Health Care Complaints Commission v Chen

NCAT Occupational|2023-11-08

reasons for decision

By application dated 31 January 2023, the Health Care Complaints Commission ("the Commission") has applied for disciplinary findings and orders against Mr Mu Ping Chen ("the Respondent") pursuant to the Health Practitioner Regulation National Law (NSW) ("the National Law"). The orders sought are the following: 1. Cancellation of the Respondent's registration pursuant to s 149C(1)(b) of the National Law, with a non-review period of two-three years; 2. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law.
The Commission supports the application by eight complaints concerning the Respondent's conduct which we will deal with individually below.

Background

The Respondent is a registered Chinese medicine practitioner under the National Law. On 15 August 2007, the Respondent obtained an Advanced Diploma of Traditional Chinese Medicine from the Sydney Institute of Traditional Chinese Medicine. On 5 July 2011, the Respondent obtained a Bachelor of Medicine (Science of Traditional Chinese Medicine) from the Fujian University of Traditional Chinese Medicine in China.
The Respondent was first registered as a Chinese medicine practitioner in New South Wales on 1 July 2012. At the time of his registration as a Chinese medicine practitioner in Australia, the Respondent's registration was subject to the following conditions: 1. At all times during practice, where the practitioner and the patient do not share a common language, a suitable interpreter is present throughout the consultation and a record of the arrangement is made in the patient's case record on every occasion of consultation and/or treatment ("Condition 1"); 2. At all times during practice, a person who has sufficient English language proficiency to communicate promptly and effectively with Emergency Services is present at all times on the premises ("Condition 2").

Complaint 1 - Criminal Finding

Complaint 1 is based on s 144(a) of the National Law which provides that a complaint may be made about a registered health practitioner where the practitioner has been convicted of, or made the subject of, a criminal finding for an offence.
The particulars of Complaint 1 are that on 31 May 2019, at the Local Court of New South Wales at Wollongong, the Respondent was made the subject of a criminal finding, in that an offence of indecent assault contrary to s 61L of the Crimes Act 1900 was proven.
The details of the offence as set out in the Court attendance notice were that the Respondent assaulted Patient A and (immediately at the time of the assault) committed an act of indecency on Patient A, namely, exposed her vagina and massaged the surrounding area.
The Magistrate in his concluding remarks finding the offence proven stated that he did not think that the Respondent was intending to give himself any form of sexual gratification in the treatment but that was not the sole test in respect of the type of offence because under the legislation, as it had been amended over time, merely touching someone without their consent on what is deemed to be a sexual part of the body; on the buttocks, the breasts, the genitals and the lips have all been held to be sensitive areas for that purpose. His Honour noted that the minute the Respondent touched Patient A's buttocks without her consent, he committed an indecent assault.
In considering sentencing, the Magistrate regarded the Respondent's conduct as reckless rather than intentional. He went on to note that the Respondent was, at the time, 60 years old and had never been in trouble before. His Honour continued by saying that if he had found that the Respondent had deliberately intended to assault the complainant, that he had done what had been found he had done in relation to her buttocks on the basis of some gratification, then it would have been very easy for his Honour to reach a conclusion that a severe penalty should be imposed. Because the Respondent was required to seek consent, he had a finding against him for not seeking that consent. His Honour noted that the Respondent had been practising in Australia for over 20 years and that this was the first time he had ever been taken to Court for a matter of the kind complained of. His Honour noted that the Respondent was quite honest in the witness box about agreeing that he did not seek consent at a time that he should have.
In conclusion, his Honour noted that in all the circumstances, taking into account the Respondent's age, his previous good record, the circumstances in which this particular offence occurred, and the findings made he would give the Respondent an opportunity without a conviction on that particular occasion. His Honour, therefore, found that the offence against the Respondent had been proven and that without proceeding to a conviction the Respondent was ordered to enter a good behaviour bond by way of a conditional release order to be of good behaviour for two years under s 9(1)(b) of Crimes (Sentencing Procedure) Act 1999.
It is clear from the remarks by the sentencing Magistrate that the absence of seeking informed consent and obtaining such consent was central to the commission of the offence.
Based on the certificate of conviction and the transcript of the Local Court of New South Wales proceedings in evidence before us, we are satisfied that on 31 May 2019, the Respondent was the subject of a criminal finding in respect of the offence particularised in Complaint 1. The offence was punishable by more than 12 months' imprisonment.
Complaint 1 is therefore made out.

