Health Care Complaints Commission v Liu

Health Care Complaints Commission v Liu - [2024] NSWCATOD 149 - NSWCATOD 2024 case summary — Zoe

[4]

Relevant Legislative Provisions

It is convenient to set out below those provisions of the National Law relevant to this application.
Section 3 of the National Law provides, relevantly: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; … … (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; …
Section 3A of the National Law, which is an additional provision for NSW, relevantly provides: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows - … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 3B of the National Law, which is also an additional provision for NSW, relevantly provides: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
A "NSW provision" is defined in s 5 of the National Law as: 5 Definitions (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation.
Section 139B of the National Law, which is an additional provision for NSW, relevantly provides: 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 - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Section 139E of the National Law, which is an additional provision for NSW, provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
Section 144, which is an additional provision for NSW, sets out the grounds for complaint which may be made against health practitioners, including: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - … (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
Section 149, which is an additional provision for NSW, provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if - (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal.
Section 149C, which is an additional provision for NSW, (which is in the same Subdivision as s 149) provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - … (b) the practitioner is guilty of professional misconduct; … (4) If the person is no longer registered, the Tribunal may - (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. … (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered.

[5]

The Complaints

The Complaints against Dr Liu relate to his treatment of Patient A in 2018, a 41 year old woman with a pre-existing heart condition, who sought his assistance with weight loss. Patient A was prescribed the 101 Wellbeing Program (a program which involved fasting for a period and drinking herbal decoctions) and attended Dr Liu's clinic on 16 occasions during the period 8 January 2018 to 31 January 2018. Patient A was admitted to St Vincent's Hospital on 2 February 2018 with hypokalaemia (a potassium deficiency), cardiac arrhythmia and she suffered an acute infarct. Patient A died 6 days later on 8 February 2018. The Complaint does not allege or seek to imply that the 101 Wellbeing Program caused Patient A's death.
The Complaints are detailed and are set out fully in Schedule A to these reasons.
The Complaints are in summary: 1. The Respondent is guilty of unsatisfactory professional conduct pursuant to section 139B(1)(a) of the National Law in the course of his treatment of Patient A in 2018 in that he engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by him in the practice of Chinese Medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; 2. The Respondent is guilty of unsatisfactory professional conduct pursuant to section 139B(1)(l) of the National Law in that he engaged in improper or unethical conduct relating to the practice or purported practice of Chinese Medicine when he administered the 101 Wellbeing Program to Patient A in 2018 when he knew (or ought to have known) that that program was not recognised in Chinese Medicine, and/or in failing to provide any data or literature or information to Patient A to support the prescribing of that program; and. 3. The Respondent is guilty of professional misconduct pursuant to section 139E of the National Law by reason of his conduct particularised in Complaints 1 and 2 individually or in any combination.

[6]

Procedural background

The Complaints come before the Tribunal against a protracted procedural background including the following: 1. In June 2018 St Vincent's Hospital referred the death of Patient A to the State Coroner; 2. A formal complaint against the Respondent in relation to his treatment of Patient A was filed with the HCCC on 27 September 2018 by the NSW Police Officer in Charge of the investigation into Patient A's death; 3. A hearing under s 150 of the National Law was held by the Chinese Medicine Council of NSW (Council) on 12 October 2018 (s150 hearing) at which Dr Liu's registration was suspended with immediate effect; 4. Dr Liu lodged an appeal to the Tribunal against the suspension order and sought an order staying the suspension order pending the hearing of his appeal. The stay application was heard on 18 December 2018 and it was refused: Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13. Dr Liu's appeal was heard on 20 March 2019 and the Tribunal confirmed the decision to suspend Dr Liu's registration: Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 71 (2019 Tribunal Proceedings); 5. On 12 June 2020 Dr Liu made an application to the Council under ss 150A and 150C of the National Law seeking a further review of the Council's decision to suspend his registration. A s 150A review meeting (s 150A review meeting) was conducted by the Council on 15 July 2020 at which the Council decided to affirm their decision to suspend Dr Liu's registration; 6. After that decision, it appears that Dr Liu filed a further appeal to the Tribunal appealing against the Council's decision to reject his June 2020 application to end his suspension (2020 NCAT appeal) although that appeal did not ultimately proceed. On the basis of the information served by Dr Liu on the Council in support of that appeal, on 29 October 2020 the Council agreed to lift the suspension of Dr Liu's registration and imposed a number of strict conditions on Dr Liu's registration. Those conditions included a condition that Dr Liu must not administer or prescribe the 101 Wellbeing Program (or any treatment involving restricted calorie intake that is less than the National Health Medical Research Council recommended daily calorie intake for men and women), a condition that he submit to an audit of his clinical practice and a condition that he practise under supervision; 7. On 9 November 2020 the HCCC wrote to Dr Liu informing him of the proposal to refer the complaint against him to the Director of Proceedings under s 39 (1)(a) of the Health Care Complaints Act and providing him with an opportunity to make submissions under s 40 of that Act. By letter dated 7 December 2020 Dr Liu made submissions against the referral of the complaint. On 10 February 2021 the matter was referred to the Director of Proceedings; 8. On 26 May 2022 the Council wrote to Dr Liu stating: The Council notes that matters raised with you previously, particularly in relation to the Condition requiring you to obtain medical practitioner consent before prescribing herbs for patients with pre-existing condition, are still not being met. There are also still many deficiencies in your record keeping. 1. On 19 August 2022 the Council again wrote to Dr Liu stating: The Council notes that the records provide scant indications that you have remediated the multiple concerns raised in the feedback that has previously been provided to you, particularly on the need to ensure that all patients with pre-existing chronic conditions have referrals from a general practitioner and that this be recorded in the patient files, in accordance with the conditions on your registration. The Council is also concerned that your current supervisor is not assisting you to remediate the issues. 1. In January 2023 the Council wrote to Dr Liu advising that the Council would conduct a further s 150 review hearing to consider alleged breaches of the conditions on his registration; 2. On 16 January 2023 the HCCC wrote to Dr Liu advising him of further grounds of complaint against him and inviting further submissions from him before determining whether to prosecute him in relation to those additional grounds; 3. On 25 January 2023, Dr Liu voluntarily surrendered his registration as a Chinese Medicine practitioner.

[7]

Material before the Tribunal at the hearing

The HCCC relied on a six volume bundle of documents filed on 28 May 2024 comprising approximately 2300 pages of material (some of which was not admitted into evidence) (Exhibit A2), a supplementary bundle filed on 24 July 2024 (Exhibit A3), a Reply filed by the Respondent on 25 October 2023 (Exhibit A4), Guidelines for Safe Chinese Herbal Medicine Practice issued in November 2015 by the Chinese Medicine Board of Australia (Exhibit A5) and the two letters issued by the Council to Dr Liu on 26 May 2022 and 19 August 2022 referred to above (Exhibits A7 and A8 respectively). This material included documents relating to the NSW Police referral to the HCCC, the Council's referral to the HCCC, NSW Coroner's Court provision of material to the HCCC, the NSW Police brief of evidence, Patient A's clinical records, material produced under summons by Dr Liu's clinic, documents relating to the s 150 hearing on 12 October 2018 and other disciplinary proceedings against Dr Liu.
This material included the following expert statements or reports: 1. Expert statement of Dr Xianqin Qu Associate Professor in Pharmacology of Herbal Medicine University of Technology, Sydney dated 21 August 2018; 2. Expert report of Michael Kennedy, Consultant Physician Internal Medicine, Cardiology and Clinical Pharmacology dated 6 November 2018; 3. Expert reports of Dr Alan Barclay Dietitian dated 1 February 2019 and 11 September 2020; 4. Expert report of Dr Claire Shuiqing Zhang, registered Chinese Medicine Practitioner dated 1 March 2019; 5. Expert report of Robin Marchment, registered practitioner of Chinese Medicine dated 3 December 2022 prepared for these proceedings; 6. Supplementary report of Robin Marchment dated 8 December 2022.
The material also included the following statements of evidence of Dr Liu which he has provided over the course of the history of this matter: 1. A statement dated 11 October 2018 for consideration by the Council at the s 150 hearing on 12 October 2018; 2. A statement dated 17 October 2018 in response to a notice to produce issued by the HCCC; 3. A statement dated 7 December 2018 in support of his application to the Tribunal for an order staying the order suspending his registration; 4. A statement dated 31 January 2019 and a further statement dated 13 March 2019 relied upon by him in the 2019 Tribunal proceedings; 5. A statement dated 1 June 2020 in support of his June 2020 application under ss 150A and 150C in June 2020 to end the suspension of his registration; and 6. A statement dated 11 September 2020 in support of the 2020 NCAT appeal.
Ms Robin Marchment also gave some additional oral evidence by audio visual link and was asked some questions by the Panel. Supplement E to her report (which was missing from the report in the materials filed) was also tendered (Exhibit A6).
The Respondent filed a Reply to the application for disciplinary findings on 25 October 2023 (Exhibit A4) in which he denied the Complaints and either did not admit or denied many of the particulars of the Complaints made against him. However, he did not file any other materials in relation to the Application and in an email dated 9 April 2024, Dr Liu's solicitors advised the Tribunal: We are instructed that our client no longer wishes to participate in the above NCAT proceedings, and our client is willing to submit to any order that NCAT may make, save as to costs.
During the course of the hearing the HCCC was given leave to amend the Complaint in certain respects.
As a result, the HCCC was ordered to provide Dr Liu with a copy of the Further Amended Complaint, the materials relied upon by the HCCC at the hearing which had not previously been served on Dr Liu and the HCCC's supplementary submissions regarding Ms Marchment's oral evidence and Dr Liu was provided with an opportunity to make submissions in respect of the Further Amended Complaint by 13 August 2024. Dr Liu did not make any submissions.

