Health Care Complaints Commission v Liu

NCAT Occupational|2016-10-09

Preliminary Matters

Correspondence had been received from Patient A indicating that Patient A would not be attending the hearing as he was served with a summons to attend late and that he had no interest in progressing the complaint against the Respondent. The Applicant sought leave to tender the statement of the Respondent and argued that it should be admitted pursuant to section 38 of the NCAT Act.
The Respondent conceded that the Tribunal is not bound by the rules of evidence but argued that procedural fairness indicates that in a case so factually based which goes directly to issues of credit, it is very prejudicial to the Respondent not to have an opportunity to test the credibility of Patient A. The Respondent argued that there is no statutory declaration or formally sworn statement in regard to his evidence and the only evidence before the Tribunal would be unsworn correspondence with the Board. In addition, the Respondent argued that contemporaneous documents should tell us that his evidence should be rejected. The Respondent pointed out to the Tribunal that in his email to the Tribunal dated 3 November 2016, Patient A stated that he never knew that he would be required to give evidence. In addition, he said that he does not recall the specifics of his complaint.
In response to the Respondents' submissions, the Applicant argued that despite the fact that there was no statutory declaration or sworn statement, paragraph 1 of tab 6 and 8 indicate his awareness of the importance of his statements and that therefore the lack of a statutory declaration or sworn statement should not be held against the Applicant.

Background/ History

The Respondent is a practitioner of Chinese medicine registered under the National Law. The enquiry is into an application and complaint against the Respondent made in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law ("The National Law"). He is the proprietor of the Norwest Clinic. Patient A attended Norwest Clinic for treatment for chronic ulcerative colitis by the practitioner in or around October 2014.
The complaint consisted of two separate complaints: 1. Complaint One; that the Respondent is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the Respondent engaged in conduct that the knowledge, skill or judgement possessed or care exercised by the practitioner in the practice of Chinese medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; 2. Complaint Two; is that the Respondent is guilty of professional misconduct under section 139E of the National Law in that he has; 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration or; 2. engaged in more than one instance of unprofessional conduct that when considered together amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioners registration.

Particulars

Complaint One; in light of the inability to adduce evidence of Patient A, the matter proceeded on the following particulars only: 1. Particular 4; In or around the month of October 2014, the practitioner failed to make a proper assessment of Patient A before recommending fasting as treatment, including failing to appropriately consider the Patient's co-existing medical conditions. 2. Particular 7: In or around the month of October 2014, the practitioner arranged for treatment including remedial massage and acupuncture to be provided to Patient A by staff who were: 1. Not registered Chinese medical practitioners; 2. Not adequately skilled; 1. Particular 9; In or around the month of October 2014, the practitioner failed to maintain clinical records for Patient A in accordance with the standards of the Chinese medicine board of Australia ("The Board") "contained in the guidelines for patient records" and "guidelines for patient records; explanatory statement from the board" in that he failed to record; 1. An accurate or complete case history; 2. An adequate diagnosis; 3. A treatment plan; 4. Consultations in chronological order; 5. Accurate progression notes on the Patient's symptoms, including in relation to: ● Symptoms reported by the Patient. ● The dietary regime for the Patient. ● Entries in the English language only.
Complaint Two; the Applicant relied on the particulars at issue in Complaint One.

