Health Care Complaints Commission v Lam

NCAT Occupational|2023-10-30|Before: Dr J

Background

Mr Lam was first registered as a physiotherapist in January 2020.
Mr Lam grew up in Hong Kong. From 2007, following his parents' separation, he was primarily raised by his mother. His mother took out loans to fund his study as an international student in physiotherapy at the University of Sydney.
Between about April 2020 and September 2021, Mr Lam was employed on a part-time basis by Australian Health Professionals Disability and Home Care (AHP) and performed mobile physiotherapy services to clients of his employer.
In August 2020, Mr Lam commenced employment as a physiotherapist at Ultimate Health Greystanes. He was still working for Ultimate Health Greystanes at the time of the hearing.
On 23 September 2021, AHP held a disciplinary meeting with Mr Lam in which AHP alleged that Mr Lam had been charging clients for sessions which he had not attended. Mr Lam admitted the allegations. On the same day, AHP terminated Mr Lam's employment.
On 8 October 2021, an employee or officer of AHP filed a complaint with the Australian Health Practitioner Regulation Agency, stating that Mr Lam had invoiced three patients, who were entitled to physiotherapy services by way of the NDIS, for physiotherapy services which were not rendered.
On the same day, AHP sent Mr Lam an invoice for $34,517.52, in respect of the patients for whom he had improperly invoiced.
On about 15 October 2021, Mr Lam reimbursed AHP the full amount of the invoice, even though he claimed that some of the services for which AHP had demanded payment had, in fact, been provided. In order to repay that amount, Mr Lam borrowed $5,000 from a friend.
In about November 2021, Mr Lam disclosed to his mother, to his aunt and to Ultimate Health Greystanes that he had invoiced for services he had not provided.
Mr Lam repaid his friend the $5,000 he had borrowed by the end of 2021.
In December 2021, Mr Lam completed four units of ethics training provided by an organisation known as Physioplus.

The Complaints

Section 144(b) of the National Law provides that a complaint may be made about a registered health practitioner that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
The Commission raises two complaints against Mr Lam.
The first complaint is that Mr Lam is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law, arising out of dishonestly invoicing: 1. Patient A - 57 hours of physiotherapy services between 9 July 2020 and 16 September 2021, that were never rendered, to a combined amount of $11,057.43; 2. Patient B - 8 hours of physiotherapy services between 29 July 2020 and 16 September 2021, that were never rendered, to a combined amount of $1,551.92; 3. Patient C - 56 hours of physiotherapy services between 20 August 2020 and 16 September 2021, that were never rendered, to a combined amount of $10,863.44.
The second complaint is that Mr Lam is guilty of professional misconduct under s 139E of the National Law, arising out of the particulars to the first complaint.
The patients' names have not been included in this decision, for reasons of patient confidentiality.
Mr Lam has admitted most of the conduct and has admitted that it amounts to unsatisfactory professional conduct within s 139B(1)(l) and that that conduct also amounts to professional misconduct within s 139E.

Hearing and evidence

Mr Lam made a statement and gave evidence at the hearing. He was cross examined.
Mr Lam also provided the Tribunal with letters from two directors of Ultimate Health Greystanes (his current employer), a director of the Ethics Centre, his mentor, his treating psychologist his aunt, his mother and his partner.
Mr Lam relied upon two reports of Dr Anthony Samuels, consultant psychiatrist, dated 3 August 2023 (the primary report) and 17 October 2023 (the supplementary report).

Relevant law

The objectives of the national registration and accreditation scheme under the National Law include to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (National Law, s 3(2)(a)).
The main guiding principle of the national registration and accreditation scheme under the National Law is that the protection of the health and safety of the public must be the paramount consideration (National Law, s 3A(1)).
The Tribunal is obliged to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in ss 3 and 3A of the National Law (National Law, s 4).
The Commission bears the onus of proof in disciplinary proceedings in the Tribunal. The Tribunal must be "comfortably satisfied" that the allegations are made out on the balance of probabilities, having regard to the gravity of the matters alleged (Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363).
Section 139B(1) of the National Law provides: (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of - (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. (d) Failure to comply with decision or order of Committee or the Tribunal A contravention by the practitioner (whether by act or omission) of a decision or order made by a Committee or the Tribunal in relation to the practitioner. (e) Contravention of requirement under Health Care Complaints Act 1993 A contravention by the practitioner of section 21A(3), 34A(4) or 63G(4) of the Health Care Complaints Act 1993. (f) Accepting benefit for referral or recommendation to health service provider Accepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for - (i) referring another person to the health service provider; or (ii) recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter. (g) Accepting benefit for recommendation of health product Accepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product, but does not include accepting a benefit that consists of ordinary retail conduct. (h) Offering a benefit for a referral or recommendation Offering or giving a person a benefit as inducement, consideration or reward for the person - (i) referring another person to the registered health practitioner; or (ii) recommending to another person that the person use a health service provided by the practitioner or consult the practitioner in relation to a health matter. (i) Failure to disclose financial interest in giving referral or recommendation Referring a person to, or recommending that a person use or consult - (i) another health service provider; or (ii) a health service; or (iii) a health product; if the practitioner has a financial interest in giving that referral or recommendation, unless the practitioner discloses the nature of the interest to the person before or at the time of giving the referral or recommendation. (j) Engaging in overservicing Engaging in overservicing. (k) Supervision of assistants Permitting an assistant employed by the practitioner (in connection with the practitioner's professional practice) who is not a registered health practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill. (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Section 139E of the National Law provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of Part 8 of the National Law (comprising ss 149 to 149E) in relation to a registered health practitioner if it finds the subject-matter of a complaint against the practitioner to have been proved, or the practitioner admits to it in writing to the Tribunal (National Law, s 149). There was no dispute that the Tribunal has power to exercise those disciplinary powers.
Section 149A(1) provides a power to reprimand a practitioner, impose conditions on the practitioner's registration and order the practitioner to undergo counselling. It provides: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
The Tribunal also has a power to suspend or cancel a practitioner's registration in certain circumstances. Section 149C(1) provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession.
The Tribunal may order the complainant (if any), the registered health practitioner concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal (National Law, Sch 5D, clause 13(1)).

