU with the Police to establish whether Mr Chen was the alleged assailant. On 28 September, the HCCC confirmed that Mr Chen was the practitioner in question… According to the Police Facts Sheet dated 16 November 2016, • The allegations against Mr Chen were made by three independent females on separate dates between 2011 and 2014; • The alleged assault occurred at Mr Chen's Annandale clinic while the patients were in attendance for the purpose of receiving treatment; • Each patient reported that Mr Chen asked questions of a personal nature that they found inappropriate and unprofessional before they were allegedly assaulted; • Each alleged act of indecency involved Mr Chen "grabbing", "rubbing" or "touching" the patients' breasts without their consent. These issues combine to represent a very serious level of concern about Mr Chen's fitness to practice manual therapy as a Chinese medicine practitioner. It is clear that Mr Chen poses a risk to the health and safety of the public that warrants action being taken under s. 150 of the National Law (NSW)."

[5]

Evidence before the Tribunal

The Commission filed one large folder of material consisting of approximately 60 documents. These documents included but were not limited to evidentiary certificates provided by the Australian Health Practitioner Regulation Agency (AHPRA) and the Council; two expert reports of Dr Sue Cochrane; correspondence between the Commission and Mr Chen; correspondence between the Council and Mr Chen in relation to the s 150 proceedings; the reasons for decision of the Council of 23 November 2016; Court Attendance Notices and Facts Sheets; a transcript of the proceedings in the Local Court of NSW; and various witness statements of persons being former patients of Mr Chen.
Mr Chen also filed a large folder of materials. His documents included but were not limited to his statement of 6 August 2020 (Mr Chen's statement); evidence of his education and professional qualifications; photographs of his clinic; statements of various patients; and appointment book records.
Mr Chen's statement deals with the following topics: background information; his practice of Chinese medicine in Australia; the layout of the Annandale practice; and his usual treatment routine when he was practising at the Annandale practice. He also responds to each of the complaints.
In his statement Mr Chen gives evidence of his "usual treatment routine" when he was practising at Annandale. He states that:

upon the patient presenting to the practice, he would do a preliminary examination which involved him taking the patient's pulse and undertaking a facial examination which included examining their tongue and irises. He would then give the patient a diagnosis, with an explanation of his reason for that diagnosis;
he would then ask if the patient was satisfied with his diagnosis and explanation;
following this, he would give the patient an opportunity to ask questions. He would then recommend the different treatment options, which generally involved either herbal massage therapy or herbal medication or a combination of both.

Mr Chen told the Tribunal that his statement had been typed by his daughter [NOT FOR PUBLICATION], after he had first written a statement in English and then typed it into the computer.

[8]

Evidence of Mr Chen

Mr Chen denies the alleged conduct. He relies on the following documents.
First, a statement he gave to the Commission dated 1 August 2018. The Commission had written to him on 25 July 2018 and asked him to respond to the following questions: 1) During your sessions with [Patient A] between April 2010 and August 2010, you allegedly asked inappropriate questions and make inappropriate sexual comments to [Patient A] regarding her relationship with boyfriend. 2) During your sessions with [Patient A] between April 2010 and August 2010, you said words to the effect of "women in China always have affairs and many boyfriends". 3) During your sessions with [Patient A] between April 2010 and August 2010, you slid your hand down the front of [Patient A]'s clothing during treatment. 4) During your sessions with [Patient A] between April 2010 and August 2010, you placed your hand on [Patient A]'s breast and said words to the effect of "are you okay with this?"
Mr Chen stated in response: 1) I did not ask inappropriate questions during the sessions with [Patient A]. I did ask [Patient A] and patients "Are you married or have a relationship?", because this is related to the treatment and it's the requirements for the records. 2) I deny saying that comments about "women in China always have affairs and many boyfriends". This is not make sense at all, I have two sisters and one live in China, they both married and have a happy traditional family with children. I did mention "Chinese usually is more family and tradition, especially in overseas". 3) I deny sliding my hand down the front of [Patient A]'s clothing during the treatment. … [Patient A] and another patients were all full dress on and lying face down during the treatment, there also have a big towel cover on top of her body. 4) I deny ever placing my hand on [Patient A's] breast and saying "Are you okay with this?" during the sessions. I did ask [Patient A] and all the other patients "Is this too strong for you? Are you okay?" because everyone is feeling or sensitive different to electrical tens machine, I don't want the patient told me the treatment is too strong or uncomfortable after the session.
In his response, Mr Chen also asked the Commission to consider the following facts "that are related to all cases": 1. Due to my small one shop clinic was just half (high) blocked by the white curtains, there was no privacy and everyone in the clinic was able to hear each others when they were talking. In my patient's appointments records, there were always have another patients and their family members in the clinic during the 4 complainants visited me and during the session, there were always had another patients on the same treatment at the same time and some with their family members were siting next to the patient or siting in front of shop (the waiting area), some patients were waiting for the herbal medicine, they were all able to hear each others. If I asked any inappropriate questions or did a inappropriate behavior, if any patient was saying "no" or any complaints, everyone in my clinic was able to hear each others, so I was very careful to avoid any sensitive or inappropriate conversation and avoid any inappropriate behaviour. In the court case, there many patients came to the court tell what they were hearing during their sessions and three young female patients went to the court telling what they were hearing and what I done and defend for me. About my clinic privacy problem, the Chinese Medicine Council had ordered me to install the doors and walls between the consultation room and waiting room and the massage treatment room to keep privacy in early 2016. (I have done the renovation in 2016) This can call the Chinese Medicine Council or write to them to confirm it. 2. I deny any inappropriate questions and I deny ever inappropriate touch female patient's breast during the treatment sessions.
In these proceedings Mr Chen adopts the answers reproduced above. He denied that he ever said words to the effect of "were you busy with your boyfriend on the weekend?" on any occasion to Patient A. He says he wishes to make it clear that he did not put his hand down Patient A's top on any occasion, nor did he touch her breasts on any occasion. He says that he did not touch Patient A in a sexual manner.
Secondly, Mr Chen relies on his appointment records. He says that when Patient A first attended the practice on 20 November 2009, there were four other patients also present for at least part of the time of her visit (assuming her treatment lasted for an hour which was the usual timing).
Thirdly, the patients identified in pars 80, 81 and 82 of his statement provided their own statements which Mr Chen included in his bundle of materials. However, the statement of the patient referred to in par 81 was not read at the hearing.
Both Patient A and Mr Chen gave oral evidence to the Tribunal and were subsequently cross-examined.

[9]

Evidence of Patient A at the hearing

In response to questions from the Commission's counsel, Patient A told the Tribunal that when Mr Chen started the treatment, he would place a towel over her body, which he would then "pat down". She would be lying "face up" on the consultation bed, he would place a towel on top, and pat her down, moving his hand on her breast, and pat her down at every consultation ("from memory, yes"). When asked whether Mr Chen patted down the whole of her body or just the upper torso, after a very long pause Patient A said "from upper chest to knee".
Patient A was then cross-examined. She had no independent recollection of events. She could not remember the reason she saw Mr Chen in the first place. She could not remember if she had seen a Chinese medical practitioner before. Nor could she remember if she heard Mr Chen talking to other patients when she was at the clinic. She could not remember her first visit, at least not clearly. She could not remember what questions he asked her about her age.
She could however remember that she was asked about her relationship status. She could not recall if it was on the first visit but it was "at some stage". She said that she was asked what question Mr Chen asked her about her relationship. She said "from memory, only 'do you have a boyfriend?'" She said she answered that question by stating that she did have a boyfriend, then added "looking at my statement, I only recall what is in my statement".
She said that she did not think that Mr Chen asked her that question on more than one occasion. She considered it to be a comment of a sexual nature. But she remembered him asking the question because she remembered her answer, namely "I'm a Christian, I don't do things like that".
Patient A did not agree that her relationship status might be relevant to her clinical presentation. Nevertheless, she answered the question because it was a "friendly" thing to do, and "out of respect".
She recalled that Mr Chen placed the electrodes for the TENS machine on her skin, although she could not remember where.
Patient A was then asked questions about Mr Chen's treatment. She could not remember him asking for consent before commencing treatment. She said that she did not believe that he gave her a manual massage.
When asked about the patting down, and whether Mr Chen had one hand towards the top of the towel and patted her down with the other, she said "I don't remember exactly", but she remembered the "procedure and pat down and the hand on the breast as part of the pat down". It made her feel uncomfortable. When asked whether it was possible that Mr Chen touched her breast patting down without realising it, she said "I don't know".
She said that on the next occasion she saw Mr Chen, she crossed her arms over her chest to prevent him from touching her breasts.

