Health Care Complaints Commission v Liu

NCAT Occupational|2017-05-22

MT 3 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 Williams v Lewer (1974) 2 NSWLR 91 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Shuquan Liu (Respondent) Representation: Counsel: Mr Brit (Applicant) Mr Free (Respondent)

Solicitors: Ms Hrouda (Applicant) McLachlan Thorpe Partners (Respondent) File Number(s): 2016/00378681 Publication restriction: The name of Patient A is restricted and the patient will be referred to as Patient A

Background / History

The principle hearing in this matter took place on the 7th, 8th and 9th of November 2016 and a judgment of the Tribunal was delivered on 27 January 2017 in terms of which the Respondent was found guilty of unsatisfactory professional conduct. A Stage 2 hearing took place on 22 May 2017 to deal with protective orders.
In the Stage 1 hearing, the Tribunal found the Respondent guilty of unsatisfactory professional conduct and determined that particulars 9(a), 9(c) and 9(d) were proven. These particulars alleged the following matters. 1. Particular 7b: 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; Although no formal finding was handed down on Particular 7(b), the Tribunal was concerned that the Respondent said in his statement 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. 1. In respect of Particular 7(b): 1. the Respondent was not really aware of the level of training of those providing treatment at [84]; 2. the Respondent relied on the treating person to report concerns to the Respondent at [85]; 3. 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 at [85]; 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.

Preliminary issues raised

The Respondent indicated that before the hearing proceeded it was necessary to raise a question in regard to the finding of unsatisfactory professional conduct based on the complaint by the Applicant. The gist of the argument was to the effect that the complaint as amended provided that each of the particulars 1, 2, 3, 5 and 7 in themselves justify a finding of unsatisfactory professional conduct. In the alternative when two or more particulars are taken together a finding of unsatisfactory professional conduct is justified. It was then argued that as none of the particulars in particulars 4 and 7 (being the only particulars on which the matter proceeded) were proven, that particular 9 alone could not justify a finding of unsatisfactory professional conduct. On that basis, the Respondent sought to have the Tribunal amend its decision pursuant to section 63 of the Civil and Administrative Tribunal Act 2013.
Section 63 gives power to amend an obvious error in the text of the notice or decision or a written statement of reasons for the decision or that there is an inconsistency between the stated decision and the stated reasons. Section 63 is often referred to as the slip rule to allow for correction of errors made, not a power to vary a decision of the Tribunal made after due consideration of the evidence by the Tribunal and coming to its conclusion.
In any event, the Tribunal was called upon to consider whether it had been in error in a finding that unsatisfactory conduct was justified based solely on particular 9.
Section 139(B) of the National Law provides that unsatisfactory professional conduct refers to "conduct that demonstrates the knowledge, skill or judgement 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".
The Tribunal was referred to various cases on the question of amending its decision, but is satisfied that it does not have the power to amend the decision as suggested by the Respondent, nor does the Tribunal believe that a basis for amending the decision exists. The purpose of section 139(B) and the Tribunal hearing is the protection of the public and the good name of the profession. Under section 139(B) it is open to the Tribunal to find that the conduct complained of and proven falls short of that expected of a practitioner of the Respondent's level of training or experience and the Tribunal has so found.
Having rejected the application for a variation of the decision by the Tribunal finding the Respondent guilty of unsatisfactory professional conduct, the Tribunal is left with determination of appropriate protective orders and costs.