Conduct findings

The first issue for the Tribunal is whether to make the conduct findings sought by the applicant.
Mr Lam admits that he dishonestly invoiced Patient B for services he did not provide in the period alleged by the Commission. He also admits that he dishonestly invoiced Patients A and C for services not provided between 9 October 2020 and 16 September 2021, and between 16 October 2020 and 16 September 2021, respectively.
We find, on the basis of Mr Lam's omissions and the evidence before us, that Mr Lam dishonestly invoiced Patients A, B and C in the periods the subject of Mr Lam's admissions.

Dispute as to conduct between July and October 2020

There is a factual contest between the parties as to whether Mr Lam provided services in respect of the amounts invoiced to Patient A between 9 July 2020 and 8 October 2020 and in respect of the amounts invoiced to Patient C between 20 August 2020 and 15 October 2020. Mr Lam says that he did, whereas the Commission alleges that he did not. The Commission has the onus of proving the conduct as alleged.
If Mr Lam did not provide services to Patients A and C in this period, whilst dishonestly maintaining at the hearing that he did provide such services, that would undermine his claims to have insight into his conduct and to feel remorse. It would be relevant to the appropriate disciplinary response.

Did Mr Lam provide services to Patient A between 9 July 2020 and 8 October 2020?

Mr Lam's evidence is that he recalls the last session he had with Patient A on 8 October 2020, as it ended when Patient A's father explicitly expressed disappointment with the lack of continuity and communication from the company and practitioners. He said that the support worker of Patient A was always present during their sessions.
Mr Lam wrote the following in his letter to the Commission dated 18 January 2022, sent in response to the s 21A notice the Commission had served upon him: "My first episode of inappropriate billing occurred when I was treating [Patient A] on 08/10/2020, when I billed for a full session despite the client's parent terminating the treatment session at the beginning. I stopped seeing [Patient A] a few weeks prior to the event due to the expiry of his NDIS service agreement. When I resumed the service on 08/10/2020, [Patient A's] parents expressed disappointment and dissatisfaction towards the lack of communication between AHP and themselves regarding the cessation and resumption of physiotherapy treatment. I was told to relay this feedback to my superior or manager, and they would like to have a conversation with my manager before resumption of the service. I immediately informed my manager via email and requested a phone call to be arranged with the parents of [Patient A]. I have no recollection of what transpired next in regard to that phone call, and am unable to say whether or not it took place. However, from that episode, I realised that it was relatively easy to bill clients without having provided a service because I thought the clients would not be frequently checking their invoices and funding, and there was inadequate communication between the clients and AHP regarding the scheduling of appointments, and to my absolute shame and embarrassment now, I did it again - with that client, and two others."
The Commission relies upon the following evidence in support of its contention that Mr Lam did not provide the services to Patient A for which he invoiced between 9 July 2020 and 8 October 2020: 1. The "Receivable Invoice Detail Report - [Patient A] - 3 July 2020 to 22 September 2021"; 2. Mr Lam's admissions in the disciplinary interview with AHP on 23 September 2021; 3. The emails of Connect Families Support Coordinator, Roel Gonzales, dated 21 September 2021; 4. Brevity Patient Logs of [Patient A] - 9 July 2020 to 9 September 2021 5. Service Schedule of [Patient A] - 9 July 2020 to 9 September 2021.
The "Receivable Invoice Detail Report - [Patient A] - 3 July 2020 to 22 September 2021" is evidence that Patient A was invoiced weekly for services provided by Mr Lam between 9 July 2020 and 8 October 2020. The invoice contains a description, headed "brevity notes," of what is said to have occurred in each session.
The Commission has provided the Tribunal with a summary of the disciplinary interview conducted by AHP on 23 September 2021, described as annotated minutes. There is no evidence as the identity of the author of the summary and that person did not give evidence.
In the summary of minutes, Mr Lam is recorded as saying that he had not seen Patient A since July 2020. The summary records that he said: "I have stopped seeing Patient A. I have still been charging Patient A for sessions that did not occur. In July 2020, the funding was all used up, after that course of communication between me, Patient A and his family and the company. He got a new batch of funding. I attended a session, he told me to not come anymore until someone from the company spoke to him. I should not still be charging Patient A."
Mr Lam's evidence in cross examination was that he did not say in the disciplinary interview that the last session which he provided was in July 2020.
In an email dated 21 September 2021, a clinical supervisor at AHP asked Raoul Gonzales from Connecting Families to let her know the specific date Patient A had his last Physiotherapy session with Mr Lam. Mr Gonzales responded by email of the same date that it was 9 July 2020 and added that after that Patient A had exercise physiology sessions.
The brevity patient logs of Patient A contain descriptions for each session for which Mr Lam invoiced between 9 July 2020 and 8 October 2020. The logs do not contain descriptions for sessions invoiced after that point. The log for the session on 3 September 2020 records that the patient's father was present for the session. Other sessions in this period record details such as "Client did not go to school due to flu/cold symptoms" and "Client ready for physiotherapy. Tested negative for COVID." The notes for 8 October 2020 include a statement "[a]wait for contract renewal, continue ex thereafter."
