Health Care Complaints Commission v Liu

NCAT Occupational|2018-05-25

Solicitors: Health Care Complaints Commission (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

In a decision dated 27 January 2017 orders were made that: 1. the Respondent is guilty of unsatisfactory professional conduct; 2. the matter be adjourned to a hearing on a date to be set to determine appropriate orders.

Redetermination of matter following remittal front the Supreme Court Submissions of Dr Liu

The Tribunal conducted a two-staged hearing of the complaint brought by the HCCC against Dr Liu and proceeded to make two decisions. In the first decision made on 27 January 2016, the Tribunal found that Dr Liu had engaged in unsatisfactory professional conduct: Health Care Complaints Commission v Liu [2017] NSWCATOD '18 (Stage 1 Decision). The Tribunal proceeded to a second stage decision on 2 June 2017, in which it exercised its disciplinary powers under s. 149A of the Health Practitioner National Law (NSW) (National Law) by imposing certain conditions on Dr Liu's registration: Health Care Complaints Commission v Litt [2017] NSWCATOD 88 (Stage 2 Decision).
Dr Liu then appealed to the Supreme Court on certain questions of law. The appeal arose because of the form of the complaint that was brought in the Tribunal by the HCCC. The complaint was amended at the start of the Stage 1 hearing. The Amended Complaint contained only particulars 4, 7 and 9: see Stage 1 Decision at [7]. Those particulars were to the following effect: 1. particular 4 was that in October 2014 Dr Liu failed to make a proper assessment of Patient A before recommending fasting as treatment; 2. particular 7 was that in October 2014 Dr Liu arranged for treatment to be provided to Patient A by staff who were not registered Chinese Medical practitioners and/or not adequately skilled; 3. particular 9 was that in October 2014 Dr Liu failed to maintain clinical records for Patient A in accordance with the standards of the Chinese Medicine Board of Australia in that he failed to record an accurate or complete case history, an adequate diagnosis, a treatment plan, consultations in chronological order, accurate progression notes or keep entries in the English language only.
The Complaint contained a significant qualification as to how the HCCC alleged that these particulars constituted unsatisfactory professional conduct. The Complaint in its original form said: "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."
Most of the particulars were then deleted. Based on the remaining particulars, the effect of the Amended Complaint was that the HCCC put its case in the following way: "[Particular 7 in itself justifies] 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."
In other words, the Amended Complaint was put on the basis that particular 9, if in isolation, would not on the HCCC's case justify a finding of unsatisfactory professional conduct.
Her Honour Wilson J in the Supreme Court found that this was the effect of the Amended Complaint: Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315 (Supreme Court Judgment) at [8].

Findings made by the Tribunal in the Stage 1 Decision

The Tribunal dealt separately in its reasons for the Stage 1 Decision with particulars 4, 7 and 9. In relation to particulars 4 and 7, the Tribunal was not satisfied that the conduct alleged in the particular was proved: Stage 1 Decision at [80]-[88].
In relation to particular 9, the Tribunal was satisfied that the conduct alleged was (in part) proved: Stage 1 Decision at [89]-[95]. This was on the basis that the Tribunal was satisfied that Dr Liu had failed to record a complete case history, treatment plan or consultations in chronological order (in an appropriate form that could be readily discerned at a glance).
The Tribunal proceeded to make a finding that Dr Liu was guilty of unsatisfactory professional conduct: Stage 1 Decision at [97].

The judgment of the Supreme Court

In the Supreme Court, Dr Liu argued that in circumstances where the Tribunal had only found particular 9 to be proved, and the HCCC did not allege in the Amended Complaint that the conduct in particular 9 was unsatisfactory professional conduct, the Tribunal was required to dismiss the Amended Complaint. The Supreme Court did not accept that argument: see Supreme Court Judgment at [27]-[42].
However, the Supreme Court accepted Dr Liu's alternative argument that it was procedurally unfair for the Tribunal to make a finding of unsatisfactory professional conduct, in circumstances where the HCCC did not allege in the Amended Complaint that the conduct in particular 9 constituted unsatisfactory professional conduct: Supreme Court Judgment at [43]. As her Honour observed at [45], the procedural defect arose because of the odd way the particulars relied upon by the HCCC were qualified. The Court found that although it was open to the Tribunal to reach the conclusion that the conduct in question should be characterised as unsatisfactory professional conduct, notwithstanding that this involved a departure from the case advanced by the HCCC, it was first necessary for Dr Liu to be given the opportunity to call any evidence or make any submissions against that possibility: [46].
The Court set aside the Stage 1 Decision and the Stage 2 Decision and made an order remitting the matter to the Tribunal "for further hearing according to law, to determine whether the facts found by the Tribunal amount to unsatisfactory professional conduct": see orders 4 and 5 in the Supreme Court Judgment.

