Health Care Complaints Commission v Luo - [2025] NSWCATOD 5 - NSWCATOD 2024 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Luo

[2025] NSWCATOD 5

NCAT Occupational|2024-05-22|Before: Dr P

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Source facts

Court

NCAT Occupational

Decision date

2024-05-22

Before

Dr P

Source

Original judgment source is linked above.

Judgment (78 paragraphs)

[1]

Solicitors: Health Care Complaints Commission (Applicant) Yun Sen Luo, self-represented (Respondent) File Number(s): 2023/00361650 Publication restriction: The Tribunal made an order pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting the disclosure to any person or entity of the names, addresses or any other identifying information of the persons listed in the Schedule to the Amended Complaint filed by the applicant.

[2]

Table of Contents REASONS FOR DECISION Introduction The Amended Complaint Background to all complaints Complaint One Complaint Two Complaint Three Complaint Four The practitioner's Reply Preliminary matters Application for summary dismissal Challenge to the expertise of Dr Ee Application for an adjournment Cross examination of experts by practitioner Evidence before the Tribunal: The Commission's documents Summary Evidence before the Tribunal: The practitioner's documents Factual Findings The practitioner and his practice Patient A The relevant conduct of the practitioner Police interview of Person B, 8 June 2018 Conversation between Person B and the practitioner, 11 June 2024 Complaint to the Commission Practitioner's Response to Council, 18 June 2018 Section 150 hearing, 27 June 2018, Decision 17 July 2018 Court Attendance Notice, 16 August 2018 Section 150A hearing, 23 May 2023, Decision of 11 July 2023 Some overarching observations The cause of death of Patient A Demeanour and credit of the practitioner Submissions of the Parties The Commission The practitioner Renewed application for dismissal of the proceedings The expert evidence of Dr Ee Consideration of Complaint One Particular (1) Particular (2) Particular (5) Particular (6) Particular (7) Particular (8) Particular (9) Particular (10) Particular (11) Particular (12) Particular (13) Particular (14) Conclusion re Particulars of Complaint One Is Complaint One established? Consideration of Complaint Two Consideration of Complaint Three Is Complaint Three established? Consideration of Complaint Four Conclusion Orders

[7]

Particulars of Complaint One

The Particulars of Complaint One are: 1. on 26 May 2018, during the initial consultation, the practitioner failed to appropriately assess Patient A, for the purpose of prescribing therapeutic treatment, including that he failed to: 1. obtain a sufficient medical history for Patient A; 2. obtain a sufficient history regarding Patient A's "high blood sugar"; 1. on 26 May 2018, during the initial consultation, the practitioner provided inadequate care and treatment to Patient A by advising her to cease all Western medicine including her prescribed medication for "high blood sugar"; 2. Particular (3) was not pressed by the Commission; 3. Particular (4) was not pressed by the Commission; 4. on 29 May 2018, during an in person consultation with Patient A at the Burwood Clinic, the practitioner failed to: 1. consider the new symptoms of Patient A, including symptoms of nausea, discomfort, drowsiness, insomnia and pain in her calves; 2. Particular (5)(b) was not pressed by the Commission; 1. on 30 May 2018, after receiving messages from Person B regarding the symptoms of Patient A, the practitioner failed to: 1. appropriately assess the deterioration of Patient A's health; 2. appropriately concede that he was not suitably qualified to advise Patient A in relation to her worsening health conditions; 3. recommend Patient A be treated by a suitably qualified medical practitioner; 1. on 31 May 2018, after receiving messages from Person B regarding the symptoms of Patient A, the practitioner failed to: 1. appropriately assess the deterioration of Patient A's health; 2. appropriately concede that he was not suitably qualified to advise a Patient A in relation to her worsening health conditions; 3. recommend Patient A be treated by a suitably qualified medical practitioner; 4. Particular (7)(d) was not pressed by the Commission; 1. on 1 June 2018, following a home visit to Person B's home, the practitioner inadequately assessed the deterioration of Patient A's health, in that he failed to: 1. appropriately assess the deterioration of Patient A's health; 2. appropriately concede that he was not suitably qualified to advise Patient A in relation to her worsening health conditions; 3. recommend Patient A be treated by a suitably qualified medical practitioner; 4. Particular (8)(d) was not pressed by the Commission; 1. on 2 June 2018, following a home visit to Person B's home, the practitioner inadequately assessed the deterioration of Patient A's health, in that he failed to: 1. appropriately assess the deterioration of Patient A's health; 2. appropriately concede that he was not suitably qualified to advise Patient A in relation to her worsening health conditions; 3. recommend Patient A be treated by a suitably qualified medical practitioner; 4. adjust Patient A's herbal prescription according to her reported symptoms; 1. on 5 June 2018, after receiving messages from Person B regarding the symptoms of Patient A, the practitioner failed to: 1. appropriately assess the deterioration of Patient A's health as requiring urgent medical attention; 2. appropriately concede that he was not suitably qualified to Patient A in relation to her worsening health conditions; 3. Particular (10)(c) was not pressed by the Commission; 4. recommend Patient A be treated by a suitably qualified medical practitioner as a matter of urgency; 1. on 6 June 2018, following a home visit to Person B's home, the practitioner inadequately assessed the deterioration of Patient A is health, in that he failed to: 1. appropriately assess the deterioration of Patient A's health as requiring urgent medical attention; 2. appropriately concede that he was not suitably qualified to advise Patient A in relation to her worsening health conditions; 3. recognise that the prescribed Chinese diet therapy and the Chinese herbal medicines to Patient A were no longer appropriate; 4. reconsider his diagnosis and treatment plan of Patient A in light of Patient A's presenting conditions; 5. recommend Patient A be treated by a suitably qualified medical practitioner as a matter of urgency; 1. on 7 June 2018, following a home visit to Person B's home, the practitioner inadequately assessed the deterioration of Patient A's health, in that he failed to: 1. appropriately assess the deterioration of Patient A's health as requiring urgent medical attention; 2. appropriately concede that he was not suitably qualified to advise Patient A in relation to her worsening health conditions; 3. recognise that the prescribed Chinese diet therapy and the Chinese herbal medicines to Patient A were no longer appropriate; 4. reconsider his diagnosis and treatment plan of Patient A in light of Patient A's presenting conditions; 5. recommend Patient A be treated by a suitably qualified medical practitioner as a matter of urgency; 1. on 8 June 2018, after receiving messages from Person regarding the symptoms of Patient A, the practitioner inadequately assessed the deterioration of Patient A's health, in that he failed to: 1. appropriately assess the deterioration of Patient A's health as requiring urgent medical attention; 2. appropriately concede that he was not suitably qualified to advise Patient A in relation to her worsening health conditions; 3. recognise that the prescribed Chinese diet therapy and the Chinese herbal medicines to Patient A were no longer appropriate; 4. reconsider his diagnosis and treatment plan of Patient A in light of Patient A's presenting conditions; 5. recommend Patient A be treated by a suitably qualified medical practitioner as a matter of urgency. 1. between 26 May 2018 and 8 June 2018, the practitioner breached the Chinese Medicine Board of Australia (Board), Code of Conduct, published 2014 (2014 CMBA COC) when he: 1. failed to consider the safety of Patient A and apply principles of risk minimisation, contrary to the 2014 CMBA COC, cl 6; 2. failed to recognise and work within the limits of his competence and scope of practice, contrary to the 2014 CMBA COC, cl 2.2 (a); 3. failed to maintain adequate records, contrary to the 2014 CMBA COC, cl 2.2 (e); 4. failed to provide treatment options based on the best available information, contrary to the 2014 CMBA COC, cl 2.2 (f); 5. failed to consult and take advice from an experienced colleague, contrary to the 2014 CMBA COC, cl 2.2 (k). [1]
The conduct in any of Particulars (1) to (2) and (5) to (14) of Complaint One were repeated and relied upon in combination by the Commission as a course of conduct involving the practitioner's care and treatment of Patient A amounting to unsatisfactory professional conduct.

[15]

The practitioner's Reply

On 12 April 2024, the practitioner filed a 245 page document titled "Defence Submissions and Reply" (Submissions), comprising 1,039 paragraphs and multiple sub-paragraphs. Paragraph 1 alone has 115 sub-paragraphs.
It is beyond the scope of these reasons to do more than summarise these submissions, which are in fact part submissions and part evidence. In this respect, we note that in Liang v University of Technology, Sydney [2018] NSWCATAP 285, the Appeal Panel stated it is not necessary to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, and are often unsupported by any evidence at all, and we have not done so: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443. This is particularly so where, as is the case here, the submissions are voluminous and lack substance: CEU v University of Technology Sydney [2018] NSWCATAD 13 at [79]; Bajic v Paraskevopoulos [2018] NSWCATAP 192 at [55].
Further, in Gussoni v Burnheim [2018] NSWCATAP 75 at [32] the Appeal Panel referred with approval to the statement of Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, referring to McHugh JA in Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, who noted that a failure to explain the basis of a crucial finding of fact involved a breach of the principle that justice must not only be done but must be seen to be done. His Honour went on to state that: … it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. (emphasis added)
Suffice it to say, the tenor of the practitioner's Submissions is that he denies each complaint and the alleged underlying conduct. In addition, the practitioner denies any breach of the 2014 CMBA COC.
Indeed, the practitioner challenged the authority of the Tribunal to undertake the present enquiry, variously submitting that: 1. HCCC is unreasonable and wrong and illegally to institute the proceedings of prosecution based on the judgement of criminal trial. HCCC ought to discontinue the proceedings or withdrawal this application, and or the NCAT ought to dismiss this application in the base of following grounds: i. The HCCC is unreasonable and wrong and illegally to institute the proceedings of prosecution based on the judgement of criminal trial. ii. The HCCC has no legitimacy to do this application as there is no unsatisfactory professional conduct on the case with natural causes death. … c. The HCCC is unreasonable and wrong and illegal to institute this application and continue this proceeding of this application. … cvii. The HCCC must prosecute Dr Carolyn Ee before continuing this Application. cviii. The HCCC must prosecute the medical doctor before continuing this Application. cix. The HCCC must prosecute the ICU medical doctors before continuing this Application. cx. The HCCC must prosecute the Coroner before continuing this Application. cxi. The HCCC must prosecute the TGA before continuing this Application. cxii. The HCCC must prosecute the Health Department before continuing this Application. (typographical and other errors as in original)
In addition to the challenge to the Tribunal's jurisdiction, the practitioner made various other global submissions which we summarise as follows.
First, the Commission's expert Dr Carolyn Ee was not qualified as an expert in Chinese herbal medicine, and her opinions were "unreasonable and misleading and wrong".
Secondly, the practitioner was not responsible for Patient A's death. He advanced various theories as the cause of Patient A's death, including: 1. cardiac arrest and heart disorder or heart attack and kidney failure and renal failure an severe low blood pressure (par [1],(lxxvi) and (xcvii)); 2. natural causes (par [1],(lxxxix)); and that 3. the causes of Patient A's death were unpredictable or "unreasonable unpredictable" (par [1], (lxxv)).
Thirdly, District Court Judge Pickering SC, who presided in the "judge alone" hearing of the charge of manslaughter charge against the practitioner, which charge his Honour found not proven, made multiple errors of fact and law.
Fourthly, various other individuals, such as the Coroner, the medical doctors of the Intensive Care Unit (ICU) of Hornsby Hospital who treated Patient A, the Commonwealth Therapeutic Goods Administration (TGA), NSW Health, and Dr Ee, all contributed to the death of Patient A and should be prosecuted.
Fifthly, the Commission's application to the Tribunal should be summarily dismissed.
The practitioner was assisted at the hearing by an interpreter in the Mandarin language. And, as the practitioner was not represented, at the commencement of the hearing, the Presiding Member explained: 1. the role and function of the Tribunal; 2. the function of "Stage 1" and "Stage 2" hearings, noting that the hearing was to proceed as a "Stage 1" hearing; 3. the nature of evidence and submissions; 4. the meaning of "unsatisfactory professional conduct" and "professional misconduct" as defined in the National Law.

[18]

Application for an adjournment

Following the Tribunal's rejection of the practitioner's challenge to the expertise of Dr Ee and allowing the tender of her three reports over the objection of the practitioner, the practitioner then made an application for a six month adjournment of the hearing to allow him to appeal that decision to the Supreme Court of NSW.
The practitioner submitted that the Tribunal had allowed illegal evidence to be tendered, a decision that he wished to appeal. He said that because the cause of death was the core of the "whole matter", all proceedings surround the cause of death even though Commission said it would not proceed on basis of the cause of death, yet this is what their evidence establishes.
The Presiding Member asked the practitioner what orders he proposed to ask the Supreme Court to make. The practitioner said that he would ask the Supreme Court to confirm the cause of death, being a heart attack, and to confirm the manner of death, which was a natural death.
When the Presiding Member asked for a preliminary response from the Commission, its counsel: 1. asked the practitioner, through the Tribunal, why could not the appeal be undertaken at the conclusion of the Stage 1 hearing, that is, why did the hearing need to be adjourned immediately? 2. submitted that, rather than appealing about the use of evidence going to the cause of Patient A's death, the practitioner appeared to be seeking directly from the Supreme Court a ruling on the cause of death of Patient A. Here, Mr Aitken submitted that as it appeared to be outside of the scope of the Tribunal's role to give any ruling on the cause of death of Patient A, similarly it would be outside the role of the Supreme Court to do so; 3. submitted that this would be an appeal from an interlocutory decision of the Tribunal, and that leave would be required: Alexakis v Health Care Complaints Commission [2021] NSWCATOD 217 at [8] and [11]. At [11] the Court of Appeal referred to: the general principle applied by this Court in dealing with interlocutory appeals from matters of practice and procedure, namely that significant restraint will be applied before granting leave [In Re the Will of Gilbert (1946) 46 SR (NSW) 318].
Mr Aitken also noted that in Health Care Complaints Commission v Robinson [2022] NSWCA 164 the Court of Appeal indicated that a Stage 1 decision of the Tribunal was not an interlocutory decision for the purposes of cl 29 of Sch 5 of the NCAT Act.
Following those observations, the Tribunal enquired of the practitioner why he could just not appeal at the conclusion of the Stage 1 hearing, which could be as soon as a few days. In response, the practitioner indicated that because the cause of death was the "core of the case", and the experts' opinions which the Tribunal accepted, should be excluded, any of the decision of the Tribunal was illegal and therefore the practitioner needed to appeal.
At that point, the Presiding Member pointed out to the practitioner that while the reports of Dr Ee had been admitted, as there had been no cross-examination undertaken of Dr Ee and no submissions made about the weight to be given to Dr Ee's opinions, no findings had yet been made by the Tribunal.
The application for an adjournment was opposed by the Commission, primarily for two reasons, being: 1. there did not appear to be any reasonable or legitimate reason underpinning the application for an adjournment at this stage of the proceedings, in circumstances where there would be a right of appeal on a question of law as of right at the conclusion of the Stg 1 hearing; 2. the basis of the application advanced did not appear to have any merit.
In the final oral submissions to the Tribunal, the practitioner submitted that the proceedings were "illegal anyway", and submitted that asking questions of witnesses would be pointless, as any decisions made by the Tribunal would be illegal.
For the reasons explained by the Presiding Member at the hearing, the application for an adjournment or stay of the proceedings was refused, and that the proceedings would continue until if and when the Supreme Court ordered that the proceedings be stayed pending an appeal by the practitioner.
Accordingly, the hearing continued.

[21]

Summary

The Commission relied on two folders of documents filed on 10 April 2024. The bundle included but was not limited to: 1. evidentiary certificates provided by the Australian Health Practitioner Regulation Agency (AHPRA) and the Chinese Medicine Council of NSW (Council); 2. correspondence between the Council and the practitioner; various witness statements; a police interview of Person B dated 8 June 2018; 3. documents relating to the practitioner's s 150 hearing held on 27 June 2018, including the Council's reasons for decision of 17 July 2018; 4. the transcript of the s 150A hearing held on 23 May 2023; the expert reports of Dr Carolyn Ee dated 30 April 2023 and 9 June 2023; 5. various documents relating to the criminal trial of the practitioner in the District Court of New South Wales, including various witness statements, a statement of agreed facts, medical reports, other expert reports and the transcript of the 11 day hearing, together with the judgment of the court of 25 March 2022 and USBs containing a video of the execution of a search warrant of the practitioner's premises; and 6. Wechat videos between Person B and the practitioner which containing footage of Patient A details of which are set out at p 555 of Vol 1 of the Commission's bundle of materials.
However, during hearing the Commission indicated that it would not be relying on the all or parts of the documents behind the following Tabs of its materials: 40 [2] , 49 [3] , 50 [4] , 66, [5] 70 [6] , 71 [7] , 79 [8] , 80 [9] and 81 [10] .
In addition, the practitioner made robust objections to the Tribunal receiving documents (including expert opinion) relating to the cause of Patient A's death in the various reports of Dr Skinner, [11] Prof Carter, [12] Dr Szentmariay, [13] Prof Komesaroff, [14] A/Prof Holloway [15] and Prof Duflou. [16] After a protracted discussion over several days of the hearing, the Commission agreed and did not press or remove the materials set out in MFIs 5 and 6 relating to the cause of Patient A's death, as a result of which the practitioner stated that, save for Dr Ee, he did not require witnesses on whose expert reports the Commission relied for cross-examination.
As noted, for the purposes of these reasons, we had no need to have recourse to the reports of Dr Skinner, Prof Carte or Dr Szentmariay. Nor did we have any need to refer to the reports of Prof Komesaroff, A/Prof Holloway and Prof Duflou.