The service schedule simply shows that the services were provided in this period.
The principal evidence supporting the Commission's contention that Mr Lam did not provide Patient A with services between 9 July 2020 and 8 October 2020 is his apparent admission of this in his disciplinary interview with AHP in September 2021. However, the minutes of that meeting are hearsay and the author of the minutes has not been called to give evidence. In circumstances where Mr Lam denies that he said in that interview that the last session with Patient A was in July 2020, it is possible, as his counsel submitted, that his response was either misrecorded or misunderstood, or both.
It is also possible that Mr Lam made a mistake as to the date of the last session in that meeting. The letter he wrote to the Commission on 18 January 2022 suggests that he had not paid close attention to the dates at the time of the disciplinary interview, but had reviewed them before writing the letter. Referring to the invoice AHP sent him in October 2021, Mr Lam stated: "I wanted to make amends and was so distressed that I did not look at the schedules closely or seek to understand the basis of the requested payment. I just wanted to ensure everything was repaid so on 15/10/2021, I reimbursed a total amount of $34,517.52 to AHP, which included what they described as my payment ($11,044.93) and the loss of profit that the company could have made from 09/07/2020 to 16/09/2021 ($23,472.35). I exhausted all my savings to repay this amount (which I was going to send to my mother). If asked, I can provide these spreadsheets. I presume Mr Conway reimbursed the three clients. On reviewing the spreadsheets again now, I believe there are services listed on those spreadsheets where I am confident a physiotherapy service was actually provided by me, so I can say with confidence that the amounts I improperly billed was no more than the amounts on those spreadsheets. No other clients were affected."
The email from Mr Gonzalez from Connecting Families also supports the Commission's position that Mr Lam's last session with Patient A was in July 2020. However, there is no evidence to explain how Mr Gonzalez knew this or why he is able to comment upon the provision of the sessions. As Mr Lam's counsel submitted, there is no evidence that Mr Gonzalez was there at every appointment.
There are some inconsistencies in Mr Lam's accounts of the services he provided and the documentary evidence. He told the Commission in his letter of 18 January 2022 that, on 8 October 2020, he billed for a full session despite the client's parent terminating the treatment session at the beginning. That is not reflected in his notes for that date, which state: "S/ Client ready for therapy Support worker reported violent episode in the week, smashed walls Ex/ Soccer ball catches and throws Balance ex: tandem gait, retro gait, side shuffles, toe walking, heel walking, single-leg hops Strength: STS 20x2, marching on the spot 100x2, double leg calf raise 20x2 P/ Await for contract renewal, continue ex thereafter."
That account suggests that some exercises occurred during the session (unless, of course, that is a list of exercises the patient is required to do at home). Mr Lam was not asked questions about this at the hearing.
Mr Lam's statement to the Commission in his letter of 18 January 2022 that he stopped seeing Patient A a few weeks prior to the first episode of inappropriate billing on 8 October 2020 due to the expiry of his NDIS service agreement is not consistent with the brevity patient logs for Patient A. They show services being rendered each week from 9 July 2020 to 8 October 2020 and beyond. However, this inconsistency was not put to Mr Lam in cross examination and he has not had an opportunity to explain it.
Another apparent inconsistency is that Mr Lam told the Commission in his letter of 18 January 2022 that it was after the session on 8 October 2020 that he "realised that it was relatively easy to bill clients without having provided a service" and that he then did the same in respect of other clients. However, he has admitted that he invoiced Patient B for 8 hours of physiotherapy services between 29 July 2020 and 16 September 2021, that were never rendered. That indicates that his fraudulent billing practices started before 8 October 2020.
The Commission did not adduce any evidence from Patient A's father (who is described as being present at one of the sessions between 9 July 2020 and 8 October 2020), or any statement by Mr Gonzalez, which would assist the Tribunal in determining whether Mr Lam invoiced Patient A for sessions he did not attend during this period.
Some evidence which tends to support Mr Lam's account that he did provide services to Patient A between July and October 2020 is the evidence that AHP issued Mr Lam with an amended invoice in January 2023 with a covering email stating that AHP's accounts team was in the process of refunding the overcharge for Mr Lam. The original invoice was for $34,517.72 and the amended invoice was for $23,472.79. However, the Tribunal has not been provided with any documentation explaining the basis upon which the invoice was amended.
As the Commission acknowledged in its submissions, the strength of the evidence necessary to establish a matter on the balance of probabilities may vary according to the nature or gravity of the fact to be proved. Here, the Commission is seeking to prove fraudulent conduct in a particular period (albeit that similar conduct is admitted in a different period). We are not comfortably satisfied, on the evidence, that Mr Lam did not provide the services for which he invoiced Patient A in the period 9 July 2020 to 8 October 2020. The Commission has not established that this conduct occurred.

Did Mr Lam provide services to Patient B between 20 August 2020 and 15 October 2020?