The Evidence of the Applicant

The Applicant called Dr Zhen Zheng whose statement was accepted in evidence and confirmed as true by Dr Zheng. The only question put to Dr Zheng by the Applicant was whether if paragraphs 1, 5 (last sentence) and 7 did not exist, would that impact on her decision, to which she replied no.
She was then cross-examined by the Respondent and asked whether she had relied on the Respondent's version of events. She replied that in addition to the Respondent's version, she relied on the statement of Patient A.
Dr Zhen Zheng's report which she based on all the particulars originally complained of against the Respondent led her to the conclusion that the treatment provided by the Respondent was significantly below the standard expected of a professional of the level of experience of the Respondent and warranted serious criticism.
Dr Zheng was cross-examined on the answers to various questions put to her in preparation for the report. She was asked whether it was common practice to ask a patient to complete a form and to disclose any medical condition, she confirmed that it was common practice, but stated that the form is not the end of the story. The practitioner should ask further questions, including whether the patient has diabetes. It was put to her that in giving her opinion of good practice, she made no mention at all about reliance on the form. Dr Zheng stated that she relied on the guidelines.
It was put to Dr Zheng that in her report in response to question 8 of the report, Dr Zheng formed the view that the employees concerned received training overseas but did not form the view that they were deficiently trained, with which she agreed. It was put to her that in her report in response to question 9, she said that they were adequately trained to provide the treatment but in her evidence she sought to limit this to massage therapy. She stated that she does not know about acupuncture. She was significantly challenged on this in evidence since it was put to her that she had changed her mind during the giving of evidence. She claimed that it was not a change of mind but she would want them to be supervised. There was extensive cross-examination of Dr Zheng on this issue and the fact that in her supplementary report she only mentioned supervision for students. In answer she stated that a person who was adequately trained but is not a student, doing this unsupervised could be dangerous.
Referring to the fact that under the code it allows for delegation to someone who is adequately trained, Dr Zheng stated that was only if they are registered. She was asked to point out where in the code (tab 81, paragraph 4.3) that is a requirement, which she was unable to do.
The cross-examination turned to English language skills and the qualifications of the individuals. She indicated that she was not given any factual information but she made her own assumptions largely from what Patient A had said and the impression she gained from the Respondent's statement.
Having limited the cross-examination to the particulars which remained in the complaint, Dr Zheng was then cross-examined on the effect of the removal of various particulars and her conclusions on the complaint and the serious level of the complaint.
In turning to the various conclusions, in answer to conclusion 1, she was asked that if Patient A said 6 months not 5 years, would that no longer be a factor. She said yes.
In answer to conclusion 5, if the Respondent did not say that Patient A should go off medication, would that change anything, to which she responded yes.
In answer to conclusion 7, she was asked if the allegations made were not the fact, then his practice notes would not be inaccurate, she answered yes.
It was put to Dr Zheng that in having to remove various facts on which she relied in coming to her conclusion, it should have reduced her level of criticism. She disagreed and by way of explanation said that she gave those only as examples.
It was then put to her that there are at least three significant matters which she singled out in coming to her conclusion. She was somewhat defensive on this issue, and stated that she did not agree that they were singled out, but said that there was "a pattern here".
That concluded the evidence of Dr Zheng and the Applicant closed its case.
Despite the fact that some of her conclusions and evidence was highly relevant, the Tribunal was somewhat concerned that an independent expert faced with significant changes in the facts or assumed facts was not prepared to concede that those changes could have any effect on the views that she had formed when relying on evidence that was not subsequently led as part of the Applicant's case.