[22]

Evidence before the Tribunal: The practitioner's documents

The practitioner filed a bundle of documents on 12 April 2024, of almost 900 pages in length, which included but was not limited to: 1. materials relating to the practitioner's application for costs of the criminal trial, and his appeal from Judge Pickering's decision to refuse that application. These documents also include submissions of 124 pages in length which are largely reproduced in the practitioner's Submissions; 2. a policy statement of NSW Health titled "Coroners Cases and the Coroners Act 2009", dated September 2010; 3. a report of the Australian Institute of Health and Welfare (AIHW) relating to "Life expectancy and causes of death in Australia" dated 14 December 2023 and Table 3.2 "Leading underlying causes of death, number and age-specific rates (deaths per 100,000 population) by sex and age group 2019-2021), also published by AIHW; 4. the Regulatory Guide published by the Australian Health Practitioner Regulation Agency (AHPRA) in September 2023; 5. the Professional Capabilities for Chinese medicine practitioners published by the Board. The purpose of this document is stated by the Board as: Purpose of the Professional Capabilities for Chinese medicine practitioners The professional capabilities in this document identify the knowledge, skills and professional attributes needed to safely and competently practise as an acupuncturist, and/or a Chinese herbal medicine practitioner and/or a Chinese herbal dispenser in Australia. They describe the threshold level of professional capability required for both initial and continuing registration. 1. medical product information about Adrenaline Hydrochloride, Amiodarone Hydrochloride, Cefprozil and Domperidone Maleate; 2. the coroner's report following an inquest into the death of a Mr Andrew Amos dated 5 October 2018; 3. a "Resources and Tools" publication of the University of Melbourne titled "Improving Cause of Death Information, handbook for doctors on cause of death certification"; 4. correspondence between the practitioner's solicitors acting for him in the criminal trial and the Chinese Medicine Council; 5. the transcript of a telephone conversation between the practitioner and Person B (being Patient A's daughter) of 11 June 2018; 6. Patient A's application for immigration to Australia; 7. information concerning "Chinese Materia Medica"; 8. various documents concerning "The Policy of Health systems"; and 9. reference material relating to various medical conditions.
Also before the Tribunal was the practitioner's document "List of Authorities and Laws Relied on Defence". This document consists of three Parts.
Part I states: I. Summary of Laws and or Rules: 1. Tempering evidence by concealing crucial and or relevant evidence during the committing proceeding is serious Criminal Offence. 2. Perverting Course of Justice by concealing crucial and or relevant evidence to any expert of Crown in order to induce wrong and or misleading and or illegal opinions of any expert of Crown is serious Criminal Offence. 3. The proceeding with serious Criminal Offence of Tempering evidence by concealing crucial and or relevant evidence during the committing proceeding and or Perverting Course of Justice by concealing crucial and or relevant evidence to any expert of Crown is illegal. 4. The opinions of any expert of Crown are wrong and illegal and inadmissible where the opinions were induced by police and or DPP with serious Criminal offence of Perverting Course of Justice by concealing crucial and or relevant evidence to any expert of Crown. 5. The proceeding with wrong and or illegal opinions of any expert of Crown is illegal. 6. The elements of causation and negligence are not proved base on the wrong illegal opinions of any Crown expert. 7. The Application upon on the proceeding with serious criminal offences during proceeding and or wrong and illegal opinions of Crown experts is illegal. 8. The heart attack causing death is natural cause of death. 9. The natural causes of death is not negligence cause of death as manner of death. 10. No any one is liable for the natural causes of death. 11. The element of causation is not proved base on the manner of death which is natural cause of death with heart attack and or taking medications causing death. 12. The application upon on the proceeding with manner of death being natural cause of death was illegal and wrong. 13. The police and DPP did serious Criminal Offences of Tempering evidences by concealing crucial evidences during committal proceeding, and Perverting the Course of Justice by concealing crucial evidences to the experts of Crown in order to induce wrong and illegal opinions of experts of Crown during the proceeding. (Typographical and other errors as in original)
Part II sets out a list of authorities namely: 1. Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd & Ors (No 2) [2018] NSWSC 1374 at [2]: "The difficulty that I saw with the expressions of opinion which I ruled inadmissible may be summarised by saying, first, the facts upon which the opinions were based were not transparent; and, secondly, that the reasoning which led or supported the opinions expressed was not set out in the affidavits." 2. R v B. O. [2012] NSWDC 194 at [19(4)]: "as the opinion is based on "assumed" or 'accepted' facts, they must be identified and proved in some other way." 3. Inquest into the death of Andrew Amos [2018] CORONERS COURT OF NSW 2015/23577, a natural cause of death with ischaemic heart disease or heart attack at (Findings]: "Andrew Amos died at the Long Bay Correctional Complex at Malabar on 24 January 2015. Mr Amos died of natural causes The cause of his death was ischaemic heart disease." 4. Inquest into the death of Jayne Elise Duncan [2011] NSWLC 36 at [21]: "I find that Jayne Elise Duncan died between 0815 and 0930 on 9 March 2008 at Queanbeyan of unexplained natural causes."
Part III is a list of "Laws and Rules". The practitioner refers to ss 137, 138, 165, 311, 317 and 319 of the Crimes Act, and extracts from the NSW Health policy statement titled "Coroners Cases and the Coroners Act 2009" and the AIHW documents referred to above.

[30]

1 June 2018

On 1 June 2018, the following relevant Wechat exchange took place between Person B and the practitioner from 10.35am to 11.50am. Person B: She took a painkiller this morning as it was too painfjul for her to bear. Is it all right for her to take the Chinese medicine now? … Practitioner: Has she had any coix seed soup yet? Has she vomited again? Person B: Yes she has. She was vomiting out liquid this morning, She feels a little better now since taking the painkiller. Practitioner: Did she vomit after having the coix seed soup, yesterday? Person B Yes, she did, Her vomiting finally stopped after she took the painkiller. Practitioner: Did she take any painkiller yesterday? Person B: No. She took it just now. Only this once. Practitioner: Did she vomit after having coix seed soup yesterday? Person B: She vomited. Whatever she had, she would vomit it out. Even water. She took the Chinese medicine not long ago and she is having stomach-ache again. Practitioner: Is she having any cold shivers or fever? Person B: No. Practitioner: Where is the pain located? Be specific. Left or right of, or above or below the bellybutton? Person B: Chest pain. Stomach upset. Practitioner: Where is the chest pain located specifically? How large is the area? Person B: It is in the middle of the chest, about the size of a palm. Practitioner: Has she vomited after taking the Chinese medicine? Person B: She is vomiting now. She took the Chinese medicine about 30 minutes ago. Practitioner: She is vomiting now. She took the Chinese medicine about 30 minutes ago. Person B: Yes. It smells distinctly of herbal medicine
At this point the practitioner agreed to come to Person B's house at 4pm, and it appears that this attendance took place.
The Wechat conversation then recommenced at 7:18PM: Person B: Hello doctor. My mother has vomited out all the food she just ate. She has also vomited out both doses of the Chinese medicine given to her earlier. Practitioner: At the moment, she can only eat potatoes and take Chinese medicine powder for today [22] with water. Don't eat anything else. Person B: All right. Boiling the potatoes now. Cant eat rice or porridge, right. Practitioner: That's right. Don't eat any of these. At the moment, she should only be given potatoes and take the Chinese medicine powder for today with water. [23] Don't eat anything else. …. Keep her under observation and see how she feels later.

[34]

6 June 2018

On 76June 2018, the following relevant Wechat exchange took place between Person B. The Wechat exchanges commenced at 3.26am: 3.36am Person B: Hello doctor. Sorry to disturb you so early in the morning. My mother isn't looking well at all. She has not been able to walk to the bathroom even with two people carrying hurtful stop her body feels so feeble that she has collapsed on herself. She rolls her eyes showing whites when looking at us. She's too weak even to go to the toilet. As well, and body temperature feels low. She has been lying in bed since last night. She didn't have the strength to have dinner. She can barely speak. Can we trouble you to come here to have a look in the morning? 5.55am Practitioner: Good morning. Is she able to drink any Five Ingredient Grape Juice?
The practitioner in response gives a list of the ingredients for the grape juice with instructions to drink 1300mm glass every day or every two days.
At 8:47AM Person B tells the practitioner that her mother is unable to go to the toilet now and has asked her to put adult diaper on her. At 8:48AM the practitioner tells person B that he will come over after lunch. At 8:33 PM person B tells practitioner that: She doesn't seem very lucid. Just now commercially asked me where the teacher was. I said who is this teacher? Do you mean the doctor? Where is the doctor? She replied. I told her that the doctor had left a while ago. She seemed even less responsive [than] when I conversed with her earlier tonight
The conversation continued: 8.34pm Practitioner: Is she able to hold an empty glass slash tucked in her hand by herself? Try and see what happens. Person B: She is able to hold an empty plastic cup. She's kept raising the cup to her mouth even though I told her there was no water in the cup. I'm feeding her mung bean porridge now. Practitioner: Is she able to stand up unassisted? Try and see what happens. Person B: No she can't. It's very hard for her to even sit up. Practitioner: Is she able to bend or leave her legs by herself? Try and see what happens. Person B: She can bend them but can't lift them. Practitioner: She has improved a lot. Now come up she needs to be given more jackfruit, durian Person B: shall I give her another glass of Five Ingredient Grape Juice Practitioner: Yes. Person B: We only have durian at home. We don't have any jackfruit at the moment will stop most supermarkets don't sell it, not even dried ones Practitioner: Give her more durian for now will stop see if she is able to eat that entire durian.

[35]

7 June 2018

On 7June 2018, the following relevant Wechat exchange took place between Person B and the practitioner commencing at the times indicated: 6.45am Person B: Good morning, doctor. My mother's condition has not improved. She has been in a state of trance. I have to raise my voice and shake her when giving her water or feeding her. She would only take two bites before seemingly falling asleep. She is not able to wipe herself after going to the toilet. Last night, apart from the medicine, she was also given durian and a glass of Five-ingredient Grape Juice. I let her keep a piece of Korean ginseng in her mouth. She had two small bowls of oat porridge. She said that she was hungry. However, she only had two or three pieces of wonton dumplings before drifting off. I could not wake her up no matter how I tried. She was too weak to eat. 7.06am Practitioner: Is she able to take the medicine now. 7.07am Practitioner: If she can, take one dosage of the medicine now. At about 100 threads of saffron Person B: All right. Let me try. … 7.40am Practitioner: feeling hungry. You can feed her potato soup 8.00am Person B: Her condition has become worse doctor. Practitioner: How is she doing now? Person B She is not coherent. She collapsed just now while she was going to the toilet. He had to carry her back to bed. She was mumbling gibberish. When she collapsed just now she rolled her eyes showing whites. Practitioner: Is she able to eat any potato soup for? Need to eat more potato soup. Person B: I don't believe she's able to eat anything solid at the moment Practitioner: You may mash the potatoes. Person B: Is she in danger with her current condition? Practitioner: Comparing to last night, is her current ability to move her legs and arms better commit the same or worse? Person B: She was mumbling gibberish yesterday. She just took her medicine. She is mumbling gibberish. She was unable to reach the toilet even with us carrying her. She collapsed halfway to the toilet, just like a person who is fainted. Her she rolled her eyes showing whites. She looked quite unwell when i helped her to the toilet. Her body now feels even more feeble. Who eyes appear glazed and fixed. She is only relatively alert and not drifting off when I feed her to the medicine. She can open her mouth during the entire time. Practitioner: Is she able to hold a glass slash cup in her hand by herself? Is she able to bend her legs? Person B: Yes. Practitioner: Then the situation is holding up. 1.08pm Person B: She is too weak to go to the toilet 1.10pm Person B: She is not lucid. 1.18pm Her awareness is getting worse day by day. 1.20pm Person B plays a 21 second video clip showing her mother's condition to the practitioner 1.21pm Practitioner: I will come over and administer acupuncture this evening. 1.22pm Person B: She is now refusing to take the medicine' 5.04pm Person B: Her lower abdomen is very bloated. She has not had a bowel movement for a few days. 5.12pm Person B: She feels feverish and thirsty. 5.17pm Person B: She doesn't have any appetite. She doesn't want to eat anything. Showing he wants to drink water. She drink glasses of water just now. Practitioner: Give her coconut water now. (emphasis added)

[36]

8 June 2018

On 8 June 2018, the following relevant Wechat exchange took place between Person B and the practitioner commencing at the times indicated: 8.44 to 8.57am Person B: My mother's hands feel hot to touch while her feet are cold. What medication should she be given? Practitioner: How about her face? Person B: The face feels warm. I have not been able to wake her up. I have changed her diaper. She didn't wake up when i rolled her over. Practitioner: Give her both types of medication together. 10 spoons of each. 9.11am to 9.53am Practitioner: And then give her jackfruit and durian. Person B: It's very difficult for her to even swallow water now. She has phlegm in her throat. What shall I do? Practitioner: Need to cook a soup with purple laver and longan for her. Person B: Ok. Do I brew the ingredients in boiling water or do I boil them in water? And for how long? Practitioner: It's ready as soon as the water comes to a boil. Person B: OK. I can't wake her up today. Practitioner: Put your finger on the Renzhong acupuncture point which is just above her upper lip and under the nostril. Apply pressure. Person B: She appears to be asleep. I am going to give her the medicine now. Practitioner: Feed her the purple laver and longan soup first. Person B: OK. I pressed. She's still not awake. Practitioner: Press down till it hurts. Use your fingernail. Person B: Still can't wake her up. She moved her face slightly then went back to sleep again. Still can't wake her up. She woke up momentarily and then went back to sleep Practitioner: Then squeeze open the mouth first and feed her a bit of soup. Person B: I have tried. She is still not awake. Practitioner: Feed her a small amount of soup like this first. Keep feeding her little by little. Person B: She is not swallowing the soup in her mouth. [Person B then shows the practitioner a 10 second video clip to demonstrate her mother's condition]. Practitioner: She will swallow it down slowly. Check her shortly. Person B: So, do I continue putting soup into her mouth? Practitioner: Yes. 10.03am Person B: Finished feeding her soup. Practitioner: Observe if there's any change in relation to the phlegm in her throat. Person B: I have just given her a sip of water. The flame is still there. Practitioner: Then keep feeding her the purple laver and longan soup. Need to observe if there is a visible reduction of phlegm in the throat Person B: OK. Don't give her the medicine for the time being come up right? Should I pull shall I put salt from the purple labour soup? Practitioner: Only when there has been a visible reduction of phlegm in her throat, then you may give her the Chinese medicine. Don't add salt, now, I also need to prepare a tomato soup
The practitioner then sets out the ingredients and preparation method for the tomato soup, and a lengthy exchange follows.
From 11.24am the Wechat conversation was as follows: Person B: I'm only able to deliver soup into her mouth. I can't get her to wake up at all. Practitioner: Continue feeding her this way for the time being. [Person B then shows the practitioner a 10 second video clip to demonstrate her mother's condition]. Person B: Can I still feed her like this in her current state? Practitioner: Now that the phlegm in the throat has been cleared a little, you can feed her the Chinese medicine. Have you bought the ingredients for the tomato soup yet? They don't sell them in the shop nearby he has gone to Chatswood to get them shall I feed her the medicine first
Shortly after this, Patient A stopped breathing.
At 12.29PM, Person B rang 000 to seek assistance. The operator assisted Person B and her husband to administer cardiopulmonary resuscitation (CPR) to Patient A, which they continued to do until the ambulance arrived.
Shortly afterwards, Patient A was taken to Hornsby Hospital by ambulance, arriving at approximately 1:49PM.
At approximately 3:25PM Patient A died. [25] The Hornsby Hospital Assessment Documents dated 18 June 2018 relevantly state: Impression and Plan Notes written in retrospect 56yo lady [brought in by ambulance] post cardiac arrest Drank a glass of water and then eyes rolled back, collapsed Unwell and vomiting last few days Ambulance called - CPR and ALS [advanced life support] 8 doses of adrenaline given PEA [Pulseless electrical activity] seen Multiple ROSC [Return of spontaneous circulation] and repeat arrest Adrenaline infusion commenced - arrested whenever ceased/decreased Intubated and ventilated - ETT [Endotracheal intubation] initially in main bronchus but withdrawn NGT [nasogastric tube] inserted - brown material in tube ? chinese medication Pupils fixed and dilated when assessed by paramedics GCS [Glasgow Coma Scale] 3 Нх [history] Type 2 DM [diabetes mellitus] Administered: Small doses peripheral adrenaline Then stares perinaine infusion - rapidly escalation of rate to maintain BP Amiodarone 300mg Novorapid 10 units 1L Saline 0.9% Further brief arrest - VF - shock given - ROSC 2 rounds CPR - back in SR with RBBB at ROSC Repeat VBG done - only minor improvement Daughter and son-in-law in attendance - counselled by Dr E Teodosio Patient has Type 2 DM usually on oral medications Saw Chinese practitioner who ceased her medications about two weeks ago Unwell last few days with vomiting Taking Chinese medication at home Problems: Long down time (2.5 hours) Likely untreated HONK for last few days Metabolic derangement Blood in NGT - ?Gastric tear from vomiting? Trauma from insertion/CPR Discussed with Dr I Kliman (ICU) Unsurvivable situation Plan: Cease adrenaline infusions Withdraw active care Palliative management Explained to family Will move to single room and cease monitoring/infusions/ventilation Not for CPR if arrests again 1525: Patient deceased No respiration No heart sounds No pulse Pupils fixed and dilated Daughter and son-in-law present Will notify coroner and complete paperwork Keep all lines and tubes in situ please Likely cardiac arrest from hyperkalemia in context of non-managed Type 2 managed Type 2 diabetes [26] Daughter aware of this and concerned re role of traditional medicine practitioner who ceased hypoglycaemic meds recently Informed daughter re coronial referral and process 1605 - police in attendance, provided with coronial form
At about 4:30pm police attended the hospital. They spoke with Dr Skinner and Person B. Police and crime scene investigators went to Person B's home with the consent of Person B. [27]
At 5.08pm, Person B sent the practitioner one final, poignant, Wechat message stating: Hello, doctor. There is no need for you to come over this evening.