Orders made by the Tribunal for dealing with the remittal

On 6 April 2018, the Tribunal made orders as proposed by the parties, for the issue required to be determined on remittal, be determined on the papers without an oral hearing.

The nature of the fresh determination required to be made by the Tribunal

The Stage 1 Decision and the Stage 2 Decision have been set aside by the Supreme Court. However, Dr Liu accepts that there is no basis to reopen the Tribunal's findings on the primary facts. As the order for remittal makes clear, the Tribunal must now proceed to consider afresh whether "the facts found by the Tribunal" (being the primary facts as set out in the Stage 1 Decision) "amount to unsatisfactory professional conduct". This is an exercise of characterisation that proceeds from the primary findings of fact that the Tribunal made in the Stage 1 Decision. The Tribunal should therefore proceed on the basis that although the Stage 1 Decision has been set aside, to the extent that it records primary findings of fact by the Tribunal it is still a reliable record of those findings.
As the Supreme Court found, the Tribunal is not bound to accept the characterisation of the conduct alleged by the HCCC. However, the Tribunal should take into account the HCCC's attitude to the conduct as reflected in the Amended Complaint. The HCCC has an important role in the statutory scheme. It has the experience and capacity of the FICCC to make its own assessment as to whether particular conduct 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. That is not to suggest that the Tribunal or practitioners are bound to agree with the HCCC. However, in circumstances where the HCCC does not characterise conduct as unsatisfactory professional conduct, that is a matter which the Tribunal may find persuasive as indicating that the conduct as alleged did not fall significantly below the standard reasonably expected.
It is also important to remember that the Tribunal found on the evidence that only parts of particular 9 were proved. The Tribunal made the following relevant findings relating to the patient records maintained by Dr Liu in relation to Patient A, at Stage 1 Decision [901-1951: 1. as alleged in particular 9(a), the notes created by Dr Liu did not constitute a complete case history in respect of Patient A; 2. contrary to the allegation in particular 9(b), an adequate diagnosis was recorded in the patient notes; 3. in relation to the recording of a treatment plan (particular 9(c)), the notes did identify the herbal decoction that was prescribed to Patient A. However, the record was inadequate because the individual ingredients should have been listed (in such a way as to enable another practitioner to understand the prescription). The acupuncture points for the treatment of Patient A, while subsequently recorded, were not recorded in the notes for the initial consultation; 4. in relation to recording consultations in chronological order (particular 9(d)), records relating to subsequent treatment were made on the initial intake form. It was possible to decipher the records with time and attention. However, if necessary to identify a chronological record of treatment "at a glance" (such as in an emergency) the records were inadequate; 5. contrary to the allegation in particular 9(e), the records contained accurate progression notes on the patient's symptoms; and 6. particular 9(f) was not proven, as it was not a requirement that entries in the records be in the English language only.
Even if all of the allegations in particular 9 had been proved, on the HCCC's case as formulated in the Amended Complaint, that conduct when considered collectively would have not amounted to unsatisfactory professional conduct. In circumstances where the Tribunal found that only some aspects of the alleged conduct were proved, the point about the HCCC's characterisation is even stronger.
The Tribunal should take into account that to the extent that it found deficiencies in the records kept by Dr Liu, this was a case of deficiencies rather than wholesale failure to keep records. Thus the notes created by Dr Liu contained some case history, but it was not a complete case history. The notes did record the herbal decoction prescribed to Patient A, but failed to list individual ingredients in a way that would assist another practitioner to understand the prescription. Acupuncture points were recorded, but not in the notes for the initial consultation. A chronological record of treatment did exist and was decipherable, but it was not in a form that could readily be understood at a glance as in case of emergency.
This is not to suggest that the deficiencies in record keeping were trivial or immaterial. However, the fact that these were shortcomings in a generally functional system of record keeping is important in characterising the seriousness of the conduct as a whole.
The Tribunal does not have cogent expert evidence before it to the effect that the deficiencies identified by the Tribunal are of a magnitude that would attract the strong criticism of other professionals. The expert witness called by the HCCC, Dr Zheng, identified what she described as "significant deficiencies" in Dr Liu's record keeping that led her to conclude that Dr Liu's conduct fell significantly below the standard of good record keeping and should be strongly criticised: Tab 12 in Vol 1 of the evidence before the Tribunal.
That conclusion has to be understood in context, as a conclusion based on the cumulative effect of a series of criticisms. Dr Zheng, in the relevant sections of her report at pp. 16 and 17, described 8 different "significant deficiencies". There is only a small overlap between the matters which Dr Zheng thought to be significant deficiencies and the adverse findings that the Tribunal made about Dr Liu's record keeping. The Tribunal did not find that the records were deficient in the ways suggested by Dr Zheng at the following numbered paragraphs in her report at pp. 16-17: 1. 1 (failure to record that Patient A had ulcerative colitis for five years); 2. 2 (no information provided on diagnosis, progression and past treatment plan); 3. 3 (insufficient information about damp heat diagnosis); 4. 4 (no record of the diagnosis of damp heat); 5. 7 (inaccurate progression notes because no record of Patient A's multiple bowel motions with blood and no record of advising Patient A to eat Weet Bix); and 6. 8 (Dr Liu should have used English only in his record keeping).
The Tribunal found that there was some substance to parts of the criticisms in 5 (but only as to the recording of acupuncture points) and 6 (only to the extent that the chronological record that was kept was inadequate because it could not be identified at a glance). It follows that the majority of the matters that caused the expert witness to express her strong criticism of Dr Liu were not found to be proved on the evidence.
Dr Liu accepted in his earlier submissions to the Tribunal and in his statutory declaration dated 6 April 2017 at [5]48] that his record keeping was deficient. Dr Liu acknowledged then, as he does now, the need to maintain records at the appropriate standard in particular to meet the requirement that his records should be sufficiently comprehensive and clear as to enable another practitioner to take over the care of one of his patients.
In the circumstances, while the record keeping of Dr Liu fell below the standards reasonably expected of him in certain respects, after taking into account all of the above considerations the Tribunal should find that on its proper characterisation the conduct found against Dr Liu in particular 9 does not demonstrate that the knowledge, skill or judgment possessed, or care exercised, by Dr Liu in the practice of his profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Tribunal should therefore not make a finding of unsatisfactory professional conduct.