[10]

Evidence of Mr Chen concerning all complaints

It is convenient to set out some key evidence of Mr Chen which relates to all complaints.
First, the dimensions of his Annandale practice or clinic were approximately 4.36 metres wide and a little over 7 metres deep.
Secondly, in relation to his statement, he would write it first in handwriting, and then start typing it onto his computer. However, his daughter would "tidy up the document" where she thought it was "not good enough". Mr Chen was taken to the word "titrated" in par 56 and asked what the word meant. He replied "It means there is a difference". He then agreed it was not a word he used. When asked if his daughter wrote par 56 his response was "The words that I put in my script was to the effect that I would ask my patients if it was too strong". The cross-examination continued: Counsel: You said that titrated meant "there is a difference". Mr Chen: It meant adjusted. Counsel: Have you worked that out because you had the opportunity to reread the sentence? Mr Chen: I do not understand the word 100%, but the rest of the paragraph is what I meant to say. Counsel: You prepared a written statement in English and typed it into the computer, and then your daughter has finished the statement and used some words that you don't fully understand? Mr Chen: Yes, I understand of her own meaning. Counsel: But in relation to parts, it might reflect your daughter's version rather than your version of events? Mr Chen: I don't agree to that, just some particular words, but the meaning would still be the same. Counsel: Did you actually read this whole statement in English Mr Chen? Mr Chen: Yes. Counsel: When you didn't understand a word "titrated" didn't think to correct, or ask daughter to use a word you did understand? Mr Chen: I thought as long as I understood the overall meaning.
Thirdly, Mr Chen gave evidence about his use of his appointment book and the general questions he would ask each patient. He agreed that the appointment book recorded the causes of why a patient had something wrong with them. He said the book was for temporary use.
He agreed that he would ask patients about their lifestyle, and whether they were married. He explained he would ask both men and women that question, but only recorded it once he was required to keep records of patients. Prior to 2012 he would ask patients if they were married, but not record it anywhere. When asked what was the purpose of asking patients if they were married or not, he said that whether they have taken contraceptives such as the pill would have an impact on their history.
When asked why he would ask a man if he was married, Mr Chen replied that "If the man was married he would become a family man and his diet food and drink would be more regulated".
However, if a woman was not married, he would not make an assumption about whether or not she was taking a contraceptive. He would not usually ask a female patient if they had a boyfriend, particularly as he had a lot of patients in same-sex relationships so he would not ask "that sort of question". However, after some cross-examination on this subject, he agreed that it was possible he might ask female patients if they were in a relationship or if they had a boyfriend.
Fourthly, Mr Chen admitted that he prepared templates for former patients whose evidence he wished to rely on. These were patients who attended his clinic on the same day as Patients A, B and C. He said that he had no legal representation and this was his daughter's suggestion. He told the Tribunal that he told those patients the days on which they had attended his clinic, and told them the issues they should address in their evidence.

[16]

Evidence of the Commission

First, the Commission relied on a complaint of Patient B made to it by email on 23 May 2011. This is a lengthy document, and it contains the following relevant evidence in relation to the allegations in the complaint: "I also don't sleep well and am often very tired and lack energy. I also wanted to improve my immune system as I come down with colds often. So he gave me the diagnosis, I need to improve my digestion, circulation, nerves and sleep, and recommended that I see him every week to get his 'massage' at $50 and 'herbal medicine' at $70. So I've been paying him $120 every week since mid February and have not seen any significant improvement in my health or well being. But this is not the most serious reason I am emailing you, so please read on. Yesterday I was walking down George Street in the city and I saw a new store with a lot of Chinese medicine and doctors. I asked the woman behind the counter if she [knew] what Peter Chen's medicine was or if she had seen it before. See Peter Chen claims that he is the only person who has access to these magical herbs. … … He also asked me a lot of inappropriate questions in my first session with him but I put it down to him not speaking English well and they're being a cultural difference, so perhaps it is acceptable to ask questions and make such comments in his mind. During the massage he uses his hands as well as an electronic acupuncture machine. He never clearly explained what he was going to do, in fact he did not explain at all so I was a little confused. I think it's partly because I am a young female with no boyfriend or husband (he found that out when questioning me) that he thought he could get away with trying to feel me up. Because I wasn't sure of whether or not it was part of the treatment and you don't want to accuse someone of being a pervert if you're not completely sure, I didn't say anything for a while. But as soon as he tried to touch my breast I moved away and he realised that he wasn't going to get away with going that far, so he stopped. You would think that as a professional, if you needed to touch a woman's breast you would warn them or ask them if it was ok first. Being so desperate to have my health problems treated and not sure whether it was part of the treatment or if he was intentionally being inappropriate, I put up with this kind of behaviour for a while... and he is clearly taking advantage of women in this venerable situation."
Secondly, the Commission relied on an email from Patient B sent to the Commission dated 2 September 2011 which relevantly states: "Of course he's going to deny these allegations against him, in fact he had the nerve to lie to my face even when he was caught out in regards to the breach of confidentiality. It is virtually impossible for me to prove any inappropriate conduct or conversation happened and as I pointed out in my letter that is not the most concerning complaint. However, he is lying when he responded by saying that he always explains his treatment and asks if it's okay to go ahead. In my first visit I had no idea what was going on or what he was going to do and I think that he intentionally kept me (and possibly other patients) confused so that he had a better chance of abusing his power... and I know that's partly my fault for allowing it to happen… … As for the overcharging and false medication I still have the bottles he sold me with his fake labels and I saved some of the "herbal" medication to be tested if necessary. Let me know if you think I should have it tested or if there is no point. Because to me that is the main concern, that he may possibly be selling people an unknown substance that is not what he claims it is. The whole point people see a herbal doctor is because they don't want to rely on or use unnatural chemicals. I'm not trying to be vindictive, I like to try new things at least once so I've wasted money on plenty of therapies that had very little effect if any, I've also come across some fantastic therapies and natural supplements… and I've encountered a reasonable amount of perverts in my lifetime. But misleading patients with the medication you're supplying them, to put into their already unhealthy or sick bodies is unacceptable and goes against what he stands for, which is to improve people's health and cure diseases using natural medicine and therapies. I just think it's quite disgusting and I don't want other people to be fooled by him and end up in my position."
Thirdly, a statement of Patient B to the Commission dated 31 October 2017. Patient B relevantly states: 6. I began seeing Peter Chen for treatment, which consisted of massages using his hands and an acupuncture machine. During those treatments Peter Chen said and did things that made me feel very uncomfortable, and which I did not think were appropriate things to do and say as a health practitioner. … 9. In the complaint I wrote "He never clearly explained to me what he was going to do". Peter Chen did not explain the treatment procedure to me, or why or how the treatment would be beneficial for my ailments, prior to him commencing the first treatment. 10. In the complaint I wrote "I think it's partly because I am a young female with no boyfriend or husband (he found out when questioning me) that he thought he could get away with trying to feel me up". During my treatments Chen asked me personal questions about my relationship status in a way that made me feel uncomfortable. During the treatments Chen used his hands to massage parts of my body in a way that made me feel uncomfortable. 11. In the complaint I wrote "But as soon as he tried to touch my breasts I moved away and he realised that he wasn't going to get away with going that far, so he stopped". During treatments, I would lay down face up on a massage table. Peter Chen would begin by massaging my upper body with his hands before putting the electronic acupuncture attachments on me. I was fully clothed during these sessions, but whilst performing this massage he would move his hands under my top towards my chest and would touch my breasts and nipples. The first time he did this | felt his hands and fingers touch my breasts and nipples. The contact between his hands and my breasts and nipples was skin to skin contact. When his hands came into contact with my breasts and nipples, Chen did not make any reflexive action to remove them immediately, and left them there until I moved my body away. I did not say anything to him about touching my breasts as I was surprised he would do that and was not sure if there was a reason for it or not, but I believe my actions in moving away made it clear to Chen that I was not comfortable with him touching my breasts and nipples in that way, and when I moved away he stopped touching my breast and nipples. Chen repeated to touch my breasts and nipples during treatments on numerous occasions, despite me repeatedly moving away each time his hands came in contact with my breasts and nipples. On no occasion did he apologise or offer any explanation as to why his hands came into contact with my breasts and nipples, he just removed his hands from them after I moved my body out of the way each time he did it."
Fourthly, in relation to Particulars 3 to 5, which relate to diagnosis and prognosis, the Commission relies on Mr Chen's appointment records and the expert report of Dr Suzanne Cochrane dated 28 March 2019. We set out the relevant parts of those records below.
Relevantly, Dr Cochrane states at par 5.2(9): "Mr Chen's diagnosis is difficult to assess as it merely offers a list of possible disorders to digestion, circulation, nerves and sleep which impact on [Patient B]'s wellbeing rather than a coherent Chinese medicine diagnosis that would guide treatment. Without a documented patient record detailing [Patient B]'s presenting signs and symptoms and Mr Chen's analysis of these it is impossible to make a judgement on the accuracy of Mr Chen's diagnosis."