The Evidence of the Respondent

The Respondent was called to give evidence and confirmed his statutory declaration. He was cross-examined in relation to the initial consultation with particular reference to cupping and acupuncture performed on Patient A in the initial consultation which was not recorded in the clinical records. The Respondent stated that he did not record it because it was not part of the treatment but part of the diagnosis. It can be argued that whether or not it was a treatment or an activity used for diagnostic purposes it should have been recorded. When pressed on whether he does not normally record work done in the initial consultation, he stated that he normally does record it but in this case he did not.
The cross-examination moved to the selection of the needling points and the Respondent confirmed that the needling points were not in his handwriting but in that of Nan Li. In later cross-examination when challenged on whether he set the needling points, the Respondent confirmed that he did so by calling Nan Li over the telephone and giving him the needling points which Nan Li recorded then in his handwriting. It was put to him that that was not recorded anywhere and that he was now inventing this in his evidence. The Respondent simply responded "you say so".
The Respondent was asked why Nan Li was doing acupuncture when he is advertised as a massage therapist. The Respondent advised that he does acupuncture and that he is trained and skilled in it. The Respondent advised that he supervises Nan Li, sets the treatment plan and ensures that Nan Li carries out the treatment plan by daily reporting from Nan Li and meeting with him once per week. Although the Respondent always maintained that he was responsible for setting the treatment plan, on questioning by the Tribunal, he conceded that Nan Li did in some circumstances change the acupuncture points.
In relation to fasting, the Respondent denies that he prescribed fasting. He does not accept that the treatment involves fasting. He states that he does not give solid food, but that the herbs contain at least 250 calories. He conceded that some people would refer to that as fasting, but he does not. The Respondent was referred to the fact that the test results on Patient A indicated rapid weight loss and was asked whether he was not concerned about that. He stated that he was not.
The Respondent gave evidence that he had read the code of conduct (tab 80) and the guidelines (tab 81) prior to treating Patient A but on cross-examination conceded that he did not apply them fully. He stated that it did not affect his treatment but having learned from the experience, he now "does better with his recording". He also stated that he no longer records in Chinese but all records are written in English. He also confirmed that the patient form at tab 66 is the form which he now uses which asks more questions than previously.
The Respondent was cross-examined on the kilojoule level of the herbs in the formula he used, and was asked whether he is aware of what a healthy intake for a patient of the age and sex of Patient A is, to which he answered no and said that he is not a dietician. He was questioned on whether he in fact asked Patient A if he was diabetic, to which he replied that he could not remember.
He was also referred to tab 57 where he describes the 101 treatment and although he was not doing a 101 treatment on Patient A, he was challenged on why he did not ask Patient A whether he is diabetic or has high blood pressure or other listed illnesses. He stated that he would not ask a 21 year old whether they had those specific illnesses, he would just ask whether the patient has any other illnesses not listed on the form.
Finally, cross-examination turned to the Respondent's knowledge of the staff training as acupuncturists, massage therapists and moxibustion as well as their English language skills. The Respondent stated that he had no knowledge of what training courses they had undergone in China. He stated that he knew that they could communicate in English because they were doing so. When challenged, in that he was not present when they were communicating, he stated that he just knows.
That concluded the evidence of the Respondent and the Respondent called Dr Che Zhang who was confirmed and was accompanied by an interpreter in case of need.
Dr Che Zhang was referred to the guidelines (tab 81) and asked whether he read them in preparation for his report. He had difficulty in recollecting what he had read of the 4 page document and said part of page 4 and possibly page 2 but after interpretation stated that he did not read the guidelines before preparing the report.
In respect of the code (tab 80) he stated that he read a variety of paragraphs.
He was questioned on when he received instructions to prepare his report and after some confusion it appeared that he met twice with the Respondent's solicitor before preparing his report. He was asked whether he understood that in giving opinions he was required to give reasons and indicate on what documents he relied - with which he agreed. He was referred to paragraph 21 of his report where he does not refer to any literature or other writings. He responded that he did not refer to them, but that he relied on academic journals.
Cross-examination moved to the kilojoule per day requirement of a person of the sex and age of Patient A and Dr Che Zhang replied 4,000 - 4,800 kilojoules per day. When asked how much he was receiving, he stated that he was receiving enough for his daily activities. It was put to him that he couldn't seriously be suggesting that the herbs were providing between 4,000 and 4,800 kilojoules per day, to which he replied that the herbal medicine could not, but that the patient himself can provide the energy needed. The herbal medicine could provide 1,000 to 2,000 and the patient's body the rest.
When cross-examined on the weight loss of 9 kilograms, which the Patient underwent in 11 days, and a starting weight of 68 kilograms, Dr Che Zhang stated that it depends on the individual and the person's condition. He stated that there was no maximum as long as he was being supervised by a doctor.
He was asked if he would want to know whether a patient on a low calorie diet was diabetic. He stated that he would. He confirmed that he would ask and that if the patient was not asked he would regard that as below the standard. He did, however, say that he would not ask about diabetes specifically but what illnesses they have and what medication they take.
The cross-examination moved to whether he knew who was performing acupuncture services on Patient A. He advised that he did not know.
In respect of Nan Li and his qualifications he stated that he got his training, mainly massage training, from institutions overseas recognised by the government. However he said that the certificates were legitimate but they did not give any indication what type/level of qualification they were. He did not appear able to say whether these certificates showed they were qualified.
There was extensive cross-examination on the acupuncture points and who they were written by. The Tribunal was concerned that the answers were unsatisfactory and speculative in many respects.
The Respondent concluded its case.