Appropriate disciplinary orders

If the Tribunal accepts the submissions above and does not make a finding of unsatisfactory professional conduct, then there is no basis for any disciplinary orders to be made and the Amended Complaint should be dismissed.
If, notwithstanding the submissions above, the Tribunal considers it appropriate to make a finding of unsatisfactory professional conduct then Dr Liu accepts that the order for remittal from the Supreme Court does not require or provide a basis for the Tribunal to reopen its findings and conclusions in the Stage 2 Decision. Dr Liu therefore accepts that in those circumstances the Tribunal would reach the same conclusions as it reached in the previous Stage 2 Decision as to the appropriate disciplinary orders that should be made.

Costs

If the Tribunal does not make a finding of unsatisfactory professional conduct and dismisses the Amended Complaint, it should also make an order that the HCCC should pay Dr Liu's costs of the proceedings as a whole. That would be an appropriate order in those circumstances, given the ordinary rule that costs will follow the event: HCCC v DinaIcor [2009] NSWMT 8; HCCC v Dr Mazzaferro [2011] NSWMT 9 at [67]; Ohn v Walton (1995) 36 NSWLR 77 at 81.
If the Tribunal proceeds to make a finding of unsatisfactory professional conduct and associated disciplinary orders, then Dr Liu accepts that the Tribunal would reach the same conclusions as it reached in the previous Stage 2 Decision as to the appropriate costs outcome, namely that there should be no order as to costs.

HCCC Submissions:

The HCCC made submissions in response to the Respondent's submissions as follows: 1. The Respondent is a practitioner of Chinese medicine registered under the National Law. 2. The decision by the Tribunal followed the receipt by the Chinese Medical Council of New South Wales of an email from Patient A of 5 November 2014, which raised concerns about the Respondent's practice of Chinese Medicine. 3. On 7 November 2014 the Chinese Medical Council of New South Wales pursuant to s144G of the National Law notified the Applicant of the complaint against the Respondent. 4. These concerns were investigated by the Applicant. After consultation between the Chinese Medical Council, the Applicant's complaints against the Respondent were referred to the New South Wales Civil & Administrative Tribunal (the "Tribunal") by way of an Application for Disciplinary Findings and Orders on 9 May 2016 (the "Complaint").
On 7 October 2016, following certain rulings on the admissibility by the Tribunal, the Applicant sought to amend the Complaint by deleting a number of particulars to the first and second complaints in the Complaint.
The Amended Complaint was heard by the Tribunal in two stages.
The First Stage was heard by the Tribunal in October 2016. On 27 January 2017 the Tribunal delivered its decision in respect to the First Stage decision and determined that the Respondent was guilty of Unsatisfactory Professional Conduct. The proceedings were then adjourned to a further date to determine the appropriate orders for the Tribunal to make.
The Tribunal in the Stage One Decision relevantly found: 1. Particular 4 was not proven; 2. In respect to 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 Complaint particular 9(a) was 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 was 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 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 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 emergency at [96]; 6. The aspects of the complaint against the Respondent 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 unsatisfactory professional conduct at [96]: "since 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" 1. The Respondent was guilty of unsatisfactory professional conduct at [97].
The Second Stage was heard by the Tribunal on 22 May 2017.
On 2 June 2017 the Tribunal delivered its decision in respect to the Second Stage. The Tribunal imposed conditions on the Respondent's registration as a health practitioner and determined that no orders would be made as to costs.
Subsequent to the proceedings in the Tribunal the Respondent has had conditions imposed on his Registration.
The Respondent appealed to the Supreme Court from the First Stage and Second Stage hearings by way of Summons filed on 30 June 2017.
The Respondent's grounds of appeal can be summarised as follows: 1. the Tribunal acted without jurisdiction or otherwise erred in law in making the Stage 1 Decision and the Stage 2 Decision by purporting to make a finding of unsatisfactory professional conduct by reference to conduct that was not alleged by the HCCC to constitute unsatisfactory professional conduct. 2. Further or in the alternative, it was a breach of procedural fairness for the Tribunal to make a finding of unsatisfactory professional conduct by reference to conduct that was not alleged by the HCCC to constitute unsatisfactory professional conduct.
The first ground of appeal was that the Tribunal erred in law in determining the Respondent was guilty of unsatisfactory professional conduct in respect to particular 9 of Complaint One where the Applicant had not alleged this particular by itself amounted to unsatisfactory professional conduct. Put another way the Respondent asserted that the Tribunal may not itself, as a matter of law, determine conduct to be unsatisfactory professional conduct unless this is asserted by the Applicant i.e. the Tribunal is bound by the decision of the Applicant as to the characterisation of a complaint and the subject matter of the complaint.

Judgment of the Supreme Court

Her Honour Wilson J in Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315 made the following relevant orders: 1. Dismissed ground 1; 2. Upheld ground 2 ; 3. Set aside the findings and orders of the Civil and Administrative Tribunal in the matter of Health Care Complaint Commission v Liu, [2017] NSWCATOD 18 made on 27 January 2017 and [2017] NSWCATOD 88 made on 2 June 2017; and 4. Remitted the matter to the Civil and Administrative Tribunal for further hearing according to law, to determine whether the facts found by the Tribunal amount to unsatisfactory professional conduct.
In dismissing Ground 1 Her Honour found: 1. The Tribunal must conduct itself in a manner consistent with the objectives and guiding principles of the National Law, set out at ss3 and 3A and the protection of the health and safety of the public must be the paramount consideration; 2. In hearing a complaint, the Tribunal is not confined to the complaint as made. It may, if it appears that another complaint could have been made additional to or in lieu of that before it, and whether or not by the same or a different Applicant, proceed as if that other complaint had been referred to it, and deal with it: cl 6(2) of Schedule 5D of the National Law. Pursuant to cl 6(3) the Tribunal may have regard to all of the evidence before it, relevant to that complaint or any other complaint, in making a finding of unsatisfactory professional conduct or professional misconduct; 3. The role of the Tribunal is to conduct an inquiry into a complaint made against a health practitioner, informed as it thinks necessary, and determining any complaint it considers arises on the material before it; 4. There can be no basis in such circumstances to consider the Tribunal bound by the way in which a complaint is particularised, or to confine the exercise of its powers to make findings and orders by strict reference to the terms of the complaint as originally advanced; 5. Whilst the HCCC particularised its complaint, and asserted that unsatisfactory professional conduct (or professional misconduct) could be found only upon proof of certain particulars, the Tribunal was in no way bound by that assertion; 6. It was a matter for the Tribunal to consider all of the information before it, whether that relating to particular 9 or other evidence, and determine whether or not the subject matter of the complaint was proved and having found in the affirmative, it was a matter for the Tribunal to assess the evidence and determine for itself the seriousness of the conduct; 7. That is what the Tribunal did here: all of the evidence was considered, including it seems some of the matters relevant to particular 7, and a conclusion was reached as to the gravity of the Respondent's conduct, in the overall context of the need to ensure the protection of the public; 8. The Tribunal concluded that the Respondent's conduct was sufficiently grave as to constitute unsatisfactory professional conduct, and to require the imposition of conditions on his registration; and 1. It was open on the evidence for the Tribunal to reach the conclusions it did, and to make a finding of unsatisfactory professional conduct.
In upholding Ground 2 Her Honour found: 1. Although the conclusions and orders made by the Tribunal were well open to it, in light of the way in which the HCCC argued its case it was not open to the Tribunal to proceed without warning the Respondent that a finding of unsatisfactory professional conduct might be made on a basis other than that advanced by the Applicant; 2. The complaint itself did not give the Respondent notice that the Tribunal might make findings outside the allegation of the Applicant; 3. Warning should have been given to the Respondent that the Tribunal did not accept that limitation to the findings that could be made and the Respondent should have been advised of that, and invited to call relevant evidence, or make submissions, against that possibility; and 4. In failing to do so the Respondent has been denied procedural fairness.