Mr Lam's evidence in relation to Patient C is as follows: "For [Patient C], I recall that I did provide services from 20 August 2020 to 15 October 2020 for 9 hours amounting to $1745.91. To be exact, I provided physiotherapy services on 20 August 2020, 10 September 2020, 17 September 2020 and 8 October 2020. For the rest of the 5 sessions during the same period, [Patient C] expressed verbally that he would like to cancel the sessions due to fatigue or illness when I called on the day of scheduled appointment. I billed the sessions according to the cancellation policy."
The Commission relies on the following evidence to establish that Mr Lam did not provide the services to Patient C for which he invoiced between 20 August 2020 and 15 October 2020: 1. the Receivable Invoice Detail Report for Patient C, from 20 August 2020 to 16 September 2021; 2. Mr Lam's "admissions" in the disciplinary interview with AHP on 23 September 2021; 3. the emails of Connect Families Support Coordinator, Roel Gonzales, dated 21 September 2021; 4. Brevity Patient Logs of Patient C - 20 August 2020 to 16 September 2021; 5. Service Schedule of Patient C - 20 August 2020 to 16 September 2021.
The Receivable Invoice Detail Report for Patient C and the Service Schedule for Patient C establish that Mr Lam invoiced for services provided to Patient C between 20 August 2020 and 15 October 2020 (which he does not deny).
According to the summary of the disciplinary interview on 23 September 2021, Mr Lam said the following in relation to Patient C: "According to [Patient C], I need to apologise, I made a huge mistake here, I am willing to omit for what I have done wrong. What he says is not true, I have seen him since August 2020 - if I remember correctly the last time would have been around May or June this year. Face to face."
That statement is not an "admission" that Mr Lam did not provide services to Patient C between 20 August 2020 and 15 October 2020, as suggested in the Commission's submissions. Mr Lam did, however, admit in that interview that he invoiced Patient C for sessions even though he did not attend (a position consistent with his admissions before the Tribunal).
By email dated 21 September 2021, in response to an email from AHS, Mr Gonzalez indicated that Patient C's last appointment with Mr Lam was on 13 August 2020. As is the case with Patient A, there is no evidence to explain how Mr Gonzalez knew when Patient C's last session was or to establish that Mr Gonzalez was there at every appointment.
The brevity patient logs of Patient C contain descriptions for each session for which Mr Lam invoiced between 20 August 2020 and 15 October 2020. 15 October 2020 is the last date for which there is any detailed description in the brevity logs. The entry for that date reads: "S/ Called client: reported having fever Session cancelled Rebooked for next week. 08-10-2020 20:09."
The brevity patient logs of Patient C are consistent with Mr Lam's evidence before the Tribunal that Patient C cancelled many of the sessions between 20 August 2020 and 15 October 2020.
We are not comfortably satisfied, on the evidence, that Mr Lam did not provide the services for which he invoiced Patient C in the period 20 August 2020 and 15 October 2020. The Commission has not established that the alleged conduct in this period occurred.

Whether conduct was unsatisfactory professional conduct

The next issue is whether the conduct of Mr Lam which is admitted, and which we found occurred, is unsatisfactory professional conduct.
Paragraph 139B(1)(l) of the National Law provides that "unsatisfactory professional conduct" includes "any other improper or unethical conduct," the word "other" indicating that the paragraph does not apply if any of the preceding paragraphs apply to the conduct. It was not suggested by the parties that any of s 139B(1)(a) to (k) applied to the conduct.
The terms "improper" and "unethical" are to be given their ordinary meanings (Health Care Complaints Commission v Daniel [2022] NSWCATOD 104 at [16]-[18]).
In Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65, the Tribunal made the following observations about s 139B(1)(l), with which we respectfully agree, at [25]-[26]: "25 The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 26 In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances."
Mr Lam has admitted, and we are satisfied, that Mr Lam's conduct of billing patients without providing services is "other improper or unethical conduct" within s 139B(1)(l) of the National Law. It is both improper conduct, and unethical conduct, as the latter term is explained by the Tribunal in Kesserwani.

Whether conduct was professional misconduct

We are also satisfied that, as Mr Lam has admitted, the conduct in which we have found he engaged constitutes professional misconduct in that it is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration (National Law, s 139E(a)). The conduct was very serious. It was dishonest and involved Mr Lam using his position as a physiotherapist to take advantage of vulnerable people.