Complaint 2 - Failures to Notify Charges and Conviction

Complaint 2 is to the effect that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he contravened s 130(1) of the National Law. The particulars of Complaint 2 in summary are that the Respondent failed to notify the National Registration Board within seven days that he had been charged before a New South Wales Court with the offence the subject of Complaint 1, and also a separate charge which appears not to have been pressed, namely, an offence of an act of indecency contrary to s 61N(2) of the Crimes Act 1900 (NSW).
It was further claimed that the Respondent failed to notify the National Registration Board that he had been made the subject of a criminal finding before a New South Wales Court, namely, the offence the subject of Complaint 1 which was punishable by 12 months' imprisonment or more, within seven days of becoming aware of his conviction.
The Respondent accepted that he had not given the requisite notices and advised the Tribunal that he was unaware of his obligation to do so.
Section 139B(1)(b) of the National Law provides that unsatisfactory professional conduct by a registered practitioner includes a "contravention by the practitioner (whether by act or omission) of a provision of this law". Section 130(1) of the National Law then relevantly provides that registered health practitioners must give the National Board written notice within seven days of being aware of being charged with an offence punishable by 12 months' imprisonment or more.
Notification of certain types of criminal charges to the National Board is a significant tool in the regulatory framework and that by not notifying a transgression, a practitioner in effect deprives the regulatory body of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. These provisions are part of the protective architecture of the National Law. Ignorance of the obligations imposed by the National Law does not excuse a practitioner from responsibility. In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [22]-[27], the Tribunal rejected a submission by the relevant practitioner that there was a discretion as to whether a contravention of the kind set out in s 139B(1)(b) of the National Law constitutes unsatisfactory professional conduct. The Tribunal held that once the contravention by the practitioner of the provision has been established as a matter of fact, the section designates that contravention as unsatisfactory professional conduct.
On the evidence presented we are satisfied and find that Complaint 2 has been made out and the failures by the Respondent constituted unsatisfactory professional conduct.

Complaint 3 - Breach of Obligations on Renewal Applications

In this complaint the Commission contends that the Respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law in that he has contravened s 109(1) of the National Law. Section 109(1) requires a declaration by a practitioner in an application for renewal that details any change in the practitioner's criminal history.
The complaint relates to the renewal of the Respondent's registration in his applications completed on 1 November 2018 and 8 November 2019. On each occasion the Chinese Medicine Board, being the National Board, received an application from the Respondent to renew his registration. In response to question 1 of the renewal form, which required the practitioner to state whether since the last declaration to AHPRA, there had been any change to the practitioner's criminal history in Australia that he had not declared to AHPRA, the practitioner responded "no".
When this complaint on 7 November was read out aloud and translated in the proceedings as described above, the Respondent informed the Tribunal that on previous occasions he had had a friend help him complete the relevant forms. On these occasions, he did so himself. He did not read the particular sections of the forms on these occasions and simply copied previous forms that he had completed with the help of his friend which answered "no". The Respondent indicated that he did not understand at all what was required of him, or what he was responding to, and it was a complete misunderstanding. He had no computer and no internet and said that had he had an understanding of the context he would not have answered no on either of the two occasions.
It is clear from the Respondent's explanation given to the Tribunal that his deficiency in the English language, particularly in respect of reading, is a major shortcoming in his practice as a registered practitioner. That deficiency cannot be excused given the obligations on practitioners to comply with the regulatory scheme under the National Law.
The provision of the information sought is an important element in the regulatory scheme that relies upon the honesty and accuracy of the relevant practitioner's responses, particularly in relation to the commission of criminal offences.
The answer "no" given on each of the two occasions by the Respondent was clearly incorrect because the Respondent had been charged and convicted of indecent assault, the subject of Complaint 1 and criminal findings had been made against him. As a result, there had occurred a change in the Respondent's criminal history which he was required to disclose to the National Board at the relevant time.
We are satisfied that when lodging his renewal applications the failure on the part of the Respondent to disclose those details of the change in his criminal history that occurred during the proceeding periods of registration was in contravention of s 109(1) of the National Law and that that contravention made the Respondent guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law.
It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners must uphold the highest standards of honesty and integrity in their dealings with those authorities: Health Care Complaints Commission v Chowdhury [2015] NSWCATOD 65 at [81].
Complaint 3 has been established.