Nature of the Fresh determination required to be made by the Tribunal

The Applicant agrees with the Respondent's submission that the nature of the task now before the Tribunal is not to reopen the Tribunal's findings on the primary facts but to determine whether the primary facts found by the Tribunal amount to unsatisfactory professional conduct.
In so doing the Respondent is provided an opportunity in the present context to file evidence and make submissions on whether the Tribunal's findings of fact amount to unsatisfactory professional misconduct.
The Tribunal's findings on the primary facts is as set out at 9-(g)(above). The Tribunal then set out the basis for the finding that such facts amounted to unsatisfactory professional conduct. It is this last matter that needs to be determined in this remittal.
The Respondent has elected to file no further evidence but to rely on additional submission.
The first argument advanced by the Respondent at [15] of their submission is that the Tribunal needs to take into account the Applicant's attitude to the conduct and because the Applicant did not characterise the conduct as not falling significantly below the standard reasonably expected this is persuasive.
Such a submission ignores the role of the Tribunal as identified by Her Honour Wilson J in Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315 at [28]-[40] (summarised at 17. Further, such submission fails to comes to terms with the following matters: 1. The Tribunal's role is that of an inquisitorial model (Weinstein v Medical Practitioners Board (2008) 21 VR 29 at [30]); 2. The Tribunal in the proceedings makes an evaluative judgment as to the seriousness of the misconduct and the inferences which should be drawn (Health Care Complaint Commission v Karalasingham [2007] NSWCA 267); 3. The Tribunal is also required to give effect to the objects of the National Law and give primacy to the provisions of the National Law; 4. The Tribunal not being bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit; 5. The power of the Tribunal that if it appears to the Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the practitioner concerned whether instead of or in addition to the complaint which was made and whether or not by the same Applicant the Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings; 6. The power of the Tribunal in dealing with more than one complaint about a registered health practitioner may have regard to all the evidence before it (whether the evidence arose in relation to a complaint in respect of which the Tribunal is making a finding or any other complaint or complaints in the proceedings) when making a finding that a registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct; 7. The Tribunal in the proceedings makes an evaluative judgment as to the seriousness of the misconduct and the inferences which should be drawn; 8. The Tribunal is constituted deliberately as an expert body dealing in a practical manner with problems faced in the practice of medicine; 9. The Tribunal is entitled to take advantage of the expertise available to it in the experts appointed as members of the tribunal; and 10. The Tribunal, as an expert committee, may form its own view and is not bound to accept the evidence of the Expert as to the characterisation of the conduct of the Respondent.
The second argument advanced by the Respondent at [17] of their submission, the Applicant repeats paragraphs [23] and 24.
The third argument advanced by the Respondent at [18]-[19] appears to be that the record keeping albeit it had some shortcomings it was a generally functional system of record keeping. This submission is inconsistent with the factual finding of the Tribunal at [96]: …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 need for proper records is self evident. Further, if the Respondent had been a medical practitioner the records must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. Such a requirement is a breach of Clause 7 of the Health Practitioner Regulation (New South Wales) Regulation 2010.
If a medical practitioner does not comply with this requirement but does have some records then such a failure is deemed at law to be unsatisfactory professional conduct.
It is open to the Tribunal to reach the same conclusion of unsatisfactory professional conduct in respect to the Respondent's records not withstanding there are some records.
The fourth argument advanced by the Respondent at [20]-[22] appears to be that the Tribunal does not have cogent expert evidence before it that the deficiencies identified by the Tribunal are of a magnitude that would attract the strong criticisms of other professionals. Notwithstanding this such a submission ignores that the Tribunal itself: 1. in the proceedings makes an evaluative judgment as to the seriousness of the misconduct and the inferences which should be drawn; 2. is required to give effect to the objects of the National Law and give primacy to the provisions of the National Law; 3. is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit; 4. in dealing with more than one complaint about a registered health practitioner may have regard to all the evidence before it (whether the evidence arose in relation to a complaint in respect of which the Tribunal is making a finding or any other complaint or complaints in the proceedings) when making a finding that a registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct; 5. in the proceedings makes an evaluative judgment as to the seriousness of the misconduct and the inferences which should be drawn; 6. is constituted deliberately as an expert body dealing in a practical manner with problems faced in the practice of medicine (Prakash v Health Care Complaints Commission [2006] NSWCA 153; Kalil v Bray [1977] 1 NSWLR 356; Minister for Health v Thomson (1985) 8 FCR 213); 7. is entitled to take advantage of the expertise available to it in the experts appointed as members of the tribunal; and 8. as an expert committee, may form its own view and is not bound to accept the evidence of the Expert as to the characterisation of the conduct of the Respondent (Kirumba v Walton NSW Court of Appeal; Slezak, Dr Peter [2011] NSWMPSC 10)
The fifth argument advanced by the Respondent at [23] appears to be that the Respondent has admitted that his record keeping at least in some respects was deficient that this means that his conduct is not unsatisfactory professional conduct.
This submission ignores the role of the Tribunal which must first consider whether, as a matter of evidence, the alleged conduct and then whether the established conduct amounts to unsatisfactory professional conduct per s139B of the National Law.
Such conduct whether by act or omission does not cease to be unsatisfactory professional conduct as a result of an admission and an acknowledgement to do better next time.
Determining whether a practitioner is guilty of unsatisfactory professional conduct, as considered in s139B (1)(a) of the National Law, involves an objective assessment of the practitioner's conduct against the standards of conduct expected of an equivalent practitioner. As held in Ahmad, Dr Firoz Uddin [2013] NSWMPSC 8 at [171]: '[I]n assessing what constitutes unsatisfactory professional conduct reference is made to the views of professional brethren of good repute and competency.'
Such practitioners can include the members of the Tribunal.
In light of the above matters and the primary findings of fact especially those matters at [96] in the first decision it is still open to the Tribunal having now considered the submissions of the Respondent to find the Respondent guilty of unsatisfactory professional conduct.