The Applicant

The Applicant provided extensive written submissions and was given the opportunity to make oral submissions in addition. The Applicant commenced by pointing out that this is the first case in which a Chinese medicine practitioner was coming before the Tribunal and that there might be differences between the practitioners in different disciplines.
The Applicant believes that the Respondent spreads himself too thin. He controls 5 practices, 3 in Sydney, 1 in Melbourne and 1 in Brisbane. He sees 3 to 5 new patients per day but could see 30 to 35 other patients. Then he reviews the notes of the other staff members from the various clinics which could be up to 250 patients per day. The Applicant pointed out that if one looks at the records at tab 26, they include hand written notes. These are scanned onto the computer but contain only 1 or 2 words for each patient. The Applicant referred to tab 81 commencing at page 2 which sets out the general position. In the second dot point, it is required that there must be an accurate and complete record and the Applicant states that it is not in fact a complete record of what happened on the first consultation.
In addition, the Applicant submitted that; 1. They must be in chronological order but there are 2 separate records. They are not. 2. They must be legible and understandable. No other practitioner would know what is meant by herbal prescription A or B, nor would they know what acupuncture points are being adopted. 3. The name of the practitioner who conducted the consultation. That is not there and one does not see the names of Nan Li or Shuquan Liu. 4. In respect of the acupuncture points, these are not set out on the 19th of October; they are set out by Nan Li on the 20th of October but not by the Respondent. There is no setting out of the treatment plan. Reference in evidence was made to the 10 questions normally asked by Chinese medicine practitioners, but these are not set out. There is no reference to cupping or acupuncture on the first occasion. The Applicant submitted that the expert panel can make its own decisions on what is acceptable in all of the above circumstances. 5. The Applicant then referred to part 4.3 of the code of conduct (tab 80) which deals with delegation and submitted that the practitioner must take reasonable steps to ensure that the person has relevant qualifications but the practitioner in this case doesn't know Nan Li's experience, doesn't even know when Nan Li started to work for him. At best, in respect of Shujie Liu, he is a manager and may have training as a massage therapist.
The Applicant then turned to the Respondent's submissions and in particular the following;
In respect of paragraph 10 of the Respondent's submissions, where the Respondent submits that the assessment which Dr Liu undertook of Patient A was adequate and did not fall short of the accepted standards. The Applicant submitted that it did.
In relation to paragraph 11c of the Respondent's submissions, the Respondent submitted that Dr Liu asked Patient A whether he was suffering from any other diseases or serious illnesses but the Applicant submitted that this was in respect of the form and not that he asked the questions.
In respect of paragraph 12, the Respondent submitted that it was sufficient and not inconsistent with accepted standards of practice for the Respondent to rely on Patient A's patient record as an accurate record of any medical conditions that he was suffering from, but the Applicant referred to Dr Zhen Zheng's evidence that it is not acceptable to rely on the form and a reasonable doctor would ask the question.
In respect of Dr Che Zhang's evidence, the Applicant submitted that it is unsatisfactory because of inconsistencies between whether he would ask about diabetes or not.
The Applicant criticised the submissions of the Respondent at paragraph 46, where the Respondent sets out the method of supervision of the patients when being treated by one of the members of staff and argued that it really demonstrates that the person requires observation, consideration etc, and that the very need on the part of, for example, Nan Li, telling Dr Liu a particular thing requires a certain skill.
In respect of the reliance on Jones and Dunkel, the Applicant pointed out that their reliance on Jones and Dunkel is not dependent on the English but they are the people who could give evidence on their skills and experience.
In addition to the oral submissions and in respect of the law, the Applicant made the following submissions: 1. The Tribunal's jurisdiction is primarily protective in nature, rather than punitive (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637; HCCC v Gillett [2007] NSWNMT 7 at [13]; HCCC v Rutner [2009] NSWD 2 at [14]); 2. In exercising its protective jurisdiction, the Tribunal must have consideration for the maintenance of standards for the medical profession, preservation of public confidence in the profession and, more broadly, the protection of the community (Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113]). Significantly, the Tribunal, as set out in Re Dr Parajuli [2010] NSWMT 3 at [31], considers the protection of public safety and health as paramount, nor affirmed by s3A of the National Law. 3. While s3A and the aforementioned authorities establish protection of public safety as being paramount, it has also been held that additional considerations such as deterrence to others from engaging in similar conduct are a necessary part of maintaining the standards of the medical profession and thereby ensuring the continuance of public safety and faith in the profession (see Health Care Complaints Commission v Litchfield (1997) 42 NSWLR 630, 637; Clyne v New South Wales Bar Association (1960) 104 CLR 186, 201-202; New South Wales Bar Association v Evatt (1968) 117 CLR 117, 183-184). 4. In light of the authorities, the Tribunal should consider matters bearing on protection: 1. Any need to protect the general public against further misconduct by the practitioner; 2. The need to protect the public through general deterrence of other practitioners; 3. The need to protect the public by reinforcing high professional standards and denouncing transgressions; 4. The maintenance of public confidence in the profession; and 5. The desirability of making available to the public any special skills possessed by the practitioner. 1. Part 8 of the National Law deals with complaints concerning health practitioners. 2. The meaning of "unsatisfactory professional conduct", as referred to above, is provided in s139B of the National Law, as referring to: 1. Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practise of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 1. Similarly, s 139 E of the National Law defines "professional misconduct" as being either 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation or 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. 1. The Tribunal is not bound by the rules of evidence (Civil and Administrative Tribunal Act 2013 (NSW) s38 (2)). 2. However, while not bound, Justice Meagher commented that the Tribunal remained subject to rules of procedural fairness (Sudath v HCCC [2012] NSWCA 171 at [75]). 3. Further, although the Tribunal may inform itself in any way "it thinks fit", decisions must still be based on "material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined" (Sudath at [70]; Lindsay v HCCC [2010] NSWCA 194 at [34]-[35] (Young J)). 4. The burden of proof before the Tribunal is the Briginshaw test, requiring reasonable satisfaction on the balance of probabilities, while having regard for (a) the gravity and importance of issues to be determined, and (b) the possible consequences of a finding of guilt (see Briginshaw v Briginshaw (1938) 60 CLR 336, 360-363; Reifek v McElroy (1965) 112 CLR 517, 521; Bannister v Walton (1993) 30 NSWLR 699, 711-712; Lindsay v Health Care Complaints Commission [2005] NSDWCA 356; HCCC v Sunda [2013] NSWDT 1 at [43). 5. In particular, a number of appellate courts have cautioned against the tendency to consider this test as including a requirement that the Tribunal must be "comfortably satisfied", which implies a higher standard than the balance of probabilities (See Gianoutsos v Glykis (2006) 65 NSWLR 539, 548-549 (McLennan CJ at CL); In re Dr Suman Sood [2006] NSWMT 1 at [10]; Re Sophie [2008] NSWCA 250 at [68]; Health Care Complaints Commission v McKenzie [2011] NSWMT at [26]).