Complaint 4 - Failures in Treating Patient A

The practitioner is said to be guilty of unsatisfactory professional conduct under s 139B(1)(a) or s 139B(1)(l) of the National Law in that he has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, 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 that he engaged in improper or unethical conduct relating to the practice or purported practice of Chinese medicine.
The words "improper" and "unethical" are not defined in the National Law. The Tribunal has accepted that the ordinary meaning of improper is "not right, or not in accordance with proprietary of behaviour". Unethical, relevantly, means contrary to moral precept, immoral or in contravention of some code of professional conduct (see, for example, Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[52]).
In disciplinary proceedings of the kind currently before the Tribunal impropriety can include a breach of the standards of conduct that would be expected of a person in the position of the particular practitioner (see Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54].
The relevant test is an objective one.
Complaint 4 is concerned with the conduct of the Respondent on 22 March 2018 concerning Patient A. This was the conduct the subject of the Local Court proceedings and the criminal findings made by the Local Court on 31 May 2019.
In the complaint the Commission, by way of background, states that on 22 March 2018 Patient A consulted the Respondent at the clinic for the first time "for acupuncture treatment for her headaches".
There were then six particulars formulated in support of Complaint 4.
The first particular is that on the day the Respondent inappropriately massaged Patient A's groin and upper thighs with both hands in circumstances where: 1. Patient A's primary reason for seeking treatment was headaches; 2. there was no therapeutic purpose to do so.
In support of this particular the Commission points to the statement by Patient A to the police on 24 March 2018 that when she made the appointment at the clinic she told the staff that she was getting headaches and asked what would be best for that problem and that they suggested acupuncture. The staff referred to was not the Respondent.
On the day of the treatment Patient A also completed a form described as the "Health History Form" in which she marked a number of boxes in response to the question of whether she has, or has had, recent problems with any of the following, namely, head/neck ache, neck pain, mid-back, back pain, shoulder pain. Patient A also stated that after meeting the Respondent in the consulting room they talked about how she was getting headaches and what would be best to ease them. They talked about acupuncture around her neck and shoulders and also massage.
The Commission also relies on a response from Dr S Cochrane in a report which she prepared for the Commission and which she adopted when she gave evidence in the Tribunal in support of this particular. Dr Cochrane is a Chinese Medicine Practitioner, and an Adjunct Fellow, National Institute of Complementary Medicine and has a PhD from the University of Western Sydney.
The question put to Dr Cochrane by the Commission for answer was the following: whether it was clinically justified and appropriate for the Respondent to massage Patient A's groin and upper thigh area with both hands while she was prone and her left leg was bent and her foot was near her straight right leg?
The opinion expressed by Dr Cochrane in response to that question was as follows: "Given Patient A's presenting problem of headaches and mid-back stiffness and pain, I do not consider this massage to her groin and upper thigh clinically justified. To undertake such massage there would need to be evidence of muscle tension or pain in the areas to be massaged and as it was at a distance from the presenting problem consent should have been sought explaining why it was a needed part of the treatment approach. By undertaking this treatment and not seeking specific consent, Mr Chen fell below the standard reasonably expected of a practitioner of an equivalent level of training and experience."
It is clear from this response that Dr Cochrane's concern about the requisite standard reasonably expected of a practitioner goes to the question of consent and the absence thereof.
Dr Cochrane recognised that requiring Patient A to move first her left leg so her foot was near her straight leg and then, later move her right leg so her right foot was near her straight leg, was not a technique she was familiar with. However, she could see that it does change the organisation of the muscle relationship to the hip and the lower back without requiring the patient to change to a side-lying position. The Respondent testified in the Local Court that he made these requests because Patient A's muscles around her lower back and leg were very stiff and therefore, it was thought to be better to bend the leg so that it was more convenient to do the massage.
The Respondent's request to Patient A to move her legs in this way cannot be criticised.
We are not satisfied that it was inappropriate to massage Patient A's groin and upper thighs because, as alleged, Patient A's primary reason for seeking treatment was headaches. It is clear that Patient A also suffered mid-back and other back pain. The muscles in her legs were, according to the Respondent, very stiff. We do not accept that for the symptoms presented by Patient A massaging of her groin and upper thigh was not clinically justified. Dr Cochrane does not explain why massaging needs to be confined to muscle tension or pain in the areas to be massaged. Dr Cochrane does not explain that there is no connection with back pain in a patient's mid back and the areas massaged. The Commission has not established that there was no muscle tension in the area justifying the massage.
We are not satisfied that Particular 1 has been made out.
Particular 2 is that on the day the Respondent inappropriately pulled Patient A's underpants back and to her right side exposing her vulva, whilst massaging the left side of her groin and upper left thigh with one hand in circumstances where: 1. there was no therapeutic purpose to do so; 2. the Respondent failed to maintain Patient A's dignity and modesty.
Particular 3 is to a similar effect but refers to the conduct of pulling the patient's underwear to the right side whilst the Respondent was massaging the right side of Patient A's groin and upper left thigh.
The conduct complained of is thus the pulling of the underwear, first to the left and then to the right, whilst massaging. That conduct is also alleged to have exposed Patient A's vulva. We accept that the pulling of the underwear from side to side did not maintain patient A's dignity and was easily avoidable with appropriate draping over the area with a towel.
The Respondent's explanation of the draping of a towel by reference to the photos he tendered support the conclusion that Patient A's privacy was not protected.
Patient A was lying face down whilst this treatment was being carried out. She obviously was not able to see what was exposed, or the degree to which there was exposure of that part of her body. The Tribunal appears to be required to form an opinion and make a finding to the effect that pulling the underwear back and to the right or left side exposed Patient A's vulva whilst the massage occurred. We have been troubled about how we can come to that conclusion with any degree of certainty in circumstances where Patient A was lying face down and could only feel the movement of the garment.
We accept that the movement of the underwear as described is likely to have had the effect of moving the underwear away from the front of Patient A's vulva. However, whether that had the effect of exposing, in the sense of making Patient A's vulva (the global term that describes all the structures that make up the female external genitalia) exposed, in the sense of visible to the Respondent, is less clear. There is no evidence before us that the movement of the legs requested by the Respondent made it more likely that any part of Patients A's vulva was exposed whilst she was lying face down.
The evidence does not satisfy us that on a balance of probability, the pulling of the underwear exposed Patient A's vulva. The evidence leaves us speculating as to how that exposure was probable, a course we are not prepared to adopt.
We are, however, satisfied and find that by pulling the underpants back to the left or right failed to maintain Patient A's dignity and modesty and, in the circumstances, Particulars 2 and 3 are established.