Appropriate Disciplinary Orders

The Applicant takes no issue with the Respondent's submission at [25]-[26].

Costs

The Applicant takes no issue with the Respondent's submission at [27] other than any costs order would need to be as agreed or assessed at the ordinary basis and be limited to cost of proceedings before Tribunal. The Applicant takes no issue with the Respondent's submission at [28].

The Respondent made the following submissions in reply:

The Tribunal should treat with caution the references to cl. 6(2) of Schedule 5D of the National Law: see HCCC Submissions at [24(e)]. Under cl. 6(2) the Tribunal may in certain circumstances proceed as if a different complaint had been referred to it, rather than (or in addition to) the complaint actually referred to the Tribunal. Particular procedural considerations arise in circumstances where the Tribunal decides to proceed on this basis: see cl. 6(4).
There is no suggestion in the present case that the Tribunal is, pursuant to cl. 6(2), dealing with a different complaint from that which was referred by the HCCC. The issue before the Tribunal is how it should determine the Amended Complaint, having regard to the factual findings that it has made and accepting that, as held by the Supreme Court, it is legally open to the Tribunal to find that the conduct found to have occurred constituted unsatisfactory professional conduct.
Contrary to the submission made by the HCCC at [24], Dr Liu is not ignoring the role or expertise of the Tribunal when he submits that the Tribunal should take into account the characterisation of the conduct that was advanced by the HCCC in the complaint that it referred to the Tribunal. Dr Liu accepts, as made clear in paragraph [15] of his submissions, that the Tribunal is not bound by that characterisation and it is a matter for the Tribunal to form its own evaluative judgment about the character of the conduct that it has found to have occurred. The point of the submission advanced by Dr Liu is that in reaching that evaluative judgment the Tribunal can and should take into account how the HCCC characterised that conduct. That is a relevant consideration, even if the Tribunal might ultimately decide that it prefers a different characterisation.
The Tribunal should also treat with caution the references in the HCCC Submissions at [27]-[28] to different rules that applied to medical practitioners under the Health Practitioner Regulation (New South Wales) Regulation 2010 (noting that this Regulation has now been replaced by the Health Practitioner Regulation (New South Wales) Regulation 2016). The existence of a specific legislative requirement that applies to medical practitioners is not a sound guide to characterising conduct engaged in by a different category of health professional. As the HCCC appropriately acknowledges in footnote 32, if the legislature had intended to impose the same or similar obligations under the Regulation in relation to Chinese Medical Practitioners it could have done so. It has not.
In relation to the arguments in [30] of the HCCC Submissions, again it is not the case that Dr Liu has ignored the evaluative role of the Tribunal or the capacity of the Tribunal's own expert members to form views about the seriousness of the conduct. As the HCCC itself accepts at [34], in quoting Alunad, Dr Firoz Harlin [2013] NSWMPSC 8 at [171], in assessing what constitutes unsatisfactory professional conduct reference should be made to "the views of professional brethren of good repute and competency". Obviously, that includes having regard to the views of the expert members of the Tribunal. But it also includes having regard to the expert evidence that was before the Tribunal, as submitted by Dr Liu in his submissions at [20]-[22].

Disciplinary orders

Dr Liu notes that if the HCCC accepts the propositions in Dr Liu's submissions at [25]-[26] concerning disciplinary orders. It follows that it is common ground that: 1. if the Tribunal does not make a finding of unsatisfactory professional conduct, no disciplinary orders should be made and the Amended Complaint should be dismissed; and 2. if the Tribunal does make a finding of unsatisfactory professional conduct, the Tribunal would make the same disciplinary orders as it decided were appropriate in the previous Stage 2 Decision.