Submissions of Applicant

The Tribunal was provided with written submissions by the Applicant in terms of which the Applicant sought the following protective and ancillary orders under the Health Practitioner Regulation National Law (The National Law). 1. On 27 January 2017 the Tribunal in Health Care Complaints Commission v Liu [2017] NSWCATOD 18 made a finding that the Practitioner has engaged in unsatisfactory professional conduct and consequent upon those findings the Practitioner is reprimanded as a mark of the Tribunal's strong disapproval of the offending conduct. 2. The Respondent shall pay fifty per cent of the costs of and incidental to the proceedings of the Health Care Complaints Commission as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 3. The Respondent's registration is to be subject to the following conditions: 1. To submit to audit of a random selection of his patient records by a person or persons nominated by !he Chinese Medicine Council of NSW and: 1. The first audit is lo be held within [3] months from [insert date of decision] subsequently as required by the Council. 1. The auditor(s) is to assess his compliance with the Chinese Medicine Board of Australia's Guidelines for Patient Records and legislative requirements. The auditor(s) should pay particular attention to whether the clinical notes contain: (i) An accurate or complete case history that comply with the Chinese Medicine Board of Australia Patient Health Record Guidelines (2016) (ii) A treatment plan including a detailed listing of Chinese herbal medicines prescribed or supplied (iii) A record of acupuncture treatment points administered 1. To authorise the auditor(s) to provide the Council with a report on their findings. 2. To meet all costs associated with the audit(s) and any subsequent reports. 3. The Chinese Medicine Council of NSW is the appropriate review body of these conditions for the purpose of Part 8 the National Law.
The Applicant then submitted that the Tribunal relevantly having found in its decision of 27 January 2017: 1. in respect of Particular 7(b) 1. the Respondent was not really aware of the level of training of those providing treatment at [84]; 2. the Respondent relied on the treating person to report concerns to the Respondent at [85]; 3. 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 at [85]; 1. the Tribunal was reasonably satisfied that the 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 at [90]; 2. the Tribunal was reasonably satisfied in respect to Particular 9(c) that the Respondent inadequately recorded the decoction where he refers to B Plus additional herbs since this would not be understood by all other practitioners at [92]; 3. there were no acupuncture points recorded in the records made at the initial consultation at [92]; 4. the Tribunal was reasonably satisfied in respect to Particular 9(d) subsequent treatment notes were not in chronological order and would only be decipherable with time and attention, but not at a glance as in case of emergency at [93]; 5. it is an essential element of a practitioner's 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 take over the treatment of the patient, should that be required and 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 an emergency at [96]; 6. the Respondent is guilty of unsatisfactory professional conduct at [97], that it is appropriate for the Tribunal to make the protective orders being sought and in this respect, submitted the following: 1. The Tribunal given the above findings will need to consider as part of its discretion what, if any, protective orders are made under s149, 149A and 149B of the National Law. 2. The disciplinary powers of the Tribunal are set out at s149. The Tribunal has a range of powers where it finds unsatisfactory professional conduct which include the power to caution, reprimand, or impose conditions on the registration of the practitioner; order the practitioner to undergo treatment or education; to report on the practice or to seek and take advice on practice management (s149A) and the power to fine the practitioner (s149B). 3. 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]). 4. In exercising its protective jurisdiction, the Tribunal must have consideration for the maintenance of the standards of 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 Parajuly [2010] MSWMT 3 at [31], considers the protection of public safety and health as paramount, now affirmed by s3A of the National Law. This general protective principle is now buttressed by specific legislative backing, with public protection being achieved by 'ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner' be registered. [1] 5. While s3A and the aforementioned authorities establish protection of public safety as the chief concern, additional considerations including deterring 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) 41 NSWLR 630, 637; Clyne v New South Wales Bar Association (196) 104 CLR 186, 201-202; New South Wales Bar Association v Evatt (1968) 117 CLR 117, 183-184). 6. Indeed, Basten JA, clarifying the intersection of the aforementioned principles, in NSW Bar Association v Meakes [2006] NSWCA 340 at [1 14], set out the important, but indirect, effects of a disciplinary order, which must be considered when determining the appropriateness of protective orders: 1. That it reminds other members of the profession of the public interest in the maintenance of high professional standards; 2. That the order may emphasise the unacceptability of the particular conduct involved in the disciplinary offence; and 3. The need for the order to maintain public confidence in the high standards of the medical profession. 