[9]

Dr Liu

Dr Liu was a practitioner of traditional Chinese Medicine for approximately 25 years. He commenced practice in Australia in 1996 and was a registered Chinese Medicine practitioner after inclusion of the profession within the National Law in July 2012 until October 2018 when his registration was suspended. As noted above, the suspension on his registration was lifted in 2020 and conditions were imposed on his registration. Dr Liu surrendered his registration as a Chinese Medicine practitioner in January 2023.
At all relevant times, Dr Liu was the sole director of Traditional Chinese Medicine Australia Pty Ltd (TCMA). TCMA operated four clinics; two in NSW and one each in Victoria and Queensland. Dr Liu practiced across all four clinics.
Prior to the events which have given rise to the Complaints now before the Tribunal, the Evidentiary Certificate from the Australian Health Practitioner regulation Agency (AHPRA) which is in evidence discloses that Dr Liu had had conditions imposed on his registration at various times including: 1. (11 November 2014 to 11 February 2015) On 11 November 2014 the Council imposed a condition on his registration that he do not advise any patient to undertake fasting without the consent of and under the supervision of that patent's registered medical practitioner (general practitioner or specialist); 2. (3 December 2014 to 15 December 2014) On 3 December 2014 the Council imposed a condition that before initiating the 101 Wellbeing Program he notify the patient's general practitioner (and treating medical specialist where appropriate) with details of the proposed treatment plan and request that they notify him of any potential medical contraindications of the proposed course of action and that he refrain from initiating the treatment without receipt of that information; 3. (2 June 2017 to 11 July 2017) On 2 June 2017 the Tribunal imposed a condition that Dr Liu submit to random audits of his patient records so that an auditor may assess his compliance with the Chinese Medicine Board of Australia's Guidelines for Patient Records, paying particular attention to whether his clinical notes contained an accurate and complete case history; 4. (6 July 2017 to 15 August 2017) On 6 July 2017 the Office of the Health Ombudsman (OHO) imposed a condition that Dr Liu must not have contact (including consultation, interview, examination, assessment, prescribing for, advising, treating or otherwise seeing patients) or provide treatment to any diabetic patient; 5. (31 January 2018 to 25 January 2023) On 31 January 2018 the OHO imposed conditions including that Dr Liu not treat any patient for diabetes, must not provide any dietary advice to any patient under the age of 18 years and not provide or refer to the 101 Wellbeing Program to any person under the age of 18 years.

[10]

101 Wellbeing Program

In its 2019 decision the Tribunal described the 101 Wellbeing Program offered by TCMA at [21] - [33] as follows: 21.Dr Liu is the originator of the 101 Wellbeing Program. He is also the only practitioner in the four clinics who prescribes and tailors the 101 Wellbeing Program. 22.It was Dr Liu's evidence that the program was developed by him based on Chinese medicine principles, although it is not a program used by other Chinese Medicine Practitioners. He has over the past 11 years prescribed the program to a great many patients. In the years 2016 to 2018 inclusive, he estimates that he treated approximately 3,800 patients, of whom 1,800 were repeat or returning patients. The majority of his practice involves the 101 Wellbeing Program. 23.It was Dr Liu's evidence that all patients on the program were given his business card with an email and mobile phone number and encouraged to contact him directly if they had any concerns during the program. All patients were also given a brochure explaining the program. 24.The program lasts for 101 days. It involves patients drinking a herbal decoction three times per day for the duration of the program. 25.For the first 14 days of the program patients are instructed not to eat any solid food, and only consume the herbal mixture and water, green or black tea. 26. It was Dr Liu's evidence that not all patients can tolerate the full 14 days with no solid food, and some patients undertake a lesser period. 27. The [101 Wellbeing Program] brochure states that the herbal decoction is 'rich in nutrients.' The brochure states, 'For the first two weeks it is essential that you don't consume food of any kind.' It also notes: During the treatment you will notice your bowel movements will be irregular and your urine acid could be high. This is absolutely normal and a sign the detox is working, but if you have any concerns at all, please discuss them with Dr Liu. 28. During the first 14 day period patients attend a TCMA clinic every day and undertake massage, acupuncture and the insertion of needles into acupuncture points (characterised as 'dry needling' by [Dr Liu]). 29. The object of such treatments is to monitor the patient's progress, assist the body to absorb the herbal mixture and increase energy. 30. The majority of treatments are undertaken by other therapists acting under the direction of Dr Liu who, because of his movements between the four clinics, generally sees each patient once a week. Some of those therapists are not registered Chinese Medicine practitioners. 31. After 14 days, patients are instructed to return to limited food intake and are provided with an 'Eating plan' (which specifies recommended portions such as half a cucumber per day or 50gms of cooked white protein per day), along with the continuation of the herbal mixture three times per day. Patients continue to attend TCMA clinics for further treatments, but at a lesser frequency. 32. The herbal mixture comprises a standard base formula designed by Dr Liu which can be 'tailored' with the addition of particular herbs for each patient. The decoction is mixed and brewed in the clinics to a formula set by Dr Liu, and generally sold to the patients in batches every two weeks. 33. [Dr Liu] acknowledged in oral evidence that the sachets of herbs were not labelled with the ingredients, as required by current Chinese Medicine Board of Australia, Guidelines for Safe Chinese Medicine Herbal Practice (2015, cl 3).
A copy of the 101 Wellbeing Program brochure is in evidence before the Tribunal. It contains the following statements which are also of relevance: WELCOME TO TRADITIONAL CHINESE MEDICINE AUSTRALIA, AUSTRALIA'S LEADING PROVIDER OF TRADITIONAL CHINESE MEDICINE PRACTICES We believe it is possible for every Australian to live a long and healthy life free of pain and disease using traditional Chinese treatments and wisdom that have worked for more than 5000 years. … THE 101 WELLBEING PROGRAM Is a unique detox program that has been specially developed by Dr Liu… … If you have any concerns about the 101 Wellbeing Program impacting on your health in a negative way, Dr Liu suggests you consult your GP or treating medical specialist (if you have one). The choice to do this is yours, and you can do this before you commence the treatment, or at any time during or after the program. … If you are on any type of medication, Dr Liu asks that you consult with your GP or treating medical specialist (if you have one) about whether to continue taking it when embarking on the program. Ultimately the decision about whether or not to continue to take long term medication is yours.

[12]