[38]

Conversation between Person B and the practitioner, 11 June 2024

On 11 June 2024, Person B rang the practitioner from the Hornsby Police Station, where the conversation was recorded by the Police.
A written transcript being a translation of the oral conversation was prepared, presumably by the Police. As noted, at the hearing the practitioner disputed the accuracy of the document translation in some aspects. The practitioner had his own translation prepared by another accredited translator who made who made a number of suggestions. By and large we will adopt those suggestions, but we will not adopt comments of the practitioner's translator stating "I believe there speaker meant to say virus instead of toxins". That is outside the role of the interpreter. That said, the following relevant conversation took the took place: Person B: I am a little worried about her blood sugar level. Because when she ... attended your clinic on the first occasion, you told her... to stop taking western medication for her diabetes. It's been almost two weeks. In the Chinese medicine that she is taking now, is there any medicine that controls blood sugar in the Traditional Chinese medicine that she's been on. Practitioner: As a matter of fact when it comes to blood sugar level, the blood sugar level itself is not a problem. The physical condition is the problem. Is she measuring her blood sugar level now? Person B No. … Practitioner: That's right. As long as she doesn't... Generally speaking, blood sugar level fluctuates greatly every day. If she has some issues physically, then that would be an issue. Furthermore, the cause of high blood sugar level is not due to blood sugar itself. It is due to toxins. It's caused by toxins, just like they do to people with hypertension. A person's blood pressure may go high or low. The fluctuation is normal. If a person suffers from a long term high blood pressure condition, very high blood pressure, it is because of the toxins in the body. In traditional Chinese medicine, high blood pressure is treated by expelling toxins from the body first so that a person's blood pressure may return to normal. The case for blood sugar is the same. Person B: That means if she takes the Chinese medicine and follows the food that you have prepared for her which you have prescribed her, there should not be any issue. Is that right? Practitioner That's correct. That's right. If you don't have a problem now then there is no problem. Person B: Then she, that means, then she should, on your advice keep staying away from any western medication for her diabetes is it right Practitioner: There's no need for it if she is not experiencing any problem if she does have a problem in that and if that problem can be treated by taking Chinese medicine, then there is no problem. … Person B When she saw you at your clinic for the very first time, you told her to stop taking Western medication including any medicine for her diabetes. This didn't have any effect on her blood sugar level, did it? Practitioner: No it had nothing to do with her blood sugar, her condition, that is her heat, the problem was her heart. The problem in fact [was] with her heart. Person B: But she didn't have a heart problem. Her heart was healthy. She was only diabetic and had a skin condition. She never had any problem with her heart. [Silence] Person B: What do you think the cause is? Practitioner: The problem was with her heart. Her breathing... Person B: She didn't have a heart problem two weeks ago. [Pause] She only had diabetes and a skin condition before we attended your clinic for treatment. She had been on a daily medication to control her blood sugar level. She stopped taking any Western medicine after her first visit to your clinic. You told her to stop taking them completely. You then put her on your Chinese medication. When did she start to have a heart condition? If the problem was with her heart, could it have been caused by the overdose of Chinese medicine? Practitioner: [Sigh] [Indistinct]. [Silence] … Person B: In the past, we... Previously I had considered her blood sugar level and I asked you about it when I communicated with you via WeChat. I asked you about her blood sugar problem. You told me that she had blood deficiency. I mean, I was hesitant, asking myself whether I should take her to hospital for an examination. However, you didn't want any Western medication to interfere with your treatment, so l didn't... that is, I didn't end up taking her to the hospital. I only asked you to visit and check on her every day. Practitioner: [Silence] Person B: As well, you said that you didn't want any interference from Western medication as its toxicity might supress the toxic qi of her ailment. You wanted to relieve the toxic qi in her body. And it was for this reason that I didn't even think of letting her resume taking that... that... blood sugar lowering medication. We approached you for treatment and we trusted you very much. We kept feeding her the Chinese medicine prescribed by you. We also followed your instructions and didn't let her... didn't let her resume her Western diabetes medication. Practitioner: [Silence] … Person B: Hence, I had never thought her life might be in danger. I kept feeding her the Chinese medicine according to your directions for stop I kept on the diet that you planned for her. Practitioner: [Silence] … Person B: I saw her stop breathing all of a sudden. She was not breathing so I pressured her Renzhong acupuncture point … She came back momentarily but she stopped breathing again shortly after that. At the same time, I was on the phone calling ambulance. The ambulance came straight to the house. At that time, it seems that her heartbeat was, only brought back entirely by medication that was administered, which was perhaps cardiotonic or some kind of injection like that. She wasn't in control of her heart beat or breathing. Ambulance paramedics as well as the doctor at the hospital repeated the same treatment on her several times. Two hours later, I was told that my mother had suffered a brain damage. Her heart would slowly stop functioning without further treatment. It only took two hours. Hospital staff could not administer any further treatment and I was told to stay with my mother, quietly until she stopped breathing and her heart ceased beating. [Sobbing] At that moment when I looked at her, she seemed to me that she was just deep in her sleep. I didn't have any inkling whatsoever in the morning on that day that her life was in danger. I believed in what you had been telling me that she was physically weak but recuperating although not as quickly as one had hoped. She was recuperating although slowly. I was in shock that day. I still can't accept this as reality. [Pause][Sobbing] If you believe the problem was with her heart, is it possible that she was overdosed on the Chinese medicine? … Person B: I mean, at that time, you never said a word to us that her condition could be life threatening. Practitioner: No. Her breathing seemed all right. That was why I told you to observe her breathing. If her breathing was in trouble, then she could be in danger. Person B: I called ambulance when she had difficulty breathing but it was still too late. Then... Practitioner: Why didn't you let me know? Person B: it happened on Friday morning. I told you about her condition on Friday morning. I also sent you video clips so that you would Practitioner: You only mentioned that she was awake or not awake. You didn't mention anything about her breathing becoming feeble Person B: You should be able to see the way she was breathing in the video clips which I sent you. She was... I sent you two video clips. After the second one, you told me that I could continue to feed her the medicine. Practitioner: And what did it happen after you fed her? Person B: She stayed the same after I had fed her. She didn't get any better. However, you told me after viewing the second video clip that she looked better comparing to her condition in the first video clip, so you old me to give her the Chinese medicine. I asked, "Shall I feed her the medicine now?" "Yes," you replied. Practitioner: But you didn't tell me what her condition was like after you had fed her. I told you to buy tomatoes to make a tomato soup for her. Perhaps you were not able to buy any at lunch time so. Person B: My husband went out to buy tomatoes. While he was out, l asked you whether I should keep feeding her purple laver soup. You told me to feed her purple laver soup. The purple laver and longan soup. Practitioner: That's correct but I later told you to stop. And then... because it was enough of the purple laver and longan soup. I told you to stop feeding it. Did you feed her the Chinese medicine? Did you feed her afterwards? Person B: I fed her the Chinese medicine. She took two thirds of a cup. Practitioner: And then? She didn't show any sign of change, did she? Person B: She didn't show any sign of change. Practitioner: And you didn't contact me again after this point Person B: Because... Practitioner: That is why I... Person B: After that, shortly after that, I was on the phone calling ambulance. Practitioner: You should have called me at the same time. I could have rushed there to deal with the situation. However, you didn't let me know so... Person B: Are you saying that I should have told to come over immediately at the same time when I called ambulance? Practitioner: Yes. Person B: It was too late even for the ambulance. It would have taken you longer to get here. It would have taken you longer than the ambulance to get here. Practitioner: How long did it take the ambulance to arrive? Person B It took a total of 11 minutes from the time I made the call till they got here and took over from me. It would not have been possible for you to get here quicker than ambulance. Practitioner [Silence]
On 14 June 2018, the Police were granted a search warrant for the practitioner's practice Dao Chuan Zhong Yi. The practitioner met them at the scene. Police seized his mobile phone and computer. The accused provided the police with passwords. [28]
On 16 August 201817. The accused was arrested. He exercised his right to silence. [29]

[39]

Complaint to the Commission

On 14 June 2018 Sergeant Rebecca Dummett lodged a complaint to the Commission in relation to the practitioner's conduct. The complaint stated: The deceased [Person A] arrived in Australia from China on or around the 22nd February 2018. [Person A] had a 6 month visitor visa and commenced to reside with her daughter [Person B]. [Patient A] was diagnosed with type 2 diabetes approximately 10 years ago and this was treated using prescription medication. Upon her arrival in Australia, [Person A] had a large supply of her diabetes medication, available to her. [Person A] took this medication as prescribed before meals, and was fit and healthy during her stay, with the diabetes being well managed. [Person A] had suffered from psoriasis for over 20 years and while in Australia saw a Doctor at Zetland in relation to this. [Patient A] did not see any Doctor in Australia for her diabetes. On the 25 May 2018 [Person A] attended the practice of Yun Seng LOU. Yun Seng LOU is a registered Chinese Medical Practitioner with a practice at 4/19 Belmore Street BURWOOD. [Person A] attended with her daughter [Person B]. [Patient A] attended specifically to see LOU about her psoriasis. During her consultation [Patient A] was told to stop taking all western medication and to commence taking Chinese medicine, being powdered herbs. [Person B] questioned this course of action due to her diabetes and was assured by LOU that this was ok. LOU supplied the Chinese herbs to [Person A]. [Person A] immediately stopped taking her prescribed diabetes medication and commenced the Chinese medicine, as she had been instructed by LOU. LOU also provided details of a specialized diet for [Person A] to consume. Within forty eight (48) hours [Patient A] began to vomit. [Person B] contacted LOU who told her that this was normal and that this was the body getting rid of the toxins from the western medicine. [Person A] continued to vomit and at one stage vomited blood. A photograph of this was sent to LUO. Again LOU confirmed that this was normal and to continue with the diet and the herbs. [Person B] questioned LOU in relation to the blood sugar levels of [Patient A] and was assured everything was normal. Over the next four (4) days [Person A] became increasingly unwell. LOU was in constant contact with [Person B] with LOU visiting the house daily from the 2nd June 2018 the evening of the 7th June 2018. During this time [Person B] spoke with LOU and was reassured by him that everything was normal and some improvement would be seen over the coming days. By the 6th June 2018 [Patient A] required incontinence pads and was unable to get out of bed. [Person B] again questioned LOU and sent him videos and photographs of [Patient A]. [Person B] specifically asked about the blood sugar levels of [Patient A] and whether she was in any danger. LOU assured her she wasn't and advised that she was improving. On the morning of the 8th June 2018 [Person B] again contacted LOU concerned about [Person A]. [Person A] had warm hands but the rest of her body was cold to touch. [Person A] was unresponsive and had slept most of the morning. [Person A] was unable to eat or get out of bed. LOU provided [Person B] advise to force feed [Person A] seaweed soup and gave her the recipe for this. LOU also advised to administer the herbal medicine. [Person B] followed these instructions and fed the seaweed soup and medicine to [Patient A]. Shortly after this [Person B] noticed that the breathing of [Person A] had become labored and again contacted LOU. LOU gave instructions on how to attempt to wake [Person A] up, by pressing her thumb between the nose and the mouth of [Person A]. [Person B] followed these instructions in continued to feed [Person A]. Shortly after finishing feeding the soup [Person B] saw that [Person A] was not breathing immediately contacted triple zero. [Person B] commenced CPR. until the arrival of NSW Ambulance who took over the treatment [Person A] was conveyed to Hornsby Hospital by Ambulance and CPR continued. After an hour [Patient A] was declared deceased by Doctor Clare SKINNER at the Emergency Department of Hornsby/Kuring-Gai Hospital. Subsequent tests conducted at the Hospital show that [Person A] was hypoglycemic and had elevated potassium levels. [Person A's] blood sugar levels were unable to be read due to being so high. Doctor Clare SKINNER recorded a cause of death as being cardiac arrest and informed Police that she believed that this was due [Person A's] diabetes being unmedicated.

[40]

Practitioner's Response to Council, 18 June 2018

By email dated 18 June 2018, the practitioner was asked to reply to an email from the Council: with as much information as you can about your patient who was recently hospitalised. It would help the Council to have a record of what happened from your perspective.
The practitioner responded that day, stating: The information about my patient is about as: My patient [Patient A], came to my clinic in Burwood NSW with her daughter, The main signs and symptoms were. eczema on legs, easy vomiting, high blood sugar, taking medication to lower the blood sugar level Tongue dark red, pulse some wiry Pattern: Qi and Blood deficiency and stasis, Wind heat and Wind Dampness Treatment Protocol: Tonify Qi an Blood, Yin and Yang, clear Wind heat and Wind dampness Using Chinese Herbal Medicine and some normal vegetarian foods and advising not taking medication to lower the blood sugar level as considering, the Chinese herbal medicine that clean Wind heat will also lower the blood sugar level and may induce weakness and advising that any time any thing appearing and happening, need to tell me (the Chinese medicine practitioner) immediately After 1-2 weeks treatments with Chinese herbal medicine, the severe vomiting appearing, and has been resolved in 1-2 days with 2 times home visiting treatments of Chinese herbal medicine, and was able to eat foods and no more vomiting, conditions were good and stable, pulse small wiry. After about 2 days, the weakness appearing, less power on body arms legs, sleepy, pulse small weak, the weakness has got improved with more Qi Blood Organs and Yang Qi herbs and foods tonifyings, pulse getting stronger and stable, patient was able to eat and walk with supports, breathing was good and stable and smooth and steady and comfort, no such short of breathing, in home visiting treatments. In the morning Friday 8th June 2018, the daughter of patient told me in phone, the patient still in sleep and small phlegm in throat, then advising to wake up the patient to eat food and Chinese herbal medicine, and planning home visiting treatment in afternoon. Arriving in patient home in afternoon, got a message sent half hour ago, saying no need coming today, pressed home bell few times, called 3 times in phone, sent a message asking anything situations good, and no any response. In the morning Monday 11th June 2018, contacted the daughter of patient again, about anything situations good, then daughter of patient told me about that, the patient was passed away in afternoon last Friday 8th June 2018 in hospital few hours after injection for heart, daughter of patient was watching the patient passing away in few hours time. I was too surprised with cry, why did not tell me anything about that in that time, it had lot of time to strengthen the patients body Qi Blood Organs Yang Qi with continuing taking foods and Chinese herbal medicine as the patient was still able to taking foods and Chinese herbal medicine. In the afternoon 14th June 2018, police contacted me in phone, and taking an investigation in my clinic in Burwood NSW, holding my table with all treatments records inside, holding the patient detail sheet and my mobile phone. Without the tablet with files, this makes me in too difficult situation. (emphasis added)

[41]

Section 150 hearing, 27 June 2018, Decision 17 July 2018

A hearing was held on 27 June 2018 pursuant to s 150 of the National Law. Relevantly, during the course of that hearing, the practitioner confirmed that he had told Patient A not to take her (Western) medication to lower her "sugar blood level".
The transcript records the following, referring to the practitioner's email to the Council of 18 June 2018: A/Prof Zaslawski: What you meant when you said, "Advising not taking medication to lower the blood sugar level." What do you mean by that phrase when you were informing [the Council]? Practitioner: That's the treatment (indistinct) "Chinese herbal medicine that (indistinct) weekly will also lower the blood sugar level and may induce weakness if taken both together." A/Prof Zaslawski: Yeah. So just to confirm that, you advised her not to take the medication. Is that what you mean by that phrase? Practitioner: Yeah, that's right.
At the conclusion of the hearing, the practitioner was informed that the Council had decided to suspend his registration immediately.
In its written reasons of 17 July 2018, the Council delegates stated: The central issue for the Council delegates was to consider whether Mr Yun Sen Luo poses a risk to the safety or health of the public that warrants action to be taken by the Council. To determine this issue, consideration was given to the following subsidiary questions: Does the practitioner have the necessary standard of practise, knowledge and understanding to ensure the public's health and safety is protected? During the discussion with Mr Yun Sen Luo, he informed the Council Delegates that he did advise [Person A] to stop taking her medication for her high blood sugar (diabetes). He failed to show any clinical insight into the implications of his advice despite an onset of unusual signs and symptoms (vomiting, urinary incontinence and loss of consciousness) and concerned questioning from the patient's daughter regarding discontinuation of her medication and the onset of the signs and symptoms. Furthermore, at no point in time did he consider consulting another health practitioner about the worsening medical condition of [Person A] and her increasing unusual signs/symptoms or calling for an ambulance. (emphasis added)
The delegates then stated that the practitioner had failed to comply with sections 2.2 (Good care), 3.3 (Effective communication) and 3.10 (Adverse events and open disclosure) of the 2014 CMBA COC.
The reasons continue: As the practitioner does not have the necessary standard of practise, knowledge and understanding to ensure the public's health and safety is protected, what work is the practitioner likely to undertake in the near future? Mr Yun Sen Luo did not provide assurance to the delegates concerning his knowledge of the condition of high blood sugar (diabetes), the current pharmaceutical treatment for the condition and the implications of advising [Patient A] to stop her medication. The delegates believe he should not be working in a clinical environment treating patients. As the Council Delegates have concluded that Mr Yun Sen Luo does pose a risk to the safety or health of the public, therefore consideration must be given to the following questions: i. Are there conditions that could be imposed to minimise that risk? No as the delegates cannot be sure that Mr Luo's standard of practise, knowledge and understanding is sufficient to ensure that the public's health and safety is protected. ii. If not, should Mr Yun Sen Luo's registration be suspended? The delegates believe Mr Yun Sen Luo's registration as a Chinese medicine practitioner should be suspended as he did not: • recognise and work within the limits of his competence and scope of practice; • maintain adequate knowledge and skills to provide safe and effective care; • consider the balance of benefit and harm in his clinical management decisions associated with the care of [Person A]; • provide treatment options based on the best available information; • ensure that his personal views as a practitioner did not affect the care of [Person A] adversely; • practise in accordance with the current and accepted evidence base of the health profession, including clinical outcomes; • evaluate his practice and the decisions and actions in providing good care to discuss with [Person A]; • Discuss with [Person A] and her carer daughter the condition and the available healthcare options, including the nature, purpose, possible positive and adverse consequences, limitations and reasonable alternatives wherever they exist; • ensure that [Person A] and her carer daughter was informed of the material risks associated with any part of [Person A's] proposed management plan; • recognise what was happening regarding [Person A] adverse clinical presentation; • act immediately to rectify the problem, if possible, including seeking any necessary help and advice.