1. Meagher JA, with whom Basten and Emmett JJA agreed, lent greater clarity to these paramount principles, commenting 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 conduct 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. His Honour, in support of the above protective principles, referred to Mahoney JA in Law Society of NSW v Foreman (1994) 34 NSWLR 408, 441 who noted public protection: …extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. 1. Based on the Tribunal's protective, not punitive, purpose and its concern for both the health and safety of the public, and reputation of the profession, it should be determined by a range of considerations. First, there may be a need to protect the public against further misconduct by a practitioner. Second, there is a need for general deterrence. Third, the high professional standards of the profession must be reinforced and transgressions must be denounced. Fourth, public confidence in the profession must be maintained. Fifth, it may be desirable to make available to the public any special skills possessed by a practitioner. It may be that the circumstances of a particular matter require the Tribunal to give greater weight to some of these considerations, or to consider other matters bearing on the health and safety of the public. 2. In all the circumstances the findings of the Tribunal warrant that the Respondent be reprimanded to remind other members of the profession of the public interest in the maintenance of high professional standards, to emphasise the unacceptability of the particular conduct involved in the disciplinary offence and the need for the order to maintain public confidence in the high standards of the Chinese medical profession. 3. Secondly in light of the findings and the steps taken by the Respondent following the findings the practice condition sought will seek to ensure there are no further issues in respect to the Respondent's record keeping.
In respect of costs, the Applicant seeks an order for 50% of its costs and submits: 1. Under Schedule 5D, clause 13 of the National Law, the Tribunal has the power to require the Complainant, registered health practitioner or any other person entitled to appear before the Tribunal to pay the costs of another, where so decided by the Tribunal. 2. It is commonly held that costs will follow the cause (HCCC v Dinakar [2009] NSWMT 8; HCCC v Dr Mazzaferro [2011] NSWMT 9 at [67]). 3. In Ohn v Walton (1995) 36 NSWLR 77 Powell JA observed that "in ordinary circumstances where a complaint against a medical practitioner has failed, the Tribunal should make an order for costs in the practitioner's favour". As a matter of logic it follows that if a complaint is made out against a health practitioner then an order in favour of the complainant should follow. 4. In HCCC v Dr Mazzaferro, the Tribunal affirmed the principles governing the award of costs by reference to the High Court's comments in Latoudis v Casey (1990) 170 CLR 534. Indeed, at 543, Mason CJ set out that costs are not 'awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which they have been put by reason of the legal proceedings'. The Tribunal in Mazzaferro also noted (at [69]) that the Court of Appeal has held that the principles in Latoudis v Casey 'should be applied by all Tribunals such as the Medical Tribunal' (see Ohn v Walton (1995) 36 NSWLR 77). 5. Accordingly, not only is the onus on the losing party to establish a basis for any departure from the usual rule (Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]) but, given an order for costs operates to compensate the successful party, this general presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party (Arian v Nguyen [2001] NSWCA 5 at [36]). 6. In HCCC v Philipiah [2013] NSWCA 342 at [42]-[46], the Court of Appeal affirmed the above principles and examined the 'factors that might militate against the recovery by the Commission of all of its costs in particular proceedings'. Emmett JA, with Meagher JA and Beech-Jones J agreeing, considered these 'factors': For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order/or costs may cause hardship to the party against whom the order is made. The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. In all of the circumstances, I consider that the exercise of the discretion on the part of the Tribunal miscarried. The direction made by the Tribunal that there should be no order as to costs should be set aside.' 1. The Commission did not engage in oppressive conduct in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing. 2. The Respondent made no admissions of unsatisfactory professional conduct nor did he admit the particulars the Tribunal found to be established. As such the usual consequences that flow from the Respondent's disputing a complaint and losing is that, unless some disentitling conduct can be established on the part of the Commission, the Respondent should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. 3. The proceedings had the additional public interest of being the first proceedings in NSW concerning Chinese medical practitioners and will educate and inform such practitioners by reinforcing the need for making and maintaining appropriate medical records.