The HCCC has filed an updated confirmation of registration status for Dr Liu dated 9 April 2018. The HCCC, properly, has not suggested that the updated certificate raises any issue that has a bearing on the determination of disciplinary orders. It should therefore not be taken into account by the Tribunal.

Costs

On costs, Dr Liu agrees with the submission of the FICCC at [38] that if the Tribunal decides that there should be an order that the FICCC should pay Dr Liu's costs, that would be costs of the proceedings before the Tribunal as agreed or assessed on the ordinary basis. It follows that there is also no dispute between the parties and the appropriate outcome as to costs should be as submitted by Dr Liu in his submissions at [27]-[28].

Decision and Reasons

The tribunal had available to it the papers from the initial hearing, the decision of her Honour Wilson J in the matter of Shuquan Liu v Health Care Complaints Commission 2018 NSWSC 315, the submissions made by the Respondent, the submissions made by the Applicant and submissions in reply by the respondent.
The tribunal was called upon to reconsider whether in the view of the tribunal a finding of unsatisfactory professional conduct was appropriate in the circumstances.
In its submissions, the Applicant at paragraph 12 submitted that although it was open to the tribunal to reach the conclusion that the conduct in question should be characterised as unsatisfactory professional conduct, notwithstanding that this involved a departure from the case advanced by the HCCC it was first necessary for Dr Liu to be given the opportunity to call any evidence or make any submissions against that possibility. On that basis the court made an order remitting the matter to the tribunal for further hearing according to law to determine whether the facts found by the tribunal amount to unsatisfactory professional conduct.
The Respondent in its own submissions states that it has no further evidence to call in respect of the matter and that it relies on its submissions. In paragraph 16, the Respondent states clearly that the HCCC has an important role in the statutory scheme and that is has the experience and capacity to make its own assessment as to whether particular conduct 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. The respondent concedes that the tribunal is not bound to agree with the HCCC. The tribunal is satisfied that it is not so bound by that and can make its own determination. If the tribunal believes that the behaviour of the respondent constitutes unsatisfactory professional conduct, the tribunal is entitled to make that decision.
In paragraph 19c above, the respondent claims that his notes did identify the herbal decoction that was prescribed to patient A but concedes that the record was inadequate because the individual ingredients should have been listed.
This admission of itself indicates a failure on the part of the respondent to meet the expected standards of a person of the Respondent's training and experience.
The tribunal is satisfied that the very fact that another practitioner could not understand the concoction if called upon to do so, particularly in an emergency, that this failure very significantly falls short and can be damaging to the public in the case of an emergency.
In paragraph 19d above, the respondent states that the records relating to subsequent treatment were made on the initial intake form and that it was possible to decipher the records with time and attention. The tribunal is satisfied that the fact that it would take time to decipher treatment by the respondent is a significant fact, as the requirement for keeping of appropriate notes is to enable a later practitioner to be aware of the patient's record and history so as to be able to deal with the patient in the event of an emergency, such failure in and of itself constitutes unsatisfactory professional behaviour.
In paragraph 22, the respondent seeks to diminish the views of the expert Dr Zheng, stating that in coming to her conclusions that the respondent's conduct fell significantly below the standards of good record keeping needs to be analysed in the context of her overall position in respect of matters of which the tribunal did not find unsatisfactory professional conduct. As far as the tribunal is concerned Dr Zheng was clear that the record keeping fell significantly below the standard of good record keeping and that it should be strongly criticised, and the tribunal found no reason to reject that evidence.