[17]

Evidence of Mr Chen

As noted above, Mr Chen denies any alleged conduct. He relies on the following documents.
First, an email dated 25 July 2011 which he sent to the Commission. The Commission had written to him on 20 July 2011 enclosing Patient B's complaint. The Commission invited him to provide a written response. His email is long and discursive, but relevantly he states: "[Patient B]… suffered sleeping problem and often feel tire, catch cold and flu often, this is because she is unable to digest and turn her food to become energy, there is not enough good quality blood carrying the energy to her, she suffered poor blood circulation is due to there is not enough nutrition been supplied to her bone marrow to build her good quality red and white blood cell and the liquid antibodies, this is why her immune system is weak and there is not enough good quality antibodies to fight the virus and bacteria infections, after a couple treatments, she is sleeping much better and her immune system has been improved, she told me she feel more energy and the cough is gone and the throat is much better at that time, this is why she keeps coming back to see me. [E]very time she come to see me, I always have another patients in my clinic, she never complaint any thing until she feel she can't afford it, then she not happy about every thing, everything become negative from her view, this is not fair to me. … I always very carefully to prevent any offense and never asking female to take clothes or any wear off, if they have a boyfriend or husband, I always allow they sit next to them when I do the treatment to the female. I never try to touch her breast, because I am always busy with at least another 2 or 3 patients at the same time, it may accidentally touch the chest front, but never apply to the breast area. I have never just seen her without other patients, if I did something or she complaint it, many other patients will heard that, it is very embarrassing to me too. I have try very carefully to avoid these kind of things, I have seen a lot of young beautiful women in the last 21 years and even now I have seeing many young women with infertility or depression or migraine, I have very very few this kind of complaint for the last 21 years, I believe it is under 0.001%. Since this I will try to avoid any thing close to the sensitive part of the body.
Secondly, a further email of Mr Chen to the Commission dated 27 July 2011. (We note that this email was included in the Commission's bundle of documents, but we assume that Mr Chen wished to rely on it, it being one of his documents.) The main point of this communication was to provide patient testimonials to the Commission. Mr Chen also took the opportunity to explain his expertise and skills. He states that: "… My logical medicine consultation is the unique and very special, every patient even don't tell me any thing or what's wrong, I will find the real cause and tell them how these cause cause their symptoms and problem, why they are suffering, … It is only me can do this special logical consultation in the whole wide world, even in China, no any one else can provide this service, my service is not sell herbal medicine like a retail shop, it is a special unique help people to treat the difficult disease, … … I have cure thousands of severe diseases, because my website and the testimonials column it just open a year, but still some very happy customers wrote me some testimonials and some may come soon, all these can proof my service is able to cure many difficult diseases and have many satisfy patients, … … I don't think any doctor can make 100% patients happy, even the God. … … the herbal medicine is different from the normal shop one, because I am a Chinese medicine practitioner and naturopath, I have to following the patients health condition to give the different herbal medicine to help them get better, I have to give single herbs or different mixtures, it is not like the factory only provide some herbal or supplement for general health and suitable for every one or most of them, … About the [privacy], I have a waiting room area, you can see each other when patients in treatment, I always want to improve it, but I can't afford one nurse stand next to me, if I only deal with a women in a room inside, I may be more danger for the complaints, I may go into a big trouble. I have done logical medicine and chinese medicine, naturopath for 21 years, I have help many thousands patients to get better or cure their disease, most people come to see me are hearing the word on mouth, I can proof these at any time. [L]ook at some of my patients how they said, you will understand it is true or not."
Mr Chen then sets out testimonial support from a number of patients.
Thirdly, his statement of 6 August 2020. Relevantly, Mr Chen denies that he regularly failed to re-assess Patient B's symptoms, and that he failed to provide her with a prognosis. He says that having reviewed his appointment records, the herbal medication he prescribed varied each visit. He says that new symptoms were recorded upon presentation, such as at her 11:30am appointment on 25 March 2011. He says that he "would have altered her overall management depending on her specific presenting complaint on the day of her specific or change in overall prognosis following her massage therapy sessions."
Mr Chen states that as the events alleged by Patient B occurred many years ago, it is difficult to recall specific details of each examination on each occasion that Patient B attended the Annandale practice beyond the records he has written in shorthand in his appointment book.
Fourthly, Mr Chen relies on his appointment book. Having also reviewed that book, he says he diagnosed Patient B with poor blood circulation, poor digestion, poor liver function, and a weak immune system. In his view, these were related to the central nervous system, which he records in his notes. The treatment he gave Patient B consisted of herbal medicine and TENS machine therapy with a herbal massage liquid.
He denies that he failed to regularly re-assess Patient B's symptoms at any time during her consultations, or failed to provide Patient B with a prognosis at any time during her consultations. He notes that the herbal medication he recommended to Patient B varied each visit. He says that he provided each patient with a tailored and specific treatment plan with different herbal products to address their diagnoses.
He denies that he told his patients, including Patient B, that he was the only person with access to the herbal products that he was recommending.
He denies that he failed to obtain consent prior to providing massage treatment to Patient B, as he always asks his patients for their consent before commencing treatment after having discussed the proposed treatment with them.
He denies that he touched Patient B's breasts and nipples under her clothing during any treatment session that she attended. He says however that there was "a chance" that his hand may have accidentally quickly brushed over Patient B's chest over her clothes as he moved from massaging her neck and shoulder area, although he has no recollection of this occurring. He says that he did not ever massage Patient B's breasts or nipples, apply pressure to them or otherwise deliberately touch her breasts or nipples. He says that he did not put his hands under Patient B's clothes. He denies touching Patient B in a sexual manner.
Mr Chen says that according to his appointment records, when Patient B first attended the practice on 16 February 2011, he believes there were four other patients also present for at least part of the time of Patient B's visit (assuming her treatment lasted for an hour which was the usual timing). One patient is identified in par 97 of his statement and we will refer to her as Patient 3. Patient 3 provided a statement relied on by Mr Chen and was required for cross-examination.
Mr Chen says that according to his appointment records, when Patient B attended the practice on 25 February 2011, he believes there were five other patients also present for at least part of the time of Patient B's visit (assuming her treatment lasted for an hour which was the usual timing). One patient is identified in par 101 of his statement. While this patient provided a statement filed by Mr Chen, he was not available for cross-examination and his statement was not relied on at the hearing. However, another patient is identified in par 102 of his statement and we will refer to her as Patient 4. Patient 4 provided a statement relied on by Mr Chen and was required for cross-examination.
Mr Chen says that according to his appointment records, when Patient B attended the practice on 11 March 2011, he believes there were four other patients also present for at least part of the time of Patient B's visit (assuming her treatment lasted for an hour which was the usual timing). One patient is identified in par 104 of his statement. However, while this patient provided a statement relied on by Mr Chen, he was not available for cross-examination and his statement was not relied on at the hearing.
Mr Chen says that according to his appointment records, when Patient B attended the practice on 1 April 2011, one other patient, to whom we will refer as Patient 5, was present (see par 106 of his statement). Patient 5 provided a statement relied on by Mr Chen and was required for cross-examination.
As to evidence of diagnoses of Patient B in his appointment book Mr Chen says that: 1. on 16 February 2011, he recorded "CNS", meaning central nervous system disorder ("such as cervical syndrome, sleep disorder, poor memory, anxiety"), and prescribed 10 Bao He Wan pills three times a day; 10 Sheng Mai San pills three times a day; and two Shui De An capsules a day for six days; 2. on 25 February 2011, he recorded CNS, poor function of liver and poor digestion. He prescribed 10 An Shen Ding Zhi Wan pills three times a day; five Ding Chuan Zhi Ke Wan pills three times a day; and one Shui De An capsule a day for six days; 3. on 4 March 2011, he recorded CNS, poor function of liver and poor digestion. He prescribed 10 An Shen Ding Zhi Wan pills three times a day; five Ding Chuan Zhi Ke Wan pills three times a day; and two Shui De An capsules a day for six days; 4. on 11 March 2011, he recorded CNS. He prescribed 10 An Shen Ding Zhi Wan pills three times a day; five Huo Xiang Zheng Qi Wan pills three times a day; and two Shui De An capsules a day for six days; 5. on 18 March 2011, he recorded CNS. He prescribed 10 An Shen Ding Zhi Wan pills three times a day; five Si Wu Wan pills three times a day; and two Shui De An capsules a day for six days; 6. on 25 March 2011, he recorded back pain and right and left shoulder pain. He prescribed five Si Wu Wan pills three times a day and two Shui De An capsules a day for six days; 7. on 1 April 2011, he prescribed two Shui De An capsules a day for six days; "Huang Lian Jie Du Wan 5 pills (day) 10 pills (bed)/per day"; 10 Ding Chuan Zhi Ke Wan pills three times a day; and one Chuan Xin Lian pill every second night before bed; 8. on 8 April 2011, he recorded a sore throat and prescribed eight Huang Lian Jie Du Wan 5 pills (morning), 10 pills (afternoon) and 12 pills (before bed) every day; five Ding Chuan Zhi Ke Wan pills three times a day; two Shui De An capsules per day; and one Chuan Xin Lian pill every second night before bed; 9. on 29 April 2011, he recorded a sore throat and prescribed eight Huang Lian Jie Du Wan 5 pills (am), 10 pills (pm) and 12 pills (before bed); five Ding Chuan Zhi Ke Wan pills three times a day; and two Shui De An capsules per day; 10. on 6 May 2011, he recorded a sore throat and prescribed eight Huang Lian Jie Du Wan 5 pills (am) and 12 pills (before bed); five Bai He Gu Jin Wen pills three times a day; and two Shui De An capsules per day. He also recorded "only take herbs without treatment"; 11. on 13 May 2011, he recorded a sore throat and prescribed eight Huang Lian Jie Du Wan 5 pills (am), 10 pills (pm) and 12 pills (before bed); five Bai He Gu Jin Wen pills three times a day; two Shui De An capsules per day; and one Chuan Xin Lian pill every second day; 12. on 20 May 2011 he prescribed 10 Ding Chuan Zhi Ke Wan pills three times a day; five Bai He Gu Jin Wen pills three times a day; two Shui De An capsules per day; and one Chuan Xin Lian pill every second day. He also recorded "only take herbs without treatment"; 13. on 27 May 2011 his appointment book simply records "For herbal medicine only. [Patient B] didn't show on".