2016

Patient A first visited Dr Liu in July 2016. Patient A had been informed of Dr Liu and his 101 Wellbeing Program by a friend who had previously undertaken the program and who, Patient A had noticed, had lost considerable weight.
On her first presentation to Dr Liu in July 2016, Patient A completed an intake form in which she recorded the following information under the following headings: Medical history: Heart condition (leaking valve - congenital) Have you had any operations or serious illness: C-section + open heart surgery Family medical history: High blood pressure, Heart disease, Osteo
In his 11 October 2018 statement, Dr Liu said, in relation to meeting Patient A on this occasion: 16. I met [Patient A] for the first time on 16 July 2016, when she attended my Bondi Junction Clinic. 17.According to my usual practice, prior to my consultation with [Patient A], she was provided with a patient form, which she completed. 18. During my consultation with [Patient A] we had a conversation in words to the following effect: [Patient A]: Hi Dr Liu. I'm [Patient B's] friend. She did very well on your 101 Wellbeing program. I want to lose some weight - I think about 15-18kgs. Dr Liu: I'll check your pulse, tongue, do some acupuncture and cupping, and will find out which of your organs is off balance. Then I'll give you a treatment plan. As everyone is different, the 101 Wellbeing program will be tailored to your needs. The 101 Wellbeing program works by cleaning lymphatic system and reboot your internal organ function and reset the body. You'll lose weight as an effect of the program, if you have extra weight to lose. According to your patient form, you have a heart condition. Are you on any medication? How is the condition now? [Patient A]: I've fully recovered. I've had surgery and my heart is okay. I'm not on any medication. I checked her tongue and pulse and recorded my findings on her patient file. Dr Liu: How's your urine and bowel movement? [Patient A]: Regular and normal. I then recorded her response on my patient file, as "No. 1 No. 2 OK" [Patient A]: I feel tired all the time, and I'm not sleeping well. Dr Liu: Your organs have been overused and you have too much heat in your body. I'll do cupping and acupuncture treatment now, to see the colour of the skin and that will give me an indication of the oxygen level in your body. I'll also measure your stomach and provide an introductory acupuncture treatment to see if you can cope with acupuncture. I then performed the cupping and acupuncture treatment. 19.After cupping and acupuncture, I also checked her spine, lung, heart, stomach along the bladder meridian to check for any tenderness and "blockage" in her internal organs. There were no blockages, and therefore I did not record any findings in my patient record for the deceased. I said: I'm going to measure your stomach. I think you can lose up to 10-12kgs if you want to. I recommend you take the herbs to replace your meals as much as possible for a maximum of 2 weeks. You will have treatment daily for 14 days, then during the period of time and if you have any questions or have any discomfort, or have any changes in your health, you must let me and your GP or specialist know. After 2 weeks you can start eating again. You need to consume less oily and salty food, and cut out carbohydrates, sugar and milk and don't chew gum. You can have cooked green vegetables or cooked white protein. You can also have raw cucumbers. She said: That's fine. I'm happy with that. I want to start straight away. I said: We need to prepare the herbal formula and organise your appointments. You can start tomorrow. If you have any issues or feel discomfort, please let me know. You can call me anytime, or call my clinic and they will be able to reach me. 20. From my consultation with [Patient A] I was of the opinion that she was capable of undergoing the 101 Wellbeing Program because: (a) she was generally healthy; (b) she had indicated that she had fully recovered from her heart condition; and (c) she was not taking any medication. 21. After the consultation, I instructed my Reception staff to provide [Patient A] with the following: (a) Informed Consent for Acupuncture and Herbal Treatment Form; (b) 101 Wellbeing Brochure … 22. [Patient A] was also provided with an "Acknowledgment of Advice" form, which she signed and returned, as forms part of her patient records, but I cannot recall whether I provided the form to her during our consultation, or whether it was provided to her by my Reception staff. If I provided the form to her, I would have said words to the effect: "You should read the Acknowledgment of Advice, and you should consider the recommendation and advice on the form. If you want to speak to your specialist about your heart condition for consent before starting, you should."
In his 7 December 2018 statement Dr Liu corrected his evidence in this regard and said that he did not say to Patient A "if you want" to speak to your specialist, but said that he told her that she "should" speak to her specialist, because that was his usual practice.
On 16 July 2016 Patient A signed an "Informed Consent for Acupuncture and Herbal Treatment Form". That form stated, relevantly: All other Traditional Chinese Medicine procedures: "I have been informed of my treatment plan and have been informed of the treatment procedure and risks involved in the Traditional Chinese Medicine procedures which form part of my treatment plan. … By voluntarily signing the below I certify that I have read this entire form and been told about the risks and benefits of acupuncture, moxibustion and other Traditional Chinese Medicine procedures and have had an opportunity to ask questions and that I consent to treatment…
Patient A also signed an "Acknowledgment of Advice" form which stated: 1. Dr Liu has prescribed a treatment, which includes the consumption of liquid food at mealtimes comprising herbs from sachets, instead of solid food, until further notice. 2. Dr Liu recommended that I did not undertake such treatment without the consent of and under the supervision of, my GP or other specialist. 3. I acknowledge the advice in paragraph 2 above which I have considered, but I have elected to accept the treatment plan prescribed by Dr Liu, without obtaining the prior consent of my GP or other specialist, and without being under the supervision of my GP or other specialist. 4. I agree that Dr Liu gave me every opportunity to seek the consent and supervision of my GP, and I have made my decision freely in the absence of pressure or inducement by any (sic). 5. I understand that I can stop the treatment whenever I wish, but in such event, I cannot entitle (sic) to a refund for goods or services already supplied.
Patient A undertook the 101 Wellbeing Program between July and October 2016 and lost approximately 14.2 kilograms in weight over that period.

[13]

2018

In 2018 Patient A returned to the clinic. On 8 January 2018 she had a treatment with one of the other practitioners at the clinic.
On 9 January 2018 she saw Dr Liu for the first time since completing the 101 Wellbeing Program in October 2016.
His evidence about this meeting, in his 11 October 2018 statement, was as follows: 27. On 9 January 2018, I met [Patient A] and we had conversation to the following effect: [Patient A]: I came in here yesterday. I thought I could just start. But your staff said I'll have to have a review consultation with you before starting the program. Dr Liu: Yes, I'll need to check your pulse and tongue to do a review consultation and I'll set up a new treatment plan for you. [Patient A]: I felt a lot better after the last treatment, and I want to do it again. I want to lose about 8-10kgs. Dr Liu: Do you have any changes with your health since you were last here? [Patient A]: No, everything is good. I am more stressed than before and I find it hard to control my eating. I feel less hot all the time, but still feel hot from time to time. I want to lose about 8 to 10 kgs. Dr Liu: Are you currently taking any medication? [Patient A]: No. I checked her pulse and her tongue and conducted acupuncture treatment. I wrote on the form "rapid pulse". I measured her pulse on that occasion by using my three fingers. Although the pulse was "rapid" it was not so fast that it made me overly concerned for her well being. From her tongue and pulse, I diagnosed that she had kidney and liver yin deficiency. I then prescribed her herbal medication based on my diagnosis. We then had a conversation in words to the following effect. Dr Liu: You only need a shorter plan this time. 26 sessions, which means you'll finish in 8 weeks. Take herbs 3 times a day as you did previously, for first 2 weeks. The herbs should replace your meals as much as possible. [Patient A]: Yes, I've done it before. I can do it. Dr Liu: As l've said previously, if you have any issues or feel any discomfort you can call me anytime, or call my clinic and they will be able to reach me. After our consultation, she received a massage treatment from Shuping Liu. During her massage, my clinic prepared her herbal formula according to my prescription, and provided her with the herbal formula before she left the clinic.
In evidence before the Tribunal is a "TCM Australia Follow up Treatment Form" dated 9 January 2018. It was on this form that Dr Liu recorded his notes of his session with Patient A that day.
Against "Energy Level" "(1-9 as one is the lowest, nine is the highest)" there is no record of Patient A's energy level that day.
The notes are difficult to decipher in some respects however the following notes appear under the heading "Other symptoms": Feeling tired stressed very often. Unable to control eating. Sleeping not well No 1 No 2 Ok Period regular hurt at night sometime [The reference to "No 1" and "No 2" were references to Patient A's urine and bowel movements.] Red tongue no coating rapid pulse
Under the heading "Diagnosis" Dr Liu has written "Kidney liver yin deficiency."
In his 13 March 2019 statement prepared for the 2019 Tribunal Proceedings Dr Liu said that he did not record on Patient A's form that she was not taking medication, because not taking medication is "normal", and therefore it was not necessary to record that as part of a Chinese medicine diagnosis.
In his statement dated 31 January 2019 prepared for the 2019 Tribunal Proceedings Dr Liu said that because Patient A was an existing patient, he showed her the Acknowledgment of Advice she had signed in 2016 and said: Me: You don't need to sign the acknowledgment advice because you have signed it before, you need to get your GP or specialist consent. [Patient A]: I have done this before and did well. I understand the procedure.
He also said: When a repeat patient does not sign a new Acknowledgment, but has previously done so, I orally recommend that the patient get consent from their treating GP or specialist.
In his 31 January 2019 statement Dr Liu said, when outlining his general practice for dealing with patients with a medical history wanting to undertake the 101 Wellbeing Program: If a patient who wanted to be on the 101 Wellbeing Program had a pre-existing medical condition or was on prescription medication, I asked the patient about their symptoms in relation to that pre-existing condition, and how often they saw a doctor. Patients who have certain conditions such as cancer, blood disease, high blood pressure, chronic fatigue, seizure, and patients who have had a heart bypass are generally not suited to take part in the 101 Wellbeing Program.
In cross-examination in the 2019 Tribunal Proceedings, Dr Liu was asked whether he checked Patient A's heart rate, blood pressure or temperature on 9 January 2018 and he confirmed that he did not. He said that checking these vital signs were Western diagnostic tools and he "only checked through the traditional Chinese medicine practice".
There were also the following questions and answers during Dr Liu's cross-examination in the 2019 Tribunal Proceedings which are relevant to extract. Q. So how do you know that a person has high blood pressure if you don't test their blood pressure before prescribing the Program? Dr Liu: In normal circumstances, patients with high blood pressure would take medication or their GP would have told them that they have high blood pressure already. … Q. Okay. So am I right in that case in saying that you either assume that a patient already knows they have high blood pressure and will tell you because they're on medication? Or otherwise, you can deduce that they have high blood pressure because they have headaches, dizziness or pressure in their head… Is that right? That's how you tell? Dr Liu: Yes … Q. Do you accept that patients sometimes don't recognise what information they need to disclose to you? Dr Liu: If the patient doesn't know what sickness or illness he or she has, then he or she cannot provide that. … I believe that [Patient A] would not miss or not disclose any information even if she's not being asked a question about it. … But as a normal person, you taking medication or you are unhealthy, you should disclose. Should know, even you don't ask, you should know what to fit in and what's normal and what's not normal.
Dr Liu was asked whether he accepted that he did not ask [Patient A] the specific kinds of questions that the expert, Doctor Zhang, said in her report that she would ask a patient about their cardiac condition (Dr Zhang's evidence is referred to below). Dr Liu said that he did ask Patient A about her "symptoms" but: I didn't ask, I don't remember I asked other questions but because [she] says [she's] normal, fully recovered, have no [problem], no medication … But if you are unhealthy then the patients should disclose all the unhealthy stuff to the doctor, if you go to see a doctor
There was also the following exchange between counsel for the Council and Dr Liu: Q: Do you agree that this patient follow up form doesn't include any statement to the effect that consent was obtained - informed consent was obtained on this occasion? Dr Liu: Not in this form but I orally gave her consent. Q: Okay. So if you orally gave her disclosures that led to her giving informed consent, you'd accept that there's no record of that anywhere at all. Is that right? Dr Liu: Mm. Q: …there's no record that you disclosed any specific risks associated with diarrhoea, for example, when undergoing the Program. Is that right? Dr Liu: Yeah, I agree but as my general practice I always tell the patient. Very rare is my - the 101 Wellbeing Program cause diarrhoea, actually is less bowel movement instead diarrhoea. Q: So … do you disclose the fact that diarrhoea is rare but if you do have diarrhoea that could be a very serious risk or do you not usually mention diarrhoea at all because, as you said a moment ago, diarrhoea is rare so it's not something you feel you need to disclose. Which of those two is the case? Dr Liu: I didn't mention diarrhoea.
Later Dr Liu was asked whether he considered that Patient A's heart condition might pose any risk in undertaking the program. His response was: No, they wouldn't because she has the heart condition as a child. It's been fixed for a long time, and she said she fully recovered and she did no medication. Particularly in the second time when she come here, and she did the Program before and this never happened. Then I've been asking everything's okay, actually she feel better than before. It's not like before.
There was then the following exchange: Unidentified Male 2: You said you made a decision that the underlying conditions didn't pose a risk factor for your treatment Program. At the time you made that decision did the question of potassium levels or diarrhoea feature in your thinking as possible risk factors for [Patient A]? Dr Liu: For [Patient A]? No. One, she's fully recovered. Two [unclear] for her condition.
Patient A was not asked to complete an updated intake form, Informed Consent Form or Acknowledgment of Advice form on 9 January 2018 (or at any stage during her treatment in 2018).
Patient A attended the clinic on 16 occasions between 10 January and 31 January 2018. She saw Dr Liu on 4 of those occasions: on 13 January, 16 January, 20 January and 30 January 2018.
In his notes Dr Liu recorded in the TCMA follow up forms on those dates he has recorded a number against "Energy Level" in each form and Patient A's weight on each occasion. His notes are: for the 13 January consultation - "feeling well, more energy", for the 16 January consultation - "feeling lighter, more energy", for the 20 January consultation - "feeling much better lose 4.9kgs continue treatment add some herbs (and the herbal formula was adjusted in some minor respects) and for the 30 January consultation -: "feeling well, sleeping is good".
In his statement dated 31 January 2019, Dr Liu said that on 20 January 2018 at Patient A's consultation, he had a conversation with her to the following effect: [Patient A] said: This time I haven't been as serious as last time. I haven't been following your program strictly with eating, which is why my weight loss is slower. But I feel better. I've lost nearly 5kgs and I'm happy with my weight loss. I said: That's fine. Just eat as much as your body requires. You should eat only cooked green vegetables and cooked white protein, but you can eat raw cucumber.
His evidence was that Patient A was then put on an eating plan the next day at his instruction and this is consistent with the patient records in evidence. The eating plan was the standard eating plan that Dr Liu generally recommended once a patient on the program started eating solid foods. He said that when prescribing the eating plan, he generally informed patients: The eating plan is only a guideline and you can eat whatever your body feels like but we prefer that you eat natural food and not human processed food and food should only be eaten before 1pm. Listen to your body and if you are hungry, eat more.
The standard eating plan was that on the first, second, fourth, fifth and seventh days of the plan it was suggested that the patient have half a Lebanese cucumber before 1pm in addition to herbs 3 times a day and on the third and sixth days of the plan it was suggested that the patient have 50 grams of cooked white protein before 1pm with herbs 3 times a day.
While there is no evidence as to the duration of each consultation Dr Liu had with Patient A, at the s 150 hearing on 12 October 2018 Dr Liu said that for new patients he would spend somewhere between 45 minutes to an hour with them but for "old" (that is, existing) patients: In the old ones, normally when they do the acupuncture or I see them, I talk to them and make sure they're okay. It doesn't take long, maybe five minutes, 10 minutes, next person.
At the s 150 hearing in October 2018, Dr Liu said that as part of the daily review once a patient has started on the 101 Wellbeing Program: …particularly on the first 14 days, my team will treat them every day. The first question, and the first heading, is not only come from me it comes from my (indistinct) from the reception, "How do you feel (indistinct) today?" and then the patient feel, "I feel fine." Then, when the first thing, when the patient come into the treatment room, my practitioner will ask them, "How do you feel? Are you feeling okay? Is everything all right?" That's in general."
At the s 150 hearing in October 2018, Dr Liu admitted that he delegated to other staff members, who were not relevantly registered (either as Chinese Medicine practitioners or as acupuncturists), aspects of Patient A's care, by way of conducting the vast majority of the daily reviews and treatment (including acupuncture) she attended, while retaining overall responsibility for her care.
In his 13 March 2019 statement for the 2019 Tribunal Proceedings, Dr Liu said: 37. I accept that I did not specifically ask questions at follow-up consultations about bowel movements. In my experience, if a patient had experienced a change in bowel movements they would often mention that when I asked "How are you feeling?" and "Do you have any symptoms from the treatment?" 38. I did not check tongue and pulse at follow-up consultations for patients on the 101 Wellbeing Program for the following reasons: (a) During the first 4 weeks of the 101 Wellbeing Program, there was daily (during the first 14 days) or, at a minimum, weekly monitoring of the patient; (b) In my experience, during the first 14 days, the pulse and tongue change every day, making them an unreliable source of diagnosing any symptoms as a result of the 101 Wellbeing Program… (c) The tongue and pulse were checked if the patient disclosed abnormal symptoms (such as diarrhoea)…. 39…. Blood pressure and heart rate is not checked at follow up treatments…
Although Patient A's husband's evidence was that Patient A frequently had diarrhoea while she was on the 101 Wellbeing Program in 2018, and that is also noted in her hospital records, it has not been suggested that Patient A reported this to Dr Liu.
On the occasions Patient A saw another practitioner at the clinic, it was Dr Liu's brother, Shuping Liu who Patient A saw. Shuping Liu was a certified massage therapist. He was not a registered acupuncturist or a registered Chinese Medicine practitioner.
In the follow up notes of all 16 consultations with Patient A, there is no record of any examination of Patient A's tongue, pulse, blood pressure or heart rate or indication that she was asked about her bowel movements.