Evidence and Submissions by Respondent

The Tribunal has been furnished with submissions but has also been provided with statutory declarations made by the Respondent and others in terms of which the respondent states what steps the Respondent has taken to remedy any defects and his practice management which led to the complaint against him by the Applicant. The Respondent has also provided a statutory declaration by Melissa Jane Scott in terms of which she deals with her own background in Traditional Chinese Medicine and reports on the fact that the Respondent has been treating her and has treated her father who has referred approximately 20 to 30 friends and family members to the Respondent. In summary Melissa Jane Scott states that as the Respondent's colleague and patient, her view of the Respondent is that he is a determined and disciplined practitioner and that he has over the years taken the time and effort to progress his studies in Traditional Chinese Medicine, obtaining his Masters and Doctorate degrees.
Furthermore, the Respondent has provided a statutory declaration by Juliana Ng Liah Nah, a solicitor employed by the Respondent's solicitors, in which she points out the efforts made to have various witnesses give evidence and the truncation of the matter by virtue of the fact that the Applicant failed to ensure that Patient A and others were available to give evidence at the Hearing.
In light of the evidence contained in the statutory declarations, the Applicant required the calling of the Respondent for purposes of cross examination. The cross examination centered around the statements in the statutory declaration relating to the steps taken by the Respondent to remedy the failings in record keeping. The cross examination went extensively to annexures A and B to the statutory declaration and the timing of those documents. Initially the Respondent had stated that both the instructions for practice management contained in annexures A and B are in circulation and were provided to all staff at meetings held in November 2016 in each of the clinics. On questions put by the Tribunal, it emerged that annexure B was not so handed out in 2016 and is not currently in circulation at all.
Cross examination also addressed the question as to whether the instructions given at the meetings dealt not only with acupuncture but also with herbal treatment. The impression initially created was that the instructions covered all treatment, but when challenged by counsel for the Applicant and later by the Tribunal, it became clear that the instructions did not anywhere refer to herbal treatment and dealt with only acupuncture.
The Respondent was questioned extensively on the number of patients he was treating and how he satisfied himself that proper record keeping was being carried out. The Respondent was unable to quantify the number of patients but appeared to give the impression that the number was reasonably low and manageable. On deeper examination, it emerged that the numbers given for patients per week in each of the clinics was not the overall number of patients for whom the Respondent was responsible but only the number for new patients. In fact, even in submissions to the Tribunal, the Respondent pointed out that over the period 1997 to the time of this complaint, the Respondent had treated tens of thousands of patients.
The evidence of the Respondent was concluded and the Respondent was excused.
Counsel for the Respondent made the following submissions in relation to protective orders and costs. 1. Dr Liu acknowledges that there were deficiencies in his record keeping as found by the Tribunal. He regrets and apologises for those deficiencies. The deficiencies in record keeping as found by the Tribunal are not on the scale of breaches of this kind, of a particularly severe kind. This was not a case of a practitioner failing to keep records or keeping records that were wholly deficient. It was rather a case of keeping records in a form that were substandard. This is not to downplay the importance of good record keeping (including the matters identified by the Tribunal). However the remedial orders must be proportionate having regard to the Tribunal's findings. 2. Dr Liu accepts that a reprimand is justified in the circumstances. It is an appropriate and adequate recognition of the Tribunal's disapproval of the conduct. 3. It would be excessive to impose a condition on Dr Liu's registration of the kind sought by the HCCC requiring Dr Liu to submit to random audits of patient records. The proposed condition is also inappropriate and excessive for the following particular reasons: 1. There is no limit proposed on the number of random audits to which Dr Liu may be subject. 2. There is no limit to the number of patients or patient records that may be involved in any audit. 3. The condition would apply indefinitely. 4. All these features exacerbate the unfairness of requiring Dr Liu to "meet all costs associated with the audit(s) and any subsequent reports". That is effectively to impose an unknown and unlimited financial burden for an indefinite period of time. 5. The proposed condition would impose an unjustified burden on Dr Liu and the conduct of his practice. For example, Dr Liu and his staff would need to manage issues of patient confidentiality during such audits. 6. The Tribunal can be satisfied from the evidence of Dr Liu that he has been appropriately chastened by the complaint process and has responded very positively to the Tribunal's findings and criticism. Dr Liu has already accepted in his evidence the submission to the Tribunal that he had paid insufficient regard to the requirements of the guidelines in particular the importance of keeping records in a form that would enable another practitioner to take over the care of a patient. Dr Liu responded appropriately to the complaint process, before the Tribunal's findings by taking steps to improve his record keeping practices. 7. In addition, Dr Liu has responded positively to the Tribunal's findings in the Stage 1 decision by improving his record keeping practices. He has also sought to address concerns about staff in his clinic altering treatment plans, even though this did not form part of the Tribunal's finding of unsatisfactory professional conduct. 8. The Tribunal should also take into account Dr Liu's long record of service as a practitioner, without any adverse disciplinary findings. He has been practising Chinese medicine in Australia since 1997 and estimates that he has treated tens of thousands of patients.
In respect of costs, the Respondent submitted that the Tribunal must consider the proceedings and the complaint as a whole (including the extensive parts that were abandoned on the first day of the hearing. The Applicant failed on all aspects of its complaint save for three of the six paragraphs of particular 9. The record keeping of the Respondent (as ultimately pursued in the amended complaint) were wholly distinct from the other issues raised by the Complainant.
Prior to the Stage 1 hearing, the vast bulk of costs incurred by the parties in preparation of the matter related to those parts of the complaint that were abandoned on the first day of the hearing, i.e. those parts that depended on the evidence of Patient A and his allegations about his treatment by Dr Liu. Dr Liu is entitled to all of his costs in relation to those issues. This is consistent with the standard approach that where a party amends an application or pleading, that party must pay the costs thrown away as a result of the amendment.
Of the issues that were pressed in the amended complaint and were addressed at the hearing, particulars 4 and 7 gave rise to a substantial proportion of the costs incurred by the parties in terms of preparation and the conduct of the hearing. Dr Liu succeeded on those issues and this should be reflected in a costs order.
By contrast only a small proportion of the overall costs can fairly be attributed to the issue of record keeping in respect of which the HCCC had some success at the hearing.
It was clear throughout the HCCC's investigation of the complaint that there was a significant factual dispute between Dr Liu and Patient A about what had occurred. This dispute went to the heart of Patient A's complaint. Most of the grounds in the complaint depended upon Patient A's version of events and could not sensibly be prosecuted by the HCCC except with the evidence of Patient A.
The matter was set down for hearing on Monday, 7 November 2016. The first time that Dr Liu's representatives were given any notice that Patient A may not attend the hearing to give evidence, was late on the afternoon of Wednesday, 2 November 2016, when they were informed by email that there was a "possibility (Patient A) will not attend on account of his health issues or he may seek to be released from the summons recently issued for his attendance".
The Respondent outlined the various steps leading up to the commencement of the hearing and the withdrawal of a number of the particulars of the complaint, submitting that these aspects of the complaint caused significant costs to be incurred. On that basis, the Respondent submitted that an appropriate order for costs would be that the Applicant pay 70% of the Respondent's costs.