Disciplinary action and protective orders

When considering appropriate disciplinary orders, the Tribunal has borne in mind the main guiding principle in the National Law, being that the protection of the health and safety of the public must be the paramount consideration (National Law, s 3A(1)).
The Commission sought an order cancelling Mr Lam's registration, for the protection of the health and safety of the community. Section 149C(1)(b) of the National Law gives the Tribunal power to suspend or cancel a registered health practitioner's registration if satisfied that the practitioner is guilty of professional misconduct.
As the Commission acknowledges, it is well established that the power to make disciplinary orders is protective (see, for example, Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20]).
The Commission sought the cancellation order on the basis, at least in part, that cancellation would denounce Mr Lam's conduct and act as both an individual and a general deterrent. It relied upon the observations of Meagher JA, with whom Basten and Emmett JJA agreed, in Health Care Complaints Commission v Do [2014] NSWCA 307 at [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."
Mr Lam submitted that an appropriate disciplinary response would be for the Tribunal to impose conditions on his registration. He proposed some conditions in written submissions filed on the morning of the hearing.
At the hearing, the Tribunal gave the parties an opportunity to file written submissions after the hearing about conditions, should the Tribunal decide that the appropriate disciplinary response was to impose conditions upon Mr Lam's registration.
After the hearing, the Commission provided submissions in which it maintained that the imposition of conditions on Mr Lam's practice was insufficient and did not adequately protect the community. It submitted that community protection could only be ensured by cancellation of Mr Lam's registration, with a non-review period, relying upon Lee v Health Care Complaints Commission [2012] NSWCA 80. Nevertheless, it provided the Tribunal with a set of proposed conditions, which it said operated to address risks to the safety of the community, if the Tribunal determined not to cancel Mr Lam's registration.
The conditions proposed by the Commission (being a modification of conditions proposed by Mr Lam) were, in summary: 1. Mr Lam is to obtain the approval of the Council before changing the nature or place of his practice; 2. Mr Lam is to provide the Council with a patient log form each month listing patients he had attended as an off-site visit or as a telehealth consult; 3. Mr Lam is to provide the Council with a signed consent form each month for all patients he had attended as an off-site visit or as a telehealth consult; 4. Mr Lam is to submit to an audit of a random selection of his clinical records by a nominee of the Council; 5. Mr Lam is to attend for treatment by a registered psychologist of his choice, at least monthly for 12 months, with the frequency and duration of treatment thereafter to be determined by the treating practitioner; 6. Mr Lam is to nominate an experienced physiotherapist to act as his professional mentor for approval by the Council, to authorise the mentor to report to the Council every 3 months, and to be mentored for a minimum period of 12 months and as subsequently determined by the Council.
The Commission also submitted that a reprimand would be appropriate, should the Tribunal decide to impose conditions.
In reply submissions, Mr Lam accepted that a reprimand would be appropriate and also accepted as appropriate the Commission's formulation of conditions.

Evidence of character, reform and insight

Mr Lam made a statement giving evidence of what he had done since his conduct was discovered in September 2021 to address that conduct.
He provided evidence, which we accept, of having undertaken various continuing professional development courses, including four ethics units provided by the organisation Physioplus, completed in December 2021, and the Ethics Centre Ethics Counsel program completed in June 2023. A letter from a director at the Ethics Centre states that Mr Lam's "high level of commitment to the program was noted, as evidenced in [his] increased capacity to self-reflect and self-evaluate."
Mr Lam also gave evidence about his ongoing employment at Ultimate Health Greystanes, which he has undertaken subject to conditions imposed upon his registration by the Council since January 2023. The two directors of that business provided a reference for Mr Lam in which they stated: 1. Mr Lam informed them about the complaint made against him by AHS in November 2021; 2. Mr Lam had been open and honest with them regarding his transgression, and had taken active steps for re-education and reflections; 3. During the time he had been with them, Mr Lam had not demonstrated any inappropriate or dishonest behaviours; 4. They decided to keep Mr Lam on despite his transgression because of his professionalism, enthusiasm, clinical skillset and his willingness to reflect and admit his mistakes; 5. The regret Mr Lam has shown for his mistake is genuine and profound; 6. Mr Lam has continued to display exceptional levels of competence and commitment both to his patients and to the clinic; 7. Whilst they do not condone his error, they firmly believe that Mr Lam has taken comprehensive steps to rectify his mistake and elevate his practice to a higher standard.
As indicated above, Mr Lam immediately admitted to the conduct, when confronted by AHP about it, and promptly paid AHP's invoice. He also repaid his friend the $5,000 he had borrowed to pay AHP part of that amount.
Mr Lam started seeing a psychologist, Mr Kenny Lau, on 6 January 2022. At the time of making his statement (2 October 2023), he had attended six sessions with Mr Lau. Mr Lau wrote a letter on 30 June 2023 in which he made the following comments: "Mr Lam has attended six sessions with me regarding his psychological health after the incident of professional negligence. His general presentation reflects his positive mental health, including his sincere repentance and insight learnt from the incident. I fully believe Mr Lam can positively contribute to his profession and the community with his positive attitude towards his job and family."
From January 2022, Mr Lam has attended monthly mentoring sessions with his former Honours supervisor at the University of Sydney, Dr Fereshteh Pourkazemi. Dr Pourkazemi has provided a reference for Mr Lam in which he stated the following: "When [Mr Lam] reached out to me in January 2022, I accepted to meet with him on a regular basis, to provide him with resources or volunteering opportunities, and to help him to reflect, process, and understand his known and unknown biases to prevent any potential unethical practices in the future. During our discussions, Will openly shared and reflected on his mistakes and his unethical conduct. I found his reflections sincere and his aim to redeem his honour, both as a person and a professional, genuine. He also completed a course with Ethics Counsel in June 2023 which we further discussed and unpacked during our meetings. We still continue our meetings on a regular basis for further discussions and reflections, which I myself find very insightful. Will is well-aware how serious his misconduct has been, and he is prepared to comply with any decisions made because of his conduct."
In his statement, Mr Lam apologised to Patients A, B and C and said that he had exploited their relationships of trust "and the loophole of the management of AHP for my own financial gains." He recognised that this could cause them potential psychological harm. He also apologised to AHP. He acknowledged that his misconduct could undermine the credibility of physiotherapists in the eye of the general public. Mr Lam stated that his inappropriate billing practice resulted in a misuse and unnecessary expense in public funds by the NDIS and HCCC.
He provided some explanation of the "drivers" of his behaviour. One of these was the desire to repay his mother for his tuition fees at university, for which his mother had got a loan from relatives. He referred to values identified as being ranked the lowest in his initial evaluation at the Ethics Counsel, being sincerity, honesty and authority. He also referred to his psychologist's view that he had a subconscious trait as an opportunist whilst growing up.
As a conclusion to his statement, Mr Lam said the following: "I am extremely ashamed for my misconduct and I would like to give my sincere apologies again to all the stakeholders affected. I wish to accept full responsibility for my actions and would continue to undertake remedial steps to make sure my mistakes are fully corrected and understood so I could e a practitioner that demonstrates a high level of ethical awareness and efficacy."
At the hearing, Mr Lam said he was incredibly ashamed and sorry about what he had done. He also said he would not do it again. He said that to ensure that it never happened again, he would be continuing with his psychology sessions, and would keep exploring potential vulnerabilities and sharing his reflections. Mr Lam said that when confronted with an issue, he asked himself three questions, as he had been taught in Ethics classes: Am I doing any harm to any parties? Am I being honest to myself? Is what I'm doing violating any rules or regulations?
Mr Lam was asked, in cross examination, about what he meant by his use of the word "loophole" in his statement. He responded that he could invoice a patient without having provided a treatment. When asked to explain why he said he was a changed person, Mr Lam said that he had discovered that honesty is a huge vulnerability for him, but that he no longer likes to lie to get what he wants.
Mr Lam accepted that he had not sent the money he received from the fraudulent billing to his mother. He said that he was saving up for a lump sum of $40,000 to $50,000 which he intended to send to her when rates were lower.