[43]

Section 150A hearing, 23 May 2023, Decision of 11 July 2023

In April 2023, the practitioner made an application under s 150A of the National Law to the Council to review its decision to suspend his registration.
A hearing was held on 23 May 2023.
The Council delegates said that the central issue for consideration was whether there had been a change in the practitioner circumstances that justified the setting aside or varying its decision to suspend his registration. The delegates stated that to determine this issue they must answer the following questions: 1. what changes have there been to the practitioner's circumstances? 2. do those changes justify the setting aside or varying of the Council's decision to suspend his registration?
As to the first issue, the Tribunal stated in its decision of 23 May 2023: Dr Luo provided written submissions dated 13 April 2023. Submissions were to the effect that Dr Luo had since evaluated his practice and the decisions and actions in providing good care to patients. He now can ensure that patients or clients are informed of the material risks associated with any part of a proposed management plan. … He further submitted that patient should have no medications for high blood sugar level left in end of May 2018 if following the prescription advice provided by the China medical Doctor, according to the records in the China medical booklet. His submissions indicated that Dr Luo's awareness of the Western Medicines' side effects were largely based on his self-study and from certain websites and links referenced in Dr Luo's submissions; (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5599436/). Dr Luo further references his awareness of high Creatinine level and severe low GFR, as indications of kidney failure, arising from his self-study … At the hearing, Dr Luo's understanding of past concerns seemed limited. Dr Luo denied ever insisting that [Patient A] stop[ped] their western medication. Conflicting information was provided in relation to [Patient A's] medication leading to high blood pressure, which caused her death. Dr Luo did not provide any specific information to the panel about what steps could have taken which could have improved [Patient A's] outcome. He confirmed that he had since studied certain pharmacology of medications on the internet and undertaken further studies of medication to regulate blood sugar levels to help him understand the condition and its management better as a Chinese Medicine Practitioner. However, Dr Luo accepted that he has not undertaken any formal training or studies in pharmacology or of Western Medical conditions since 2018 to improve his understanding of the serious concerns which formed the basis of Council's initial decision. When asked what he understands now with respect to the risks of patients going off prescribed medications, Dr Luo confirmed that he acknowledges that the risk of medications were not just for his Eastern medicine, but also for Western medications. He appreciates that herbs can impact on Western medications. In doing so, he explained that he now understands that the patient should consult with their GP if and before prescribed with Chinese Herbs. In terms of risk assessment, Dr Luo indicated that he would seek more information from the patient in pre-screening. He would ascertain medications and chronic illnesses and then assess risk before providing treatment. If a patient's medication was not one he was familiar with, he would now undertake a search for the name of the medication and the product information. He would also ask the patient to see their GP or obtain a blood test. He indicated that his patient records should show how he conducted treatment and would guide future treatment whether it be by him or by another practitioner treating the patient. When asked if his records met the standards of the CMBA for record keeping, Dr Luo considered that his records would satisfy the CMBA standards. He acknowledged that at the time he treated the patient, he was not fully aware of the patient's medical history.
As to the second issue, that is whether those changes justified the setting aside or varying of the Council's decision to suspend his registration, the Tribunal concluded that they did not, and decided to affirm the decision of the Council to suspend the practitioner. This was for the following reasons: The panel is not satisfied simply based on the limited self study undertaken by Dr Luo, that the protection of the health and safety of the public would be ensured, should Dr Luo's suspension be varied at this time. Dr Luo has not undertaken any formal studies in Western Medical conditions, general pharmacology, pharmacodynamics or pharmacognosy. He has not undertaken any studies in drug herb interactions. As such, Dr Luo has not provided any evidence of changes to circumstances that justify the varying of his suspension. The panel would require that at the very least, further formal study be undertaken by Dr Luo in relation to Western Medical conditions, pharmacology, pharmacodynamics or pharmacognosy, including study with respect to drug herb interactions. This would assist Dr Luo with having greater insight within his control, to mitigate any risk when dealing with patients and to ensure their overall health and safety.

[46]

Demeanour and credit of the practitioner

During the hearing, on 16 May 2024, the practitioner was offered the opportunity to give oral evidence to the Tribunal. He informed us that he had said whatever he wanted to say and that the detailed information was in his documents.
The practitioner was then very thoroughly, and very fairly, cross-examined by the Commission's counsel for over a day.
Mr Aitken commenced by asking the practitioner about the product information for Adrenalin, Hydrochloride Amiodarone, Cefprozil and Domperidone Maleate included in his materials. The practitioner agreed that he was not alleging that Patient A was given these drugs before her cardiac arrest on 8 June 2018, rather that these were medications used in the Intensive Care Unit of Hornsby Hospital.
The practitioner agreed that he regarded himself as being in a type of doctor/patient relationship with Patient A.
The practitioner was then asked questions about his professional studies. Mr Aitken noted that the third course he studied in 2010 included "anatomy, physiology and pathophysiology of the endocrine system". Mr Aitken asked the practitioner whether the Tribunal accept that as part of those basic concepts of the endocrine systems he learned what the pancreas does? The practitioner was quite guarded in his answer saying that his understanding was "quite low" and that "we are only herbal practitioners, don't use that kind of information as a reference". The practitioner explained that as a herbal practitioner: [30] we are thinking in terms of treatment, we don't use western medical treatments, no work experience with western medical doctors, don't study that depth in great knowledge. In terms of understanding concepts, only to the degree of being aware of the concept. Not too deeply made aware.
The practitioner was then asked if he had been made aware in his studies "in a basic way" that the pancreas produces insulin and glucagon. The practitioner said that: these are also basic concepts, and one cannot say that I understand it.
When asked more general questions about specific drugs used in the treatment of the endocrine system and diabetes, the practitioner said he only had basic concepts but "because of this case" now had a much deeper understanding of it in terms of expert opinion.
Further questions followed, with unresponsive answers given, about the relationship between diabetes and blood sugar levels. For instance, the practitioner was asked whether "sugary foods may have an effect on blood sugar", his response was that "it can be affected, [and] If you drink more water your blood sugar may come down". When further asked whether he learned that at University or since then, the practitioner said: it is common sense. Blood sugar can be affected by many things and will depend on many situations.
As can be seen, these were unresponsive and generalised responses. When asked directly by the Presiding Member to answer the last question, the practitioner said "I repeat my answer".
Unresponsive answers to questions continued to follow. For instance, in relation to his first consultation with Patient A on 26 May 2018, the following exchange occurred: Mr Aitken: It was Important to get a full medical history from her? Practitioner: Because when it come to using Chinese herbal medicine and how, that has its own characteristics.
Mr Aitken then repeated the question, this time the practitioner answering: when it comes to treatment I had the information I needed for that so I need to know.
The following exchange then took place: Mr Aitken: So to know her full history it was important to be able to prescribe for her and treat her? Practitioner: You can't say that. Whether important or not depends on the goal. Mr Aitken: You need to know the history before deciding, do you agree? Practitioner: Disagree. Because whether or not based on what you need to do.
The practitioner agreed that when Patient A first came to him, she told him that she came to him for treatment of her eczema, that she had a history of high blood sugar, and had been taking medication for that condition for four years. When asked if high blood sugar could mean Patient A suffered from diabetes, the practitioner said that "It cannot be comprehended that way". The following exchange then took place: Mr Aitken: You knew that she was taking western medication for high blood sugar? Practitioner: Yes. Mr Aitken: You knew from your training that diabetes was a disease that can result in a person having high blood sugar? Practitioner: You can't review it in a reverse fashion, cant be comprehended in a reverse way, I gave you a very basic concept, for example maybe A is related to B, you cannot B is related to A. Mr Aitken: If you don't ask more questions about why she is taking medication for high blood sugar you won't know if she if she has been diagnosed with diabetes? Practitioner: Whether or not I ask that question or not depends on what the patient needed me to do. If a patient asks me to deal with her blood sugar levels then I should ask more questions and do it accordingly. With this case she asked me to deal with the issues of her skin. Mr Aitken: If you don't ask more questions about why she is taking medication for high blood sugar you won't know if she if she has been diagnosed with diabetes? Practitioner: Whether or not I ask that question or not depends on what the patient needed me to do. If a patient asks me to deal with her blood sugar levels then I should ask more questions and do it accordingly. With this case she asked me to deal with the issues of her skin.
These responses could all be described as unhelpful and unresponsive.
Mr Aitken then directly discussed the issue of whether or not he had told Patient A to stop taking her Western medication: Mr Aitken: So you advised her to stop taking her western medication? Practitioner: In terms of taking the medication or not, she was the patient and she decided it, its not up to us to make arrangements to think about it. Also, the western medication was not provided by me. The patient was explaining it. It was impossible for me to be assure about it. Mr Aitken: You told her to stop taking her western medication for her high blood sugar didn't you? Mr Aitken: I haven't said that.
Given what the practitioner communicated to the Council by email on 18 June 2018, and what he then told the Council delegates at the s on 27 June 2018, we reject that evidence. We consider that in giving the evidence he gave to us, the practitioner was at the least disingenuous, at worse, misleading us.
Mr Aitken took the practitioner to his written evidence to the Council delegates and his oral evidence at the hearing, and the following exchange took place: Mr Aitken: You gave her advice - don't take western medication because the Chinese herbal medication will lower you blood sugar levels, correct? Practitioner: I had that consideration. Mr Aitken: You gave her advice not to take her western medication didn't you? Practitioner: I had that kind of thought but did not do so. Whether to do it or not depended on the real situation … Mr Aitken: You do not want to admit to this Tribunal that you gave incorrect advice to this patient to stop her medication. Do you agree or disagree? Practitioner: My answer is, I was only thinking about it, so there was a likely possibility to advice to stop the medication, it was only a thought. In terms of whether I do it or not, that depends on the real situation back then. Mr Aitken: So if [Patient A] told some one that she had been advised to stop the medication, that would not have been because you told her that, is that what you are saying? Practitioner: … Mr Aitken: One last question for you today, I want to suggest to you that you are not telling the truth that you did not tell her or advise her to stop taking the medication. Do you agree or disagree? Practitioner: Whatever I said was the truth. Mr Aitken: Is that a convenient time? Presiding Member: You mean what you said today is the truth? Practitioner: Whatever I have said, was the truth. Presiding Member: The problem is that your own document seems to suggest suggests, in fact states, that you told Patient A to stop taking her Western medication. So you've told us two things. You appear to have told the Council one thing, both in writing and in oral evidence, and a different thing to us today. That's how it appears. Practitioner: Because later on, I am not something happened so which is not quite right, so therefore I asked my lawyer, according to what they have said, to write a letter to the Chinese Herbal Medicine Council to clarify the information. Mr Aitken: But this is your email, Doctor, correct? Practitioner: Yes. That's what I wrote, however in terms of how other people comprehend it, so I didn't know before, but later on my lawyer told me there's a whole other people comprehend it, so that's why I ask my lawyer to write a letter on my behalf to the Chinese Herbal Medicine Council to put my response forward.
Further cross-examination on this issue ensued, the practitioner eventually confirming that he advised Patient A not to take the Western medication for her diabetes.
The practitioner was not an impressive witness, and his answers continued to be unpersuasive, defensive and unresponsive. By way of example, this is demonstrated in the following exchange: Mr Aitken: It was important to know that the medication she was taking was for diabetes or not because you would not want to treat her blood sugar levels, correct? Practitioner: Diabetes and high blood sugar are separate things. Mr Aitken: But you never asked her if her high blood sugar was because of diabetes? Practitioner: She didn't ask me to deal with it Mr Aitken: You are saying I never asked, diabetes and blood sugar are different, and I didn't need to ask her whether she had diabetes or not, correct? Practitioner: I repeat what I said before. She asked me to deal with her skin disease so I asked her the questions I needed to. Mr Aitken: And you ended up giving her sugary fruits even though she had high blood sugar, correct - Practitioner: Yes, any food you take your blood sugar goes up … Mr Aitken: It would be outside the scope of practice to tell a patient not to take her diabetes medication, wouldn't it? Practitioner: It depends on the actual exact situation. It will be dealt with accordingly. If a patient says they have just finished chemotherapy for cancer, and wants help to rid the body of toxins, in that situation you would consider whether the medicines would assist. That time I was only thinking about it which was within the scope of my responsibility. So when it comes to what I need her to do exactly, because in terms of those terms which was based on the actual situation back then. The example that I provided earlier radiotherapy I did not face that issue as she continued with their radiotherapy treatments.
Mr Aitken took the practitioner to the telephone conversation between him and Person B on 11 June 2018, noting that Person B told him on two occasions that Person A had diabetes. Mr Aitken put to the practitioner that he never corrected Person B, by way of example by saying, "she never told me she had diabetes". The following evidence was then given: Practitioner: From the face of it, you can comprehend it that way. In terms of what I focus on, and in terms of the questions your ask and which I have answered. Mr Aitken: I understand from your evidence that it came as a complete surprise to you that Patient A had diabetes, correct? Practitioner: [Very long pause] Let me put it this way. At that time, I focussed on answering her questions not on the diabetes. So later on, I was surprised about that. Mr Aitken: I suggest to you that you knew that her medication was for diabetes - do you agree or disagree? Practitioner: She did not say all along.
The practitioner did little to help himself or to assist the Tribunal during his cross-examination. For instance, after taking the practitioner through the pages of Wechat messages regarding Person A's vomiting in the treatment period, the following exchange took place: Mr Atkien: Do you accept that by 1 June you should have suggested that Patient A be treated by a suitably qualified western doctor? Practitioner: I have said it very clearly in my submissions. Presiding Member: What is the answer? Practitioner: I have said already. Mr Atkien: Do you accept by 1 June you should have suggested that Patient A be treated by a suitably qualified western doctor? Practitioner: In answering this question, because she asked me to go there already, I had to try to know about the whole situation, when I saw her she was not vomiting, and I felt it was quite strange. Then she told that she had a 10 year history of vomiting and also told me she used to be on western medicine. [I asked] do you want to go to western medicine doctor and take western medicine. She wanted to deal with vomiting question with Chinese herbal practitioner, her intentions were very clear. That's why I respected the patient's opinions. I also believe that I proved that I could deal with her vomiting condition.
Finally, Mr Aitken put the following to the practitioner: Mr Aitken: By not enquiring into why she was taking this medication, why she had stopped and the fact that she had stopped taking her western medication for high blood sugar, and not giving that your attention but giving your attention to herbal medicine, you failed to appropriately assess the deterioration in her health. Practitioner: I said at the beginning that it is the characteristics of Chinese herbal medicine you have to assess the current situation. Because at that time she asked me to deal with her vomiting - that's why I was there to deal with the vomiting
Nor was the practitioner capable of making any concessions: Mr Aitken: Between 5 June and 8 June there was no evidence of improvement in Patient A? Practitioner: There was some improvement in her condition … Her condition had not improved as quickly as I expected. That's why I gave the warning. Mr Aitken: By 7 June she is passing out and becoming unconscious? Practitioner: Regarding the translation I have put my dispute forward. Mr Aitken: You said collapsed should be replaced with the word softened, correct? Practitioner: Yes. Mr Aitken: But you didn't take issue with [Person B] having to carry her mother and mother's eyes rolling when she "softened"? Practitioner: She was not like that when I saw her. Mr Aitken: So you can just ignore what you were told at the time? Practitioner: The situation she described was not limited to what has been translated.
The cross-examination took place over the best part of two days, and it is beyond the scope of these reasons to summarise the entirety of Mr Aitken's questions and the practitioner's responses. However, for the reasons set out above, we found the practitioner to be a hostile and defensive witness who frequently made unresponsive answers to the questions asked of him by Mr Aitken, answers which we frequently found unpersuasive.
At the conclusion of the cross examination, Mr Aitken asked the practitioner whether he agreed or disagreed with a number of scenarios. Mr Aitken explained that what he was exploring what was the practitioner's state of mind during the treatment period.
The first scenario was that the practitioner hoped Patient A would get better, but she was getting worse and worse and needed western medical attention, but the practitioner refused to do so because it would expose him to criticism.
The practitioner's response was: I have said repeatedly regarding what I thought. The herbal medicines were very safe. I did what I was asked to do. She said that she could take western medicines and see doctors and go to hospital at any time. I respected the patient's rights and opinions. The patient had been taking western medicine and also seen a western doctors for 10 years. She knew more that I did. In the past other patients whenever they felt unwell went to hospital. No such requirement in old standard about recommending patients to go and see western medicine doctors. Therefore, all my thoughts were in keeping with the standards. Of course, the new standard was only brought out later on.
The second scenario was that the practitioner had a view that Western medicine could cause a toxic buildup, and even though he saw Patient A's condition getting worse and worse, he was convinced that he could make her better in the longer term even if she were seriously sick for a number of days.
The practitioner's response was: It was answered clearly at that time and after a 10 year history of vomiting which patient wanted me to deal with and on third day she was quite content. As to effect of western medicine I don't know as I am not a western medicine document only responsible for the Chinese herbal medicine which I prescribed which was safe and good for the patient. The old standard did not ask Chinese herbal practitioner to know and to think of the effect of western medicine buy they new standard does have that requirement. I have spent the last several years researching the effect of western medicine.
The third scenario was that the practitioner regarded each symptom of ill health simply as a new symptom, without considering that Patient A's overall condition was getting worse and worse.
The practitioner's response was: My answer would be the same. Regarding the vomiting, didn't mention it before. At first, I thought it was a new symptom but it was an old symptom. Regarding pain, a lot of people have pain.
The final scenario was that during the period 5 to 8 June 2018 the practitioner inappropriately reassured Patient A's family that the Patient A was "Ok".
The practitioner's response was: I gave the warning on the night of the 7th, I gave the warning.
We would regard each of those answers as being unresponsive and self-serving.