Applicant's Submissions in Reply

In reply the Applicant submitted that the decision on protection orders rests with the Tribunal and that based on section 139(B) it is open to the Tribunal to impose such protective orders as it deems fit, irrespective of proposals made by either party.
In submitting what audit(s) should be imposed on the Respondent, the Applicant submitted that the Respondent has not taken the opportunity to provide any anonymised sample of improved methods of record keeping for the Tribunal's own assessment, but in any event a randomised independent audit is a more valuable exercise and carries more weight with a view to satisfying the overriding aim of protecting the health and safety of the public, consistent with the duty in section 3.2 of the National Law, including the protective purposes of maintaining the public's confidence in the profession.
Having regard to all of the evidence given and considering the terms of any such condition, it would be open to the Tribunal to specify the number of audits which should in any event occur, the time periods or intervals in which they should occur and the number of patient records involved, as well as providing the Chinese Medicine Council with the opportunity for further audits in defined circumstances, such as continuing problems with record keeping.
The Applicant noted that this is the first prosecution of a registered Chinese medicine practitioner in New South Wales and references to cases involving other registered professions are not particularly helpful in addressing the issues in this particular case and public interest issues generally for the Chinese medicine profession.
Finally the Applicant submitted that any concerns expressed in regard to the record keeping are amplified by the evidence given by the Respondent.
In respect of costs, the Applicant submitted that at the highest, the only unreasonable act of the Applicant, which is not admitted, was the late service of the summons on Patient A in part brought about by difficulties in serving the summons. If that summons had been served in time, Patient A would have been expected to attend the hearing.
The Applicant is not in an equivalent position to a party in civil litigation. It has public interest considerations to take into account, including the criteria in section 90C(1) of the Health Care Complaints Act which provides that the Director of Proceedings is to take into account the following matters when making their determination as to whether a complaint should be prosecuted before a disciplinary body: 1. The protection of the health and safety of the public; 2. The seriousness of the alleged conduct the subject of the complaint; 3. The likelihood of proving the alleged conduct; 4. Any submissions made under section 40 by the health practitioner concerned.
Further, it is clear from section 18 of the Health Care Complaints Act that the withdrawal of a complaint by a patient does not end the matter if the Commission is of the view that the matter should proceed in the public interest. Further again, it is clear from the strength of expression of the original complaint that the Complainant here was a highly vulnerable person experiencing a high degree of distress and frustration which is largely to do with his health situation. His first issues in his emerging non-cooperation were for his own comfort and dignity in giving evidence and over time the frustration eventually manifested itself in total unwillingness.
In HCCC v Halder [2011] NSWMT 8, one of the Applicant's witnesses was unavailable at a late stage due to serious illness and a lot of the complaint which was dependent on his evidence had to be abandoned at a late stage. Unsatisfactory professional conduct only was found in the case of one particular. The Respondent asked for costs as did the Applicant.
In its decision, the Tribunal indicated that it has the power to order the payment of costs in any proceedings conducted before it. It is uncontroversial that in determining whether to order costs, the Tribunal follows in general terms the principles established by the courts for the awarding of costs. The usual rule is that the successful party has a reasonable expectation of being awarded costs against the unsuccessful party. In appropriate circumstances, the Tribunal may vary this rule. Circumstances in Halder were very similar to the circumstances in this case and it was submitted in the alternative to the Applicant's request for 50% of its costs to be paid, that the Tribunal follow the decision in the Halder case and that no order as to costs be made.