Dr Samuel's evidence

Mr Lam relied upon two reports of Dr Anthony Samuels, consultant psychiatrist, in the capacity of an expert witness. Dr Samuels met with Mr Lam in an online session on 3 August 2023.
In his first report, Dr Samuels expressed the following: In regard to the factors that led to this offending behaviour, Mr Lam has clearly reflected a great deal about these events and he was able to give me an articulate somewhat intellectualised overview. He acknowledged that the primary driver was financial, that he was trying to make money and pay off his debts.
Dr Samuels commented on Mr Lam's candour about his problems with honesty and sincerity, his openness about his personality defects and his acknowledgement of the issues highlighted by the instructor at the Ethics Centre. Dr Samuels opined: "Given these insights, I think it is imperative that he explores these issues further and ensures that apart from an intellectual understanding of these factors he is able to identify situations where these personality vulnerabilities could lead to behavioural and interpersonal problems."
Dr Samuels stated that Mr Lam had insight into what has occurred and noted that he had expressed remorse. He suggested that if Mr Lam were to continue to practice, there should be two additional conditions. One was to require Mr Lam to have regular contact with his mentor. The other suggested condition was to require Mr Lam to engage in long-term psychological therapy to explore his underlying personality vulnerabilities and to ensure that when he finds himself in stressful situations again or is in disagreement with those in authority over him that there is no repetition of similar behaviours in the future.
In a supplementary report dated 17 October 2023, Dr Samuels responded to a question asking him about Mr Lam's risk of recidivism, as follows: "My impression is that Mr Lam was a new graduate, quite immature at the time of the offending. I do believe that since the offending he has developed some insight into the seriousness of what occurred, that he is genuinely remorseful and has taken proactive steps to address the issues. He certainly has some underlying personality vulnerabilities and I think he found the interactions with the Ethics Centre to be very valuable. I do note however that he has had quite limited psychological input since the offending occurred. In my view, if conditions are imposed on Mr Lam, they should include the need to engage in a long-term psychotherapeutic relationship with a psychologist or other therapist to explore these personality vulnerabilities, to better understand the issues that led to the offending behaviour and to assist him in maturing and maintaining an ethical practice into the future. With the conditions I previously proposed including the engagement in long-term psychological therapy, I would see the risk of recidivism as being low."
At the hearing, Dr Samuels was cross examined. He told the Tribunal that Mr Lam did not have a personality disorder, but had Cluster B traits. In his opinion, there was insufficient evidence to say that the traits were entrenched and immutable. Dr Samuels considered that when he saw Mr Lam, he was in the process of gaining intellectual insight, and had engaged in reflection. However, Dr Samuels said that it was imperative that Mr Lam engage in long term psychological therapy, as Mr Lam was still intellectualising, rationalizing and coming to an understanding. Dr Samuels described Mr Lam's understanding as "fairly rudimentary" at this stage.
Dr Samuels commented that the six sessions Mr Lam had attended with a psychologist over one and a half years were insufficient, and that there was a long way to go. He said that Mr Lam would need at least two to three years of fairly regular therapy.