[48]

The Commission

From the Commission, we heard oral submissions from Mr Aitken on the final day of the hearing. These submissions were of an overarching nature focussing on the practitioner's overall conduct during the treatment period. Thus, Mr Aitken made submissions including that: 1. the Tribunal would find proved in accordance with the Briginshaw principles that the practitioner did advise Patient A to cease her western medications; 2. the Tribunal would also be satisfied that the medication was for diabetes. Even if there is any doubt about that, from the practitioner's university training he should have drawn the possibility of a connection before giving advice to cease medication; 3. the practitioner was inappropriately taking responsibility for Patient A's care, and was further obliged to assess her deterioration and seek western assistance; 4. the practitioner's repeated insistence that he had no professional responsibility to take such steps and it was open to the family to do so, whilst a possible explanation, reflects a total misapprehension of his obligations under the 2014 CMBA COC; 5. from the Wechat messages, the Tribunal may consider that it would be obvious to a layperson, let alone someone with basic western training and tuition and professional expertise, that Patient A had become seriously unwell.
The Commission also relied, and produced for the benefit of the Tribunal, MFI 7, being the Commissions "Schedule of evidence relevant to proof of the Complaint", a most useful document.
The Tribunal also received written submissions in reply from the Commission dated 18 June 2024 filed 19 June 2024. These submissions deal with the following topics.
First, cause of death and causation generally. Here the Commission submits (and we set this out in full as it flags an important issue): At an early stage in the proceedings at Stage One hearing, the Tribunal indicated its view that the Applicant's Complaint did not require the Tribunal to make a determination as to cause of death. The Applicant ultimately accepted that cause of death was not a matter about which the Tribunal needed to make a determination, having initially sought to introduce evidence of it as background or context. Accordingly, in circumstances where the Respondent at hearing for the first time sought to cross-examine experts on this issue, with the likely result that available hearing time would be significantly occupied litigating a factual matter which was not a particular of the Complaint, the Applicant agreed to remove from the Tribunal's consideration at Stage One evidence which directly went to this issue. Despite a clear indication from the Tribunal that the corollary of this approach was that the Respondent's contentions as to cause of death would also be removed from its consideration, the Respondent continues to maintain that the patient's cause of death was from "natural causes", including without adducing further expert evidence to support this contention. The Applicant formally objects to the Tribunal taking into account those portions of the Respondent's submissions, including the recent submissions dated 4 June 2024 ("further submissions"), that seek to put forward a cause of death, or indeed engage with the topic at all as a consideration. Cause of death not being required to be established in these Stage One proceedings, the practical reality is that it could be treated as 'unascertained.
We accept that submission. We repeat our comments above on this issue.
Secondly, the practitioner's awareness of Patient A's western medical treatment.
Thirdly, the practitioner's professional obligations and the law.
Fourthly, Prof Carter's evidence.
Fifthly, "the question of professional responsibility".
Where relevant we will refer to any of these submissions in our consideration of the four complaints.

[49]

The practitioner

We have already referred to the practitioner's Submissions and Additional Submissions.
The Submissions are extensive and deal with many issues which are not relevant to our function. MFI 4, which is the Commission's "Summary of [the practitioner's] [Submissions] filed in the proceedings", helpfully sets out the topics the Submissions treat with, and indicating those: 1. paragraphs that make statements that include evidentiary claims; 2. paragraphs that refer to the District Court judgment and/or the elements of a manslaughter charge and/or conduct of the Crown case at trial; 3. paragraphs that raise/address cause of death; 4. paragraphs responding to Dr Ee's supplementary report; 5. paragraphs about who had a duty of care to the patient; 6. paragraphs addressing particulars of the Complaint; 7. paragraphs that raise the pretext phone call (including the claimed warning about breathing on 7 June 2018 and claimed discussion of a history of vomiting on 1 June 2018); 8. paragraphs that raise ancillary matters (being submissions concerning coronial or other disciplinary proceedings for involved experts and clinicians); 9. paragraphs that allege improper conduct pre-trial (including late disclosure of medical records and WeChat video); 10. paragraphs that repeat the practitioner s 150A appeal submissions; 11. paragraphs that raise the practitioner's unsuccessful costs application post-criminal trial; 12. other paragraphs making unsupported assertions.
As to the additional Submissions, these deal with the following matters: 1. a renewed application for dismissal of the Commission's application on the following 17 grounds: i. HCCC wrongly and illegally failed to provide the authorised evidence of Cause of Death and Manner of Death. ii HCCC is wrong and illegal to bring the matter of Cause of Death and Manner of Death into Tribunal and let Tribunal to judge such matter of death. iii HCCC is wrong and illegal to assume the manner of death was negligence cause of death. iv HCCC is wrong and illegal to say the negligence is established without proving causation. v HCCC is wrong and illegal to say Respondent was liable for the diabetes. vi HCCC is wrong and illegal to shift the liability from medical doctors and Patient and her family to Respondent. vii HCCC is wrong and illegal to say Respondent was liable for the death. viii HCCC is wrong and illegal to treat the different teachings between schools as significant below the Standards expected. ix HCCC is wrong and illegal to continue the proceeding by ignoring the authority of case law. x HCCC is wrong and illegal to apply the case laws to this case with natural causes of death. xi HCCC is wrong and illegal to say Dr Ee has better experience than Respondent. xii HCCC expert gives unreasonable and misleading and wrong and illegal opinions in wrong and illegal way. xiii HCCC is wrong and illegal to continue the proceeding in wrong and illegal way by ignoring the uncontested facts. xiv HCCC is wrong and illegal to continue the proceeding in wrong and illegal way by ignoring the uncontested general Standards of health Professional. xv HCCC is wrong and illegal to continue the wrong and illegal proceeding as HCCC agrees the uncontested facts and uncontested Standards of health Professional. xvi HCCC is wrong and illegal to contest Respondent was telling the true about matter for first consultation in hearing. xvii The Tribunal NCAT has no discretion or no residual discretion to judge that the conducts of Respondent were significant below the standards expected and or any particular of complaints and or any negligence and or any breach of code of conduct and or any unsatisfactory professional conduct and or any professional misconduct are established. 1. renewed objections to Dr Ee's expertise and opinions; 2. renewed criticisms of objections to Prof Carter's opinions; 3. renewed criticisms of the Coroner's investigation and report; 4. criticism that Patient A's family were: the kind of persons with characteristic controlling and planning, and were controlling the matters of taking or not taking medications and going to see medical doctors and or hospital, and not following the advices of medical doctors, and making their own plan and decisions to do and not do what ever they wanted. [and that] the actual situation was [Patient A] and her family their plan, they controlled taking or not taking medications, ignored the warning of dangerous from medical doctors, ignored the warning from Respondent, kept thinking of never in dangerous, not tell about diabetes to Respondent, not plan to let Respondent to treat the diabetes, and knew Respondent was not treating the diabetes, and they had the right to plan to do or not do. 1. the practitioner did not have the extent of duty of care for taking medications causing body harm and organ functions damages such heart attack and kidney failure and renal failure and death. But the medical doctors and Patient A and her family had the extent of duty of care for taking medications causing body harm and organ functions damages such heart attack and kidney failure and renal failure and death; 2. the cause(s) of Patient A's death; 3. the Commission's application is: frivolous as [the Commission] is doing the proceedings in wrong and illegal way by violating and or contradicting and or contemning the rules and law of Common Law and the Coroners Court and Coroners Act 2009 and general law and standards of health systems, and or vexatious as [the Commission] is wrong and illegal to ignore the uncontested facts, or otherwise misconceived as [the Commission] is wrong and illegal to do the proceedings base on the wrong and illegal and contradicting assumptions, or lacking in substance as the key issues are taking medications caused body harm and organ functions damages such heart attack and kidney failure and renal failure and death and such matters are legal and are stipulated and protected by the laws and rules and general standards in medical systems and health systems. 1. under cl 12D of Sch 5D of the National Law, 115 … this application is not in the public interest for the inquiry to continue, as the key issues of this case are, taking medications caused body harm and organ functions damages such heart attack and kidney failure and renal failure and death, and such matters happen and continue to happen every day, and are legal, and are stipulated and protected by the laws and rules and general standards in medical systems and health systems, and such matters have been fixed in regarding the standards for the Chinese Medicine practitioner professional by setting the new requirements in the new Standards February 2020. The only thing for public interest is, in order to reduce the taking medications causing body harm and organ functions damages such heart attack and kidney failure and renal failure and death, the medical systems and health systems and government should encourage the patients to use the Chinese herbal medicine and provide funding for the Chinese herbal medicine professional, as the Chinese herbal medicine are very safe and good to body. 116 The Tribunal NCAT must judge that, the conducts of Respondent were within the standards expected, and any particular of complaints and or any negligence and or any breach of code of conduct and or any unsatisfactory professional conduct and or any professional misconduct are not established not proved, base on the Cause of Death was heart attack and Manner of Death was natural causes of death and Patient died of natural causes, and or case laws, and or the general laws and rules and standards of health professional systems.
In conclusion, the practitioner submits that the Tribunal must dismiss the Commission's application, dismiss any application of the Commission seeking costs, and order the removal of the suspension of his registration as a Chinese medicine practitioner.
As to the practitioner's oral submissions, these included the following points: 1. the core of the Commission's case was based "unnatural death"; 2. negligence and causation closely related. If the causation of death is not proven, so it is to say then the causation of death is not proven. The critical condition is the accusation of negligence cannot be proven. 3. if the negligence is not proven the Commission cannot proceed and is proceedings unreasonably and illegally; 4. Patient A was the kind of patient that refused a doctor's advice; 5. Patient A took a type of western medicine not recorded on the hospital's medical records; 6. when Patient A immigrated to Australia she did not want her health "checked out"; 7. after his consultation with Patient A on 26 May 2018, and based on what she said to relatives and friends, an inference can be drawn that it there was a conspiracy; 8. Western medicine product information explains that western medicine can lead to cardiac arrest, kidney failure and death; and 9. the articles in his materials prove that herbal medicine that I used have the effect of reducing blood sugar.
We found these oral submissions, and many more, to be irrelevant and unhelpful. Some, such as the suggestion of a conspiracy between Patient A and her family, were fanciful.

[51]

The expert evidence of Dr Ee

Before proceeding with our consideration of the four complaints, it is appropriate at this point to make some observations about Dr Ee's expert opinion evidence.
We note that the Commission relied on two reports of Associate Professor Dr Ee, respectively dated 30 April 2023 and 20 June 2023.
The first report addresses the various questions which the Commission sought Dr Ee's expert opinion. It is in the appropriate form, and Dr Ee states that she has read and understood the Tribunal's Procedural Direction applicable to any evidence given by an expert witness in the Tribunal, and agrees to abide by the experts' code of conduct which is set out in that Procedural Direction.
De Ee's second report responded to criticisms that the practitioner lacked expertise as a Chinese Herbal Medicine Practitioner and was unqualified to give expert opinion evidence to the Tribunal; that Dr Ee had based her opinion on the 2020 Standards for Professional Capabilities for Chinese Medicine Practitioners, and not the 2014 Standards which were the relevant standards at the time of the practitioner's treatment of Patient A; that Dr Ee lacked expertise in such medications as Metformin Gliclazide Repaglinide and Nurofen, and pharmacology, biochemicals, blood gas, cardiac arrest, and kidney failure; all of which matters Dr Ee in summary denied in cross-examination.
The practitioner submitted that it was unreasonable for Dr Ee to interpret the Wechat conversations as showing that Patient A was "barely conscious".
The practitioner also made various other irrelevant criticisms of Dr Ee's first report.
We note that the practitioner relied on no independent expert evidence, and appeared content to rely on his own opinions based on his training, qualifications and experience. We note that in Health Care Complaints Commission v Wong [2024] NSWCATOD 200 at [106] the Tribunal stated: We pause to note that the practitioner did not rely on any independent expert evidence, but appears to qualify himself as an expert. The issue of whether or not a party can be their own expert was exhaustively considered by the late Justice Einstein in the long-running "Idoport litigation" in the Supreme Court of NSW. In Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123, to summarise a very long judgment, if appropriately qualified, a person who is a party to proceedings can be their own expert, but "the question of the weight of that evidence is altogether another matter for determination": see [157].
The practitioner cross-examined Dr Ee at considerable length, putting to her various propositions such as: 1. she relied on the 2020 CMBA COC, and not the 2014 CMBA COC, a matter flatly denied by Dr Ee; 2. there was no requirement in the 2014 CMBA COC for a Chinese health practitioner to refer a patient to a Western medicine doctor if necessary; to which Dr Ee responded that there was no explicit requirement, but that this was her interpretation of what would be required of a practitioner to minimise harm under the 2014 CMBA COC; 3. irrelevantly, she did not know that 170,000 people died on natural causes per year, Dr Ee agreeing that she did not know the exact number; 4. she knew that by taking Western medicine can lead to death; again, a matter denied by Dr Ee; she knew that if a patient takes Western medicine and the patient dies then the doctor would be held accountable; 5. as a Chinese medicine traditional doctor she did not know "much" about the harmfulness of Western medicine; a matter denied by Dr Ee as she was in fact qualified in western medicine; [31] 6. she did not know much about heart attacks, and did not know that Western medicine doctors can "write down" the prognosis of a heart attack; again matters Dr Ee denied.
There were many questions put to Dr Ee about patients dying of natural causes. These questions were generally objected to by the Commission's counsel, and sustained, given the causes of death of people in Australia generally and Patient A's cause of death specifically was not a relevant issue for the Tribunal to consider.
The practitioner's cross-examination of Dr Ee gave us no cause to doubt Dr Ee's opinion. We considered that Dr Ee was a careful and deliberate witness who was doing her best to assist the Tribunal by answering the questions put to her to the best of her ability, training and experience, with accuracy and honesty.
Accordingly, we accept Dr Ee's opinions given: 1. our rejection of the practitioner's claims that Dr Ee lacked the expertise to give the opinions that she did; 2. we saw nothing in the practitioner's cross-examination of Dr Ee to cause us to doubt the correctness of her opinions; and 3. the practitioner relied on no independent expert evidence of his own.
We turn now to consider Complaint One.

[52]

Particular (1)

Particular (1) is that on 26 May 2018, during the initial consultation, the practitioner failed to appropriately assess Patient A, for the purpose of prescribing therapeutic treatment, including that he failed to: 1. obtain a sufficient medical history for Patient A (Particular (1)(a)); 2. obtain a sufficient history regarding Patient A's "high blood sugar" (Particular (1)(b)).
The only direct evidence on this issue appears from the practitioner's treatment records, and his submissions (which as we have noted contain both submissions and evidence). Relevantly, in the Submissions the practitioner states: 253 The Patient was to come in and see the Respondent for the skin disorder, and she and her family did not tell about diabetes, and did not plan to let the Respondent to treat the diabetes and or the "high blood sugar", and they knew the Respondent was not treating the diabetes and or the "high blood sugar". 254 The information of presenting symptoms and conditions and history from the Patient was sufficient and good enough for the skin disorder. 255 The Respondent had no duty of care for the diabetes and or the "high blood sugar". 256 The medical doctors and Patient and her family had duty of care for diabetes and or the "high blood sugar".
The Commission relies on Dr Ee's evidence in her first expert report where she states (in summary) that the practitioner's assessment of Patient A during their initial consultation on 26 May 2018 fell below the standard expected, and that his diagnosis of Patient A overall also fell below the standard expected. As to the medical history, Dr Ee stated that the practitioner should have taken a proper history regarding the cause of "high blood sugar". She also noted that "high blood sugar" inappropriate medical history as it is not a diagnosis. As it was clear that the practitioner was familiar with the term diabetes, and considered this was related to high blood sugar, so it followed that he should have clarified if Patient A had diabetes or not.
Given that evidence, and in the circumstances, we find Particulars (1)(a) and (b) both established.