[19]

Evidence of Mr Chen at the hearing

There was considerable cross-examination over the fact that Mr Chen, who numbered each patient's visits, had treated Patient B's visit on 29 April 2011 as her first, when in fact it was her seventh, and then continued to number subsequent visits as her second and third and so forth: Counsel: On 29 April you treated her as if she was a new patient? Mr Chen: No, when she arrived I knew who she was, but I did change my record instantly. Counsel: You didn't change it at all as on the next occasion, on the second visit? Mr Chen: I so busy it was a mistake for a reason she didn't arrive.
Mr Chen was asked about complaints by patients other than Patient B about him touching their breasts. He was asked whether women prior to July 2011 had complained to him about the way he touched them in the breast area. His answer was that "my memory and impression is no".
He denied touching Patient B's breasts, denied that he told Patient B that he was the only person with access to the herbal products he was selling, and denied that he failed to obtain informed consent before he treated Patient B. He said that "every time" a patient consulted him he would explain how and why he would undertake any treatment.
Mr Chen was asked whether he remembered that Patient B in oral evidence and in her complaint said that she was suffering from bursitis. Mr Chen said that he did not recall bursitis, but did remember that Patient B came to see him on and off about her cold and flu symptoms. Mr Chen said that he did not know what bursitis was.
Mr Chen was extensively cross-examined about his appointment book entries in relation to Patient B. He explained that he would review the record for a patient's previous visits each time he saw them again. It was put to him that he diagnosed conditions including digestion, circulation, nerves and sleep disorders. Mr Chen said that these were diagnoses they were the cause of Patient B's symptoms. He denied that he failed to ever provide Patient B with a proper diagnosis at any time during her treatment, or that he failed to regularly assess her symptoms at any time. He said that this was demonstrated as he adjusted the prescribed medication at each of her visits.
Mr Chen denied that he told Patient B that he was the only person who had access to the herbal products he was selling to her.
Finally, in cross-examination Mr Chen was taken to par 5.2(9) of Dr Cochrane's report extracted above. Mr Chen told the Tribunal that he disagreed with it. In re-examination he explained that Patient B came to him tired, and found it easy to catch colds and flus. He explained to her that poor digestion and circulation would lead to a poor immune system with the result that she would be unable to absorb nutrients to support her bone marrow to make C cells, T cells and liquid antibodies.

[25]

