Health Care Complaints Commission v Kwan

THE EVIDENCE 12The Commission engaged Dr Emery Kertesz as an independent expert to provide a report to the Tribunal. Dr Kertesz in fact provided two reports and gave evidence before us. With two exceptions, the report is accepted by Dr Kwan. These were dealt with by Dr Kertesz when he gave evidence. In speaking of the relationship between Dr Kwan and Patient A in his first report, Dr Kertesz described it as 'draconian'. In evidence, Dr Kertesz explained that by 'draconian' he did not mean hard or harsh, but rather he meant, old fashioned. In respect of the number of home visits, Dr Kertesz expressed a qualified view when informed that the bulk of those home visits had been made at the request of Patient A. 13It is nevertheless the case that the prescribing of Schedule 8 drugs by Dr Kwan did exceed the normal and acceptable limits of therapy for even the most severe medical issues. Narcotics were administered in excessive quantities and for reasons that were outside acceptable medical parameters. The prescribing regime, in the opinion of Dr Kertesz, significantly varied from evidence based medicine. The prescription of narcotic drugs exceeded normal and acceptable limits of therapy even for the most severe of medical illnesses. He thought that the excessive quantities were well outside acceptable medical parameters. It was Dr Kertesz's view that the prescription of Schedule 8 drugs to Patient A was excessive, irresponsible, and potentially life threating. He thought that the only lifesaving factor was the inevitable tolerance she had developed over the years to continuous repeated administration of narcotics by Dr Kwan. 14As earlier noted, when Dr Kwan's authority lapsed on 1 November 2010 he continued to prescribe Schedule 8 drugs to Patient A. The prescribing of drugs of addiction without authority to a drug dependant patient was in breach of S 28 of the Poisons and Therapeutic Goods Act 1996. 15It is significant also to note that between 1 November 2010 and 5 October 2011 Dr Kwan prescribed an average daily dosage of 176mg of oxycodone. Dr Kertesz pointed out this was 35mg per day more than the dose Dr Kwan admitted prescribing in his response to the Commission. It may be that on some days the dose was less than the earlier amount approved, though it should be borne in mind the average was 35mg per day more than he admitted. Between the same dates, that is 1 November 2010 and 5 October 2011, Dr Kwan continued prescribing the same amount of morphine as previously, at a time when he held no authority to do so. He injected doses which varied between 7.5ml and 15ml every few days. 16It was the view of Dr Kertesz that Dr Kwan's clinical management and his professional conduct each fell significantly below the standard expected. Dr Kwan, as the primary caregiver of Patient A, should have monitored, advised, liaised with and compared management with all other providers. In view of his past history with Patient A and also with Dr Scragg, whom he knew was prescribing benzodiazepines, Dr Kwan was likely to have been aware that Patient A was a drug dependent person. The explanation given by Dr Kwan for delivering oxycodone in Webster style packs was described by Dr Kertesz as bizarre and in his view demonstrated a serious and major breach of professional boundaries. He did observe that there were numerous avenues available to Dr Kwan to ensure that therapeutic quantities of medication were delivered to Patient A from a pharmacy. 17Dr Kertesz believed that Dr Kwan's treatment, including the provision of counselling, postural drainage, exercise regime, and meditation was vastly different from the usual doctor-patient relationship. It was Dr Kertesz's view that from the commencement of the doctor-patient relationship Dr Kwan failed to observe professional boundaries. Dr Kertesz also expressed the view that evidence based medicine has shown major disadvantages of the use of narcotic drugs in management of medical illnesses such as migraine and low back pain for which Dr Kwan was treating Patient A. He further said that narcotic treatment is a highly specific discipline and must, by definition, involve a multi-disciplinary team of specialists. Notwithstanding that a large number of home visits was initiated as a result of Patient A's requests, Dr Kertesz's view was that the number of visits was excessive and increased the patient's dependency on Dr Kwan. None of these matters is disputed by Dr Kwan. 18In her witness statement which is before the Tribunal, Patient A said that Dr Kwan had a strong religious belief and would often "tell me stories about his experiences with God". Dr Kwan has admitted to boundary issues relating to his care of Patient A. These included chest physiotherapy and postural drainage and the teaching and supervision of meditation techniques to reduce her perception of pain. Dr Kwan also provided food assistance to Patient A. Dr Kertesz was of the view that despite references to food assistance and religious references, the fact remained that the management of the care of Patient A was far outside normal parameters when compared to the acceptable management of dependent, housebound or institutionalised patients.