[53]

Particular (2)

Particular (2) is that on 26 May 2018 the practitioner adequately failed to assess Patient A in that he failed to obtain a sufficient medical history and failed to obtain a sufficient medical history regarding her high blood sugar, and advised her to cease all Western medicine including her prescribed medication for high blood sugar.
There are two "limbs" to this Particular, the first being that the practitioner failed to obtain a sufficient medical history for Patient A. We have already found this Particular to be established.
The second limb is that the practitioner advised Patient A to cease all Western medicine including her prescribed medication for high blood sugar evidence advising her to cease all western medicine including her prescribed medication for high blood sugar is contained in the email sent by the practitioner to the Council dated 18 June 2018, prior to the s 150 hearing where he stated: and advising not taking medication to lower the blood sugar as considering, the Chinese herbal medicine that clean Wind heat will also lower the blood sugar and may induce weakness.
At the s 150 hearing, the practitioner confirmed that that he advised Patient A not to take that medication. [32]
In our view, this evidence establishes that the practitioner explicitly advised Patient A to cease her Western medication for high blood sugar.
As to the allegation that the practitioner advised Patient A to cease all Western medication, we find this established by the evidence of Person B. In her interview with the police, Person B said the practitioner told her mother, at the consultation of 26 May 2018, at which Person B was present: don't take any Western tablets … Western tablets … has some poison.
We also find the allegation that the practitioner told Patient A to cease all Western medication entirely consistent with the views he expressed in his oral evidence to the Tribunal, namely that Western medicine can cause death.
It is also consistent with the conversation between Person B and the practitioner of 11 June 2018 where the following exchange (in the translation preferred by the practitioner) took place: Person B: I am a little worried about her blood sugar level. Because when she attended your clinic on the 1st occasion, you told her to stop taking western medication for her diabetes. It's been almost two weeks. Is there any medicine that controls blood sugar in the Traditional Chinese medicine that she's been on. Practitioner: As a matter of fact come up when it comes to blood sugar level, the blood sugar level itself is not a problem. The physical condition is the problem. Is she measuring her blood sugar level now? Person B No. … That means if she takes the Chinese medicine and follows the diet which you have prescribed her, there should not be any issue. Is that right? Practitioner That's correct. That's right. If you don't have a problem now then there is no problem Person B: Then she, that means, then she should, on your advice keep staying away from any western medication for her diabetes is it right align practitioner there's no need for it if she is not experiencing any problem if she does have a problem in that and if that problem can be treated by taking Chinese medicine, then there is no problem.
In his Submissions, after denying that he advised Patient A to cease all or any Western medicine, the practitioner submits: 258 The Patient and her family knew and fully controlled the matter of taking or not taking medications, and when to take or not take the medications, and how and why, with rich experience. 259 The Respondent had no duty of care for the taking or not taking medications and when and why and how, including the medications for the "high blood sugar". 260 The medical doctors and Patient and her family had duty of care for the taking or not taking medications and when and why and how, including the medications for the "high blood sugar"
We also find this Particular supported by the practitioner's oral evidence at the hearing.
We note that Person B was not required for cross-examination by the practitioner.
Given the evidence, and in the circumstances, we find Particular (2) established.

[54]

Particular (5)

Particular (5) is that on 29 May 2018, during an in-person consultation with Patient A at the Burwood Clinic, the practitioner failed to consider the new symptoms of Patient A, including symptoms of nausea, discomfort, drowsiness, insomnia and pain in her calves.
The only direct evidence on this issue appears from the practitioner's treatment records, and his Submissions (which as noted contain both submissions and evidence). Relevantly, in the Submissions the practitioner relevantly [33] submits: 272 There was no such insomnia symptom. HCCC is needed to look at evidences of facts, but not the statements of some one else. 273 The HCCC is unable to understand about the herbs and the Chinese herbal Medicine treatments and the way of how the Chinese herbal Medicine to treat. even Dr Carolyn Ee says that, she does not understand the herbs and there was no any issue about the Chinese herbal Medicine treatments. HCCC is just unreasonable and wrong and illegal to raise this issue of the Chinese herbal Medicine formula. 274 The Chinese herbal Medicine formula had been adjusted and had covered those symptoms, with herbs for dampness and nausea and discomfort, herbs for Yang energy and sleepy, and herbs for stasis and pain in her calves.
The Commission relies on Dr Ee's expert opinion as stated in her first report. After setting out the contents of the treatment records, Dr Ee states: Given the Respondent noted that there were new symptoms (nausea, reflux, bloating) I would have expected that he consider these to be adverse events and adjust the treatment significantly as the Subject was previously not reporting nausea. The herbal prescription remains largely the same with the addition of Er Zhu (which can treat vomiting) and Yan Hu suo (for pain) and removal of two herbs - Pi Pa Ye (used to relieve coughing, wheezing and vomiting), and Che Qian Zi (clears heat). It is not clear why these substitutions were made. Korean ginseng was added, possibly to treat nausea. A revised diagnosis may have been "adverse flow of Qi" and revised prescription could have been Xuan Fu Dai Zhe Tang. I consider that his treatment falls below the standard expected because of the failure to adjust it accordingly given the new symptoms. (emphasis added)
Given the evidence, and in the circumstances, we find Particular (5) established.

[55]

Particular (6)

Particular (6) is that on 30 May 2018, after receiving messages from Person B regarding the symptoms of Patient A, the practitioner failed to: 1. appropriately assess the deterioration of Patient A's health (Particular (6)(a)); 2. appropriately concede that he was not suitably qualified to advise Patient A in relation to her worsening health conditions (Particular (6)(b)); and 3. recommend Patient A be treated by a suitably qualified medical practitioner (Particular (6)(c)).
Our relevant findings as to the Wechat exchanges between the practitioner and Person B on 30 May 2018 are set out.
The practitioner relevantly submits: 277 The HCCC is unable to understand about the deterioration and the Chinese herbal Medicine treatments and the way of how the Chinese herbal Medicine to treat. Even Dr Carolyn Ee says that, she does not understand the herbs and there was no any issue about the Chinese herbal Medicine treatments. HCCC is just unreasonable and wrong and illegal to raise this issue of the symptoms and conditions and advise. 278 The issue was pain, and the symptoms and conditions with such different type of pain are very common, and the Chinese herbal Medicine treatments are suitable and qualified to treat such symptoms and conditions with different type of pain. The Respondent was treating such symptoms and conditions with different type of pain regularly and successfully. 279 The painkiller can be purchased from the normal supermarket by any one without the need of advise and or prescription from medical doctor. 280 The HCCC and Dr Carolyn Ee are just unreasonable and wrong and illegal to raise this issue of advise of not taking painkiller in such situation of the Patient was not on painkiller, and to say the Respondent failed to concede that Respondent was not suitably qualified to advise and was practising out of limits of scope. 281 There were no requirement and no need to recommend Patient to be treated by the medical doctor in such situation for such pain. And normally the Patient and any one would make their own decision to purchase the painkiller from the supermarket without the prescription from medical doctor, and take the painkiller without the advise of medical doctor. 282 The taking walnut and potato was for the pain. And Dr Carolyn Ee agrees with this. 283 The HCCC is needed to learn more about the Chinese herbal Medicine in order to say some thing reasonably and legally.
We did not find these submissions to be of much assistance to our task. And we note as a general comment that the practitioner's submissions by and large did not directly engage with any of the alleged Particulars of Complaint One.
The practitioner further submitted: 420 For the incident of particular 6, Dr Carolyn Ee is unreasonable and misleading and wrong to treat the "thinking there was no water in a cup" as hallucinating: … 421 The Patient was reasonable to react with a cup in hand in such way, and she was good to follow the instructions of her family to move the body and legs and hands. And the Patient did not seem very lucid, but was reasonably thinking and was not such being confused with asking where the Teacher then asking where the Doctor, as the Chinese people in China have the culture to usually call a person with respects as " 老師" LaoShi (means Teacher). … 422 The Patient had some Kind of improvement on weakness, and the dizziness was not mentioned and was recovered. The weakness was not adverse event and not dangerous, and could be treated well and recovered well with continuing the use of Chinese herbal Medicine treatments. 423 Hence this incident of particular 6 is not established and not proved, as the Patient was thinking and reacting reasonably, and not such being confused and not hallucinating, and such dizziness was recovered, and weakness with improving were not adverse events and not dangerous, would not trigger the recommending medical review, and the discussion on 01 June 2018 had the same effect or similar effect as the recommending medical review.
The Commission relies on Dr Ee's expert opinion expressed in her first report, namely that: 7. With reference to the We Chat messages, please provide your opinion in relation to the appropriateness of the Respondent's care and treatment of the Subject on 30 May 2018, including but not limited to: a. His advice that she not take any painkillers for her symptoms as summarised in paragraph 2.4 of the Assumed Facts; and b. His prescribing of Chinese herbal medicines (please address type and dosage) and diet therapy to treat her symptoms as summarised in paragraph 2.4 of the Assumed Facts. On 30th May, the Respondent was informed that the Subject was "in a lot of [abdominal] pain". I consider that failure to recommend medical review at this stage was a breach of the code of conduct, failure to consider the safety of his patient, and significantly below the standard I would expect from a registered practitioner. Any severe pain, particularly undiagnosed, should always trigger a review by a medical doctor. His advice to not take any painkillers is inappropriate as this is outside of the scope of a Chinese medicine practitioner. I consider this to fall below the standard expected of a Chinese medicine practitioner. At this stage, the Respondent should have recommended the Subject consult a medical doctor to discuss the use of painkillers. His advice to eat walnuts and potato is inappropriate without a proper diagnosis from a Western medical doctor. However, should the pain have been diagnosed and considered to be a minor ailment, the prescription of this diet therapy is reasonable given these foods are warming and may help to alleviate abdominal pain. No additional herbs were prescribed. I consider that this falls below the standard expected as I would expect a herbal prescription to be adjusted according to current symptoms and that abdominal pain should have been considered as a potential adverse effect.
There is not a complete correlation between Dr Ee's opinions and the alleged sub-Particulars. Nevertheless, we consider that Dr Ee's opinion sufficiently established Particulars (6)(a) and (c). However, we do not find Particular 6(b) established as Dr Ee gave no opinion evidence about it.
Given the evidence, and in the circumstances, we find Particulars (6)(a) and (c) proved.

[56]

Particular (7)

Particular (7) is in the same form as Particular (6), save that it relates to the events of 31 May 2018.
Our findings as to the Wechat exchanges between the practitioner and Person B on 31 May 2018 are set out.
The practitioner relevantly submits: 285 The HCCC is unable to understand about the deterioration and the medical medicine and the medical systems and the Chinese herbal Medicine treatments and the way of how the Chinese herbal Medicine to treat. Even Dr Carolyn Ee says that, she does not understand the herbs and there was no any issue about the Chinese herbal Medicine treatments. HCCC is just unreasonable and wrong and illegal to raise this issue of the symptoms and conditions and advise. 286 The issues were vomiting and pain, and the symptoms and conditions with such vomiting and pain were reasonable as the Patient had the feeling of acid flood before and that feeling of acid flood would cause nausea and vomiting and pain. 287 The Chinese herbal Medicine treatments are suitable and qualified to treat such symptoms and conditions with different type of vomiting and pain. The Respondent had been treating such symptoms and conditions with different type of vomiting and pain successfully with good practising experience. 288 The HCCC and Dr Carolyn Ee are just unreasonable and wrong and illegal to raise this issue of advise of taking coix seeds soup in such situation of the Patient was vomiting due to food or had pain without food, and to say the Respondent failed to concede that Respondent was not suitably qualified to advise and was practising out of limits of scope. 299 There were no requirement and no reason to recommend Patient to be treated by the medical doctor in such situation for such vomiting or pain, as the Patient had been treated regularly by the suitably qualified medical doctors for many years already, and the Patient still had lot of such symptoms and conditions. 300 The taking the coix seeds soup was for the vomiting and pain. And Dr Carolyn Ee agrees with this. 301 The HCCC is needed to learn more about the logical thinking in order to say some thing reasonably and legally. (emphasis added) … 424 For the incident of particular 7, the warning of dangerous was given to the Patient family, this incident of particular 7 is not established: … a. The evidence of warning of dangerous been given to the Patient family is showed in the phone call conversations and transcripts. 425 The words "softened down" should be used rather than using the "collapsed" or "collapsing", as the "softened down" was the original meaning of "軟下去": She is not coherent. She collapsed [softened down] just now while she was going to the toilet. We had to carry her back to bed. She was mumbling gibberish. 426 The Patient was able to eat foods and move around the body and eyes and face and hands and legs on 07 June 2018. The video clip from WeChat on 07 June 2018 showed and supported that, the Patient was in the stable conditions on 07 June 2018 with going flat compared to the conditions on 06 June 2018, and her eyes did not look like such glazed and fixed, but the Patient was not recovered as quick as expected. 427 The Patient was not recovered as quick as expected, then it would be dangerous and the warning of dangerous was given to the Patient family in the home visit in late night 07 June 2018, and the Patient family understood this warning and would go to hospital and see medical doctors in any time. This warning of dangerous had the same effect or similar effect as the recommending urgent medical review. 428 Hence, this incident of particular 7 is not established and not proved, as the warning of dangerous was given to the Patient family in the home visit in late night 07 June 2018, and the Patient family understood this warning and would go to hospital and see medical doctors in any time, this warning of dangerous had the same effect or similar effect as the recommending urgent medical review, and the Patient was able to eat foods and move around the body and eyes and face and hands and legs with the stable conditions on 07 June 2018 going flat compared to the conditions on 06 June 2018, and her eyes did not look like such glazed and fixed, and the weakness and conditions with going flat were not adverse events and not dangerous, would not trigger the recommending urgent medical review, but the not being recovered as quick as expected would be dangerous and triggered the warning of dangerous. (emphasis added)
Dr Ee's evidence on the events of 31 May 2018 were as follows: 8. With reference to the WeChat messages, please provide your opinion in relation to the appropriateness of the Respondent's care and treatment of the Subject on 31 May 2018, including but not limited to his prescribing of Chinese herbal medicines (please address type and dosage) and Chinese diet therapy to treat her symptoms as summarised in paragraph 2.4 of the Assumed Facts. On 31st May the Respondent was notified that [Patient A] was vomiting as soon as she has eaten, had ongoing abdominal pain, and had been in bed for two days. This severe deterioration in condition from a woman who was previously well and ambulant, should have triggered a recommendation for medical attention particularly upon reports that [Patient A] could not keep any food down. The Respondent advised a coix seeds soup and did not ask [Person B] to consult a medical doctor. I consider this to be significantly below the standard expected. Severe, ongoing abdominal pain and vomiting without being able to keep food down is a sign of an ill patient. Moreover, prescription of diet therapy is inappropriate in a patient who is vomiting everything that is being eaten as the patient will not be able to comply with diet therapy if they are vomiting. I make this statement based on the Code of Conduct which states ""Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively" and "Minimising risk to patients or clients is a fundamental component of practice. Good practice involves understanding and applying the key principles of risk minimisation and management into practice". Coix seeds (Yi Yi Ren) are used to treat dampness that can cause symptoms such as poor appetite. If the Subject had not been suffering from ongoing severe abdominal pain (undiagnosed) and vomiting after eating, this diet therapy would have been a reasonable suggestion. No additional herbs were prescribed, and I consider that this falls below the standard expected as I would expect a herbal prescription to be adjusted according to current symptoms and that abdominal pain and vomiting should have been considered as a potential adverse effect. (emphasis added)
By and large we reject the practitioner's version of events, and in particular his opinion that Patient A was being treated successfully and that there was no requirement and no reason to recommend Patient A be treated by a Western medicine doctor. We consider that his assessment of Patient's A medical condition fundamentally understated or misunderstood the seriousness of her condition, and we reject entirely his assessment that day that "the situation is holding up".
And we further reject his evidence that he told Person B of the dangerousness of the situation. That evidence is entirely inconsistent with the Wechat conversation that day. Person B asked the practitioner directly "Is she in danger with her current condition?" to which the practitioner made no direct response. Furthermore, his evidence that he did give Patient A's family some sort of warning is also entirely inconsistent with Person B's evidence during the telephone conversation on 11 June 2018.
In this respect, we accept the Commission's submission that it would be obvious to a layperson, let alone someone with basic western training and tuition and professional expertise, that Patient A had become seriously unwell.
Returning to the three Particulars, we find Particulars 7(a) and (c) established, but not Particular 7(b). That is because Dr Ee gave no opinion evidence about it.