Respondent's Submissions

The Respondent commenced submissions by stating that the Applicant's allegation that the two staff members were not sufficiently skilled and had problems communicating in English, should not be pressed as there is no evidence to support this.
The Respondent made it clear that he is looking only at particulars 4, 7 and 9.
While the Applicant can make general comments about the Respondent spreading himself too thin, the Respondent pointed out that we are dealing only with the particulars of the complaint and spreading too thin is not one of the particulars of the complaint and therefore irrelevant. In any event, the notion that with Patient A the Respondent was not supervising because of being spread too thin is not well founded as the Respondent saw Patient A 4 times in 11 days. It can't be said that that was not sufficient.
The Respondent submitted that if we look at the complaint particulars 1, 2, 3, 5 and 7 are serious enough by themselves to constitute unsatisfactory professional conduct. Particulars 1, 2, 3 and 5 no longer exist and so the only remaining one sufficient to constitute unsatisfactory professional conduct is number 7. All the others need to be found together to find unsatisfactory professional conduct. The Respondent submitted that the Applicant's submissions are attempting to elevate the seriousness of the remaining conduct.
Turning then to the individual particulars, on particular 4, the Respondent referred to paragraph 30 of the Applicant's submissions and stated that in respect of the expert report, only aspects of the questions were relevant. In respect of the failure of the Respondent to question medical history of the patient, the Respondent stated that one needs to consider the standard required for finding out about the patient's medical condition. The Respondent had the form. He had the information of medicines listed and Dr Zhang did not help the Tribunal about what he should have done.
In respect of the criticism that the practitioner's statement does not provide any evidence of making further enquiries from Patient A, the Respondent submitted that the Applicant appears to be questioning a difference between page 2 of tab 43 and his oral evidence, but the Respondent submits that all that he did in tab 43 was respond to something said by Patient A. At paragraph 30(d) of the Applicant's submissions, the Applicant stated that the Chinese Medicine Council of New South Wales confirmed that it did not deem the treatment to be a "safe and clinically appropriate course of treatment for a medically compromised patient". The Respondent submitted that that is not an issue that arises from particular 4 and should be disregarded as irrelevant.
In paragraph 30(i), the Applicant criticises the Respondent for a lack of real supervision of Nan Li as set out in annexure A, but the Respondent submits that that should not be held against him. An improvement in a process is not a concession that his earlier behaviour is deficient.
Turning to particular 7, in respect of the use by a registered practitioner of registered practitioners only, there is nothing to show that that is a requirement and the Applicant does not seem to have made any submissions on this. The code of conduct does not require that.
On the second part of the complaint, there was little heard about the skills required for providing moxibustion. As far as Nan Li on acupuncture is concerned, it is the Applicant's onus to prove that Nan Li did not have adequate skills to provide acupuncture. The Respondent gave evidence on training that he does, and that he has sufficient skills.
At paragraph 31(g) of the Applicant's submissions, the Applicant stated that the Respondent's evidence in cross-examination that the entry recording needling points on the 20th of October 2014 in tab 32 was Nan Li as a criticism. The Respondent submits that this is an incomplete analysis of the evidence. The Respondent's evidence was that he told Nan Li the acupuncture points and Nan Li recorded them.
In paragraph (k) the Applicant states that notwithstanding that the Respondent had an acupuncturist at Norwest, he did not refer Patient A to this person, but to Nan Li because the other person may have been too busy. The Respondent submits that this is irrelevant to the point of whether Nan Li had sufficient skills or experience.