[14]

Dr Zhang

In evidence before the Tribunal is an expert report prepared by Dr Claire Shuiqing Zhang, an experienced Chinese Medicine practitioner, dated 1 March 2019 which was prepared for the 2019 Tribunal proceedings.
In Dr Zhang's opinion, before prescribing the 101 Wellbeing Program a competent and diligent Chinese Medicine practitioner would examine the patient's blood pressure, heart rate, pulse and tongue and these physical tests and inspections should be documented and repeated when a patient returns after an absence of six months. She said that if a patient had disclosed a history of a heart condition a competent practitioner would ask detailed questions about a patient's cardiac condition and if the patient could not provide detailed information, should ask the patient to obtain a letter from their GP with a summary of her current medical conditions and treatments. The practitioner should ask details about the patient's daily life status including sleep, urination and bowel movements. In her view a competent and diligent practitioner would also conduct a fully informed consent process including explaining the impact and risks of the 101 Wellbeing Program that may occur to any healthy adult as well as the impact and risks that may occur to a patient who had disclosed a medical history of having a heart condition. In her view a competent practitioner should insist on obtaining a letter from the patient's GP before prescribing the program together with a recommendation of whether the patient is safe to undertake the program.
In Dr Zhang's view on each patient visit to the clinic while on the program, a description of the patient's pulse and tongue should have been documented, and at each visit the patient's vital signs such as heart rate and blood pressure should have been examined and the patient should have been asked whether they were experiencing abnormalities in their daily life status including sleep, urination and bowel movements. She said the analysis of a patient's daily life status in combination with pulse and tongue description is essential for making a Chinese medicine syndrome differentiation diagnosis which would guide prescription of a treatment plan or modification of a current treatment plan.

[18]

