Health Care Complaints Commission v Han

Agreed facts

1. The following facts presented as "Agreed Facts" are accepted by us on the evidence before us as proved to the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34) (footnotes have been omitted). "Background 1. In March 2015, the practitioner completed an Advanced Diploma, Traditional Chinese Medicine at the Sydney Institute of Chinese Medicine. June 2015 - application for general registration 2. On 8 June 2015, the practitioner applied for general registration as a Chinese medicine practitioner (division: acupuncturist) and answered 'Yes' to the question 'Do you commit to have in place professional indemnity insurance arrangements fully compliant with the Board's Professional indemnity insurance arrangements registration standard for all practice undertaken during the registration period?'. The annual registration period for the Chinese medicine profession is from 1 December to 30 November. 3. On 25 June 2015, the practitioner applied for general registration as a Chinese medicine practitioner (division: Chinese herbal dispenser) and answered 'Yes' to the question 'Do you commit to have in place professional indemnity insurance arrangements fully compliant with the Board's Professional indemnity insurance arrangements registration standard for all practice undertaken during the registration period?'. 4. In October 2015, the practitioner was first registered as a Chinese medicine practitioner. October 2015 - Trainee at Co & Co Asian Medicine Clinic 5. In October 2015 - March 2016, the practitioner worked as an Observing Trainee at Co & Co Asian Medicine Clinic in West Ryde (the Clinic) part time (156 hours). 6. On 1 October 2016, the practitioner applied to renew his general registration as a Chinese medicine practitioner (in three divisions: acupuncturist, Chinese herbal medicine practitioner and Chinese herbal dispenser) and answered 'Yes' to the question 'During your preceding period of registration, have you practised in accordance with the requirements of the Board's Professional indemnity insurance (PII) arrangements registration standard when practising the profession in Australia?' and answered 'Yes' to the question 'If your registration is renewed, do you commit to practise in accordance with the requirements of the Board's Professional indemnity insurance arrangements registration standard when practising the profession in Australia?'. 7. On 1 October 2017, the practitioner applied to renew his general registration as a Chinese medicine practitioner (in three divisions: acupuncturist, Chinese herbal medicine practitioner and Chinese herbal dispenser) and answered 'Yes' to the question 'During your preceding period of registration, have you practised in accordance with the requirements of the Board's Professional indemnity insurance (PII) arrangements registration standard when practising the profession in Australia?' then answered 'Yes' to the question 'If your registration is renewed, do you commit to practise in accordance with the requirements of the Board's Professional indemnity insurance arrangements registration standard when practising the profession in Australia?'. November 2018 - application for non-practising registration 8. On 14 November 2018, the practitioner signed his application form for non-practising registration (in three divisions: acupuncturist, Chinese herbal medicine practitioner and Chinese herbal dispenser). Page 1 of the form stated 'This form is for Chinese medicine registrants who elect to cease all practice activities. For a definition of practice, see the Information and definitions section of this form.' Page 9 of the form stated 'Registered health practitioners are also obligated to meet the requirements of their Board as established in registration standards, codes and guidelines. …1. A registered health practitioner must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner, give the National Board that registered the practitioner written notice of the event. Relevant event means - … c) appropriate professional indemnity insurance arrangements are no longer in place in relation to the practitioner's practice of the profession.' Page 12 of the form stated 'Practice means any role, whether remunerated or not, in which you use your skills and knowledge as a health practitioner in your profession. Practice is not restricted to the provision of direct clinical care. It also includes using professional knowledge in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the profession.' 9. From 21 January 2019, the practitioner was registered as a non-practising Chinese medicine practitioner. 