Particular 4 is that on the day the Respondent inappropriately moved Patient A's underpants to the side and upwards, exposing her anus, in circumstances where: 1. there was no therapeutic purpose to do so; and 2. the practitioner failed to maintain Patient A's dignity and modesty.
The Respondent denied to the Commission that he had exposed or saw Patient A's anus during the treatment.
In respect of Particular 4, a question posed for Ms Cochrane was whether it was clinically justified and appropriate for the Respondent to move the leg part of Patient A's underwear to expose her anus whilst massaging her buttocks. That is not the precise issue raised in Particular 4 which makes no reference to massaging of buttocks. The opinion Dr Cochrane expressed to the question posed for her was that it is never clinically justified to expose patient's private parts when draping techniques provide adequate privacy without injuring treatment.
Dr Cochrane considered the Respondent's failure to protect the privacy of his patient falls significantly below the standard reasonably expected of a practitioner of equivalent level of training and experience. Dr Cochrane thus addressed the issue from a privacy perspective.
Accordingly, the complaint being concerned with moving Patient A's underpants to the side and upwards failed to maintain Patient A's dignity and modesty, is in our view made out. Whether moving the underpants to the side and upwards exposed Patient A's anus is less certain. Patient A in her statement to the police made on 24 March 2017 said: "He also grabbed my undies and exposed my bottom cheeks massaging my bottom, I felt like he was trying to pull my bottom cheeks to the side to look at my anus."
That description given very shortly after the treatment does not establish that massaging the bottom cheeks in fact exposed Patient A's anus. Patient A, of course, could not see what was occurring and her feeling as to what the Respondent was trying to do with her underwear does not establish for us with any degree of certainty that Patient A's anus was exposed at the time. There is insufficient evidence as to precisely how that occurred and, therefore, we are not prepared to find that movement of the underpants to the side and upwards in fact exposed Patient A's anus. We must address the conduct as particularised and not a general question of what might have happened during the massage.
We are, however, satisfied and find that Patient A's dignity was not maintained during this treatment and to that extent Particular 4 is made out.
Particular 5 is that the Respondent inappropriately massaged Patient A's buttocks in circumstances where there was no therapeutic purpose to do so.
Patient A's evidence given in the Local Court was that moving her undies "exposed my bottom cheeks massaging my bottom". Although the Respondent at an earlier stage denied massaging Patient A's bottom, we accept her evidence that it occurred.
Dr Cochrane was also asked to express her opinion on whether the Respondent's massaging of Patient A's buttocks was clinically justified. Her opinion was that attention to the whole body condition is an important aspect of Chinese medicine and to the successful outcomes of acupuncture. Tensioning one part of the body can cause disorders elsewhere in the body. There are, however, she said, massage and acupuncture techniques that address the overall balance of the body that do not focus on sensitive areas. Dr Cochrane says that it is quite possible that the Respondent's feeling tension in the buttock area of Patient A was directly caused by her not expecting or being uncomfortable with his touch to the area and therefore tensing against his touch. She proceeded to say that seeking consent prior to touching would have lessened the likelihood of misunderstanding the cause of the muscle tension. Dr Cochrane then says that "given Patient A's primary complaint of headaches I have to conclude that the buttock massage was not clinically justified and by undertaking that treatment and not seeking specific consent the Respondent fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience".
In our view these opinions are too narrow. Even though Patient A's primary complaint may have been headaches she clearly identified other areas which were of concern and which justified further massaging to which she did not object. The fact that Patient A's primary complaint was one of headaches did not exclude the therapeutic purpose of the massage.
Further, Dr Cochrane accepts that there are massage and acupuncture techniques which address the overall balance of the body that do not focus on sensitive areas (an opinion not entirely consistent with her evidence referred to at [49] above), and that the Respondent felt tension in Patient A's buttocks but speculates as to the cause of such tension.
The Respondent gave evidence in the Local Court proceedings about massaging Patient A's buttocks as follows: "… actually the muscle around the buttock area, actually it's very stiff so that's the reason I want to relax the muscle there. And if we only relax muscle on, on the back, not the leg or the buttocks, actually it will not be as effective as I did, the way I did it."
The Commission has not discharged its onus of establishing that there was no therapeutic purpose for massaging Patient A's buttocks and Particular 5 is not proved.
Particular 6 of Complaint 4 is that the Respondent failed to obtain Patient A's informed consent prior to undertaking the conduct particularised in Particulars 1 to 5, and in doing so acted contrary to clause 3.5 of the Chinese Medicine Board of Australia Code of Conduct (March 2014) ("the Code").
The Code at clause 3.5 relevantly provides that good practice involves providing information to patients or clients in a way they can understand before asking for their consent and then obtaining informed consent before undertaking any examination or investigation, providing treatment including providing information on material risks. Further, the Code sets out as good practice documenting consent appropriately, including considering the need for written consent for procedures which may result in serious injury or death.
It is clear in our view, and we find, that the Respondent did not obtain informed consent for the conduct as particularised in Particulars 1 to 5 of Complaint 4. The form completed by Patient A at the time of seeking the treatment on the relevant day did not satisfy the requirements of good practice set out in the Code. There is no record made by the Respondent of consent to the treatments undertaken. The Respondent's conduct was unsatisfactory unprofessional conduct.
When asked during the proceedings what his position was in relation to the complaint concerning the absence of informed consent, the Respondent advised the Tribunal that the process adopted at the clinic was effectively that a person, or persons, at the front desk or reception, which could on occasion include a university student, would explain to the patient or prospective patient what the treatment would be and would then refer the patient onto the Respondent who would not independently seek informed consent after providing the relevant information to patients as required by the Code.
It is clear, also, on the evidence that the absence of proficiency in English was a very significant factor in the Respondent's inability to conform to the necessary standards required of registered practitioners in this regard. The Respondent on numerous occasions made clear to the Tribunal that he was not able to read materials that had been provided by the Commission. He advised the Tribunal that when he completed his renewal form he could effectively not read the requirements and so just adopted the previous forms filled out on his behalf and he certainly did not record in his notes for treatment on the relevant day what information was given, or what consent, if any, was given for the procedures that he proposed.
The Respondent's appreciation of his obligations was no greater than that he just needed verbal consent and could then examine his patients. In earlier s 150 proceedings conducted by the Council on 4 May 2021 (although in relation to Patient B) the Respondent also acknowledged that if he needed to explain a more complicated examination than identified by the receptionist of the clinic, he could not make such an explanation because of his English deficiencies. At the same hearing the Respondent indicated that his English was limited and that he could not understand nor speak much English.
The Respondent therefore engaged in unsatisfactory professional conduct in respect of Patient A.