Complaint One - Particular One

Particular One of Complaint One is that on 9 January 2018, Dr Liu failed to obtain sufficient information from Patient A, prior to her commencing the 101 Wellbeing Program in that he failed to: 1. obtain details as to Patient A's current health regarding her heart condition; 2. obtain details from Patient A's General Practitioner or specialist regarding her heart condition; 3. obtain further details as to the pattern of Patient A's fatigue; 4. obtain further details as to the pattern of Patient A's sleep; 5. obtain details as to Patient A's appetite, thirst, digestion, body pains and menstruation; and 6. obtain details of Patient A's current social history.
Surprisingly Dr Liu, in his Reply document, denies that Patient A commenced the 101 Wellbeing Program on 9 January 2018. However, this is at odds with his previous signed statements and his oral evidence in earlier proceedings as well as other evidence before the Tribunal. We find that Patient A did commence the 101 Wellbeing Program on 9 January 2018.
Dr Liu admits that he did not obtain details from Patient A's GP or specialist regarding her heart condition but denies that he did not obtain details as to Patient A's heart condition.
Dr Liu's own evidence as to his consultation with Patient A on 9 January 2018 is set out above. His evidence in his 11 October 2018 statement was that he asked Patient A "Do you have any changes with your health since you were last here?" and "Are you currently taking any medication?". He did not say in that statement that he had asked Patient A any questions about her heart condition. The notes in the TCMA Follow Up Treatment Form do not contain any reference to Patient A's heart condition (and nor do any of the subsequent follow up forms).
Dr Liu said under cross-examination in the 2019 Tribunal Proceedings that he had asked Patient A about her heart condition "symptoms" and that she had said she was: "normal, fully recovered, have no [problem], no medication". It is not clear from the transcript whether that was in fact a reference to Dr Liu's conversation with her when Patient A first came to see him in 2016 because it is consistent with his earlier evidence about their conversation on that date or whether Dr Liu was saying that this conversation occurred in almost identical terms on 9 January 2018. However, even if we were to accept that Dr Liu did ask Patient A on 9 January 2018 about her "symptoms" (which is by no means clear), it is clear from Dr Liu's own evidence that he did not ask Patient A any detailed questions about her heart condition. It is also clear from Dr Liu's evidence at the 2019 Tribunal Proceedings that he generally considered the onus was on the patient to disclose any relevant medical history, rather than the onus being on him to elicit relevant medical history by asking detailed questions.
As to the other details it is alleged Dr Liu did not obtain, it is clear from the TCMA Follow Up Form, that Dr Liu did ask Patient A some questions about her sleep and her menstruation as he has recorded: "feeling tired", "sleeping not well" and "period regular hurt at night sometime".
However, Ms Marchment's unchallenged evidence is that Dr Liu should have asked further details as to her sleep (and fatigue) including: when did she feel tired (morning or afternoon); in what way was her sleep not good (waking, sleep light or disturbed, or simply not long enough); what was her pre-bed routine, was dinner eaten late at night, how long would sleep last, did she wake naturally or with an alarm). Ms Marchment said that questions should also have been asked as to her appetite, thirst, digestion, body pains, menstruation and current social history. Dr Liu did not ask about any of these matters other than menstruation.
We find that the evidence put forward by the HCCC proves the allegations in each of the Particulars of Complaint One Particular One to the Briginshaw standard, other than Particular 1 (e) in so far as it concerns menstruation.

[19]

Complaint One - Particulars Two and Three

Complaint One Particulars Two and Three are that Dr Liu failed on 9 January 2018, or at any stage of his treatment of Patient A, to refer Patient A for specialist opinion with her General Practitioner or her cardiologist prior to her commencing the 101 Wellbeing Program despite her recorded history of a congenital heart condition and open heart surgery.
In his Reply Dr Liu admits that he did not on 9 January 2018 or at any stage of his treatment of Patient A in 2018 refer Patient A for a specialist opinion with her General Practitioner or cardiologist. He points, however, to the Acknowledgment of Advice form signed by Patient A in July 2016 which stated that Patient A acknowledged that Dr Liu had recommended she not undertake treatment without the consent of or supervision of her GP or other specialist but that she had elected to accept treatment without obtaining that consent and without supervision.
Ms Marchment in her report dated 3 December 2022 identifies the failure to refer the Patient A for specialist opinion form her GP or cardiologist as a professional failure in the case of Patient A: Severe food restriction holds risks for those with heart problems, and it was therefore especially relevant to refer the patient for specialised advice, and to see her consulting specialist that she saw each year to monitor the heart condition…She did not have the capacity to assess the risks and it was the responsibility of the practitioner to explain the risks and also make sure she spoke to her specialist who could order investigations if appropriate or otherwise give his expert advice. A cardiac patient is at higher risk than most, and it was essential to get that advice before embarking on a starvation diet, with virtually no calories, and no balanced nutrition."
Dr Zhang's opinion also was that a competent and diligent practitioner should have insisted the patient obtain a letter from their GP before prescribing the program. It was her view that a competent and diligent practitioner "should not prescribe the 101 Wellbeing program without obtaining recommendations from this patient's GP or specialist".
While Dr Liu admits in his Reply that he did not on 9 January 2018 or at any stage of his treatment of Patient A in 2018 refer Patient A for a specialist opinion with her General Practitioner or cardiologist in his 31 January 2019 statement Dr Liu said that he said to Patient A "you need to get your GP or specialist consent".
Even if Dr Liu did say that, that does not, in our view, amount to a "referral". However, in our view it is likely that he did not say that - if he did, you would expect that he would not proceed to administer the program without first having obtained it and yet he proceeded to administer the program that day.
It is also not consistent with the 101 Wellbeing Program brochure which suggests that the choice to seek a GP or specialist opinion is up to the patient and can be done "before you commence the treatment, or at any time during or after the program".
Nor is it consistent with Dr Liu's 11 October 2018 statement where he concluded: Having reflected for some time on this matter, I will impose the following additional steps in my practise to minimize the risk of any adverse outcome for a patient on my 101 Wellbeing program: (a) I will request that all new patients that have had previous or current significant health issue (including any history of a heart problem) consult their GP or specialist for advice on the possible risks of undergoing the 101 Wellbeing program, and allow me to speak to that GP or specialist before they commence that program; … (emphasis added)
We do not accept that Dr Liu said that to Patient A on 9 January 2018.
We find that the evidence put forward by the HCCC proves the allegations in Particulars Two and Three of Complaint One to the Briginshaw standard.

[20]

Complaint One - Particular Four

Particular Four of Complaint One is that on 9 January 2018, Dr Liu failed to explain the specific relevant risks to Patient A prior to her commencement of the 101 Wellbeing Program namely that: 1. she was at a higher risk of an adverse response to severe food restriction as a result of her heart condition; 2. nutritional and electrolyte imbalances may be experienced as a result of vomiting and diarrhoea which can be experienced by extreme dieting; 3. increased urination resulting from diuretic herbs can also cause electrolyte loss; 4. low magnesium level can cause hypokalaemia; 5. low serum potassium levels (hypokalaemia) can result in heart arrhythmias; and 6. heart arrhythmias can increase the risk of a cardiac arrest.
In his Reply, Dr Liu denies that the matters referred to in Particular Four were risks associated with the 101 Wellbeing Program.
Ms Marchment summarised the risks posed to Patient A by undertaking the 101 Wellbeing Program in her report (and her supplementary report) as follows: Longer periods of severe fasting or starvation may be tolerated by some but present an increased risk of adverse events with serious outcomes caused by malnutrition and electrolyte imbalance. In my opinion, the Subject was at higher risk than most for an adverse response to the severe food restriction that was the chief feature of the program because of her history of heart problems, for which she was undergoing continued monitoring. Nutritional and electrolyte deficits can be exacerbated by diarrhoea or vomiting which are sometimes experienced by those on an extreme fasting diet. Increased urination caused by diuretics (including diuretic herbs) can also cause electrolyte loss. Low serum potassium levels (hypokalaemia) can result in heart arrhythmias, Low magnesium levels can cause hypokalaemia. Nutritional deficits and electrolyte imbalances are particularly relevant for the following categories: … - Those with poor cardiac function or cardiovascular disease because the reduction in electrolytes has the potential to have an adverse effect on the function of the heart muscle. I believe the above information suggests that the Subject was at increased risk of an adverse event when undergoing the 101 Wellness Program: the risk outweighed any benefit - and there are alternative ways of managing weight. I believe that most health practitioners would consider that the risk for hypokalaemia was significant, and because of her medical history, it held even greater significance for her.
In evidence before the Tribunal is also a report dated 6 November 2018 by Dr Michael Kennedy a Consultant Physician and Clinical Pharmacologist.
Dr Kennedy states: Patients with repaired congenital heart lesions have a high incidence of arrythmias both supraventricular and ventricular in later life. They are a leading cause for hospital admissions, morbidity, impaired quality of life as well as mortality. … Many factors can precipitate cardiac arrythmias. Hypoklaemia (a low plasma potassium) is one of many. … Hypoklaemia is well recognised as occurring in numerous cardiac conditions such as myocardial infarction and in patients with cardiac failure.
We find that each of the matters in paragraphs (a) -(f) of Particular Four were risks to Patient A in undertaking the 101 Wellbeing Program.
On the evidence there is no doubt that Dr Liu did not explain these risks to Patient A. He did not consider that they were risks. His clinical notes do not record any risks as being communicated to Patient A. Dr Liu has not suggested anywhere in his prior evidence that he did so and it appears to have been Dr Liu's view that potassium levels and diarrhoea were not risk factors generally because in his experience patients were more likely to have fewer bowel movements while on the program, rather than diarrhoea. He admitted in his evidence under cross-examination that he generally did not mention diarrhoea as a risk to patients. He also did not consider it a risk for Patient A because she told him (in 2016) that she was "fully recovered" and (in 2018) that there were no changes to her health.
In the 2019 Decision the Tribunal also noted at [47]: In oral evidence Dr Liu could not give evidence of any specific disclosures or potential risks, or of particular side effects to be alert for, that he would as part of his usual practice provide to patients in response to them disclosing pre-existing health conditions.
Dr Liu ought to have known of the specific relevant risks in order to explain them to Patient A. As Ms Marchment explains: Chinese Medicine practitioners are trained not only in Chinese dietary theory but also in biochemistry, physiology and disorders as described in Western biomedicine. They are aware of the adverse effects of macro and micro nutrient imbalances. Chinese Medicine does not advocate severe fasting, and most practitioners have studied biosciences and would be aware of the risk of placing a patient with chronic heart disease on a starvation diet.
Further Dr Liu's Acknowledgment of Advice Form stated: "Dr Liu recommended that I did not undertake such treatment without the consent of and under the supervision of my GP or other specialist". This recommendation suggests that, despite his failure to inform Patient A of relevant risks, and his inability or unwillingness to identify the risks the 101 Wellbeing Program carried throughout the course of this matter, Dr Liu was in fact aware at the time of treating Patient A there may be adverse consequences for her as a result of undertaking the 101 Wellbeing Program. This form, in our view, far from being patient focused, served to seek to protect Dr Liu against litigation if those risks were realised.
If Dr Liu had asked detailed questions about Patient A's heart condition, which we have found he failed to do, we consider that these specific risks would have been identified. Those risks should have been explained to Patient A. They were not.
We find the evidence put forward by the HCCC proves the allegations in Particular Four of Complaint One to the Briginshaw standard.