Assessment

We are satisfied that Mr Lam is remorseful for his conduct. He has expressed his remorse to the Tribunal. Dr Samuels considered that he is genuinely remorseful. His treating psychologist, Mr Lau, considered Mr Lam's "repentance" to be "sincere," whilst his employers considered the regret Mr Lam had shown to be "genuine and profound."
Mr Lam immediately admitted his conduct when his previous employer confronted him with it. Mr Lam informed his current employer, his mother and his aunt about his misconduct two months after it occurred. Whilst it would have been better if he had done so immediately, the circumstance that he disclosed it in November 2021 shows an acceptance of responsibility for what he has done and a willingness to accept the consequences. It is a sign of some maturity.
Mr Lam has also taken some significant steps to gain insight into his conduct and to ensure that it is never repeated. The training in ethics which he has undergone, and particularly the course with the Ethics Centre, have had a positive impact on him. A Director at the Ethics Centre commented upon his increased capacity to self-reflect and self-evaluate. Mr Lam's report to Dr Samuels about what he had learned at the Ethics Centre, and his evidence about this before the Tribunal, indicates that his experience there has given him some insight into his own motivations and some tools for acting ethically in the future. Mr Lam's meetings with his mentor also appear to be a very valuable tool to assist him to reflect upon his conduct and ethical issues more generally.
We agree with Dr Samuels' assessment that Mr Lam has a somewhat intellectualised approach to his conduct and that, although he has gained some insight into his behaviour, he still has a way to go. Mr Lam has largely taken responsibility for what he has done. However, Mr Lam's use of the word "loophole," in both his statement and his evidence before the Tribunal, suggested that there was some external problem (the loophole) which facilitated his conduct, thus implicitly diminishing his responsibility to some degree. In fact, Mr Lam fraudulently billed for services he had not provided when he had been placed in a position of trust and responsibility. In our view, there was no loophole, but rather a breach of trust on Mr Lam's part.
Mr Lam refers in his statement to his "inappropriate billing practice" which tends to minimise his misconduct. The conduct was not merely inappropriate; it was also dishonest, opportunistic and exploitative. The issue was not merely about a "billing practice"; it was about Mr Lam's decision to bill vulnerable patients for services he did not provide over a significant period of time.
On the other hand, Mr Lam recognises that his conduct could have caused "even more immense damage" if it had continued and appears to have an appreciation of the impact it had on his employer, his patients and the profession more generally. He expressly recognises that the exploited his relationship of trust with his patients.
It is positive that Mr Lam sought out a psychologist to explore the drivers of his misconduct (as he said in his statement). However, he appears not to fully appreciate his need for psychological assistance. Mr Lau wrote in an NDIS Worker Check reference for Mr Lam that after the second session with him, in January 2022, Mr Lam "put the service on hold until" October 2022. Mr Lam told the Tribunal that he did this because towards the end of the session, Mr Lau was happy with his progress. He also said at the hearing that Mr Lau had advised that he no longer required treatment. Mr Lau's comment that "[t]he time gap between the second and the third session might be due to Mr Lam's tight schedule" suggests that the decision not to return for many months was that of Mr Lam, and not due to Mr Lau considering that Mr Lam did not need any psychological intervention. In any event, Mr Lam indicated at the hearing that he was happy to continue with psychotherapy.
We also note Mr Lam's employers' comments about his professionalism and commitment to his patients and their assessment that he has not demonstrated any inappropriate or dishonest behaviours whilst working for them. We accept the opinion they express that Mr Lam has taken comprehensive steps to not only rectify his mistake but also to elevate his practice to a higher standard.
We have taken into account Mr Lam's relative youth and inexperience at the time of the conduct and his capacity to learn from his mistakes, as demonstrated by the evidence, when considering appropriate protective orders.

Whether Mr Lam's registration should be cancelled or suspended

As indicated above, the Commission submitted that Mr Lam's registration should be cancelled. Its position is that the only appropriate order is the cancellation of Mr Lam's registration, under s 149C(1)(b) of the National Law, with a non-review period of 12 months, in circumstances where the conduct was serious, sustained and represents an ongoing risk to community safety.
It is open to us to make an order suspending or cancelling Mr Lam's registration, given our finding that he is guilty of professional misconduct (National Law, s 149C(1)(b)).
We find that Mr Lam's conduct was extremely serious and that it was sustained, as the Commission submits. However, we are not satisfied that Mr Lam's conduct represents an ongoing risk to community safety or, to put it another way, that Mr Lam poses an ongoing risk to community safety, if his registration is made subject to appropriate conditions.
We accept Dr Samuels' opinion that, with the conditions proposed by him, including engagement in long-term psychological therapy, Mr Lam's risk of recidivism is low. We note that there is no suggestion that Mr Lam has engaged in any further misconduct since September 2021 or that he has breached any of the conditions imposed upon him by the Council. Given Mr Lam's insight and commitment to reform, we do not consider that he is, at present, unfit to practice (see Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]).
We accept that cancellation or suspension of Mr Lam's registration would serve as an acknowledgment of the seriousness of his conduct and act as a personal and general deterrent. However, we are not persuaded that we should make such an order, given the significant steps Mr Lam has taken to rectify and to understand the drivers of his behaviour, his commitment to change and our view that he is not currently unfit to practice.
A protective order should be limited to that which is reasonably necessary to provide the required level of public protection: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [101]. Cancellation or suspension of Mr Lam's registration are not, in our view, reasonably necessary to protect the public interest.
In Director-General, Dept of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at 546-547 [83], in a passage referred to with approval by Barrett JA in Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20], Basten JA said: "Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist."
That is the case here. The experience of disciplinary proceedings, together with the real threat of the cancellation of Mr Lam's registration, have opened Mr Lam's eyes to the seriousness of his conduct, so that it is now unlikely that he will repeat it. We also consider that Mr Lam has now obtained a much greater insight into his own character and his misconduct, than he had at the time he engaged in the misconduct, as explained above.

Conditions

The Tribunal has power under s 149A(1)(b) of the National Law to impose the conditions it considers appropriate on Mr Lam's registration.
We generally accept that the conditions proposed by the Commission, and accepted by Mr Lam, are sufficient to address the risk of Mr Lam engaging in similar conduct in the future. However, we consider, in light of Dr Samuels' evidence, that a condition requiring Mr Lam to attend monthly psychological sessions for twelve months, and thereafter sessions at a frequency to be determined by the treating practitioner, is insufficient to address Mr Lam's Cluster B traits and to enable him to gain the requisite degree of insight. In our view, a minimum of fortnightly sessions for the first six months, followed by a minimum of monthly sessions for the following twelve months, would more effectively address the underlying issues which contributed to Mr Lam's misconduct, and are reasonably necessary to protect the public.
Dr Samuels' opinion was that Mr Lam would need two to three years of fairly regular therapy. The orders, as proposed by the Commission, leave it to the discretion of the treating psychologist as to the frequency of treatment after twelve months. This means that the treating psychologist could decide that treatment was not necessary at all after twelve months, or could form the opinion that treatment should continue indefinitely. It is appropriate to allow the treating practitioner to determine the frequency of therapy after the first eighteen months. However, we consider that the condition should not be expressed to continue indefinitely. A condition requiring Mr Lam to attend therapy for about two and a half years is appropriate having regard to Dr Samuels' evidence that Mr Lam needs two to three years of regular therapy.