[58]

Particular (9)

Particular (9) is in the same form as Particulars (7) and (8) save that it relates to the events of 2 June 2018 and includes an additional sub-Particular, namely that the practitioner failed to adjust Patient A's herbal prescription according to her reported symptoms.
Our relevant findings as to the Wechat exchanges between the practitioner and Person B on 2 June 2018 are set out.
The practitioner's submissions were as follows: 303 The HCCC is unable to understand about the deterioration and the medical medicine and the medical systems and the Chinese herbal Medicine treatments and the way of how the Chinese herbal Medicine to treat. Even Dr Carolyn Ee says that, she does not understand the herbs and there was no any issue about the Chinese herbal Medicine treatments. HCCC is just unreasonable and wrong and illegal to raise this issue of the symptoms and conditions and assessing deterioration and advise. 304 The issues were vomiting and pain occurred 2 hours after taking the Chinese herbal Medicine with the cramping in chest inducing the vomiting and pain. 305 The different Chinese herbal Medicine formula TianMaDuZhongGouTengYin was used for the cramping and vomiting and pain. After using this Chinese herbal Medicine formula, the vomiting and pain of Patient had not occurred. … 307 The Patient and her family were in the position that, Patient was fully controlled by her self and her family, and they knew they need to medical doctor and were in charge and fully controlled and made their own decisions for the matters of taking or not taking medications and seeing medical doctors and going to hospital, and they had the right to do or not do any thing they wanted to do or not do. 308 The HCCC is needed to understand the explanation and demonstration of the treatment results detailed in above clearly.
Again, these submissions just simply do not engage with the alleged Particulars.
On the other hand, Dr Ee's opinion was as follows: 9. With reference to the Respondent's treatment notes and the WeChat messages, please provide your opinion in relation to the appropriateness of the Respondent's care and treatment of the Subject on 2 June 2018, including but not limited to his prescribing of Chinese herbal medicines (please address type and dosage) and Chinese diet therapy to treat her symptoms as summarised in paragraph 2.4 of the Assumed Facts. On 2a June, the Subject had been vomiting for four days, and in the WeChat messages the Subject's daughter reported streaks of blood in her mother's vomit. The Subject's daughter informed the Respondent that her mother had not been able to eat anything over the past two days and was vomiting constantly. The Respondent saw the Subject and his consultation notes are the same as from 1st June with no update. He did not advise the Subject to attend for medical care. The diagnosis was the same. He prescribed a herbal formula known as Tian Ma Du Zhong Gou Teng Yin which is typically prescribed for a diagnosis of "Hyperactive liver yang and upward disturbance of liver wind" with the actions of "Pacify the liver, extinguish wind, clear heat, invigorate the blood, tonify the liver and kidney". This formula is usually prescribed for the symptoms of tinnitus, headache, fainting, blurred vision. This is not consistent with his treatment principles of "Tonify Qi and Blood, Yin and Yang, clear wind heat and wind cold dampness. I do not consider this an appropriate treatment for his diagnosis or her symptoms of vomiting. I consider that his care and treatment of the subject on 2d June was significantly below the standard expected. He should have advised the Subject seek medical attention, his diagnosis of the patient had not changed and his herbal prescription was not consistent with his diagnosis. I make this statement based on the Code of Conduct which states ""Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively" and "Minimising risk to patients or clients is a fundamental component of practice. Good practice involves understanding and applying the key principles of risk minimisation and management into practice". (emphasis added)
Given the evidence, and in the circumstances, we find Particulars (9)(a), (c) and (d) established. We do not find Particular 9(b) established as Dr Ee gave no opinion evidence about it.

[59]

Particular (10)

Particular (10) is in the same form as Particulars (6), (7) and (8) save that it relates to the events of 5 June 2018.
Our relevant findings as to the Wechat exchanges between the practitioner and Person B on 5 June 2018 are set out.
The practitioner relevantly submits: 310 The HCCC is unable to understand about the deterioration and the medical systems and the Chinese herbal Medicine treatments and the way of how the Chinese herbal Medicine to treat. Even Dr Carolyn Ee says that, she does not understand the herbs and there was no any issue about the Chinese herbal Medicine treatments. HCCC is just unreasonable and wrong and illegal to raise this issue of the symptoms and conditions and assessing deterioration and advise. 311 The issues were dizziness and hungry easily which was caused by the weakness, or the body condition and Qi and blood were not strong enough and lack of taking the food with proteins and nutrition. And the Patient had dizziness before, and the dizziness had been much improved after having the Chinese herbal Medicine. 312 The foods of potato grape cherry peanut pistachio cashew macadamia jackfruit durian and sugar cane juice, were used for blood and hungry easily and the dizziness and weakness. 313 The HCCC is needed to understand the explanation and demonstration of the way of the symptoms changing detailed in above clearly.
There submissions are not responsive to the alleged sub-Particulars and do not assist the Tribunal.
The Commission relied on Dr Ee's evidence, who stated in her first report: 10. With reference to the WeChat messages, please provide your opinion in relation to the appropriateness of the Respondent's care and treatment of the Subject on 5 June 2018, including but not limited to his prescribing of Chinese herbal medicines (please address type and dosage) and Chinese diet therapy to treat her symptoms as summarised in paragraph 2.4 of the Assumed Facts. On 5th June the Respondent was informed that dizziness had started again. The assumed facts state that the Respondent was aware of weakness, dizziness, inability to walk from bathroom to bedroom unassisted. The Respondent advised ongoing Chinese herbal medicine and diet therapy. I consider that this rapid deterioration in a previously well patient should have triggered a recommendation for urgent medical attention and that the care and treatment provided was significantly below the standard expected. I make this statement based on the Code of Conduct which states ""Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively" and "Minimising risk to patients or clients is a fundamental component of practice. Good practice involves understanding and applying the key principles of risk minimisation and management into practice". (emphasis added)
Given the evidence, and in the circumstances, we find Particulars (10)(a) and (d) established. We do not find Particular 10(b) established as Dr Ee gave no opinion evidence about it.

[60]

Particular (11)

Particular (11) is that on 6 June 2018, following a home visit to Person B's home, the practitioner inadequately assessed the deterioration of Patient A's health, in that he failed to: 1. appropriately assess the deterioration of Patient A's health as requiring urgent medical attention; 2. appropriately concede that he was not suitably qualified to advise Patient A in relation to her worsening health conditions; 3. recognise that the prescribed Chinese diet therapy and the Chinese herbal medicines to Patient A were no longer appropriate; 4. reconsider his diagnosis and treatment plan of Patient A in light of Patient A's presenting conditions; and 5. recommend Patient A be treated by a suitably qualified medical practitioner as a matter of urgency.
Our relevant findings as to the Wechat exchanges between the practitioner and Person B on 6 June 2018 are set out.
The practitioner relevantly submitted: 315 The HCCC is unable to understand about the deterioration and the medical systems and the Chinese herbal Medicine treatments and the way of how the Chinese herbal Medicine to treat. Even Dr Carolyn Ee says that, she does not understand the herbs and there was no any issue about the Chinese herbal Medicine treatments. HCCC is just unreasonable and wrong and illegal to raise this issue of the symptoms and conditions and assessing deterioration and advise. 316 The issues were the weakness and body softening down condition and Qi and blood were not strong enough and lack of strengthening and warm energy. 317 The Chinese herbal Medicine treatments were suitable and qualified for such symptoms and conditions. 318 The Chinese herbal Medicine formula with herbs for strengthening and warm energy and Qi and blood was used to improve the body weakness and feeling cold conditions. 319 After using this Chinese herbal Medicine, the body weakness and feeling cold conditions of Patient were some kind improved. And the dizziness condition was also much improved as Patient family did not mention the dizziness. And the Patient was able to eat the food and hold up the cup and move around the body and legs. Hence, it could be expected that the Patient could be recovered from the body weakness condition. Also the Patient called the Respondent as the Teacher, it was the habit and reasonable and logical, as it was the culture in China that the people would call some one respectfully as Teacher. Such conditions and situation of the Patient would not trigger the urgent medical attention. 320 The Patient family knew and were in charge the matter of going to see medical doctor and or going to hospital. 321 The Chinese herbal Medicine treatments had been working well for the Patient, there was no reason to say or think that Chinese herbal Medicine treatments suddenly would stop working.
As with other submissions of the practitioner, we find these submissions to be unresponsive to the alleged Particulars and self-serving. In particular, we reject the submission that "[t]he Chinese herbal Medicine treatments had been working well for [Patient A]", which, like other submissions, borders on being fanciful.
We make the same comment about the practitioner's submission at [306] of the Submissions that Patient A and her family had showed they were happy with the treatment results on 3 June 2018, and that Patient A was walking well on that day.
The Commission relied on Dr Ee. Her opinion runs to more than two pages which we summarise as follows: 11. With reference to the Respondent's treatment notes and the WeChat messages, please provide your opinion in relation to the appropriateness of the Respondent's care and treatment of the Subject on 6 June 2018, including but not limited to his prescribing of Chinese herbal medicines (please address type and dosage) and Chinese diet therapy to treat her symptoms as summarised in paragraph 2.4 of the Assumed Facts. On 6th June morning the WeChat messages from the Subject's daughter reported that the Subject was "not looking well at all", was unable to walk, was very feeble, with eyes rolling, and barely able to speak. This is a substantial deterioration of condition from a woman who was previously independent and energetic. The Respondent prescribed grape juice. I consider that TCM practitioners would have immediately called for help when presented with an incoherent patient who was previously well functioning and that he should have called for urgent medical attention. By this stage I consider that The Respondent, by consistently failing to refer to other health professionals, had created a scenario where the daughter trusted him and his advice and therefore only relied on his advice. … Later the Subject deteriorated further and needed an adult diaper. This is a serious deterioration of physical condition. The Respondent offered to visit the house after lunch. I consider that this ongoing deterioration should have triggered a recommendation for medical attention, The Respondent attended the Subject during this time and would have observed her drowsiness, weakness, and confusion. He noted "weak, no power on body, arms, legs". There was no change in the TCM diagnosis or treatment protocol. This is inappropriate as there had been a significant change in her symptoms and signs since the first consultation. … The Subject further deteriorated in the evening. The daughter reported this to the Respondent over WeChat including statements such as "when I speak to her, I need to repeat myself a few times before I get a reaction from her". She also described confusion with the mother asking "Where is the doctor? Who is this teacher?" At 8:33pm the daughter reported that her mother seemed "even less responsive". The Respondent asked if she was able to hold an empty glass/cup in her hand. The daughter reported that she was able to do this, and kept raising the cup to her mouth even though she was told there was no water in the cup (a clear sign of confusion/delirium). The daughter reported she could not stand unassisted and that she could bend her legs but not lift them. The Respondent told the daughter that "she has improved a lot" and prescribed fruits. I consider this a gross breach of the code of conduct to keep patients safe. The Respondent failed to recommend urgent medical attention even upon a clear description of confusion and severe loss of power. I consider that TCM practitioners would call for immediate medical attention at this point e.g. advising the daughter to call for an ambulance. I consider that his practice fell significantly below the standard expected of a TCM practitioner. (emphasis added)
This section of Dr Ee's report concludes with Dr Ee setting out some six examples of where the practitioner breached the 2014 CMBA COC, namely: 1. the duty to make the care of patients and clients a practitioner's first concern and to practise safely and effectively (where this obligation appears in the 2014 CMBA COC is not stated by Dr Ee but it is found in the Overview to the 2014 CMBA COC); 2. acting with integrity because they have the trust of their patients.Where this obligation appears in the 2014 CMBA COC is not stated by Dr Ee but references to trust are found in the Overview [34] and expanded in Section 3.1(g); [35] 3. working within scope of practise, and recognising limits to a practise on his own skills and competence (not stated by Dr Ee but appearing in the cl 2.2(a) of the 2014 CMBA COC); 4. keeping up to date, accurate and factual records (not stated by Dr Ee but partially appearing in cl 8.4(a) of the 2014 CMBA COC); [36] 5. considering the balance of benefit and harm (not stated by Dr Ee but partially appearing in cl 2.2(f) of the 2014 CMBA COC); [37] and 6. consulting and taking advice from colleagues where appropriate (not stated by Dr Ee but partially appearing in cl 2.2(k) of the 2014 CMBA COC). [38]
In the circumstances, we find Particulars (11)(a), (c), (d) and (e) established. We do not find Particular 11(b) established, as Dr Ee gave no opinion evidence about it.

[61]

Particular (12)

Particular (12) is in the same form as Particular (11), save that it relates to the events of 7 June 2018.
Our relevant findings as to the Wechat exchanges between the practitioner and Person B on 7 June 2018 are set out.
The practitioner's short submissions on this Particular are: 323 The HCCC and Dr Carolyn Ee are unable to understand the all evidences of facts. 324 The issues were the weakness body condition going flat and not recovered as quick as expected. This situation triggered the dangerous warning, and the dangerous warning was given to the Patient family, and they planned to go to hospital. This dangerous warning was equal to the requiring urgent medical attention. 325 The Patient was able to eat food, to move around body and legs arms and head face and eye, and the breathing was good and stable. 326 The Chinese herbal Medicine treatments were suitable and qualified for such symptoms and conditions. 327 The more strengthening herbs were used to help strengthening body quickly.
Dr Ee stated in her first report: 12. With reference to the Respondent's treatment notes and the Wechat messages, please provide your opinion in relation to the appropriateness of the Respondent's care and treatment of the Subject on 7 June 2018, including but not limited to his prescribing of Chinese herbal medicines (please address type and dosage), Chinese diet therapy and acupuncture to treat her symptoms as summarised in paragraph 2.4 of the Assumed Facts. On the 7th of June WeChat messages show that the Subject was described by her daughter just before 7am as "in a state of trance", needing to be woken for any oral intake, falling asleep after taking two bites, too weak to eat, not able to wipe herself after going to the toilet. The Respondent prescribed potato soup. At 8am the Subject's daughter reported the Subject had become worse, had collapsed, was mumbling gibberish. The daughter asked if her mother was in danger, and described again her mother being very feeble, very unwell, eyes glazed and fixed, unable to reach the toilet, and collapsing. The Respondent asked if the Subject could hold a glass and bend her arms/legs. When answered in the affirmative he reassured the daughter that the "situation was holding up." This is inappropriate advice for someone who is almost unconscious, and the Respondent should have called for immediate medical attention. The Respondent failed to act in the Subject's best interest and consider her safety as his priority, and I consider this care significantly below the standard expected. At this stage, even Chinese medicine textbooks advise for basic first aid (for situations of loss of consciousness or collapse). In the afternoon, the daughter expressed more concern about her mother's state - she was "not very responsive", "too weak to go to the toilet", "not lucid" and "her awareness is getting worse day by day". Throughout the day the Respondent continued to prescribe herbal medicine and diet therapy. The Respondent visited to provide acupuncture later in the day. He did not note the presumed condition of the Subject (which we can derive from the daughter's description as a barely conscious patient). The diagnosis and prescription are essentially unchanged. I consider that his treatment on 7th June was grossly inadequate, even within just the bounds of Chinese medicine. According to the Handbook of Internal Medicine, page 583 regarding "Fainting and Funny Turns", "If a person collapses or has a blackout, treatment during the unconscious state is standard first aid; maintenance of the airway, breathing and circulation. Paramedic assistance should be sought." …This should have triggered an urgent review. As per the Handbook of Internal Medicine, additional urgent assistance should have been sought at this stage. (emphasis added)
Given the evidence, and in the circumstances, we find Particulars (12)(a), (c) and (d) established. We not find Particular 12(c) established, as Dr Ee gave no opinion evidence about it.

[62]

Particular (13)

Particular (13) is that on 8 June 2018, after receiving messages from Person B regarding the symptoms of Patient A, the practitioner inadequately assessed the deterioration of Patient A's health, in that he failed to: 1. appropriately assess the deterioration of Patient A's health as requiring urgent medical attention; 2. appropriately concede that he was not suitably qualified to advise Patient A in relation to her worsening health conditions; 3. recognise that the prescribed Chinese diet therapy and the Chinese herbal medicines to Patient A were no longer appropriate; 4. reconsider his diagnosis and treatment plan of Patient A in light of Patient A's presenting conditions; and 5. recommend Patient A be treated by a suitably qualified medical practitioner as a matter of urgency.
Our relevant findings as to the Wechat exchanges between the practitioner and Person B on 8 June 2018 are set out.
The practitioner's short submissions on this Particular are: 329 The HCCC and Dr Carolyn Ee are unable to understand the situations that the Patient family were in charge the matters of going to hospital and seeing medical doctors, and they knew and understood and planned to do such matters, and they had been doing such matters regularly, and they even knew about the Adrenaline injections they knew and understood any thing about that. 330 The Respondent was not on side. And the dangerous warning had been given to the Patient family on 07 June 2018, and they planned to go to hospital, and they knew and understood such matter of urgency for requiring medical attention. 331 The issue were sleepy and the phlegm in throat. The Respondent provided advise for waking up and the issues of the phlegm in throat base on messages in WeChat. Such advises were suitable, and had the effects immediately. Respondent was qualified to provide such advises, and such advises were common used.
Dr Ee's opinion was that: 13. With reference to the WeChat messages, please provide your opinion in relation to the appropriateness of the Respondent's care and treatment of the Subject on 8 June 2018, including but not limited to: a. His prescribing of Chinese herbal medicines (please address type and dosage) and Chinese diet therapy to treat her symptoms as summarised in paragraph 2.4 of the Assumed Facts; and b. His instructions to provide acupuncture to try to get the Subject to regain consciousness. I consider the care and treatment provided on 8 June to be significantly below the standard expected. On 8th June 2018, the daughter reported to The Respondent in the morning that her mother's feet were cold, face was warm, and she was unable to be woken. The Respondent prescribed diet therapy which is not appropriate in an unconscious person suffering from a severe acute illness who is unable to eat or drink. I consider this to be significantly below the standard expected. The Respondent told her to press on the GV26 acupuncture point which is used to return consciousness. The daughter reported that pressure on the point did not wake her mother up; The Respondent advised her to press using her fingernail. The daughter reported that the Subject woke up momentarily and then went back to sleep. She was unable to feed her mother the medicine. He then told her to feed her the purple laver and longan soup, presumably to get rid of phlegm in her throat. He then told her to make a tomato soup. Tomatoes are believed to nourish Liver Yin, clear toxins, promote fluids, strengthen the spleen and stomach. Never have I heard of them being used as a treatment for an unconscious patient. The Respondent spent a lot of time instructing the daughter on the ingredients for the tomato soup. The Respondent did not call for urgent medical attention. The Respondent advised an acupressure treatment that should only ever be used when no other treatment is available and one has already called for an urgent paramedic assistance. The Respondent should have called for urgent medical attention. (emphasis added)
As to whether the practitioner's diagnosis of Patient A ought to have changed after the initial consultation on 216 May 2018, Dr Ee's opinion was that: It is my opinion that the Respondent's diagnosis of the subject should have changed after the initial consultation due to the new symptoms of nausea (29 May), abdominal pain (30 May), vomiting (31 May), chest pain and sore throat (1 June), weakness, dizziness, collapsing, inability to walk unassisted, eyes rolling into back of head, incoherence/confusion (5 June), unresponsive, not lucid, inability to consumer food due to lack of consciousness, feverish and thirsty (7 June), unable to be roused at all, unconscious (8 June). I consider that his practice falls significantly below the standard expected. (emphasis added)
Given the evidence, and in the circumstances, we find Particulars (13)(a), (c), (d) and (e) established. We do not find Particular (13)(b) established, as Dr Ee gave no evidence about it.