[21]

Complaint One - Particular Five

Particular Five of Complaint One is that Dr Liu failed to obtain informed consent from Patient A, prior to placing her on the 101 Wellbeing Program in 2018 as a result of his failure to: 1. inform her that his prescribed diet of Chinese Herbal Liquids three times daily and no solid foods is not a traditional part of Chinese Medicine and is not supported in the foundational theory or in the seminal text of Chinese medicine; 2. inform her that the herbs did not provide adequate nutrition or calorific value for daily living; 3. inform her that there was insufficient recorded data or studies to verify the efficacy of the 101 Wellbeing Program in treating 'lack of energy' and poor sleep; and 4. identify and explain the specific risks associated with his herbal liquid diet in the context of her heart condition.
As to Particular 5(a), that the 101 Wellbeing Program is not supported in the foundational theory or in the seminal text of Chinese medicine is established by Ms Marchment, whose unchallenged evidence was that "fasting is not a traditional part of Chinese Medicine and is not supported by foundation theory" and that the seminal text of Chinese Medicine studied by all students identifies risks involved in fasting. Not only is it clear that Dr Liu did not inform Patient A that this was the case - it is not referred to in any of the forms Patient A signed - but his brochure implies that the program was, in fact, a traditional Chinese Medicine treatment.
As to Particular 5(b), the expert dietitian engaged on behalf of Dr Liu, Dr Barclay, opined that the nutritional or calorific value of the herbs prescribed was limited to approximately 10% of daily requirements: Consuming the herbal decoction three times per day for 14 days without solids provides an estimated average daily energy intake of 646 - 786 kJ per day for women and 646-822 kJ for day for men, and has generally low to moderate levels of most nutrients. Average energy requirements for Australian adults aged 31-50 years are 6,500 - 8,500 kJ per day. As such, it doesn't provide sufficient nutrients as a stand-alone dietary regime [providing approximately 10% of required daily kilojoule intake] , and is a form of a fast.
It is worth noting that Dr Barclay also said in his 11 September 2020 report: High quality evidence to skip one main meal a day (such as dinner) as a weight loss strategy is currently limited and effects on safety are unknown. …
Further in his earlier report he had said: However, fasting can be fatal in people with pre-existing health conditions such as (but not limited to): • Cardiovascular disease (e.g Cardiac ischemia, heart failure, left ventricular hypertrophy; • Diabetes 9e.g type 1); and • Kidney disease…
Dr Zhang's opinion was that the prescribed herbal decoction "does not provide sufficient nutrients (except for omega-3 fat and selenium) to an adult female". Further she said that while: an average healthy adult female should be able to maintain certain body functions for a certain period of time even if there is not sufficient nutrients intake, because the body has stored some fat and nutrients…I would have concerns about whether the patient could maintain healthy bodily function based on such little nutrient intake.
There is also in evidence an opinion obtained by NSW Police from Dr Zianqui, Associate Professor in Pharmacology of Herbal Medicine at the University of Technology Sydney, who reviewed the ingredients of the herbs prescribed to Patient A and opined: …my concern is that the herbal solution was given three times daily, instead of solid food for 14 days, followed by limitation of food intake for another 14 days. I do not think the herbal solution contains sufficient nutrients, microelements, vitamins and electrolytes for body function.
Ms Marchment's evidence was that "herbs are used [in Chinese Medicine practice] to promote physiological functions, not to provide nutrients" and "although there is some nutrient content, it is insufficient to provide a healthy balance of nutrients thus posing the risk of malnutrition over the extended period of eight weeks."
It is clear that Dr Liu did not inform Patient A that the herbs did not provide adequate nutrition. His brochure states that the herbs are "rich in nutrients",implying quite the opposite.
As to Particular 5(c), it is clear on the evidence that Dr Liu's assessment of the effectiveness of the program relied solely on his own observations of the patients he had personally treated on the program. There was no recorded data or statistics to verify the efficacy of the program in treating a lack of energy or poor sleep or otherwise.
As to Particular 5(d), we have found above that the specific risks identified in Complaint One Particular Four were not explained to Patient A prior to her commencing the 101 Wellbeing Program.
There is no doubt on the evidence that Dr Liu did not inform Patient A of any of the matters in Particular Five paragraphs (a) - (d) on 9 January 2018 or at any stage of her treatment.
Ms Marchment and Dr Zhang's opinion was that Dr Liu's failure to identify and explain to Patient A the risks associated with the herbal diet in the context of her heart condition amounted to a failure to obtain informed consent. We agree. It was not sufficient for him to rely upon the Acknowledgment of Advice form that Patient A had signed in 2016.
Ms Marchment's opinion was: The circumstances surrounding the patient's medical history combined with the nature of the treatment make it very clear that the practitioner has an absolute obligation to explain the implications to the patient and persuade her to seek her specialist's advice before commencing treatment. Providing an "Acknowledgment of Advice" is not an ethical option under these circumstances. If the patient protests, the onus is on the practitioner to make a better and clearer explanation, so the patient understands the risk, even if the risk is relatively low. Chinese Medicine does not advocate severe fasting, and most practitioners have studied biosciences and would be aware of the risk of placing a patient with chronic heart disease on a starvation diet. … [I]t was incumbent on the practitioner to explain very carefully to the patient the implications of the 101 Wellness Program where food is withheld for two weeks, for a patient with a history of heart disease. Informed consent means providing all pertinent information in the knowledge that the patient is unlikely to understand the facts impacting on their health. The practitioners also has an obligation to provide information about alternative methods of weight loss. There is no evidence of specific information being given to the patient either by word or by an information sheet, explaining the high risk of a severe fasting diet for a person with cardiac problems. When she decided not to see a GP or a specialist, rather than ask her to sign the Acknowledgement of Advice, it was the responsibility of the practitioner, who had greater medical and health knowledge than the patient, to provide further information and a more persuasive explanation, and insist on that step being taken before accepting her on the 101 Wellness Program. The practitioner should not have proceeded with the treatment simply because she agreed to sign the Acknowledgment statement because if she truly understood the risk, she would not have signed and would have seen her heart specialist.
Dr Zhang's opinion was also that the signing of Acknowledgment of Advice form was inadequate, and the fully informed consent process for a competent and diligent Chinese Medicine practitioner should have involved (both in July 2016 and January 2018) explaining the impact and risks of the program that may occur to any healthy adult and explaining the impact and risks of the program that may occur to a patient who had disclosed a medical history consistent with Patient A's clinical records and that Dr Liu should have insisted on obtaining a letter from Patient A's GP before prescribing the program.
We find the evidence put forward by the HCCC proves the allegations in Particular Five of Complaint One to the Briginshaw standard.

[22]