Evidence of the Commission

First, the Commission relied on a statement Patent C made to the police on 24 February 2014, which Patient C gave after her second consultation with Mr Chen, relating to his conduct during the first consultation on 17 February 2014. Patient C relevantly states: 5. The initial consultation took place in a front room behind a curtain. At this time Mr CHEN looked into my eyes and checked my pulse. Mr CHEN then took me through to 1 of 6 rooms made from curtains with an old fire place inside. Mr CHEN explained to me that the treatment would involve electrodes being put onto my back. Mr CHEN went ahead and put those electrodes onto my back which made my muscles spasm. Mr CHEN then said, "Where do you live and what do you do for work." I responded, "l am from Baulkham Hills near Parramatta and I am a Case Manager for people with disabilities." Mr CHEN said, "Are you married?" I said, "I am." Mr CHEN said, "What does your husband do for work?" I said, "He is a bar tender." Mr CHEN then said, "Do you have any other husbands?" I thought that remark was a bit off. 6. At the beginning of the treatment Mr CHEN asked me to unzip my cardigan which I was wearing. About 45 minutes into the treatment Mr CHEN asked me to lay on my back. Mr CHEN started to rub my shoulders with both hands. He moved his hands down to just below my breasts and continued to rub with both hands. I then felt MR CHEN rub my left breast for about 3 seconds before moving onto my right for about 3 seconds. I felt very uncomfortable with this but too shy to say anything. The treatment then finished and I went into the front room where Mr CHEN gave me the medication he recommended and I left. Mr CHEN booked me in for the same time the following week. 7. I again went to the Medical Centre on the 24th of February 2014 at 4:00pm for the second appointment. I met with Mr CHEN and went into the same room as the previous appointment. About 30 minutes into my appointment a man came in and I heard him yet at Mr CHEN. I heard the man shout, "My girlfriend told me you touched her nipples, you are supposed to be a professional, you were asking her what she did for work, how to get a ticket to see her and you asked her what I did for work, it's none of your business you are supposed to be a professional, give me the money back you are lucky I have not gone to the police yet!" The man was shouting for about 5 minutes. Mr CHEN I heard only reply with, "l was helping her, no, no, no." 8. I did not give permission for Mr CHEN to rub my breasts and I felt it was inappropriate.
Secondly, the Commission relied on a statement of Patient C dated 28 November 2017. This statement attaches the police statement of 24 February 2014 referred to above. The statement refers to Patient C's evidence to the Local Court on 22 March 2017 in respect of which Patient C states: 7. Parts of my testimony of 22 March 2017 refer to whether, apart from my cardigan, I removed any clothing during the consultation with Mr Chen. I wish to make clear that I removed my cardigan at the request of Mr Chen but to the best of my recollection I did not remove any other pieces of clothing during the consultation of 17 February 2014. For clarity, I state that Mr Chen touched my breasts over my clothing. 8. During cross-examination, I was asked about Mr Chen putting a blanket over me. I wish to make clear that to the best of my recollection Mr Chen did not put a blanket over me at any time on either 17 February 2014 or 24 February 2014, but I clearly recall that there were no blankets covering my torso during the times that he touched my breasts.
Thirdly, the Commission relied on the evidence given by Patient C in the Local Court on 22 March 2017. Mr Chen had been charged with two counts of "assault with an act of indecency" (Crimes Act 1900 (NSW), s 61L) in respect of Patient C, namely that: 1. on 17 February 2014 Mr Chen had assaulted Patient C by committing an act of indecency by rubbing her breasts with his hands; and 2. on 24 February 2014 Mr Chen had assaulted Patient C by committing an act of indecency in that he touched her breast with his hand and pinched and flicked her nipple with his finger.
Mr Chen was acquitted of these charges. However, at the hearing in the Local Court on 22 March 2017 Patient C gave evidence in chief that: Q. What was said, if anything? A. He said - he was asking me questions such as, "Where do you live? What do you do for work? Are you married? What does your husband do?" And I remember a weird thing - what I perceived as weird that he said is, "Do you have any other husband?" and I thought he was just trying to be funny, but it did seem a bit off to me. … A. … he put his hands beneath my breasts, both hands beneath - maybe a few centimetres below each breast. Q. Can you just show the Court? A. So just-- Q. So you're demonstrating an area below your breasts-- A. Beneath the bra. Beneath where the bra touches the skin. Q. What was his hands doing at that point? A. They were massaging, so circular or side to side motions. Q. Was it the same sort of movement as was happening before on your shoulders-- A. Exactly. Q. --in the area above your breast? A. That's correct yeah. So it seems like I've had - for example I've had many massages before and it seemed like a regular massage where the person would be using somewhat circular motions to relax the muscles. Q. What's happened next? A. Then the hands ever so swiftly I would say went to - I seem to recall it was first my left breast and then the right and I am 90% sure it was just the one hand that went to each breast because I remember it was not both at the same time, it was one and then the other. Q. So one hand touched one breast first? A. One hand touched one breast. Q. Which breast was touched first? A. The left breast. Q. Your left breast? A. That's correct. Q. What was the time difference between the first breast and the second breast being touched? A. I would say a couple of seconds. Q. When both hands were on the breast, how long were they on there for? A. Each occasion when there was one breast on each hand would've been two or three seconds perhaps. Q. On each? A. On each yeah. Q. What were the hands doing on both breasts? If you can describe what movement, if anything, they were doing? A. They were definitely a circular motion around the nipple area so not touching the nipple but the area around just a few centimetres around the nipple, the hands went around in a circular motion. … Q. After he'd touched your breast during the treatment, how did that make you feel? A. I felt like trash. I felt worthless and I felt confused. And I felt uneasy.
Patient C was then cross-examined by Mr Chen's counsel. In relation to her evidence that Mr Chen touched her breasts, the evidence was as follows: Q. What I'm going to suggest to you ultimately is that Mr Chen did not deliberately touch your breasts. You understand what I'm putting to you? A. That's your suggestion. Q. What I'm suggesting to you is he didn't do it deliberately. A. I don't agree. Q. In fact what I'm suggesting to you is he didn't do it at all. A. Well obviously I don't agree with that. Q. And that you with the benefit of hindsight and the behaviour of this other man on the second visit constructed or reconstructed what happened on the first visit. A. Why would I do that? Q. I'm just suggesting that's what happened. I'm not suggesting you did it deliberately, I'm suggesting that's what happened. A. Well I deny that that's the case.
There were no direct questions put to Patient C about her evidence that Mr Chen said words to the following effect: "Do you have any other husbands?"
Fourthly, Mr Chen's response to a series of questions asked by the Commission in a letter dated 16 May 2017. The questions relevant to Complaint Two were: • Please provide a description of the consultation with [Patient C] on 17 February 2014, including her presenting concerns, your assessment, and the treatment you provided. • Did you rub [Patient C's] breasts with your hand during this consultation? • Please provide a description of any physical contact you had with [Patient C's] breast/s (if any), and the reasons for any such contact. • Did you ask [Patient C] any personal questions during the consultation such as "are you married?", "what does your husband do for work?", and "do you have any other husbands?"? If so, please list the questions you asked.
Mr Chen's written response was dated 1 June 2017 and was as follows: • Please provide a description of the consultation with [Patient C] on 17 February 2014, including her presenting concerns, your assessment, and the treatment you provided. [Patient C] visited me at 4.00pm 17 February 2014 and 4.00pm 24 February 2014. [Patient C] has done two herbal massage treatments on the above dates. There were another four patients in my treatment rooms and some of their family members sat in the waiting room while I did the consultation and herbal massage for [Patient C] on 17 February 2014. They were all able to hear the conversation between me and [Patient C], as we were in the same clinic, divided by curtains only. After I did the initial iridology consultation for [Patient C], she agreed with my assessment and explanation, and agreed to do a herbal massage and take my suggested herbal treatment. [Patient C]'s main complaints were that she experienced dizziness, had poor memory and poor concentration, tired easily and had a 'foggy' head for about two years. She also had poor sleep quality, which had worsened in the past six months. My assessment was that she had poor digestion, poor blood circulation, sleep disorder, anxiety, poor memory and poor concentration. The Chinese Medicine diagnosis was that she had: Kidney "Yin" and "Yang" deficiency. The prescribed treatment was: deep herbal massage and natural therapy, with herbs for helping anxiety and sleep. • Did you rub [Patient C]'s breasts with your hand during this consultation? No. • Please provide a description of any physical contact you had with [Patient C]'s breast/s (if any), and the reason for any such contact. I did not have any physical contact with [Patient C]'s breast. • Did you ask [Patient C] any personal questions during the consultation such as "are you married?", "what does your husband do for work?", and "do you have any other husbands?"? If so, please list the questions you asked. Yes. I asked the first question "Are you married?" [Patient C] said "No", then I circled "Single" on her patient's record. No, I didn't ask the other two questions.

[30]

Onus and standard of proof

The Commission bears the onus of proving the complaints and the particulars of the complaints to the civil standard. As the Tribunal explained in Health Care Complaints Commission v Ng [2015] NSWCATOD 85: [131] The onus of proof is the civil standard, as explained in Briginshaw v Briginshaw (1983) 6 CLR 336 and other authorities including Forster v Hunter New England Area Health Service [2010] NSWCA 106. [132] In Forster the Court of Appeal stated: 22. In the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 the plurality indicated that in the context there under consideration epithets designed to assist in identifying the strength of the evidence necessary to establish a matter on the balance of probabilities test were "at best unhelpful and at worst misleading" (110 ALR at 451). They said that "[t]he most that can validly be said [in the type of case under consideration] is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities" (ibid). 23. Likewise, in the present context, it is not in my view of assistance to attempt to refine the description of the standard of proof beyond saying that the word "satisfied" in s 82(3)(c) requires the court to reach its conclusion on the balance of probabilities and in doing so to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order. The need to have regard to such matters was authoritatively stated by Dixon J in the seminal decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, especially at 362 (see also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521-2). [133] In Rejfek, the High Court stated: [10] … The "clarity" of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, per Dixon J. (1938) 60 CLR, at p 362… [11] … But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge: see Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 per Dixon, Evatt and McTiernan JJ. (1940) 63 CLR, at p 714. [134] In Campbell [v Campbell [2015] NSWSC 784], Sackar J at [72] also referred to Evans and Braddock [2015] NSWSC 249 at [70]-[77], a decision of Hallen J. Hallen J had noted that Emmett J (as his Honour then was) stated in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 at [48]: When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).

[31]

Competing versions of events

In Campbell v Campbell [2015] NSWSC 784, the Supreme Court gave useful guidance where there were competing versions of events given by witnesses. This was paraphrased in Ng at [128] as follows: "… (1) Where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence is of primary importance: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477. (2) The rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation: Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34] Keane JA; referred to with approval by Leeming JA in New South Wales v Hunt [2014] NSWCA 47 at [56]. (3) A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]."
In Ng, the Tribunal noted at [129] that Campbell also referred to the dissenting speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd's Rep 403, who stated at 431: "a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."