In respect of paragraph 12, the Applicant criticizes the fact that the Respondent received no emails or texts from Nan Li or that any discussion with Nan Li as to the patient was okay, was not good enough as this would require Nan Li to determine whether or not the Patient is okay. The Respondent submitted that the lack of communication proves nothing other than, in line with the management process, there was no problem identified.
In respect of particular 9, the Respondent referred to paragraph 32 of the Applicant's submissions and submitted that the record keeping that he had was adequate for the protection of his patients, but he accepts that they did not meet the guidelines.
In respect of paragraph 32(i), where the lack of recording of the needling points is referred to by the Applicant, the Respondent submitted that the Respondent accepted that he didn't record the acupuncture points on the 19th of October but on the 20th of October and subsequently they were recorded by Nan Li.
The Respondent referred to paragraph 34 of the Applicant's submissions where the Applicant sought rejection of the evidence of Dr Che Zhang in that the evidence appeared to indicate that he had not read the code of conduct and that he has never treated a patient with ulcerative colitis. The Respondent submitted that you cannot reject his evidence in its entirety. The fact that there was some confusion about the reading of guidelines cannot be a basis for saying that he doesn't know about good record keeping. Nor could whether he had treated a person for colitis be regarded as an inability to know about good record keeping and is therefore totally irrelevant.
In response to the Applicant's submission that the Applicant's expert indicated that the behaviour of the Respondent fell below and or significantly below the standards reasonably expected, the Respondent submitted that particular 4 and 7 were said to be below and were criticised and that in respect of 9 said to be below and criticised. In respect of the evidence of the Applicant's expert, the Respondent submitted that her general conclusions were very fixed and she was stubborn in not conceding a change in level of conclusion despite many important particulars being dropped.
The Respondent referred to the submission by the Applicant relying on Kirby P in Pillai v Messita (No 2) (1989) 16 NSWLR 197 and suggested that the decision in Kirby has no application in this case as there is no suggestion in any of the evidence of a deliberate departure or such serious negligence and that the Tribunal should find unsatisfactory professional conduct but not professional misconduct.
The Respondent made submissions in respect of annexure A to the Applicant's submissions. The Applicant states that the evidence of the Respondent should be viewed in light of the claim in cross-examination that Nan Li does not require supervision and the assertion only moments later that he was supervising Nan Li is an issue of semantics. The evidence of the Respondent was that Nan Li is experienced but that in any event he was supervising him.
In relation to supervision at 7B of the Applicant's assertions in annexure A that the Respondent was supervising Nan Li despite the fact that he was not present is fallacious in that delegation/ supervision does not mean standing over everything that the person is doing.
In relation to paragraph 7D of annexure A, related to the Respondent's denial in cross-examination that he did not recommend fasting, again the Respondent submitted that this is semantics. The Respondent explained that some people may regard that as fasting, but he does not regard it as fasting.
In respect of the Respondent's evidence in cross-examination that he did not know Nan Li's qualifications but continued to assert that he is qualified, the Respondent submitted that this is not consistent with the cross-examination of the Respondent.
In respect of (g), the Applicant stated that the Tribunal should have regard to the fact that in the cross-examination, the Respondent stated that he told Nan Li in a telephone discussion of the needling points. The Respondent submitted that this was not contested by the Applicant.
The Respondent submitted that in respect of the case of HCCC v Pegios (1) (2009) NSWDT1. The Tribunal needs to be very careful in placing reliance on what is on the patient form in this case and the decision in the case of HCCC v Pegios. In respect of the case of HCCC v Pegios, this was an aesthetic situation which has some special requirements to be teased out. It cannot be seen as establishing a general principle in respect of all disciplines.