Tribunal's Decision

Having reviewed the written evidence presented by the Respondent and having heard the oral evidence given by the Respondent in the Stage 2 hearing, the Tribunal is not satisfied that the Respondent has taken adequate steps to remedy the defects in the record keeping practices in his clinics. Despite suggestions by Counsel for the Respondent that the Respondent has shown insight into his record keeping obligations, the Tribunal is of the view that the Respondent shows little or no insight into his obligations and procedures required to comply with those obligations. All that was provided to the Tribunal in that Statutory Declaration of the Respondent was a reporting of a statement of words "to the effect of" what he stated orally to the staff at the various clinics in November 2016 and annexure A which falls far short of demonstrating an in-depth consideration and instruction to his staff. The Tribunal was concerned that the Respondent sought to have the Tribunal believe that a slightly more detailed annexure B was provided to staff in November 2016 when this was not the case. In addition, when preparing his statutory declaration, he provided a blank record form but did not provide any examples of records actually kept post November 2016.
In all the circumstances the Tribunal is not satisfied that the record keeping practices of the Respondent have been proved to be adequate or that the Respondent has taken sufficient steps to ensure that they are. The Tribunal is comfortably satisfied that the protection of the public warrants orders being made which include audits to be carried out to assess whether the Respondent is now conducting his practice in a manner where the public is protected.
In respect of costs, the Tribunal has considered the submissions made by both parties and has formed the view that it is appropriate for no order as to costs to be made.

Orders 1. The Respondent's registration is to be subject to the following conditions: 1. Over the period of 18 months from the date of this decision, the Respondent is to submit to audits of a random selection of his patient records in all of his clinics by a person or persons nominated by the Chinese Medicine Council of NSW. 2. In this period, the Respondent shall submit to three audits, the first of which is to be held within three months from the date of this decision and subsequently the remaining two audits on dates to be determined by the Council. 3. The auditor(s) is to assess the Respondent's compliance with the Chinese Medicine Board of Australia's Guidelines for Patient Records and Legislative requirements. The auditor(s) should pay particular attention to whether the clinical notes contain: 1. an accurate or complete case history that complies with the Chinese Medicine Board of Australia Patient Health Record Guidelines (2016); 2. a treatment plan, including a detailed listing of Chinese herbal medicines prescribed or supplied; 3. a record of acupuncture treatment points administered. 1. To authorise the auditor(s) to provide the Council with the report on their findings; 2. To meet all costs associated with the audits and any subsequent reports; 3. The Chinese Medicine Council of New South Wales is the appropriate review body of these conditions for the purpose of part 8 of the National Law.

Endnote

National Law s3(2)(a). 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: 02 June 2017

Health Practitioner Regulation National Law Legal Profession Uniform Law Application Act 2014(NSW)

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