Complaint 5 - Failures in Treating Patient B

Complaint 5 is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) or s 139B(1)(l) of the National Law in that the practitioner has: 1. engaged in conduct that demonstrates the knowledge, skill or judgement possessed, or care exercise, 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 2. engaged in improper or unethical conduct relating to the practice or purported practice of Chinese medicine.
The background to Complaint 5 is that from 15 February 2021 to 9 April 2021, Patient B was a patient of the Respondent at the clinic. On 9 April 2021 Patient B consulted the Respondent at the clinic for acupuncture treatment.
Particular 1 of Complaint 5 is that during the course of providing acupuncture treatment to Patient B on 9 April 2021 the Respondent varied his usual treatment and said words to the effect of "I try something else." The particular then sets out that the Respondent failed to adequately prepare Patient B for the additional treatment that the Respondent was to embark on in that, prior to performing the additional treatment, the Respondent failed to communicate: 1. the nature and approach of the additional treatment he wanted to perform; 2. the reasons why he wanted to perform the additional treatment and the potential clinical benefits; and 3. any alternative treatment options available.
This particular dovetails with Particular 6 (the absence of informed consent) which we will come to, but in our view, on the evidence, this particular is made good because the Respondent did not adequately do any of the matters set out prior to embarking on the additional treatment, "the something else", which he had in mind.
Particular 2 is that on the day, during the course of providing the additional treatment to Patient B, and when Patient B was lying face down on the treatment table with her left leg bent, the Respondent inappropriately pulled Patient B's underpants on the left side of her upper left leg to the side, exposing Patient B's vulva and buttocks crease, in circumstances where there was no proper or sufficient therapeutic purpose for the practitioner to move Patient B's underpants in the manner described, and there was no proper or sufficient therapeutic purpose for the practitioner to expose Patient B's vulva and buttocks crease.
In her statement to the Commission of 4 August 2021 Patient B said that after the Respondent said "I try something else" she did not hear exactly what the Respondent said but she did hear him say words to the effect of "moving your leg". She stated that she thought the Respondent was going to push her lower back to see if her tailbone was sore. Patient B then says that the Respondent then used a gloved hand, she was not sure which hand, to bend her left leg so that her left foot was against her straightened right leg and both legs formed a triangle.
In that statement Patient B then said that she felt the Respondent move her undies on the left side of her upper leg to the side "which exposed my vulva and buttock crease".
Patient B gave evidence before us on 8 November 2023. She affirmed the contents of her statement of 4 August 2021.
The Tribunal asked Patient B to provide some further detail in relation to how she was positioned on the treatment table at the time of this particular treatment. She said that she was lying face down and that there were needles for acupuncture purposes in the upper part of her body. There was a towel draped over the lower part of her body and she had her undies on. She also identified by reference to photo 1 of Exhibit R1, tendered by the Respondent as indicating what the position of patients was when he performed this type of treatment, that her leg was placed as shown in the photo (but absent a towel).
Patient B then testified that after the needles were removed and the Respondent said that he would try something else, he moved her undies and she could feel what was happening. Patient B said that she felt the undies move to expose her vagina. She was not quite sure where the Respondent's hands were at this stage.
When questioned by the Tribunal about how the movement of Patient B's undies exposed her vulva she said she could feel the undies even on her front moving away from that area of her anatomy.
Patient B in her statement of 4 April 2021 said that after the movement of her undies as described above, she felt the Respondent's hand brush past her vulva and his finger rested against her anus. It happened very quickly she said from the time he brushed her vulva to the time he touched her anus. In evidence before us she described the touching of her "flaps" and that she could feel a sharp fingernail at the top of her anus. Patient B said that placing of the fingernail and pressure was, in her view, that the Respondent was attempting to penetrate her anus.
At the conclusion of her evidence Patient B indicated to the Tribunal that she was of the view that the Respondent suspected some dislocation in the area where he was about to perform the particular procedure. She believes that the Respondent was trying to do an internal adjustment to her tailbone. She did not believe that his intentions were of a sexual nature but if he had sought consent, she would not have given consent.
The Commission relies on Dr Cochrane's evidence in respect of Patient B as well. She was asked whether it was clinically justified and appropriate for the Respondent to move Patient B's underwear whereby her vulva and buttock crease were subsequently exposed. Dr Cochrane expressed the opinion that moving a patient's underwear without draping is poor practice. Suitable draping techniques are available to cover sensitive areas while still gaining access to the area for inspection or palpation. She expressed the opinion that there appeared to be a mismatch between the Respondent's reporting to the Commission in its investigation of moving the underpants down (with the towel) and the report of Patient B that her underpants were raised from the leg to the buttock thus exposing her vulva and buttock crease. She said that she knew of no reason that would clinically justify exposing Patient B's vulva and buttock crease when assessing sacral-coccygeal pain. She expressed the opinion that the Respondent's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience.
The Commission also relied on the evidence given by Patient B before us that after the moving of her underwear in the way she described there was no towel covering the lower part of her body. We accept that evidence.
In our view, the degree to which the moving of the underwear exposed any part of Patient B's vulva is difficult to determine when she was lying face down on the treatment table. The evidence before us is insufficient to establish that as a fact.
The movement of the underwear is likely to have occurred in the front part of Patient B's body thus removing the covering which the underwear provided to Patient B's vulva. To that extent a part of her vulva was likely to have been exposed in the sense of being no longer covered. That is likely to have made the brushing of a part of Patient B's vulva possible.
It is not clear on the evidence that Patient B's vagina (her description in the Tribunal) was then exposed to the view of the Respondent. Our concern is the same as we expressed in relation to Patient A.
There is little doubt that Patient B's buttocks were exposed to full view by the movement of the underwear as described.
It is difficult to conclude that assessing a patient's sacral-coccygeal pain should occur only with a patient's underwear in place and that there should be no exposure of the buttock area.
Dr Cochrane does not say that there was no therapeutic purpose in examining the patient's coccyx.
The evidence before us does not rise to the level that we can be satisfied that there was no proper or sufficient therapeutic purpose for exposing the buttock area to allow the treatment to be given. The complaint addressed by Dr Cochrane in relation to Particular 2 is, in our view, directed more to the failure on the part of the Respondent to protect the privacy of Patient B, and not having adequate draping therefore amounting to poor practice as stated by Dr Cochrane.