10. On 6 October 2019, the practitioner applied to renew his non-practising registration as a Chinese medicine practitioner (division: Chinese herbal dispenser) and answered 'Yes' to the question 'Do you confirm that you have not practised during your preceding period of registration or since non-practising registration was granted (if granted during the preceding renewal period)?' and answered 'Yes' to the question 'Do you confirm that you do not intend to practise whilst holding non-practising registration?'. 11. On 4 October 2020, the practitioner applied to renew his non-practising registration as a Chinese medicine practitioner (in three divisions: acupuncturist, Chinese herbal medicine practitioner and Chinese herbal dispenser) and answered 'Yes' to the question 'Do you confirm that you have not practised during your preceding period of registration or since non-practising registration was granted (if granted during the preceding renewal period)?' and answered 'Yes' to the question 'Do you confirm that you do not intend to practise whilst holding non-practising registration?'. 12. On 26 September 2021, the practitioner applied to renew his non-practising registration as a Chinese medicine practitioner (in three divisions: acupuncturist, Chinese herbal medicine practitioner and Chinese herbal dispenser) and answered 'Yes' to the question 'Do you confirm that you have not practised during your preceding period of registration or since non-practising registration was granted (if granted during the preceding renewal period)?' and answered 'Yes' to the question 'Do you confirm that you do not intend to practise whilst holding non-practising registration?'. 13. In November 2021, the practitioner returned to Australia. January/February 2022 - Clinic Assistant/Trainee at Co & Co Asian Medicine Clinic 14. In January 2022 or 2 February 2022, the practitioner started working at the Clinic owned by the chief practitioner/owner (Dr Young Guen Song). Dr Song allowed the practitioner to work at reception and manage the Clinic while Dr Song was overseas. Dr Song instructed the practitioner not to perform any clinical treatments because the practitioner did not yet have general registration. 9 February 2022 - Application for general registration 15. On 9 February 2022, the practitioner signed an application form for general registration (in three divisions: acupuncturist, Chinese herbal medicine practitioner and Chinese herbal dispenser). Page 1 of the form stated 'This form is for non-practising registrants wanting to recommence practice as a Chinese medicine practitioner, to apply for general registration. It is important that you refer to the Chinese Medicine Board of Australia (the Board) registration standards before completing this application. Registration standards and other relevant codes and guidelines can be found at www.chinesemedicineboard.gov.au.' The practitioner marked 'Yes' to the question 'In the coming year, do you commit to meet the Board's Professional indemnity insurance registration standard?' underneath the information on page 4 of the form 'When practising, you must have appropriate professional indemnity arrangements in place that meet the Board's registration standard. For more information, see Professional indemnity insurance in the Information and definitions section of this form or the full registration standard online at www.chinesemedicineboard.gov.au/Registration-Standards." The practitioner signed page 7 of the form underneath the declaration 'I declare that: the statements made, and any documents provided, in support of this application are true and correct' and the undertaking 'I undertake to comply with the all relevant legislation and National Board registration standards, codes and guidelines.' The information and definitions on page 11 of the form stated: 'PRACTICE Practice means any role, whether remunerated or not, in which you use your skills and knowledge as a health practitioner in your profession. Practice is not restricted to the provision of direct clinical care. It also includes using professional knowledge in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the profession. PROFESSIONAL INDEMNITY INSURANCE (PII) You cannot practise as a Chinese Medicine practitioner in Australia unless you are covered by your own, or third-party professional indemnity insurance (PII) arrangements that meet the requirements of the Board's registration standard. You need to understand how you are covered. Remember, practising means using your skills and knowledge as a health practitioner in any paid or unpaid role in your profession. Chinese Medicine practitioners are exempt from requiring Pll when: • the scope of practice of an individual practitioner does not include the provision of healthcare or opinion in respect of the physical or mental health of any person • a practitioner has statutory exemption from liability. That is, they are employed as a practitioner or are in another arrangement and are exempted from liability under state or Commonwealth legislation, or • practitioners are registered in Australia but are practising exclusively overseas. Initial registration and annual renewal of registration requires a declaration that you will be covered for all aspects of practice for the whole period of the registration. You may be covered by your Australian employer's PII - you will need to confirm this with your employer. For more information, view the full registration standard online at www.chinesemedicineboard.gov.au/Registration-Standards.' 