[64]

Particular (14)(a): The practitioner failed to consider the safety of Patient A and apply principles of risk minimisation, contrary to the 2014 CMBA COC, cl 6

Clause 6 of the 2014 CMBA COC relevantly provides that: 6 Minimising Risk 6.1 Introduction Risk is inherent in healthcare. Minimising risk to patients or clients is an important component of practise. Good practise involves understanding and applying the key principles of risky minimalization and management in practise. 6.2 Risk management Good practice in relation to risk management involves: being aware of the principles of open disclosure and a non-punitive approach to incident management … participating in systems of quality assurance and improvement participating in systems for surveillance and monitoring of adverse events and near misses. including reporting such events to the relevant authority if a practitioner has management responsibilities. making sure that systems are in place for raising concerns about risks to patients or clients working in practice and within systems to reduce error and improve the safety of patients or clients and supporting colleagues who raise concerns about the safety of patients or clients, and taking all reasonable steps to address the issue if there is reason to think that the safely of patients or clients may be compromised.
As noted, Dr Ee does not address the criteria set out in cl 6 of the 2014 CMBA COC in terms or at all. We accept that after paraphrasing a part of the Overview to the 2014 CMBA COC, namely: Minimising risk to patients or clients is a fundamental component of practise. Good practise involves understanding and applying the key principles of risky minimization and management to practise.
We further accept that Dr Ee that the practitioner had a duty of care to maintain the safety of Patient A and repeatedly breached the CBMA COC and at no stage did he consider Patient A's safety as his primary concern; this is for the lengthy reasons set out at p 14 of Dr Ee's first report.
However, what is pleaded against the practitioner in Particular 14(a) is a breach of cl 6 of the CBMA COC. This is not addressed at all in Dr Ee's expert report with the consequence that we find that the Commission has failed to establish this Particular.

[66]

Particular (14)(c): The practitioner failed to maintain adequate records, contrary to the 2014 CMBA COC, cl 2.2(e)

Clause 2.2(e) of the CMBA COD provides: 2.2 Good care Maintaining a high level of professional competence and conduct is essential for good careful stop good practise involves: … e) maintaining adequate records (See Section 8.4 Health records)
Clause (or Section) 8.4 of the 2014 CMBA COC then provides: 8.4 Health records Maintaining clear and accurate health records is essential for the continuing good care of patients or clients. Practitioners should be aware that some National Boards have specific guidelines in relation to records. Good practice involves: keeping accurate, up-to-date, factual, objective and legible records that report relevant details of clinical history, clinical findings, investigations. information given to patients or clients, medication and other management in a form that can be understood by other health practitioners ensuring that records are held securely and are not subject lo unauthorised access, regardless of whether they are held electronically and/or in hard copy ensuring that records show respect for patients or clients and do not include demeaning or derogatory remarks ensuring that records are sufficient to facilitate continuity of care making records at the time of events or as soon as possible afterwards recognising the right of patients or clients to access information contained in their health records and facilitating that access, and promptly facilitating the transfer of health information when requested by patients or clients.
After setting out cl 8.4(a) only, Dr Ee's view then states in her first report: The Respondent's records were inaccurate at times, for example not recording full details of acupuncture treatment, and mostly consisting of copied and pasted clinical notes which did not adequately describe [Patient A's] current symptoms and signs.
As the Tribunal stated in Health Care Complaints Commission v Al-Mozany (No 6) [2024] NSWCATOD 8 at [303]: In an oft-quoted passage, Heydon JA (as his Honour then was), in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, referred to the prime duty of experts in giving opinion evidence as furnishing the Court (or in this case the Tribunal) with criteria to enable the evaluation of the validity of the expert's conclusions. His Honour referred to the judgment of Lord President Cooper in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 where the Lord President stated that the role of the expert was: to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert. (emphasis added)
We are not persuaded that the expert's reasoning on this subject is sufficiently detailed or reasoned to satisfy us that Particular (14)(c) is established. We note in particular that the expert's view was that the Respondent's records were inaccurate "at times".

[72]

Consideration of Complaint Three

Compliant Three is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the practitioner has contravened s 130(1) of the National Law.
The only Particular of Complaint Three is that the practitioner failed to notify the Board within seven days of a relevant event occurring, namely that on 16 August 2018, the practitioner was charged with Manslaughter pursuant to s 18(1)(b) of the Crimes Act.
Section 139B(1)(b) of the National Law 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 - … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
Section 130 of the National Law relevantly provides: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (2A) To avoid doubt, a registered health practitioner is not required to give the National Board written notice of an event within the meaning of paragraphs (e) or (f) of the definition of"relevant event" if the notification is prohibited by the Health Insurance Act 1973 of the Commonwealth. (3) In this section - "relevant event" , in relation to a registered health practitioner, means-- (a) the practitioner is charged with-- … (ii) an offence punishable by 12 months imprisonment or more, … (emphasis added)
The Commission alleges that the relevant facts are that: 1. on 16 August 2018, the practitioner was charged with Manslaughter pursuant to s 18(1)(b) of the Crimes Act; and 2. by 23 August 2018 the practitioner had not notified the Board that he had been charged with Manslaughter;
Thus, the Commission submits Complaint Three is established.
The practitioner relevantly submits: 350 The Complaint Three cannot be established and not be approved [sic - proved]. 351 The HCCC is unreasonable and wrong and illegal to raise this following particular 1 of Complaint Three, as it can not be established and not be proved: 1. The practitioner failed to notify the National Board within seven days of a relevant event occurring, namely that in [sic - on] 16 August 2018, the practitioner was charged with Manslaughter pursuant to section 18(1)(b) of the Crimes Act 1900. 351 The Respondent had not contravened section 130 of the National Law. On August 22, 2018. 235 The solicitor of Respondent had given a notice to the insurer of Respondent and HCCC by email regarding the criminal Charge on behalf on Respondent, and received a Notice from HCCC regarding the investigation and criminal proceedings.
The practitioner relies on two documents in his bundle of materials in relation to Complaint Three. The first is an email from the practitioner's solicitor to the practitioner attaching a draft email to be sent to his insurer and the Commission in relation to the charge of Manslaughter.
There is no evidence before the Tribunal that the practitioner ever approved the email or that it was ever sent to the Commission. Indeed, the evidence of the Commission, being the letter of APHRA to the Commission dated 1 April 2022, establishes that neither the draft letter prepared by the practitioner's solicitors nor any other email or letter was sent to the Board notifying it that the practitioner had been charged with Manslaughter within 7 days of so being charge at all.
The second document relied by the practitioner was a letter to him and his solicitor dated 22 August 2018, noting that the complaint filed against the practitioner was being investigated, but noting that "[t]he Commission will pause the investigation pending the outcome of the criminal proceedings against you."
This makes it plain that the Commission knew about the criminal charge, but does not provide any proof that the practitioner had complied with his obligations under s 130.
We are satisfied that the maximum penalty for manslaughter is imprisonment for 25 years: R v Walsh [2004] NSWSC 111 at [3].

[74]

Consideration of Complaint Four

Complaint Four is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or 2. engaged in 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 the suspension or cancellation of the practitioner's registration.
The Commission relies on Particulars (1) (2) and (5) to (14) of Complaint One both individually and cumulatively as Particulars of Complaint Four.
As noted above, we have found Particulars (1)(a) and (b), (2), (5), (6)(a) and (c), (7)(a) and (c), (9)(a), (c) and (d), (10)(a) and (d), (11)(a), (b) and (d), (12)(a), (c) and (d), (13)(a), (c), (d) and (e) and (14) (d) and (e) of Complaint One established.
Section 139E of the National Law, a NSW provision, provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The Tribunal stated in Health Care Complaints Commission v Le [2021] NSWCATOD 104 that: 71. The principles relating to findings of professional misconduct were stated in Health Care Complaints Commission v Joffe [2018] NSWCATOD 121 at [69] to [75] which we paraphrase as follows: (1) Whether and to what extent the misconduct of the respondent constitutes professional misconduct depends upon whether it is so serious in the aggregate as to justify suspension or cancellation of registration. This involves a consideration of the circumstances in which suspension or cancellation may be justified, albeit that such protective orders may not necessarily, as a matter of discretion, be made: Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [55]; (2) Guidance as to the circumstances in which suspension or cancellation of registration are appropriate is to be found in the judgment of Meagher JA in the NSW Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do") (Basten and Emmett JJA agreeing). His Honour stated: [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. (3) Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of the respondent's registration. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. (4) Whether conduct is sufficiently serious to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; (5) As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186, "[t]he 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". His Honour further notes: [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. …
As the Tribunal accepted in Health Care Complaints Commission v Richards [2024] NSWCATOD 37 at [103]: 1. professional misconduct is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19]; 2. whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]; and 3. in assessing its gravity, the offending conduct 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] NSWSC 297; (1997) 41 NSWLR 630 at 638.
We have found that: 1. on 26 May 2018, during the initial consultation, the practitioner failed to appropriately assess Patient A, for the purpose of prescribing therapeutic treatment, including that he failed to: 1. obtain a sufficient medical history for Patient A; and 2. obtain a sufficient history regarding Patient A's "high blood sugar". 1. on 26 May 2018, during the initial consultation, the practitioner provided inadequate care and treatment to Patient A by advising her to cease all 'Western medicine' including her prescribed medication for "high blood sugar". 2. on 29 May 2018, during an in person consultation with Patient A at the Burwood Clinic, the practitioner failed to consider the new symptoms of Patient A, including symptoms of nausea, discomfort, drowsiness, insomnia and pain in her calves. 3. on 30 May and 31 May and 1 June 2018, the practitioner failed to: 1. appropriately assess the deterioration of Patient A's health (Particular (6)(a); 2. appropriately concede that he was not suitably qualified to advise Patient A in relation to her worsening health conditions (Particular (6)(b); and 3. recommend Patient A be treated by a suitably qualified medical practitioner (Particular (6)(c); 1. on 2 June 2018, following a further home visit to Person B's home, the practitioner inadequately assessed the deterioration of Patient A's health, in that he failed to: 1. appropriately assess the deterioration of Patient A's health; 2. recommend Patient A be treated by a suitably qualified medical practitioner; and 3. adjust Patient A's herbal prescription according to her reported symptoms. 1. on 5 June 2018, after receiving messages from Person B regarding the symptoms of Patient A, the practitioner failed to: 1. appropriately assess the deterioration of Patient A's health as requiring urgent medical attention; and 2. recommend Patient A be treated by a suitably qualified medical practitioner as a matter of urgency. 1. on 6 June 2018, following a further home visit to Person B's home, the practitioner inadequately assessed the deterioration of Patient A's health, in that he failed to: 1. appropriately assess the deterioration of Patient A's health as requiring urgent medical attention; 2. recognise that the prescribed Chinese diet therapy and Chinese herbal medicines to Patient A were no longer appropriate; 3. reconsider his diagnosis and treatment plan of Patient A in light of Patient A's presenting conditions; and 4. recommend Patient A be treated by a suitably qualified medical practitioner as a matter of urgency. 1. on 7 June 2018, following a further home visit to Person B's home, the practitioner inadequately assessed the deterioration of Patient A's health, in that he failed to: 1. appropriately assess the deterioration of Patient A's health as requiring urgent medical attention; 2. recognise that the prescribed Chinese diet therapy and the Chinese herbal medicines to Patient A were no longer appropriate; 3. reconsider his diagnosis and treatment plan of Patient A in light of Patient A's presenting conditions; and 4. recommend Patient A be treated by a suitably qualified medical practitioner as a matter of urgency. 1. on 8 June 2018, after receiving messages from Person B regarding the symptoms of Patient A, the practitioner inadequately assessed the deterioration of Patient A's health, in that he failed to: 1. appropriately assess the deterioration of Patient A's health as requiring urgent medical attention; 2. recognise that the prescribed Chinese diet therapy and the Chinese herbal medicines to Patient A were no longer appropriate; 3. reconsider his diagnosis and treatment plan of Patient A in light of Patient A's presenting conditions; and 4. recommend Patient A be treated by a suitably qualified medical practitioner as a matter of urgency. 1. between 26 May 2018 and 8 June 2018, the practitioner breached the CMBA, Code of Conduct when he: 1. failed to provide treatment options based on the best available information, contrary to cl 2.2(f) of the 2014 CMBA COC; and 2. failed to consult and take advice from an experienced colleague, contrary to cl 2.2(k) of the 2014 CMBA COC;
In the circumstances, applying the relevant principles set out above, we find Complaint Four established.

[78]

Endnotes

Particular (14) was incorrectly numbered as (13) in the Amended Complaint.
Statement of Senior Constable Ledbrook dated 10 June 2018
Statement of Senior Constable Flynn dated 29 September 2018
Statement of Crime Scene Officer Ferris dated 11 October 2018
Dr Ee's report in criminal proceedings
pp 478-519 of the Transcript of Day 1 of the criminal trial
pp 520-538 of the Transcript of Day 2 of the criminal trial
Transcript of Day 10 of the criminal trial
Transcript of Day 11 of the criminal trial
District Court judgment, 25 March 2019
Tab 60
Tabs 61, 62, 63 and 64
Tab 65
Tab 67
Tab 68
Tab 69
An agreed fact at the criminal trial and expressly agreed to by the practitioner at the Tribunal hearing.
An agreed fact at the criminal trial and expressly agreed to by the practitioner at the Tribunal hearing.
An agreed fact at the criminal trial and expressly agreed to by the practitioner at the Tribunal hearing.
For some reason unexplained, there are three treatment records for this consultation, which are largely repetitive. We have combined the three cards and removed duplication.
Again, for some reason unexplained, there are three treatment records for this consultation, which are largely repetitive. We have combined the three cards and removed any duplication.
A footnote to this sentence states "The literal translation of the source text is "to drink today's herbal medicine powder" which may mean (1) To take the herbal medicine powder prescribed to day with water; (2) To take the herbal medicine powder planned for today with water
The above footnote is repeated here.
A footnote similar to the previous two appears here.
An agreed fact at the criminal trial and expressly agreed to by the practitioner at the Tribunal hearing.
In reproducing this portion of the Hornsby Hospital Assessment Documents we are not making a finding as to the cause of Patient A's death. We are simply recording what the Hornsby Hospital Assessment Documents stated.
At about 4:30pm police attended the hospital. They spoke with Dr Skinner and Person B. Police and crime scene investigators went to 6 Brookfield Place, St Ives with the consent of Person B.
An agreed fact at the criminal trial and expressly agreed to by the practitioner at the Tribunal hearing.
An agreed fact at the criminal trial and expressly agreed to by the practitioner at the Tribunal hearing.
The Tribunal notes that in setting out the following passages of oral evidence of the practitioner, the Tribunal did not have the benefit of a transcript of the 8 day hearing, and that therefore the cross-examination is based on the Tribunal's notes. While the Tribunal's reproduction of the cross-examination is not a verbatim transcription of the evidence, the Tribunal is satisfied that the effect as set out in the reasons accurately represents the effect of the evidence of the practitioner.
Her qualifications in Western Medicine being MB BS (University of Western Australia), MMed (University of Melbourne), PhD (University of Melbourne); see too Health Care Complaints Commission v Luo (No 2) [2025] NSWCATOD 7.
Transcript of s 150 hearing, p 25
We will not refer any further to the practitioner's repeated submissions to the effect that "the [Commission] is illegal to engage Dr Carolyn Ee for this illegal application".
""Relationships based on openness, trust and good communication will enable practitioners to work in partnership with their patients or clients. An important part of the practitioner-patient/client relationship is effective communication…"
"recognising that there is a power imbalance in the practitioner-patient/client relationship and not exploiting patients or clients physically, emotionally, sexually or financially: also see Section 8.2 Professional boundaries and Section 8.12 Financial and commercial dealings).
The obligation in cl 8.4 commences with "8.4 Health Records maintaining clear and accurate health records is essential for the continuing good care of patients or clients. Practitioners should be aware that some National Boards have specific guidelines in relation to records. Good practise involves (a) keeping accurate, up to date, factual, objective eligible records that report relevant details of clinical history, clinical findings, investigations, information given to patients or clients, medication and other management in a form that can be understood by other health practitioners …"
The obligation in cl 2.2(f) relevantly states "2.2 Good Care Maintaining a high level of professional competence and conduct is essential for good careful stop good practise involves ... (f)considering the balance of benefit and harm in all clinical management decisions …".
The obligation in cl 2.2(k) relevantly states "2.2 Good Care Maintaining a high level of professional competence and conduct is essential for good careful stop good practise involves ... (k) consulting and taking advice from colleagues when appropriate". I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 January 2025

Health Care Complaints Commission v Luo

At a glance

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Before

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Judgment (78 paragraphs)

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Legislation Cited (3)

Cases Cited (27)

Cited By (1)