However, Particular 2 is not concerned with Patient B's privacy or dignity. Particular 2 has not been made out.
Particular 3 that is to the effect that during the course of providing the additional treatment to Patient B on the day the Respondent inappropriately brushed Patient B's vulva with his hand. It is clear, in our view, that the movement of the underwear in the manner described removed any protection of that area of Patient B's anatomy, hence facilitating the brushing of a part of her vulva. We do not regard the touching as deliberate. Dr Cochrane expressed the view in relation to the Respondent making accidental contact with Patient B's anus after he moved her underwear that suitable draping should have been used to cover exposed areas not required to be examined, that there was absolutely no justification to deliberately expose the Respondent's anus without prior approval and clinical reason to do so. We do find on the evidence that this Particular has been made good. This was unacceptable conduct and below the standard reasonably expected of a practitioner of an equivalent level of training and expertise. We do not, however, find that there was any sexual motivation for that conduct and that it is more likely to have been inadvertent.
Particular 4 is that during the course of her treatment the Respondent inappropriately touched Patient B's anus with his finger in circumstances where there was no proper or sufficient clinical indication for the practitioner to do so. It is clear this complaint also relates to the understanding on the part of Patient B that she suspected that the Respondent was concerned about a potential dislocation of her coccyx and that he was trying to do an internal adjustment to her tailbone. That issue is not addressed in the expert's evidence. We are satisfied and find that the Respondent did touch Patient B's anus and that there was no proper or sufficient clinical indication for the practitioner to do so. This was conduct which fell below the requisite standard.
Particular 5 of Complaint 5 is that during the course of treatment the Respondent also attempted to insert his finger into Patient B's anus in circumstances where there was no clinical indication for doing so, and internal palpation of and adjustment of the coccyx is not an accepted Chinese medicine technique.
Patient B in her statement of 4 August 2021 provided to the Commission stated that after the movement of underwear she felt the Respondent's finger rested on her anus. She stated that she felt "his fingernail and pressure from the tip of his finger as he attempted to penetrate my anus".
In responding to the written complaint from the Executive Director, Complaints Operations of the Commission dated 1 July 2022, the Respondent denied that he had attempted to palpate or adjust Patient B's coccyx internally and never attempted to penetrate her anus. The Respondent stated that he had only pushed on her coccyx externally to examine the area. At the time, he believed that the palpating of Patient B's coccyx included the incidental test of pain points for better acupuncture treatment.
In respect of the question of pressing his finger on Patient B's anus, and attempting to penetrate her anus, Dr Cochrane expressed the opinion that if it was the Respondent's intention to palpate and adjust the Respondent's coccyx internally, preparation such as wearing a glove and explaining the approach to the client would be essential. (We note that the Respondent was wearing a glove). Dr Cochrane says that the presence of a third person, such as a female assistant would also be advised. She says that the internal palpation and adjustment of the coccyx is not a technique taught in Chinese medicine to her knowledge but it is taught within the discipline of physiotherapy. Dr Cochrane says that as the Respondent undertook some of his training in China it is possible that he learned such a technique there as part of Tuina (Chinese massage) training. To her knowledge this technique is not taught in Australia in Chinese medicine schools. She does, however, go on to say that she considers the Respondent's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
We accept Patient B's evidence and find that the Respondent's finger rested on her anus and that she could feel his fingernail and pressure from the tip of his finger on her anus.
We also accept that Patient B held the view at the time, as she explained to the Tribunal, that she believed that it was the Respondent's intention to do an internal adjustment to her tailbone.
Whether the Respondent actually had the intention, and was in the process of doing so when Patient B stopped the treatment, is a more difficult conclusion to reach. The placing of the finger in a gloved hand as described supports such a finding but there are counter indicators.
The Respondent gave an explanation which is consistent with external palpating of the coccyx area. Internal palpating it appears was not taught as part of Chinese medicine and it is not clear why, in such circumstances for a non-sexual purpose, the Respondent would embark on such a treatment.
If in fact the Respondent was attempting to insert his finger into Patient B's anus for the purposes of an internal treatment of her coccyx without consent, it would be a very serious assault with significant consequences. We therefore have to have a level of satisfaction and certainty consistent with the consequences.
We accept that there was no proper or sufficient clinical indication to insert his finger in Patient B's anus (as set out in Particular 5).
In our view it is more probable that the Respondent did not intend an internal examination or treatment and his conduct of placing his finger and applying pressure did not go so far. It is more probable in our view that his finger was placed on the anus for the purpose of external palpating.
In the circumstances we conclude that Particular 5 is not established.
Particular 6 is that the Respondent failed to obtain Patient B's informed consent prior to undertaking the conduct particularised in Particulars 1 to 5, and in doing so acted contrary to clause 3.5 of the Chinese Medicine Board of Australia Code of Conduct (March 2014).
We are satisfied and find that the Respondent did not have informed consent to the conduct set out in Particulars 1, 2, 3, 4 and 5 (insofar as it extended to placing of his finger on Patient B's anus). We readily conclude that in respect of all of those matters the practitioner failed to obtain informed consent from Patient B. In our view, this was a very significant failure on the part of the Respondent to meet the standard reasonably expected of a practitioner of an equivalent level and training or experience.
It is, in our view, also likely that the absence of proficiency in English is in part responsible for the manner in which the Respondent conducted his practice. Although the Respondent was able to communicate with his patients on a basic level, he nonetheless did not even use what ability he did have to explain what he was proposing to do, or doing, so as to ensure that, in Patient B's case, she understood the treatment and could give informed consent.
The seriousness of the conduct on the part of the Respondent in respect of Patient B is reinforced by what occurred in relation to Patient A in 2018. As we pointed out above, the sentencing Magistrate emphasised that because the Respondent was required to seek consent, and did not do so, he had a finding made against him for not seeking that consent at the relevant time. Notwithstanding that failure in relation to Patient A, and the finding of criminal conduct by the Local Court, the Respondent again failed in a fundamental way to obtain informed consent in treating another female patient. He again failed to properly explain what he was about to do, or what he was doing, and failed to obtain proper consent.