The Applicant's submissions in reply

The Applicant only made two points in reply, one is that on the suggestion of spreading too thin, it is manifest in 4, 7 and 9 because he did not have enough time to carry out the tasks in respect of which the complaint is made.
In respect of the fact that Nan Li determined the acupuncture points, the Applicant submitted that despite what was said by the Respondent in respect of the acupuncture points being determined by the Respondent and given to Nan Li, it is open to the Tribunal to determine that Nan Li determined the acupuncture points.

Decision

In arriving at its decision, the Tribunal was required to address particulars 4, 7 and 9 as the only remaining particulars of complaints one and two.
In respect of particular 4, it was alleged that in or around the month of October 2014, the practitioner failed to make a proper assessment of Patient A before recommending fasting as treatment, including failing to appropriately consider the patient's co-existing medical conditions.
The Tribunal was reasonably satisfied that this allegation was not proven in that the Respondent conducted his intake and in evidence confirmed that he had asked the 10 questions required in Chinese medicine. There was also the recording of some aspects of that initial intake. In addition, the 10 questions, if answered, would indicate if the patient was suffering uncontrolled diabetes. Medicines that Patient A was taking would indicate controlled diabetes. The Respondent also said in evidence that in addition to his medical conditions on the form, he asked whether there were any other illnesses. The suggestion of not considering the patient's co-existing conditions is irrelevant in any event, as the patient had no other conditions of which there was any evidence.
Particular 7 alleged that in or around the month of October 2014, the practitioner arranged for treatment, including remedial massage and acupuncture to be provided to Patient A by staff who were; 1. Not registered Chinese medical practitioners; 2. Not adequately skilled.
In respect of this complaint, the Tribunal was concerned that the allegation in particular 7(a) was irrelevant as there is no requirement in the guidelines that only registered Chinese Medical practitioners can provide treatment. However the National Law deals with this in section 139B(k) which reads:

139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (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.