Costs

The Respondent submitted that if the tribunal finds unsatisfactory professional conduct then a costs order should be the same as it was before, namely that there should be no order as to costs.
The Applicant then made various submissions which are dealt with above and do not require specific comment from the Tribunal at this point. Of significance, the Applicant referred to the grounds of Appeal and being summarised as follows: 1. The Tribunal acted without jurisdiction or otherwise erred in law in making the Stage 1 Decision and the Stage 2 Decision by purporting to make a finding of unsatisfactory professional conduct by reference to conduct that was not alleged by the HCCC to constitute unsatisfactory professional conduct. 2. Further or in the alternative, it was a breach of procedural fairness for the Tribunal to make a finding of unsatisfactory professional conduct by reference to conduct that was not alleged by the HCCC to constitute unsatisfactory professional conduct. 3. The Tribunal is not satisfied that there has been a breach of procedural fairness in finding unsatisfactory professional conduct by reference to conduct that was not alleged by the HCCC to constitute unsatisfactory professional conduct for the following reasons: 1. The Tribunal had before it, evidence of the conduct of the Respondent in his treatment of this patient. That evidence was sufficient to find unsatisfactory professional conduct. 2. Section 3a provides that the protection of the health and safety of the public must be the paramount consideration and clause 6(2)(3) of Schedule 5D of the National Law gives to the Tribunal the power to make a decision based on the facts and evidence before it in a manner different to the formal claim made by the Applicant or not made at all by the applicant.

Decision

The tribunal came to the conclusion that on the facts and evidence before it, irrespective of the formal nature and the manner in which the applicant pleaded its complaint, that the respondent was guilty of unsatisfactory professional conduct and now repeats its determination that the Respondent is guilty of unsatisfactory professional conduct.
It remains for the Tribunal to comment on the submissions where the Respondent refers to particular procedural considerations that arise in circumstances where the Tribunal decides to proceed on this basis. The Respondent referred to the fact that pursuant to clause 6.4 of Schedule 5D a Tribunal might need to consider whether an adjournment, if any, is just and equitable in the circumstances. The Tribunal questions what purpose an adjournment might have had having regard to the fact that the clear purpose of an adjournment in those circumstances would have been to allow the Respondent to lead further evidence and make further submissions. The Respondent has had ample time in which to bring further evidence to the attention of the Tribunal following the decision of the Supreme Court in its Appeal and has specifically stated in its submissions that it has no further evidence to lead. Accordingly, any adjournment would then have been futile and now the Respondent has had an opportunity to do so and not done so. In addition, the Tribunal is satisfied that the law as contained in the National Law is clear and unequivocal. The tribunal has the power to make the decision which it made and is satisfied, having regard to the Respondent's representations and their knowledge of the law that the Respondent would have been aware of the powers of the Tribunal and should have called for whatever adjournments or allowances which it may have required.
The Tribunal is accordingly satisfied that the Respondent is guilty of unsatisfactory professional conduct and reinstates its former orders as set out below.

Orders 1. The Respondent is guilty of unsatisfactory professional conduct. 2. 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 3 audits, the first of which is to be held within 3 months from the date of this decision and subsequently, the remaining 2 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 and 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 NSW is the appropriate review body of these conditions for the purpose of part 8 of the national law.

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: 25 May 2018

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