[32]

Tendency/coincidence evidence

Mr Chen submits that the Tribunal should hesitate in drawing inferences from any similarities between the complaints made by each patient, in a manner that might otherwise be considered "tendency" or "coincidence" evidence under the Evidence Act 1995 (NSW) (or "similar fact" or propensity evidence" at common law). Mr Chen submits that the use of the evidence in such manner should be approached with caution, cognisant of the policy concerns which lead to the limitations put on the admissibility and use of such evidence when the rules of evidence apply. In this respect Mr Chen relies on Health Care Complaints Commission v Fearon [2018] NSWCATOD 26 at [33]: "The Commission contends that there are striking similarities between the admitted offences and the modus operandi used in committing them with characteristics of the transactions listed in the disputed particulars. From those similarities, the Commission submits that the Tribunal can reasonably infer that Mr Fearon was supplying prescribed medication without prescriptions. At common law, such evidence is known as "similar fact" or "propensity" evidence: see, for example, Pfennig v The Queen (1994) 182 CLR 461; [1995] HCA 7. Under the Evidence Act 1995 (NSW), such evidence is referred to as "tendency" or "coincidence" evidence: ss 97 and 98. Similar fact evidence refers to specific conduct that is of the same general characteristic or shares some common feature with the conduct which is the subject of the proceeding. It is a species of circumstantial evidence, tendered to assist in the proof of one or more of the elements of alleged conduct. As a proof, its significance is that "it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged": Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, at 294-5, per Mason CJ and Wilson and Gaudron JJ. Because of the dangers of unfair prejudice, such evidence will only be admissible where the rules of evidence apply as part of a case to prove a person did a particular act or had a particular state of mind if it has significant probative value: see ss 97(1)(b) and 98(1)(b) of the Evidence Act. Although we are not bound by the rules of evidence (s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW)), our approach has been to treat this evidence with caution similar to that applied by courts. In our view, however, this evidence is of significant probative value."
We accept that we should hesitate before making any findings relying on tendency or coincidence evidence. As it happens, we have not found it necessary to rely on this rule of evidence.

[35]

General observations re Patients A, B and C and Mr Chen

It is appropriate to make some initial observations of each of the witnesses and Mr Chen.
We considered that each of Patients A, B and C were honest witnesses who were telling the truth. Each gave evidence from time to time which did not assist them and did not hesitate to say when they could not remember events, each conceding that the events took place a long time ago. On the other hand, some had quite specific recollection of certain events, such as: 1. Patient A recalling her reaction to Mr Chen's suggestion that she might have more than one boyfriend, because she was a Christian; 2. Patient B stating very strongly that she recalled Mr Chen touching her breasts on multiple occasions; 3. Patient C rejecting the suggestion that any breast touching by Mr Chen was accidental, stating "definitely not as it seemed deliberate to me".
Importantly, each had provided statements to police or other authorities reasonably contemporaneous to the events in question. As will be seen: 1. we find that events alleged against Mr Chen in respect of Patient A took place in the period November 2009 to May 2010, Patient A first making a complaint to the Commission in August 2010. The Tribunal found her to be a credible and reliable witness; 2. we find that events alleged against Mr Chen in respect of Patient B took place in the period February to May 2011, Patient B first making a complaint to the Commission, in relation to some of the matters the subject of Complaint One, in May and September 2011. While her statement to the Commission was not prepared until October 2017, she was extensively cross-examined about this delay and about the events in question. We found her to be a credible and reliable witness; 3. we find that events alleged against Mr Chen in respect of Patient C took place on 17 February 2014, Patient C giving a statement to police on 24 February 2014. We found her to be a credible and reliable witness;
On the other hand, Mr Chen was a poor witness in many respects. We consider that Mr Chen's evidence should be approached with caution because: 1. he frequently avoided or simply did not answer the questions put to him, even when they were straightforward, thus giving a somewhat evasive impression. For instance, counsel for the Commission put to him that he did not record in his diary that Patient B could not afford his treatment. The question was straightforward: "You don't record in diary notes that [Patient B] said she couldn't afford it, do you?", but the response was not. Mr Chen replied: "No I do not agree with what you said because I always recommend when they come to see me they should at least see me once or twice and if happy with my work they should come back to and complete one or two courses of treatment and then if not happy they don't have to come back"; 1. some of his evidence appeared to be recent invention (such as his account that Patient B had ceased treatment in early April 2011 because she was satisfied with her treatment, and then returned in late April for treatment for different ailments); 2. some of his evidence appeared to be implausible, such as: 1. being able to remember precise details of what he told patients over 10 years earlier, and that he recalled that Patient A recommended him to her friends, when he had treated thousands of patients in that time; 2. he would not use information from his patients to aid a diagnosis in terms of traditional Chinese medicine theory, telling his patients not to state what was wrong with them, rather he would tell them just by looking at them; 3. "It is only me can do this special logical consultation in the whole wide world"; 1. parts of his statement were written by his daughter. He told the Tribunal that he wrote it in handwriting, and then typed it onto the computer, but his daughter would then "organise" the statement, which she said was "not very good". He denied that his daughter completed the statement, but stated that "basically" he had written the whole statement and she would "tidy up" the document. He was asked what the word "titrated" appearing in par 56 of his statement meant. He said that it meant "there is a difference". When asked if his daughter wrote that paragraph, he said, after a very long pause, "The words that I put in my script was to the effect that I would ask my patients if it was too strong". (This appears to be a reference to the operation of the TENS machine.); 2. some of his evidence was simply unresponsive to the questions asked; examples appear at [49] and [50]; 3. some of his evidence was not reasonable to believe as true. Examples include: 1. at [48], being his evidence that he could recall that Patient A recommended him to friends. Given the thousands of patients Mr Chen treated each year this is not credible evidence; 2. at [84], being his evidence as to whether or not he had forgotten that Patient B was an existing patient; 3. at [116], being his evidence that Patient C, who was married at the time of her treatment, told him that she was single.

[37]

Consideration and findings

Patient A saw Mr Chen on 15 occasions in the period 20 November 2009 to 7 May 2010. She sent her complaint to the Commission on 25 August 2010.
We consider that Patient A was telling the truth at the hearing: that is, that she had little to no recollection of events, save for what was in her complaint to the Commission of 25 August 2010. But that complaint clearly states that: "Peter Chen on numerous occasions would ask me about me and my boyfriend. He would say things like, were you busy on weekend with boyfriend - basically sexual comments. He would say how is your handsome boy which is fine, but then there would be slight sexual comments. Not straight out obvious, but just alluding to things. He would also mention that in China women always have affairs and many boyfriends. … he would slide his hand down my front or say are you OK with his hand on my breast. It was sly and I was surprised that he even put his hand near there, but he did, so it must have been obvious because the next consult I had with him, I rested my hands over my chest to ensure that he didnt touch me in that area. I think he knew what I was doing, protecting my personal areas."
While we accept that there was a short period of time between the event complained of and the making of the complaint, we consider that the complaint itself was sufficiently contemporaneous with the events complained of as to lend credibility to the contents of the statement.
The evidence of Patients 1 and 2 was of no assistance in determining whether the complaint relating to Patient A was established.
For the reasons set out in [132], we consider that Mr Chen's evidence should be approached with caution.
As noted above, contemporary documents are always of the utmost importance. In the circumstances, we place great weight on Patient A's near contemporaneous complaint to the Commission. Given the contents of the complaint which we have set out, which we accept, we find that: 1. on more than one occasion Mr Chen asked Patient A "were you busy with your boyfriend on the weekend?"; 2. on more than one occasion Mr Chen said to Patient A "in China women always have affairs and many boyfriends";
Given the contents of the statement, but given Patient A's evidence in cross-examination, we find that: 1. on one occasion Mr Chen touched Patient A's breasts over her clothes and a towel without informed consent or clinical indication; 2. on that occasion Mr Chen asked Patient A "are you ok?" while engaging in the conduct above, namely touching her breasts.
In summary, we find each of Particulars 1(a), (b), (c) and (d) of Complaint One established.
Particular 2 is that Mr Chen engaged in inappropriate conduct of a sexual nature towards Patient A by reason of his actions set out in Particular 1(c). Having found Particular 1(c) established, it follows that Particular 2 is established.