ORDERS SOUGHT 19The Commission seeks orders that Dr Kwan's registration be cancelled for a minimum period of one to two years and that he be ordered to pay its costs of these proceedings. The latter order is not resisted by Dr Kwan. 20On 16 August 2005 in the first proceedings brought in respect of Dr Kwan, the Medical Tribunal made a finding of professional misconduct and ordered that he be reprimanded. Further orders were made which prohibited Dr Kwan from possessing, prescribing, supplying or administering Schedule 4, Appendix D drugs. It also ordered him to complete a course offered by the Pharmaceutical Service Branch to ensure that he had proper knowledge of prescribing practices and requirements, particularly in respect of Schedule 4, Appendix D drugs and Schedule 8 drugs. Orders were also made requiring Dr Kwan to submit to an audit with particular attention to the prescribing, administering and recording drugs of addiction and drugs of dependency. An order was made that he nominate one or more approved supervisors to meet with him and conduct an inspection of his medical records with a view to monitoring and reviewing them in order to assist him in complying with the requirements of the Medical Practice Regulation 2003. He was also ordered to attend upon a Board nominated senior general practitioner for educational counselling about boundary setting in the doctor-patient relationship with a particular focus on the appropriateness of giving religious instruction or advice or recommending particular religious programs in the course of professional consultation and in relation to any other relevant issues. 21It will be seen that the matters which were considered by the Tribunal in 2005 bear a remarkable similarity to those we are now considering. 22Whilst acknowledging the Tribunal has the power to make the orders sought by the Commission, it is submitted on behalf of Dr Kwan that such orders should not be made. Instead, it is said, orders maintaining prescribing restrictions, requiring mentoring and supervision would suffice, together with an undertaking by Dr Kwan to complete an educational course provided by Monash University which is relevant to the matters now under discussion. That course is available only to registered practitioners and if Dr Kwan were not such a person he would not be permitted to embark upon the course. His evidence is that he has made enquiries about enrolling in the course, but he is not permitted to do so until his academic record from the University of Sydney is provided. That will take something in the order of two months to obtain. It is interesting to note that his enquiries of Monash University were made relatively recently and to bear in mind that this complaint was initiated in July 2013. 23A number of character references has been placed before us and we have heard the oral evidence of Dr Ng. Those references attest to the fact that Dr Kwan has a reputation as a caring and compassionate general practitioner and is of good character. It is undisputed that in the back area of the ground on which his surgery is located he assists and facilitates local businessmen in providing Saturday morning breakfast to homeless people in the Parramatta district, in his role as 'Pastor Ed', before opening the Saturday morning general practice. He acknowledged in evidence that some of the people who attended the breakfast later attended as patients. The contents of the character references and the evidence of Dr Ng confirm Dr Kwan's compassionate attitude, but in large measure they do not assist us in determining the appropriate outcome of these proceedings. 24Mr Hunt, of counsel for Dr Kwan, has put to us that there was no effective challenge to the credibility of Dr Kwan in the witness box, though he conceded there may have been a lack of insight. We bear in mind that Patient A was a difficult patient; in the view of Dr Kwan the most difficult patient he has had to deal with. She is no longer his patient. It is said, however, that he does have some insight into his offending because of the admissions he made. 25Dr Kwan did not set appropriate boundaries on the doctor-patient relationship. He allowed himself to be influenced by a demanding and manipulative patient. He contributed to the pattern of the patient's reliance on increasing dosages of opiates and he allowed himself to be influenced by the demanding and manipulative behaviour of the patient. We accept Dr Kwan's honesty. The fact he made the admissions noted and conceded that he had been guilty of unsatisfactory professional conduct and professional misconduct, indicate what we believe to be a preliminary stage of developing insight to his misconduct. 26We are, however, of the view that further insight is needed before the public is sufficiently protected. We note that the previous findings and Dr Kwan's experience of undergoing specific direction in professional responsibilities of prescribing and setting boundaries in his practice in accordance with the orders of 2005 were ultimately not sufficient protection for the public. His evidence revealed a reticence to accept that the treatment of Patient A could have been improved had he involved other practitioners. Additionally, the proximity in both time and place of religious and medical activities continued to blur the boundaries of the doctor-patient relationship. 