16. The practitioner submitted his application dated 9 February 2022 to AHPRA with his 2 page CV (dated 10 March 2022) to his application. The practitioner did not mention any employment at the Clinic in his CV. 23 February 2022 - First consultation with Patient A 17. On 23 February 2022: a. The practitioner held non-practising registration (complaint 1, particular 1); b. The practitioner did not hold professional indemnity insurance (complaint 2, particular 1); c. Patient A attended the Clinic; d. Patient A was 32 years old; e. Patient A reported chronic back pain; f. The practitioner took a history of Patient A's pain, assessed Patient A's pulse and tongue, made a diagnosis and recommended acupuncture treatment; g. The practitioner inserted acupuncture needles and provided massage; h. The practitioner practised the profession of Chinese medicine by providing acupuncture treatment to Patient A at the Clinic; i. At the end of the acupuncture treatment session, the practitioner gave Patient A advice (about body aches, post-treatment care, keeping her body warm and rest); j. Dr Song was not available at the Clinic and was unaware that the practitioner treated Patient A on that date; k. The practitioner was not supervised by Dr Song or any other Chinese medicine practitioner on that date. 2 March 2022 - Second consultation with Patient A 18. On 2 March 2022: a. The practitioner held non-practising registration (complaint 1, particular 2); b. The practitioner did not hold professional indemnity insurance (complaint 2, particular 2); c. Patient A attended the Clinic; d. Patient A reported shoulder stiffness and lower-mid back pain; e. The practitioner took a history of Patient A's pain, assessed Patient A's pulse and tongue, made a diagnosis and recommended acupuncture treatment and massage; f. The practitioner felt Patient A's back muscles and inserted acupuncture needles and provided massage; g. The practitioner practised the profession of Chinese medicine by providing acupuncture treatment to Patient A at the Clinic; h. At the end of the acupuncture treatment session, the practitioner gave Patient A advice (about body aches, post-treatment care, keeping her body warm and rest) and talked to her about further acupuncture treatment sessions; i. Dr Song was not available at the Clinic and was unaware that the practitioner treated Patient A on that date; j. The practitioner was not supervised by Dr Song or any other Chinese medicine practitioner on that date. 7 March 2022 - Third consultation with Patient A 19. On 7 March 2022: a. The practitioner held non-practising registration (complaint 1, particular 3); b. The practitioner did not hold professional indemnity insurance (complaint 2, particular 3); c. Patient A attended the Clinic; d. Patient A reported there was not much change in her back pain; e. The practitioner took a history of Patient A's pain, assessed Patient A's pulse and tongue, made a diagnosis and recommended acupuncture treatment and massage; f. The practitioner felt Patient A's back, pressing along the spine and scapula area and inserted needles; g. When the practitioner inserted an acupuncture needle, Patient A screamed. Patient A was in pain. The acupuncture needle punctured Patient A's lung. Patient A told the practitioner to stop and/or said that it hurt too much and/or said 'I don't want this anymore'; h. Patient A started to cry and the practitioner said words to the effect that the pain was because her body was tense; i. The practitioner removed the needle and left the other needles on her body for another 15 minutes and provided massage; j. The practitioner practised the profession of Chinese medicine by providing acupuncture treatment to Patient A at the Clinic; k. At the end of the acupuncture treatment session, the practitioner gave Patient A advice about post-treatment care (about body aches, keeping her body warm and rest) and/or said words to the effect that she would feel better soon and that she was in pain because her body was tense; l. Dr Song was not available at the Clinic and was unaware that the practitioner treated Patient A on that date; m. The practitioner was not supervised by Dr Song or any other Chinese medicine practitioner on that date. 20. Sometime after Patient A left the Clinic on 7 March 2022, the practitioner received a phone call from Patient A. Patient A said words to the effect that she was in pain when she breathed, that her back was uncomfortable when she breathed or that breathing was uncomfortable or that with every breath she took in there was more pain. The practitioner said words to the effect that she should put a hot/heat pack on her back. Patient A asked the practitioner if he was sure that she should use a heat pack as she was experiencing chest pain and not a body ache and he replied that he was sure. 21. Sometime after the phone call, Patient A messaged the practitioner that she was in a lot of pain and was going to go to Emergency. 