[38]

Findings re Patient B

The Commission submits that there are a number of factors which would cause the Tribunal to accept Patient B's version of events. These include: 1. Patient B was sufficiently upset about her treatment to make a complaint to the Commission, reasonably contemporaneously with the alleged events; 2. she adhered to her evidence in cross-examination about what had occurred.
In relation to Particulars 3, 4 and 5 concerning the diagnosis, prognosis and re-evaluation of Patient B, the Commission relies on the opinion of Dr Cochrane - where she distinguishes between the symptoms, which are what Mr Chen records, and the diagnosis, which is not recorded - to support finding these Particulars made out. In addition, the Commission is critical of the diary record keeping which, while it does contain changes in the herbal medication, and on the sixth visit does note Patient B's sore back, overall does not record diagnoses in the way described by Dr Cochrane; does not detail how or why Mr Chen determined to change medications, or record what progress or lack of progress had been made in treating Patient B; and did not provide Patient B with any prognosis relating to any specified condition, nor how Mr Chen would measure improvements in her well-being.
On the other hand, Mr Chen submits: 1. Patient B's complaint to the Commission was made in the same year as her treatments with Mr Chen but not directly after the events alleged occurred. Therefore, it should not be treated as contemporaneous reporting, and the Tribunal's assessment of the evidence should take into account the delay between the allegation and the making of the email complaint; 2. paragraphs 10 and 11 of Patient B's statement contain additional detail with respect to the conduct relied upon for Particulars 8 and 9 than was set out in her original complaint to the Commission. In considering the evidence, the Tribunal should consider the delay in providing the addition of these details and the fact that the details were added after Patient B's original complaint had not been pursued many years earlier; 3. there are no other written records in evidence recording the details set out in Patient B's statement at pars 10 and 11; 4. the evidence of Dr Cochrane is not sufficient to make out a finding of Particulars 3 to 5.

[39]

Consideration and findings

Patient B saw Mr Chen on 11 occasions in the period 16 February 2011 to 20 May 2011. She sent her complaint to the Commission on 2 September 2011.
We consider that Patient B was telling the truth at the hearing. Unlike Patient A, she had some independent recollection of matters referred to in her complaint to the Commission.
While we accept that there was a short period of time between the event complained of and the making of the complaint, we consider that the complaint itself was sufficiently contemporaneous with the events complained of as to lend credibility to the contents of the statement. Importantly, the most serious of the allegations, namely the breast touching, was identified in her complaint of 23 May 2011 ("he thought he could get away with trying to feel me up. … But as soon as he tried to touch my breast I moved away…").
The evidence of Patients 3, 4 and 5 was of no assistance in determining whether the complaint relating to Patient B was established.
For the reasons set out in [132], we consider that Mr Chen's evidence should be approached with caution.
As noted above, contemporary documents are always of the utmost importance. In the circumstances, we place great weight on Patient B's complaint to the Commission of 23 May 2011 and further email to the Commission of 2 September 2011, and considerable weight on her statement to the Commission of 31 October 2017.
Particulars 3, 4 and 5 of Complaint One relate to Mr Chen's proper diagnosis of Patient B and his prognosis.
The New Shorter Oxford Dictionary on Historical Principles, 4th ed (1993) states that:

diagnosis is the process of determining the nature of a disease; it is the identification of a disease from a patient's symptoms;
proper means of the requisite standard or type, fit, suitable, appropriate, fitting, right;
prognosis is a prediction of the likely outcome of a disease, either in general or in a particular case.

Particular 3 is that Mr Chen failed to provide a proper diagnosis to Patient B at any time during her consultations from February to May 2011. Mr Chen says in his statement that it was his practice to undertake a preliminary examination of each patient by taking their pulse and performing a facial examination which included examining their tongue and irises, following which he would give the patient a diagnosis. He said he would ask the patient if they were satisfied with the diagnosis and give them the opportunity to ask any questions. Following that he would recommend treatment options, which included herbal massage.
Patient B's written evidence was somewhat equivocal on this issue, as while she stated in her complaint of 23 May 2011: "So he gave me the diagnosis, I need to improve my digestion, circulation, nerves and sleep, …" she also stated: "He never clearly explained what he was going to do, in fact he did not explain at all so I was a little confused."
In cross-examination Patient B said that in her first session with Mr Chen he diagnosed her with digestive system problems, although she could not remember how he came to that diagnosis, or whether he performed a facial examination.
Finally, we note that Dr Cochrane considered Mr Chen's diagnoses as "difficult to assess" as it merely offers a list of possible disorders to digestion, circulation, nerves and sleep which impact on Patient B's well-being, rather than a coherent Chinese medicine diagnosis that would guide treatment.
We consider that Dr Cochrane's evidence tips the balance, particularly given that Particular 1(a) alleges that Mr Chen failed to provide a proper diagnosis. Given that Dr Cochrane considered that without a documented patient record detailing Patient B's presenting signs and symptoms and Mr Chen's analysis of these it is impossible to make a judgement on the accuracy of Mr Chen's diagnosis, we consider that Particular 3 is established.
Particular 4 is that Mr Chen failed to regularly re-assess Patient B's symptoms at any time during her consultations from February to May 2011. This was denied by Mr Chen, who pointed to the evidence in his diary and the changes in medication recorded. We have set out this evidence at [80] above.
Given this evidence, we do not find Particular 4 established.
Particular 5 is that Mr Chen failed to provide Patient B with a prognosis at any time during her consultations from February to May 2011. There was no evidence at all on this matter. As this is a matter for the Commission to prove, and not for Mr Chen to disprove, we are not satisfied that Particular 5 is established.
Particular 6 is that Mr Chen 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." While this was denied by Mr Chen, we accept the evidence of Patient B on this matter, particularly as she explicitly referred to this claim in her statement of May 2011 ("Peter Chen claims that he is the only person who has access to these magical herbs"). We also consider this clearly exaggerated claim is consistent with other exaggerated claims of Mr Chen such as the one in his statement of 27 July 2011 that "It is only me can do this special logical consultation in the whole wide world." Accordingly, we reject Mr Chen's denial of this matter, accept Patient B's evidence and find Particular 6 established.
Particular 7 is that Mr Chen 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. Here we reject Mr Chen's denial of these matters and accept Patient B's evidence from as early as May 2011 that "he never clearly explained what he was going to do, in fact he did not explain at all so I was a little confused". In the circumstances, we find Particular 7 established.
Particular 8 is that Mr Chen 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.
We have indicated on several occasions now that we found Patient B to be a persuasive and credible witness, and Mr Chen in some respects an unsatisfactory one. The issue of breast touching was identified by Patient B in her first complaint to the Commission of 23 May 2011 namely: "I think it's partly because I am a young female with no boyfriend or husband (he found that out when questioning me) that he thought he could get away with trying to feel me up. Because I wasn't sure of whether or not it was part of the treatment and you don't want to accuse someone of being a pervert if you're not completely sure, I didn't say anything for a while. But as soon as he tried to touch my breast I moved away and he realised that he wasn't going to get away with going that far, so he stopped. You would think that as a professional, if you needed to touch a woman's breast you would warn them or ask them if it was ok first. Being so desperate to have my health problems treated and not sure whether it was part of the treatment or if he was intentionally being inappropriate, I put up with this kind of behaviour for a while... and he is clearly taking advantage of women in this venerable [sic] situation."
In her oral evidence, Patient B confirmed the truth of these matters, and gave quite graphic evidence of how Mr Chen would touch her breasts under her clothes while he was placing the TENS electrodes on her body.
In the circumstances, we find Particular 8 established.
Particular 9 is that Mr Chen engaged in inappropriate conduct of a sexual nature towards Patient B by reason of his actions set out in Particular 8. Having found Particular 8 established, it follows that Particular 9 is established.
In summary, we find that: 1. Particulars 3, 6, 7, 8 and 9 of Complaint One are established. 2. Particulars 4 and 5 of Complaint One are not established.