27It is submitted for the Commission that the admissions and evidence demonstrate that Dr Kwan has engaged in conduct that establishes that the knowledge, skills or judgment possessed, or care exercised by Dr Kwan are significantly below those reasonably expected of a practitioner of an equivalent level of training or experience, and that he engaged in improper or unethical conduct relating to his medical practice. It is also submitted for the Commission that the particulars both individually and cumulatively establish that Dr Kwan engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. Neither submission is disputed by Dr Kwan. 28Our attention has been drawn to the decision of the Court of Appeal in Spicer v NSW Medical Council [NSWCA 3 of 1981, 19 February 1981] Hope JA, with Reynolds and Hutley JJA agreeing, said: In my opinion it is clear beyond argument that proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said he is fitted at such a time to be a medical practitioner. In my view the view expressed by the Tribunal has implicit in it that not merely he was presently unfitted to treat those addicted or habituated to drugs but unfitness in itself demonstrated his present unfitness to be a medical practitioner. 29It is plain that over-prescribing medications contrary to law by a medical practitioner can amount to conduct warranting the removal of the practitioner's name from the Register of Practitioners. Dr Kwan's conduct was reckless and showed a blatant disregard of the law. 30Our attention has also been drawn to the decision of the Tribunal in Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3 at [200] where it was said, among other things: The authorities also clearly established that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit for a protective purpose, the Tribunal needs to find that the practitioner is probably permanently unfit to practice. That observation has undergone further consideration, most recently in a later decision of the Tribunal. See Health Care Complaints Commission v Dr Della Bruna [2014] NSWCAOD 31. At para 91 the Tribunal under the Presidency of Wright J, referring to that quote, said: This quotation should not, however, be taken to support the proposition the Tribunal may order deregistration only if it finds that the practitioner is permanently unfit to practice ... 31The expression used by the High Court in Ex parte Lenahan was 'probable permanent unfitness' and referred to the findings which usually underlines an order striking off a solicitor. It serves to indicate that striking off a lawyer or deregistering a medical practitioner will generally only be appropriate if he or she is unfit to practice at the time of making the order and is likely to remain for a significant period. 32The orders proposed by Mr Hunt may have been appropriate if this were the first time Dr Kwan had come before the Tribunal. Orders of a similar nature were, as noted, made in the proceedings concluded in 2005 and, in our view, are inappropriate to this case. As a result of the earlier proceedings Dr Kwan had the benefit of individual input by Pharmaceutical Services Branch officers and a professional colleague appointed to assess and guide him. He also had specific training, directing him to his responsibilities in prescribing as a medical practitioner. He did have an adverse finding made against him concerning his prescribing practices. 33Dr Kwan was aware of his obligation to obtain an authority in order to prescribe, supply and administer Schedule 8 drugs to Patient A, a patient who in his own assessment was drug dependent, and whose long term prognosis was to remain dependent. It was Dr Kwan who initiated Patient A to Schedule 8 medication for complaints of pain. 34The safeguards that are built in to obtaining an authority to prescribe, of requiring a second physician assessment and a pain clinic assessment were available to Dr Kwan for Patient A. The advice given after one such assessment was that Patient A's reported neck and leg symptoms were inconsistent with her radiology. At a time when no supportive or required assessments were obtained for Patient A by Dr Kwan and when Dr Kwan had not reapplied for a continuing authority, he nevertheless continued to prescribe, supply and administer Schedule 8 drugs to Patient A. In doing so, he demonstrated he had little insight into the importance of the safeguard inherent in the prescribing regulations as exercised by a responsible medical practitioner. 35Public safety is reliant on the proper exercise of discretion by a medical professional and on the willingness of the practitioner to practise within the limits set by the profession and by the community. Dr Kwan has breached the trust placed in him by his patient, the community and the medical profession. He has flagrantly and over a long period broken the law. 36We think it significant that when asked what he would do differently in dealing with situations such as those under consideration, Dr Kwan answered in terms of his own career choices. He did not answer in terms of his patient until he was specifically asked to do so by a member of the Tribunal. 37We believe Dr Kwan has demonstrated insufficient insight into the gravity of his misconduct and therefore he is likely to pose a risk to the public were he to remain on the register at this time. We have come to the conclusion that maintaining prescribing restrictions and reinstituting counselling and educational requirements will not afford adequate protection to the public. 38Accordingly, we order that the registration of Dr Kwan as a medical practitioner be cancelled for a period of two years from this date. 39We order Dr Kwan to pay the costs of the Health Care Complaints Commission.

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