22. In the morning on 8 March 2022, Patient A was admitted to Concord Hospital Emergency. Patient A: a. was in pain, b. had sharp chest pain since the acupuncture, worse on inspiration (breathing in), c. had a chest xray (which found a pneumothorax approx. 2.5cm), d. was given additional oxygen and pain medication, e. had bedside ultrasound (which noted the pneumothorax), f. had a progress chest x-ray 6 hours later (which showed the pneumothorax approx. 2cm), g. was diagnosed with pneumothorax (puncture in the lung from the acupuncture needle), h. was prescribed pain relief, i. was discharged and instructed to have another chest xray and to avoid flight travel and scuba diving. 23. On around 8 March 2022, the practitioner telephoned Dr Song about Patient A's situation. Dr Song told the practitioner to ask Patient A about her medical condition and told the practitioner to stop working at the Clinic. 24. On around 9 March 2022, Patient A had another chest xray (which found the pneumothorax 1.8mm in depth). 25. On around 9 March 2022, the practitioner telephoned Patient A. Patient A said words to the effect that she had gone to Emergency the previous day and complained about pneumothorax. The practitioner said sorry. 26. On 14/15 March 2022, the practitioner applied to renew his general registration (divisions: acupuncturist, Chinese herbal medicine practitioner) and did not answer the question 'In the previous registration period, did you meet the Board's registration standard for professional indemnity insurance arrangements?' and answered 'yes' to the question 'In the coming year, do you commit to meet the Board's Professional indemnity insurance registration standard?' 27. Sometime on or before 23 March 2022, the practitioner sent Patient A his Korean driver licence and AHPRA registration. 28. On 23 March 2022, Patient A lodged a complaint with the Commission and attached the practitioner's driver licence (Korean) and his AHPRA general registration card (expired 30 November 2016). 29. On 29 March 2022, the practitioner received an email/letter from the Commission notifying him of Patient A's complaint. 30. After the practitioner received the complaint letter, the practitioner contacted Patient A and asked if there was anything he could do. 31. On around 11 April 2022, the practitioner provided a 6 page CV (dated 11 April 2022) to the Commission. 32. On 9 May 2022, the practitioner provided a response to the Commission. 33. On 5 August 2022, the practitioner received a notice from the Commission requesting information and documents. 34. On 11 August 2022, the practitioner received an email and a letter from AHPRA requiring him to 'undergo a performance assessment for the division of Acupuncturists by a Committee approved assessor' and stating that 'a performance assessment is required to provide the Committee with further information to determine your ability to practice safely and the education or training required to address your absence from practice.' 35. On 17 August 2022, the practitioner received an email from AHPRA proposing to extend the timeframe to assess his application given that he was required to undergo performance assessment. 36. On 22 August 2022, the practitioner emailed AHPRA consenting to the extension. 37. On 26 August 2022, the practitioner provided a second response to the Commission. 38. On 7 October 2022, the practitioner received a letter from the Commission inviting him to provide submissions. The practitioner did not provide submissions. 39. On 30 November 2022, the practitioner's non-practising registration lapsed. 40. On 22 December 2022, the practitioner received an email from AHPRA inviting him to withdraw his application for general registration then re-apply once he returns to Australia. 41. On 23 December 2022, the practitioner emailed AHPRA withdrawing his application 'I wish to withdraw my application for now and I will apply again when I am ready to apply.' 42. On 5 January 2023, the practitioner received an email and letter from AHPRA confirming his application was withdrawn. 43. On 6 January 2023, the practitioner emailed AHPRA about an (auto generated) email from AHPRA regarding renewal of his non practicing registration by 31 December 2022, stated that he was overseas and 'I eagerly want to renew my registration despite the lateness.' 44. On 6 January 2023, the practitioner received an email from AHPRA confirming that his non-practising registration had lapsed."