Complaint 6 - Failure to Maintain Adequate Records

Complaint 6 is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that he engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care experienced, 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 expertise.
The particulars of this complaint relate to the treatment of Patient A on 22 March 2018 and the insufficiency of the records kept in relation to that treatment, and the insufficiency of maintaining appropriate records in respect of Patient B for the consultation and treatment on 9 April 2021.
In each case it is claimed that by engaging in that conduct, the failure to keep proper records, the Respondent breached clause 8.4 of the Code.
Clause 8.4 required the Respondent to maintain clear and accurate health records as an essential part of continuing good care of patients or clients. Clause 8.4 provides that good practice involves keeping accurate, up to date, factual objective and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients or clients, medication or other management in a form that can be understood by other health practitioners. The records are to ensure that they are sufficient to facilitate continuity of care. Dr Cochrane has expressed an opinion that the record keeping of the treatment of Patients A and B fell below the requisite standard and the Respondent has accepted that he failed to comply with his obligations in this regard. Complaint 6 is therefore made out.

Complaint 7 - Breach of Conditions

Complaint 7 is that the Respondent is guilty of unsatisfactory professional conduct in that he contravened a condition to which his registration was subject and/or engaged in improper or unethical conduct relating to the practice or purported practice of Chinese medicine.
Complaint 7 relies on the two conditions that we set out in the introduction of these reasons being the conditions imposed on the Respondent's registration when he became registered as a practitioner on 1 July 2012.
The particulars of Complaint 7 are that on 22 March 2018 the Respondent knowingly contravened Condition 1 of his registration in that he consulted Patient A, with whom he did not share a common language, without a suitable interpreter present throughout the consultation and that the same failure occurred in relation to Patient B on 9 April 2021.
The Australian Health Practitioner Regulation Agency publishes helpful comments to assist practitioners in relation to English language registration conditions and frequently asked questions. Under these provisions a suitable interpreter is an adult who has experience in health interpreting, is agreed to by both the patient and the practitioner, is considered by both the patient and the practitioner to be competent in communicating in their respective languages, and agrees not to compromise privacy and confidentiality. The Chinese Medicine Board does not direct practitioners to use a specific interpreter and there is leeway as to who may be used. It may be appropriate for a friend or family member of a patient to act as interpreter.
There is no dispute that an interpreter should have been present on the days in question and was not.
In our view, based on the evidence given to the Council in the s 150 and s 150C proceedings referred to above, the evidence in the Local Court and before us, it is clear that the Respondent's English language skills are seriously deficient in enabling him to properly communicate promptly and effectively with his patients with the absence of a suitable interpreter.
The cause of complaints against the Respondent by each of the two patients have at their core and inability to properly communicate and explain in a manner that the patients could understand what was being done by the Respondent. Had the Respondent complied with the conditions he may well have avoided a criminal finding against him and the subsequent complaints brought against him.
In respect of Complaint 7 the Respondent indicated to the Tribunal that the obligation to explain the various treatments was effectively left to the receptionist, either the joint owners of the clinic or a student.
In our view the failure to comply with Condition 1 was a significant breach of the Respondent's obligations as a registered practitioner.
In our view there was a knowing contravention of Condition 1 on the part of the Respondent and Complaint 7 has been made out.