Complaint One - Particular Six

Particular Six of Complaint One is that between 9 and 31 January 2018, Dr Liu failed to adequately monitor Patient A in that he: 1. personally reviewed Patient A on only four of the 16 occasions she presented to the TCMA clinic; 2. conducted follow up consultations that were generally 5-10 minutes long; 3. failed to examine Patient A's tongue at each follow up consultation which is an essential assessment tool in Chinese Medicine; 4. failed to take Patient A's pulse which is an essential assessment tool in Chinese Medicine; 5. failed to take Patient A's blood pressure which is an essential assessment tool in Chinese Medicine; 6. failed to ask relevant questions regarding Patient A's bowel movements which is an essential assessment tool in Chinese Medicine; 7. failed to ask any or sufficient questions in order to assess Patient A's progression on the 101 Wellbeing Program including the patterns and details of her energy levels and poor sleep; 8. failed in delegating Patients A's progression on the 101 Wellbeing Program to an aspect of monitoring her progress to his receptionist, who asked words to the effect of "how do you feel today" and/or "are you feeling ok? Is everything alright?; 9. [deleted] 10. did not consider or inadequately considered the nutritional needs specific to Patient A, when he recommended the 101 Wellbeing Program to Patient A; 11. did not consider or inadequately considered the physiological needs of Patient A, when he recommended the 101 Wellbeing Program to Patient A; and 12. exercised poor clinical judgment in placing Patient A on the 101 Wellbeing Program in 2018.
As to Particular 6(a), it is clear from the follow up forms that Dr Liu saw Patient A on 9, 13, 16, 20 and 30 January 2018 and Patient A was seen by Dr Liu's brother on each other occasion. Dr Liu has confirmed this in his evidence.
As to Particular 6(b), while there is no evidence of the specific duration of his follow up consultations with Patient A, Dr Liu's evidence at the s 150 hearing on 12 October 2018 was that for existing patients, which he clearly considered Patient A to be, he generally spent 5-10 minutes with them in their follow up consultations.
As to Particulars (c), (d), (e) and (f) - failure to examine Patient A's tongue, take Patient A's pulse or blood pressure and failure to ask about Patient A's bowel movements in his follow up consultations with her, Dr Liu has admitted in his March 2019 statement that he did not do any of these things.
Dr Zhang's evidence was that it was critical to monitor Patient A's health status during follow up consultations including, for each visit, an examination of the pulse and tongue, measuring vital signs such as heart rate and blood pressure and enquiring about bowel movements.
Ms Marchment's evidence was that, other than blood pressure, these are a standard part of follow up consultations in Chinese Medicine. As to blood pressure in her oral evidence Ms Marchment said that taking blood pressure as a matter of course is not a traditional part of Chinese medicine. However, she said that it should be done either, where there is a problem, or where it is relevant to the consultation. In her report she concluded that "more careful monitoring was required with the starvation diet and it should have included taking the blood pressure."
While Ms Marchment's evidence was that Dr Liu should have taken Patient A's blood pressure, it does not go so far as to say taking blood pressure was an essential assessment tool in Chinese Medicine. On the evidence, we do not consider the HCCC has established that it was. We find that Dr Liu failed to take Patient A's blood pressure, but not that it was an essential assessment tool in Chinese medicine. Accordingly, Particular 6(e) has not been proved in that respect.
In her oral evidence Ms Marchment also said that a practitioner would "think three times" before prescribing the herbs Dr Liu prescribed to Patient A in the context of diarrhoea concerns.
As to Particular 6(g), failing to ask any or sufficient questions in order to assess the patterns and details of energy levels and poor sleep, this is indicated by the clinical records all of which contain either minimal or no reference to sleep and minimal reference to energy levels, which are in some instances inconsistent with the patient notes (for example on one occasion noting that Patient A had reported "more energy" but was assigned the same energy level as she previously had been).
As to Particular 6(h), that Dr Liu failed in delegating Patient A's progression to an aspect of monitoring to the receptionist, we do not find that this is proved on the evidence before the Tribunal. Dr Liu's evidence was that the receptionist would ask a patient how they were feeling that day, but then the patient would be seen by another of the practitioners (who was not a registered Chinese Medicine practitioner) who would also ask them how they felt and "Is everything all right". Dr Liu, therefore, may have delegated an aspect of the monitoring of Patient A to another/other unregistered practitioners, but we do not find that he delegated this task to the receptionist.
As to Particular (j) and (k) - Dr Liu's consideration of Patient A's nutritional and physiological needs - there is no evidence that Dr Liu did consider the nutritional and physiological needs specific to Patient A when recommending the 101 Wellbeing Program to her and the fact that the herbs prescribed to Patient A at the commencement of the program have been assessed as not providing adequate nutrition leads us to conclude that he inadequately considered these needs when recommending the program to her.
As to Particular 6(l), that Dr Liu exercised poor clinical judgment in placing Patient A on the 101 Wellbeing Program in 2018, we have found that Dr Liu failed to obtain sufficient information from Patient A as to her heart condition and her health more generally before doing so, did not refer Patient A for specialist opinion with her GP or specialist and failed to explain to her the risks of the program. It follows, in our view, that Dr Liu did exercise poor clinical judgment in placing Patient A on the program in 2018 without having done any of these things.
We find the evidence put forward by the HCCC proves the allegations in Particular Six of Complaint One other than Particular 6(e) and 6(h) to the Briginshaw standard. It follows that we find that Dr Liu did fail to adequately monitor Patient A between 9 and 31 January 2018 while she was on the 101 Wellbeing Program.

[23]

Complaint One - Particular Seven

Particular Seven of Complaint One is that Dr Liu failed to adhere to the following Guidelines or Codes without a reasonable basis when he: 1. failed to label the sachets of herbs (the concoction) with the ingredients given to Patient A, as required by current Chinese Medicine Board of Australia, Guidelines for Safe Chinese Medicine Herbal Practice (2015), clause 3; 2. failed to implement individualised care to Patient A consistent with the Registered Health Practitioner's Code of Conduct, Chinese Medicine Board of Australia March 2014; 3. implemented a complete liquid diet equivalent to extreme fasting which is not in accordance with current and accepted Chinese Medicine practises and is contrary to Chapter 2.2 of the Registered Health Practitioner's Code of Conduct, Chinese Medicine Board of Australia March 2014; 4. failed to obtain informed consent consistent with the requirements of Chapter 3.5 of Registered Health Practitioner's Code of Conduct, Chinese Medicine Board of Australia March 2014; 5. referred Patient A's ongoing physical monitoring to unregistered practitioners which is inconsistent with the terms of Chapter 4.3 of Registered Health Practitioner's Code of Conduct, Chinese Medicine Board of Australia March 2014
As to Particular 7(a), Dr Liu admitted in oral evidence in the 2019 Tribunal Proceedings that he did not label the sachets of herbs in accordance with the guidelines, as noted by the Tribunal in their decision.
As to Particular 7(b) we have found that Dr Liu failed to obtain sufficient information from Patient A as to her heart condition and her health more generally before placing her on the program, failed to refer her to her GP or specialist and failed adequately to monitor Patient A while on the program. It follows from this that Dr Liu failed to implement individualised care to Patient A in accordance with the Code of Conduct which provides, relevantly (Chapter 2.1): Providing good care includes: … (b) formulating and implementing a suitable management plan (including providing treatment and advice and, where relevant, arranging investigations and liaising with other treating practitioners); … (d) recognising the limits to a practitioner's own skills and competence and referring a patient or client to another practitioner when this is in the best interests of the patient….
As to Particular 7(c), Chapter 2.2 of the Code of Conduct provides, relevantly: Good practice involves: … (n) practising in accordance with current and accepted evidence base of the health profession, including clinical outcomes
Implementing a complete liquid diet equivalent to extreme fasting was not in accordance with current and accepted Chinese Medicine practises.
As to Particular 7(d), Chapter 3.5 of the Code of Conduct provides, relevantly, in so far as informed consent is concerned: Good practice involves: … (b) obtaining informed consent or other valid authority before undertaking any examination of investigation, providing treatment … including providing information on material risks.
We have found above that Dr Liu did not obtain Patient A's informed consent before placing her on the 101 Wellbeing Program in 2018.
As to Particular 7(e) Chapter 4.3 of the Code of Conduct, relevantly provides, in so far as delegation is involved that: Good practice involves: (a) taking reasonable steps to ensure that any person to whom a practitioner delegates, refers or hands over has the qualifications and/or experience and/or knowledge and/or skills to provide the care required….
Dr Liu admitted at the s 150 hearing in October 2018 that he delegated to other staff members, who were not relevantly registered (either as Chinese Medicine practitioners or as acupuncturists), aspects of Patient A's care, by way of conducting the vast majority of the daily reviews and treatment (including acupuncture) she attended.
We find the evidence put forward by the HCCC proves the allegations in Particular Seven of Complaint One to the Briginshaw standard.

[24]

Complaint One - Particular Eight

Particular Eight of Complaint One is that Dr Liu failed to maintain appropriate clinical records in relation to his treatment of Patient A in that: 1. they lacked sufficient detail for another practitioner to understand the course of treatment, assess its impact and continue care pursuant to 8.4(d) of the Code of Conduct; 2. they did not record the results of any tongue examination, pulse reading, blood pressure, and bowel movements during the period Patient A was on the 101 Wellbeing Program.
As to Particular 8(a), Dr Liu has recorded very little in his initial consultation notes of 9 January 2018 with Patient A and in the follow up notes of his later consultations with her. In relation to the latter, this is partly because his consultations with her were extremely brief.
In his 9 January 2018 notes Dr Liu has not recorded that Patient A was not taking any medication. This was, he said, because that was "normal" in Chinese medicine and did not, therefore require recording. He has not recorded anything about Patient A's heart condition.
Chapter 8.4(d) of the Code of Conduct provides that in so far as health records are concerned: Good practice involves: (a) keeping accurate, up to date, factual, objective and legible records that report relevant details of clinical history, clinical finding, investigations, information given to patients or clients, medication and other management in a form that can be understood by other health practitioners … (d) ensuring that records are sufficient to facilitate continuity of care
We find that Patient A's clinical records lacked the necessary detail to facilitate a continuity of care.
As to Particular 8(b), it is clear that the clinical records in relation to his treatment of Patient A did not record, at least in so far as his follow up treatments were concerned, results of any tongue examination, pulse reading, blood pressure or bowel movements and Dr Liu has admitted that he did not carry out these examinations.
We find the evidence put forward by the HCCC proves the allegations in Particular Eight of Complaint One to the Briginshaw standard.