The relevant law

1. The principles relevant to disciplinary proceedings under the Health Practitioner Regulation National Law (NSW) (the National Law) are uncontroversial.
2. The overarching principles are found in s 3 and s 3A of the National Law. Section 3A, a NSW provision, mandates that in determining proceedings the Tribunal has the protection of the health and safety of the public as its paramount consideration.
3. Unless a provision in the National Law is in conflict with, or repugnant to the practice and procedure provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) those provisions apply: see Medical Council of NSW v Lee [2017] NSWCA 282 at [7]. The guiding principle of the NCAT Act requires the just, quick and cheap resolution of the real issues in dispute between the parties. Each of the parties to the proceedings is under a duty to co-operate with the Tribunal to give effect to the guiding principle: see NCAT Act, s 36.
4. The primary purpose of protective orders made at the conclusion of proceedings is to protect the public, not to punish the practitioner: see Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40.
5. Consideration of what constitutes unsatisfactory conduct and professional misconduct for the purposes of the National Law is explained by Basten JA in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [18]-[21] as follows: "[18] The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration. [19] The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation. The phrase 'unsatisfactory professional conduct' is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, overservicing and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. [20] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). [21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it." [footnotes omitted]
6. Under s 139B(1)(l), unsatisfactory professional conduct involves improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. The words "improper" and "unethical" are not defined in the National Law but have been considered in a number of Tribunal decisions and includes conduct which, viewed objectively, would be regarded by a reasonable person as falling below the standard of conduct expected of a practitioner in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession: see for example Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [30]-[31]; Health Care Complaints Commission v Knowles [2020] NSWCATOD 80 at [23]-[28]; Health Care Complaints Commission v Little [2016] NSWCATOD 146 at [68]-[69]; Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [56]; Office of Local Government v Toma [2016] NSWCATOD 21.

Complaint One: Unsatisfactory professional conduct under s 139B(1)(b) of the National Law

1. As noted, Mr Han admits Complaints One and we find that the evidence before the Tribunal establishes this complaint.
2. Complaints One alleges that Mr Han's conduct in practising Chinese medicine while holding a non-practising registration, amounted to unsatisfactory professional conduct under s 139B(1)(b) of the National Law in his contravention of s 75(1) of the National Law.
3. Although Mr Han first obtained general registration in October 2015 and renewed that registration October 2016 and 2017, in 2018 he changed his registration to non-practising. He admitted in cross-examination that when he completed the form to change his registration he knew that meant he was prohibited from treating patients.
4. In 2019 he again renewed his non-practising registration and confirmed he had not practised. Again in 2020, and 2021 when Mr Han applied to renew his non-practising registration as a Chinese medicine practitioner for each year, Mr Han confirmed on the application that he had not practised and would not practise while holding a non-practising registration.
5. Mr Han ought to have known and did in fact concede in cross-examination that he was aware that when he treated Patient A in 2022, he was not registered to practice. Mr Han admitted that he knew that he should not have treated Patient A.
6. While Mr Han acknowledged and appeared to us to have sincere remorse for treating Patient A without the required registration, he sought to minimise the gravity of this failing by contending that he was compelled to help the patient who was suffering chronic pain - he said his "compassion [for Patient A] went overboard." He also said that he considered he had the sufficient clinical skills and training to treat Patient A. This is despite also acknowledging that he had never had the requisite supervised clinical practice in both acupuncture and Chinese herbal medicine.
7. Mr Han was also aware that Patient A did not know that he was not registered to practice. Mr Han acknowledged that he could have referred her to see a registered practitioner but that he "felt like treating her" and so booked her in to be treated by him.
8. Section 75(1) of the National Law provides that a registered health practitioner who holds a non-practising registration in a health profession must not practice the profession. There is no doubt that when Mr Han treated Patient A, he knew he did not hold a practising registration and that he was prohibited from treating patients. We find Mr Han's conduct on each occasion he treated Patient A demonstrated disregard and disrespect for the laws concerning registration and the requirement to hold professional registration to practice.
9. We find Mr Han's conduct in treating Patient A on each occasion contravened s 75(1) and constituted unsatisfactory professional conduct under s 139B(1)(l) of the National Law.
10. Complaint One is therefore established.