Complaint 8 - Professional Misconduct

The complaint is that the Respondent is guilty of professional misconduct under s 139E of the National Law or in that he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration and/or 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 his registration.
Professional misconduct is defined in s 139E of the National Law to mean unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
It is essential, therefore, to determine whether the conduct established before us is sufficiently serious to justify suspension or cancellation of the practitioner's registration.
In the current case, we are of the view that the instances of unsatisfactory professional conduct which we have found established is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The Respondent's conduct involved indecent assault of Patient A. The Respondent failed to comply with his conditions in respect of his communications with Patient A on the relevant day. The Respondent failed to seek informed consent from Patient A in respect of the treatment that he undertook causing her an understandable degree of distress and discomfort.
The Respondent then in respect of Patient B, in the face of his earlier shortcomings and a criminal finding concerning Patient A, engaged in similar conduct that fell well below the standards required of a registered practitioner.
The Respondent also failed to meet the obligations imposed on a registered practitioner in respect of notifying the relevant regulatory authorities of the criminal charges and findings, and in respect of his criminal findings when seeking re-registration.
In the proceedings before us there was no evidence of any real insight on the part of the Respondent as to the seriousness of his misconduct.
In the circumstances, we are satisfied, and find, that taking the instances of unsatisfactory professional conduct together they are sufficiently serious to justify suspension or cancellation of the Respondent's registration and Complaint 8 has been established before us.

Protective Orders

In the exercise of the Tribunal's jurisdiction in respect of the complaints made against the Respondent, the overarching objective and guiding principle of the National Law is that the Tribunal must ensure the protection of the health and safety of the public as its paramount consideration (s 3A(1)). The first stated objective of the national registration scheme is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered (s 3(2)(a)). The tribunal has the power to impose restrictions on the practice of a health practitioner but that may only occur under the scheme if it is necessary to ensure health services are provided safely and are of an appropriate quality.
His Honour Magher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 stated: "35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
At the hearing, the Respondent informed the Tribunal that given what had occurred to him as a result of the complaints by Patient A and B, he was giving up on the prospect of practising again. He indicated that he was of the view that he was no longer wishing to practise in the future. He was 65 years and five months old and if he was prevented from practicing for two or three years, as sought by the Commission, he would be nearly 70 years old. He indicated that if he still cannot speak English, he would still not be able to properly apply for registration and has therefore decided that he would not do so.
The Respondent indicated that after many years of practice and treatment of Chinese-speaking patients there had never been a problem and that the language barriers that he faced were the real issue.
Given our findings that the Respondent is guilty of professional misconduct and taking into account all circumstances we are satisfied the Respondent's registration should be cancelled.
The next question is whether in those circumstances an order should be made under s 149C(7) that provides that an application for review of the order under Division 8 may not be made until after a specified time. As we point out above, the Commission seeks a period of two to three years at the relevant specified time.
In considering whether, and if so for what specified period, such an order should be made we take into account specifically the maintenance of standards of the profession, and the preservation of public confidence in the profession such that it is able to maintain the trust of the public. It is also important that there be general deterrence, a reminder to other members of the profession of the public interest in the maintenance of high professional standards - (see, for example, Health Care Complaints Commission v Marsh [2016] NSWCATOD 155 at [27]) and the denouncement of the conduct.
Given the position now taken by the Respondent, specific deterrence is less important. However, in this case, general deterrence is required. The profession must understand that meeting conditions of the kind imposed on the Respondent concerning the importance of a translator, of obtaining informed consent, of meeting the professional obligations in respect of communications with the relevant regulatory authorities together will result in a period of non-registration. It is necessary for public confidence, and for the profession as a whole, to understand that practitioners who engage in the kind of conduct which has been demonstrated in this case will face the type of consequences that have flowed in this matter, namely, cancellation of registration and a non-review period.
The protective nature of the Tribunal's jurisdiction makes it necessary to send the strongest of messages to others in the profession of the unacceptability of the conduct of the nature engaged in by the Respondent and, accordingly, we are satisfied that a period of non-review of two years is appropriate.

Costs

The Commission sought an order for costs which would follow if successful in establishing the complaints.
It is apparent to us that the Respondent's financial position is less than secure in that he has been unable to perform his profession for a number of years and, as he informed the Tribunal, is currently receiving Centrelink benefits. His financial position is therefore very difficult. We accept that an order for costs will cause hardship to the Respondent.
However, the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 held at [42] that, "as a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule."
In our view there are no factors which disentitle the Commission to its costs in this matter. Accordingly, there will be an order for costs in favour of the Commission that the Respondent pay its costs as agreed or assessed,

Orders (1) 1. An order under s 149C(1)(b) of the Health Practitioners Regulation National Law (NSW), the registration of the Respondent is cancelled. 2. Under s 149C(7) of the Health Practitioners Regulation National Law (NSW), a non-review period of two years is imposed. 3. Under clause 13 of Schedule 5D of the Health Practitioners Regulation National Law (NSW), the Respondent is to pay the applicant's costs as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 21 December 2023 - Coversheet - Representation - Counsel's surname corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2023

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