On this basis and despite the Guidelines, regard should be had to the fact that the Respondent was not really aware of the level of training of those providing treatment.
In respect of particular 7(b), the Tribunal found that in relation to adequate skill, the guidelines refer to remedial massage and acupuncture as being included in the skills required. However, the evidence is to the effect that the Respondent relied on the treating person to report concerns to the Respondent. On the evidence given by the Respondent, he stated that changing such things as the acupuncture points based on the consultation with the patient during treatment and only reporting that to the Respondent after the event in the daily report was permissible. However, the Tribunal was concerned that the definition of diagnosis would include assessing the patient during the treatment and was concerned that the changing of acupuncture points without approval of the Respondent may put patients at risk. In fact, the Respondent in his statement had said that the treatment plan was set by him and only altered by him, yet in evidence the Respondent confirmed that Nan Li could change the acupuncture points and report to him on that change.
It was submitted that English is a necessary skill and that the persons providing the treatment must have the necessary English language skills. The Tribunal is reasonably satisfied that the lack of English skill is not proven, as there was no evidence to this effect before the Tribunal.
In regard to the lack of skill in treatment or in English language skills, it was submitted that the court should draw an inference against the Respondent based on the rule in Jones v Dunkle, however, it is accepted that the failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkle (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn. An unfavourable inference cannot be drawn solely on the basis that the witness was not called. There must be a basis elsewhere in evidence to support that inference. The rule in Jones v Dunkle relates to the unexplained failure of a party to give evidence which may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that parties case.
The Tribunal was reasonably satisfied that the onus of proving the complaint against the Respondent rests with the Applicant, and as there was in fact no evidence whatsoever before the Tribunal on their skills either as acupuncturists, massage therapists or English language skills, there can be no inference drawn against the Respondent in not calling witnesses to prove a point in respect of which the Applicant has the onus.
Paragraph 9 of the complaint alleges that in or around the month of October 2014, the practitioner failed to maintain clinical records for Patient A in accordance with the standards of the Chinese Medicine Board of Australia ("the Board") contained in the guidelines for patient records and guidelines for patient records explanatory statement from the Board in that he failed to record: 1. An accurate or complete case history; 2. An adequate diagnosis; 3. A treatment plan; 4. Consultations in chronological order; 5. Accurate progression notes on the patient's symptoms, including in relation to; 1. Symptoms reported by the patient; 2. The dietary regime for the patient; 1. Entries in the English language only.
Having considered the evidence given and the documentation available, the Tribunal was reasonably satisfied that Complaint particular 9(a) is proven in that the notes created by the Respondent do not constitute a complete case history in respect of Patient A.
In respect of paragraph 9(b), the Tribunal was reasonably satisfied that an adequate diagnosis was made in that the Respondent referred to "damp heat" which is an adequate diagnosis in the circumstances.
In respect of paragraph 9(c), the Tribunal was reasonably satisfied that the Respondent inadequately recorded the decoction where he refers to B Plus additional herbs. B Plus is 16 herbs, these should be listed, because a B prescription would not be understood by all other practitioners. In addition, there were no acupuncture points recorded in the records made at the initial consultation and despite the fact that the practitioner stated that he gave the acupuncture points to Nan Li over the telephone on the 20th of October, this was not recorded for the initial consultation.
In respect of complaint particular 9(d), the Respondent stated that he operates on a system of keeping treatment notes separate from examination notes, and both sets of notes were in fact in chronological order. However, the initial intake form has subsequent treatment notes written on it throughout the form making it not in chronological order. It is decipherable with time and attention, but not at a glance as in case of emergency.
In respect of complaint particular 9(e), the Tribunal was satisfied that tab 81, pages 3 - 4 were adequately complied with.
In respect of complaint particular 9(f), the recording of records in the English language only was not a requirement by the guidelines at the time of the Respondent's treatment of Patient A. In the circumstances, this particular was not proven. The Tribunal is aware that the recording of entries in the English language only will become a requirement from January 2017 but that is irrelevant for the purposes of this complaint.
While the Applicant failed to prove all aspects of the complaint against the practitioner, the aspects of the complaint against the practitioner which the Applicant was able to prove in the view of the Tribunal are complaints which are so serious as to warrant a finding of professional misconduct. It is an essential element of a practitioners treatment of a patient that any person should be able to understand what treatment has been provided to a patient and be in a position to take over the treatment of the patient, should that be required. It is clear that no practitioner looking at the records of Patient A made by the Respondent would have been capable of informing such practitioner of exactly how to proceed in the case of emergency.
The Tribunal accordingly made the following orders: 1. The Respondent is guilty of Unsatisfactory Professional Conduct. 2. The matter is adjourned to a hearing on a date to be set to determine appropriate orders.

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: 27 January 2017

Health Practitioner Regulation National Law Civil and Administrative Tribunal Act 2013(NSW)

(Civil and Administrative Tribunal Act 2013(NSW)

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