Complaint Two: Unsatisfactory professional conduct under s 139B(1)(b) of the National Law

1. Complaint Two relates to Mr Han practising Chinese Medicine without professional indemnity insurance (PII). As noted, Mr Han admits Complaints Two and we find the evidence before the Tribunal establishes this complaint.
2. A registered health practitioner is prohibited from practising the health profession in which the practitioner is registered unless appropriate professional indemnity arrangements are in force in relation to the practitioner. This is necessary as the practitioner is treating patients. It is not required for health practitioners who are not practising.
3. Since 2012, Chinese medicine practitioners are not to practice without insurance whether covered by their own or third party PII arrangements.
4. When Mr Han first applied for registration in 2015 and renewal in 2016 and 2017, on the registration form he confirmed that he had in place PII to the standard required for a Chinese medicine practitioner.
5. When Mr Han returned to Australia in 2021 he had sufficient time to obtain PII but did not. Despite having first denied that he knew about the PII requirements, Mr Han admitted in cross-examination that on each occasion when he treated Patient A, he knew that he did not have PII but that it was required.
6. Shortly after treating Patient A and after becoming aware of the pneumothorax, Mr Han submitted an application for general registration and did not answer the question as to whether he meet the Board's registration standard for PII in the previous registration period. During cross-examination, it became apparent that this was not mere oversight, rather Mr Han did not complete this part of the registration form because he knew he did not meet such standards.
7. We find that Mr Han's conduct in treatment to Patient A without PII constituted unsatisfactory professional conduct (notwithstanding his non-practising registration status).
8. Consequently, that Complaint 2 is established.

Complaint Three

1. Complaint Three alleges that Mr Han is guilty of professional misconduct by reason of the conduct alleged in Complaint One and Two considered individually or together. Mr Han admits Complaint Three.
2. Section 139E of the National Law provides that professional misconduct means: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or 2. 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.
3. When considering whether the conduct amounts to professional misconduct, it may be relevant to consider the circumstances in which the conduct occurred, including the practitioner's motivation and the state of mind, as well as the risk of harm that the conduct was apt to create: Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [30]-[37] (Kirk JA).
4. On the evidence before us, we consider the conduct of Mr Han in treating Patient A, while holding a non-practising registration, either on its own or in conjunction with the fact that he did not hold PII at the time he treated Patient A, constitutes professional misconduct. This is particularly so because he was aware on each occasion that he treated Patient A, that it was not permitted - but he did so anyway in complete disregard for the law.
5. Consequently, Complaint 3 is established.

Principles regarding protective orders

1. The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdiv 6 of Div 3 of Pt 8 of the National Law in relation to proven claims against registered health practitioners: see ss 149A, 149B and 149C of the National Law.
2. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s 3A of the National Law. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law.
3. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34].
4. In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see for example, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.
5. As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.

Consideration of appropriate protective orders

1. As noted above, we are satisfied that the three complaints as advanced by the Commission are proved.
2. In Health Care Complaints Commission v Reid [2018] NSWCATOD 162, after making a finding of professional misconduct, the Tribunal stated at [657]: "The conduct we have found established is of such a serious nature that we are satisfied if the practitioner was still registered, we would have cancelled his registration. We are satisfied that it is appropriate in these circumstances to make an order under s 149C(4) of the National Law."
3. That interpretation was cited with approval by the Tribunal in Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD 116 at [116]- [118] and by the Court of Criminal Appeal (Hoeben CJ, Johnson J and Latham J) in Jung v The Queen [2017] NSWCCA 24 at [56].
4. In the present case, we are satisfied on the evidence that Mr Han's conduct is of a sufficiently serious nature and that if he had been registered, we would have cancelled his registration. We therefore consider an order under s 149C (4) of the National Law to be appropriate.
5. We also consider that disqualifying Mr Han from being registered for a period of 12 months is appropriate having regard to the need to protect the community.

Costs

1. The Commission seeks its costs. In exercising the power to award costs conferred by cl 13, Sch 5D of the National Law, the general rule is that costs follow the event unless there has been some disentitling conduct of the successful party. There has been no such conduct here and, in any event, Mr Han has agreed to pay the costs as agreed or assessed.

ORDER 1. If Mr Han had been registered as at the date of these orders the Tribunal would have made an order cancelling his registration pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (the National Law). 2. Pursuant to s 149C(4)(b) of the National Law Mr Han is disqualified from being registered for 12 months from the date of these orders. 3. The Registrar is to notify the National Board that it should pursuant to s 149C(4)(c) record on the register the fact the Tribunal would have cancelled Mr Han's registration if he had been registered. 4. Mr Han is to pay the applicant's costs under cl 13 of Sch 5D of the National Law 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 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: 19 October 2023