Reprimand

The Commission also sought a reprimand for the admitted unsatisfactory professional conduct and professional misconduct in the event that the Tribunal decided to impose conditions upon Mr Lam's registration. The Tribunal has power under s 149A(1)(a) of the National Law to reprimand Mr Lam.
Mr Lam consented to the imposition of a reprimand.
It is appropriate for the Tribunal to issue a reprimand to Mr Lam under s 149A(1)(a) of the National Law, to signify the seriousness of his conduct, as a deterrent to the profession and as a mark of the Tribunal's disapproval of the conduct (see Law Society of New South Wales v Youssef [2018] NSWCATOD 187 at [58]-[62]).

Costs

The Commission seeks an order that Mr Lam pay its costs as agreed or assessed, under clause 13 of Schedule 5G to the National Law. Mr Lam does not oppose an order for costs.
As a general rule, costs of proceedings before the Tribunal under the National Law should follow the event (Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Health Care Complaints Commission v Vaughn [2022] NSWCATOD 82 at [56]). The award of costs is compensatory.
We have decided that the usual rule should apply, and that Mr Lam should be ordered to pay the Commission's costs, as agreed or assessed.

Orders

The Tribunal orders that:
The respondent is reprimanded.
The following conditions are imposed upon the respondent's registration: 1. The practitioner is to obtain Physiotherapy Council of NSW approval prior to changing the nature or place of his practice. 2. The practitioner is to complete and forward to the Physiotherapy Council of NSW a patient log within seven days of the end of each calendar month listing all patients who the practitioner has attended as an off-site visit or as a telehealth consult during the previous calendar month. An off-site visit may include gyms, care homes, residential premises, or similar places. The Patient log must include: 1. The date and time of each consultation; 2. The name of each patient; 3. The nature of the procedure; and 4. The place of the procedure. 1. Within 7 days of the end of each calendar month, the practitioner is to provide the Physiotherapy Council of NSW with a consent form (in a format approved by the Council) for all patients seen by the practitioner off-site or by telehealth in the previous calendar month. An off-site visit may include gyms, care homes, residential premises, or similar places. The consent form must be contemporaneously signed by the patient and the practitioner and include the following: 1. The date and time of each off-site visit; 2. The patient's name; 3. The nature of the procedure; and 4. The place of the procedure. 1. The practitioner attend for treatment by a registered psychologist of his choice until 31 July 2026. The practitioner: 1. must attend on an at least once fortnightly basis for a minimum of 6 months, thereafter a once monthly basis for a minimum of a further 12 months, with the frequency and duration of treatment thereafter to be determined by the treating practitioner; 2. must seek treatment for the practitioner's underlying personality vulnerabilities as identified in Dr Anthony Samuels' report dated 3 August 2023; 3. must authorise the treating practitioner to provide progress reports to the Physiotherapy Council of NSW every 6 months; 4. must authorise the treating practitioner to inform the Physiotherapy Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in health status (including a significant temporary change). 1. must provide the Physiotherapy Council with the professional details of the treating practitioner. 2. must authorise the Physiotherapy Council of NSW to forward a copy of this decision and any other decision or report as determined by the Council to the treating practitioner. 1. The practitioner must be mentored by a mentor of his choice, on a monthly basis for a minimum of 12 months. The practitioner: 1. must authorise the mentor to inform the Physiotherapy Council of NSW of any of the following: 1. failure to attend for mentoring; or 2. termination of mentoring. 1. must provide the Physiotherapy Council with the professional details of the mentor. 2. must authorise the Physiotherapy Council of NSW to forward a copy of this decision and any other decision or report as determined by the Council to the mentor. 1. The Physiotherapy Council of New South Wales is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner 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 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: 23 January 2024

wing: i. failure to attend for mentoring; or ii. termination of mentoring. b. must provide the Physiotherapy Council with the professional details of the mentor. c. must authorise the Physiotherapy Council of NSW to forward a copy of this decision and any other decision or report as determined by the Council to the mentor. (6) The Physiotherapy Council of New South Wales is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 3. The respondent is to pay the applicant's costs, as agreed or assessed. Catchwords: TRADES AND PROFESSIONS - health practitioner - physiotherapist - whether practitioner engaged in unsatisfactory professional conduct - whether practitioner engaged in professional misconduct - appropriate protective orders Legislation Cited: Health Practitioner Regulation National Law (NSW) Health Care Complaints Act 1993 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Director-General, Dept of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 Health Care Complaints Commission v Daniel [2022] NSWCATOD 104 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Vaughn [2022] NSWCATOD 82 Law Society of New South Wales v Youssef [2018] NSWCATOD 187 Lee v Health Care Complaints Commission [2012] NSWCA 80 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Chun Wang Lam (Respondent) Representation: Counsel: JD Brook (Applicant) I Chatterjee (Respondent)

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