[40]

Findings re Patient C

It is alleged that: 1. On or around 17 February 2014 during a consultation with Patient C, Mr Chen inquired whether she was married. After Patient C confirmed that she was married, the practitioner inappropriately and contrary to appropriate professional boundaries said words to the following effect: "Do you have any other husbands?" (Particular 1 of Complaint Two); 2. On or around 17 February 2014 during a consultation with Patient C the practitioner failed to observe appropriate professional boundaries in that he rubbed Patient C's breasts for approximately three seconds without informed consent or clinical indication (Particular 2 of Complaint Two). 3. Mr Chen engaged in inappropriate conduct of a sexual nature towards Patient C by reason of his actions set out in (2).
We are satisfied that Particular 1 of Complaint Two is established because: 1. generally we prefer the evidence of Patient C, whom we found to be a reliable and credible witness, to Mr Chen whom we did not; 2. Patient C gave this precise evidence in her police statement of 24 February 2014, that is one week after the events were alleged to have occurred; 3. Patient C repeated that evidence in the Local Court, where she was accepted by the Court as a credible witness; 4. Patient C adhered to this evidence in cross-examination before the Tribunal, and we accept her evidence.
For the same reasons, we find Particular 2 of Complaint Two established. We note that Patient C gave evidence at the trial of Mr Chen in March 2017. Relevantly, in its ex tempore judgment the Court stated that Patient C's evidence and description as to what happened was credible (Transcript, 30 March 2017, p 3, lines 25-26).
The Court summarised Patient C's evidence as follows: "[Patient C] was treated by Mr Chen on 17 February 2014. During her evidence, she stated that she had been [long suffering] from anxiety and depression. She had also been feeling low and lethargic. She wanted advice and treatment. When she attended the rooms of Mr Chen [t]here was an initial discussion or consultation. She was then led to the rooms or the treatment rooms of Mr Chen's treatment area and she laid face down. She stated that she was fully clothed throughout. She stated that Mr Chen placed electrodes on her back. He then left the room. She could hear him speaking to other patients. He then came back after some time and asked her to rollover, face up, towards the ceiling. He then commenced to massage her shoulders. He then went a bit lower than the shoulder area and used both hands in the massage a few centimetres above her breast. He then put his hands a few centimetres below her breast, just beneath the bra, and he massaged this area. She then states that the hands ever so swiftly went to her left breast and the right. She states that just the right hand [went] to each breast for two to three seconds. He made a circular motion around the nipple, but was not touching the nipple. She said she felt stressed, confused, and uneasy. She did, however, make another appointment for approximately one week later. When she was questioned as to why, her answer was two-fold. She stated that she had experienced depression most of her life. She had read good reports about Chinese Medicine. She stated that, 'Mr Chen had diagnosed my condition without me telling him during the consultation.' She stated that she was desperate to get help. The further reason that she made another appointment was that, 'I did not want to face what happened. It was in a healing context and I had suffered unwanted touching in the past.' She stated, 'I wanted to be sure l was not reliving the past.' She stated, 'I had little self-worth and I was not prepared to speak up about it.' She states she did not want to be over-sensitive in that context. She then stated that when she heard the man on the next occasion, 'I knew I was not 100% mistaken.' I note that she was cross-examined. I did not consider that she had any difficulty answering the questions in cross-examination. I find that her evidence and description as to what happened is credible." (Emphasis added.)
True it is that Mr Chen was acquitted. In relation to the charges involving Patient C the Court noted that there was no immediate reporting, and it was difficult for the Court not to have doubt, "notwithstanding the credibility I have for [Patient C]", that it could not be satisfied beyond reasonable doubt the prosecution had proved the offences.
As we have made clear, the onus of proof before the Tribunal is the civil standard, the balance of probabilities.
We are satisfied that all three Particulars of Complaint Two are established.

[42]

ANNEXURE "A" AMENDED COMPLAINT The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Chinese Medicine Council of New South Wales ("the Council") in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Mr Peter Chen of 223 Parramatta Road Annandale NSW 2038 ("the practitioner") being a chinese medicine practitioner formerly registered under the National Law, COMPLAINT ONE is otherwise not a suitable person to hold registration as a chinese medicine practitioner under s 144(e) National Law. BACKGROUND TO COMPLAINT ONE The practitioner commenced practising chinese medicine in Sydney, New South Wales, Australia in 1990 as an unregistered practitioner. The practitioner was first registered with the Australian Health Practitioner Regulation Authority as a chinese medicine practitioner on 1 July 2012. The conduct particularised in all complaints took placed in the practitioner's clinic at 223 Parramatta Road in Annandale, Sydney, New South Wales. Patient A (a 42 year old female) consulted the practitioner on approximately 15 occasions between 19 November 2009 and 8 May 2010 seeking treatment for back and neck pain, poor sleep, tiredness, weight gain, mood instability and difficulty with concentration. Patient B (a 28 year old female) consulted the practitioner weekly from February to May 2011 seeking treatment for shoulder pain, fatigue and frequent colds. On 26 November 2016 the Council held section 150 proceedings and on 20 December 2016 conditions were imposed on the practitioner's registration including a condition that prevented him from treating female patients. On 19 June 2017 the practitioner surrendered his registration. PARTICULARS OF COMPLAINT ONE Patient A

Between 19 November 2009 and 8 May 2010 the practitioner failed to observe appropriate professional boundaries during consultations with Patient A in that he: (a) said words to the following effect on one or more occasion "were you busy with your boyfriend on the weekend?"; (b) said words to the following effect on one or more occasion "in China women always have affairs and many boyfriends"; (c) touched her breasts over her clothes and a towel on one or more occasion without: (i) informed consent; (ii) clinical indication; (d) asked Patient A "are you ok?" whilst engaging in the conduct particularised above at 1(c).
The practitioner engaged in inappropriate conduct of a sexual nature towards Patient A by reason of his actions set out at particular 1(c). Patient B
The practitioner failed to provide a proper diagnosis to Patient B at any time during her consultations from February to May 2011.
The practitioner failed to regularly re-assess Patient B's symptoms at any time during her consultations from February to May 2011.
The practitioner failed to provide Patient B with a prognosis at any time during her consultations from February to May 2011.
The practitioner 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."
The practitioner 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.
The practitioner 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: (i) informed consent; (ii) clinical indication.
The practitioner engaged in inappropriate conduct of a sexual nature towards Patient B by reason of his actions set out at particular 8. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. 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 ii. engaged in improper or unethical conduct relating to the practice or purported practice of chinese medicine. Each particular of the complaint justifies a finding of unsatisfactory professional conduct, in the alternative, when two or more particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT TWO The background to Complaint One is repeated and relied upon. Patient C (a 34 year old female) consulted the practitioner on 17 February 2014 and 24 February 2014 seeking treatment for lack of energy and low mood. PARTICULARS OF COMPLAINT TWO
On or around 17 February 2014 during a consultation with Patient C, the practitioner inquired whether she was married. After Patient C confirmed that she was married, the practitioner 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 the practitioner failed to observe appropriate professional boundaries in that he rubbed Patient C's breasts for approximately three seconds without: (i) informed consent; (ii) clinical indication.
The practitioner engaged in inappropriate conduct of a sexual nature towards Patient C by reason of his actions set out at particular 2. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the National Law. BACKGROUND TO COMPLAINT THREE On 21 September 2016 the NSW Police laid charges against the practitioner arising from allegations from Patients C, D and E of indecent assault. PARTICULARS OF COMPLAINT THREE
The practitioner failed to advise the National Board that on 21 September 2016 he was charged with the following offences, contrary to section 130(1) of the National Law: (a) indecent assault of Patient C pursuant to section 61L of the Crimes Act 1900 (NSW) (now repealed); (b) indecent assault of Patient D pursuant to section 61L of the Crimes Act 1900 (NSW) (now repealed); (c) indecent assault of Patient E pursuant to section 61L of the Crimes Act 1900 (NSW) (now repealed). COMPLAINT FOUR is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in 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 the suspension or cancellation of the practitioner's registration. BACKGROUND TO COMPLAINT FOUR The background to all Complaints is repeated and relied upon. PARTICULARS OF COMPLAINT FOUR
Complaint Two particulars 2 and 3 are relied upon individually.
Complaints Two and Three and the particulars thereof are repeated and relied upon cumulatively.

Health Care Complaints Commission v Chen

At a glance

Court

Decision date

Source

Judgment (44 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (24)

Cited By (1)