[26]

Complaint Two

Complaint Two is that Dr Liu is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that he has engaged in improper or unethical conduct relating to the practice or purported practice of Chinese Medicine.
The Particulars of Complaint Two are that when he administered the 101 Wellbeing Program to Patient A in 2018 he knew or ought to have known the 101 Wellbeing Program was not recognised in Chinese Medicine and/or he failed to provide any data or literature or information to Patient A to support the prescribing of the 101 Wellbeing Program.
Dr Liu held the 101 Wellbeing Program out to patients as a traditional Chinese Medicine treatment, delivered by him as a Chinese Medicine practitioner, under the auspices of a business called "Traditional Chinese Medicine Australia". The brochure stated: Welcome to Traditional Chinese Medicine Australia, Australia's leading provider of traditional Chinese Medicine practices. We believe it is possible for every Australian to live a long and healthy life free of pain and disease using traditional Chinese treatments and wisdom that have worked for more than 5,000 years.
While it is somewhat surprising that the program had clearly come to the attention of Council and Dr Liu had nevertheless been allowed to continue prescribing it to patients (subject to certain conditions) it is clear on the evidence that at the time he administered the 101 Wellbeing Program to Patient A in 2018 Dr Liu knew the program was not, in fact, recognised in Chinese Medicine. In his statement dated 31 January 2019 Dr Liu's evidence was that he began developing the 101 Wellbeing Program around 1993. He said: The program is based on ancient Chinese medicine principles, namely Bigu. … Although the 101 Wellbeing Program is a modified version of Bigu and not used by other practitioners in Chinese medicine, it is not unusual for Chinese medicine practitioners to prescribe a treatment which involves herbal decoctions together with strict food restriction (including fasting) to treat a patient's ailments.
The evidence is also clear that Dr Liu did not, when he saw Patient A in 2018, provide any data, literature or information to Patient A to support the prescribing of the program to her at that time. In 2018 when Patient A came back to see him again Dr Liu did not provide Patient A with any material. He had provided Patient A in 2016, when she first came to see him, with a copy of the "101 Wellbeing Program" brochure but nothing in that brochure could be said to support the prescribing of the program to her at that time or in 2018.
This is unsurprising as there was no data, literature or information to support the prescribing of the program, other than Dr Liu's personal observations (which appear not to have been documented or analysed) of other patients who had undertaken the program. It is worth noting that Dr Barclay, Dr Liu's expert, said in his 11 September 2020 report: High quality evidence to skip one main meal a day (such as dinner) as a weight loss strategy is currently limited and effects on safety are unknown.
If there was limited evidence to support s strategy of skipping one meal a day, it must follow, that there was also insufficient evidence to support the 101 Wellbeing Program which involved eating no food at all (and drinking a herbal decoction three times a day).
We find that the evidence put forward by the HCCC proves the allegations in each of the Particulars of Complaint Two to the Briginshaw standard.
"Improper" and "unethical" and not defined in the National Law. The Tribunal considered the meaning of those terms in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[55] stating as follows: "51. The words 'improper' and 'unethical' are not defined in the National Law. The Macquarie Dictionary defines improper as follows: '1. not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3. unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. abnormal or irregular.' 52. Unethical is defined as follows '1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct.' 53. The word improper was the subject of discussion by. French CJ in Parker v Comptroller of Customs (2009) 83 ALJR 494, [2009] HCA 7. The Chief Justice said: '… [t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".' 54. Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term 'impropriety' in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (see HCCC v Phung (No 1) [2012] NSWDT 1, Health Care Complaints Commission v Fisher [2016] NSWCATOD 62). The test of whether the conduct is improper is an objective one. 55. The words improper and unethical were considered by this Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes & Hopwood, noted: 'Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. …'"
Dr Liu knowingly and deliberately promoted the 101 Wellbeing Program under the guise of traditional Chinese Medicine which was misleading. In our view this clearly demonstrates impropriety. We find that Dr Liu's conduct in this regard was improper or unethical as those terms are understood.

[27]

Complaint Four

The question we must then determine is whether the conduct we have found to be unsatisfactory professional conduct amounts to professional misconduct.
In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19]-[20], Basten JA explained: 19. … The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation. … 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. …
In assessing the seriousness of the conduct, it is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638; [1997] NSWCA 264.
The conduct we have found Dr Liu engaged in at every stage of Patient A's treatment was extremely serious misconduct.
Dr Liu's attitude to Patient A's treatment was entirely cavalier. His assessment of her, treatment of her and monitoring of her wellbeing on the program was completely perfunctory at best.
Dr Liu made no proper enquiries as to Patient A's heart condition when she returned to see him in 2018, being satisfied that it was enough that she had told him in 2016 that she was "fully recovered" and in 2018 in response to the question :"Do you have any changes with your health since you were last here", "No, everything is good." While it appears that Dr Liu was not told Patient A was subject to periodic monitoring by her cardiologist, he should have asked enough questions to elicit that information. Having elicited it, he should have obtained a letter from her GP and/or cardiologist approving Patient A's undertaking the program which involved significant increased risks to someone with a medical history such as hers.
Dr Liu did not adequately monitor Patient A while she was on the program. Indeed, he barely monitored her at all, delegating most of the monitoring to other practitioners who did not have relevant qualifications.
It is not suggested that Dr Liu was told that Patient A was suffering from diarrhoea. There is no doubt, however, that she was. It is recorded in Patient A's hospital records. Again, Dr Liu should have asked Patient A about her bowel movements. Had he done so, this information would have been elicited and the risks that that highlighted could and should have been identified and acted upon.
Dr Liu seems to have considered it sufficient to simply assume that a patient in Patient A's position would volunteer all relevant information, and that if they didn't, there was nothing to be concerned about.
Dr Liu's failures in respect of the treatment of Patient A were egregious, all the more so in circumstances where he knew that the 101 Wellbeing Program was not recognised as part of traditional Chinese Medicine and where he was holding it out as being so.
Dr Liu's conduct amounted to a gross lack of care and/or reckless indifference to the health and safety of Patient A. It is clear, in our view, that his conduct amounted to professional misconduct.
We find Complaint Four is proved.

[28]

Disciplinary orders - principles

Section 3(2) of the National Law makes it clear that the objectives of the National Law include providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.
The purpose of disciplinary orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. However, that is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31].
In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA gave the following explanation at [35]: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In the exercise of its protective jurisdiction the Tribunal must take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the profession and, more broadly, the protection of the community: Gayed v Walton [1997] NSWCA 121; Prakash v Health Care Complaints Commission [2006] NSWCA 153.
As we have found Dr Liu guilty of professional misconduct, if he were still registered it would have been open to us to cancel his registration under s 149C(1)(b) of the National Law. However, that outcome is not automatic: Health Care Complaints Commission v Dobie (No 2) [2022] NSWCATOD 153 at [4].
In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA stated at [21] and [22]: [21]… [I]n determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make..."
There may be circumstances where, although a practitioner has been found guilty of professional misconduct, the practitioner has demonstrated to the Tribunal that they have gained insight into their behaviour, have shown remorse, and have taken sufficient steps to address their behaviour such that the Tribunal may have comfort that the practitioner would not be likely to engage in conduct of a similar nature again.
This is not such a case.
Dr Liu appears to have expressed no real remorse and has demonstrated a complete lack of insight into the risks his 101 Wellbeing Program poses to patients.
It is of real concern to us that Dr Liu's failures in his treatment of Patient A came against the backdrop of earlier conditions having been placed on his registration aimed at ensuring patients only undertook or considered undertaking his extreme fasting program with the consent of or under the supervision of their general practitioner or other medical specialist.
Notwithstanding the imposition of these conditions, Dr Liu appears to have continued to fail to recognise the risk to patients of undertaking his program.
Further, Dr Liu appears to continue to believe in the efficacy of his program notwithstanding the expert evidence he has been provided over the course of the history of this matter which highlights its risks.
While Dr Liu agreed in October 2020 not to administer the 101 Wellbeing Program to enable the lifting of the suspension of his registration, Council had noted that at the 15 July 2020 hearing prior to this occurring: Council acknowledge that Dr Liu has agreed that he will undertake not to administer the 101 program or any other prolonged fasting program. Council further noted that in the Tribunal's decision, it is "Dr Liu's commitment to the 'success' of his program that gave the panel real concern for his professional judgment". We note that despite the Tribunal's concern in relation to the 101 program 'success', in Dr Liu's statement (para 47) he states he continues to believe in the efficacy of the prolonged supplemented fast. The Council also noted Dr Liu's insistence on the benefits of prolonged fasting programs. The Tribunal commented (para 99) that "the question from Dr Liu's perspective appeared to be whether the patient was obviously unsuitable for 101, not whether the program was necessary or appropriate for the needs of each particular patient". Further, during the Tribunal Dr Liu responded that "he would not in future adapt the program to include small amounts of food throughout, because if he did so it would be less 'successful". It is noted that Dr Liu in his statement (para 48) although he is no longer prescribing the 101 program, he intends to continue to provide patients with advice restricting meal sizes and the number of times a patient eats a day. He states that he "will not recommend fasting to a patient which goes beyond the patient missing dinner'. This indicates to the Council that despite his assurance that Dr Liu will not prescribe the 101 program, it is his intention to continue to prescribe treatments including restricted food intake.
It is of further concern that, even after all that Dr Liu had been through in seeking to maintain his registration, that in 2022 the Council was again raising concerns that he may not have been complying with the conditions imposed on his registration suggesting a continued indifference to patient safety.
In its 19 August 2022 letter Council noted: Council has also noted concerns that your documentation of patient progress rarely reflects the level of detail expected in the treatment of patients seen on a frequent basis, and mostly only makes minor references to sleep quality and vague references to patient feelings, which are at times inconsistent with other details recorded and appear to be copied over. They rarely indicate any developments, such as pain or tension, headaches, digestive issues, and are particularly deficient in recording changes in tongue and pulse presentations, and energy levels that you would expect to occur over such intensive periods of treatment. Council has also pointed out in its feedback, instances of where there is no ongoing monitoring of the chronic condition symptoms during your often lengthy treatment period.

At a glance

Court

Decision date

Source

Judgment (35 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (27)

Cited By (1)