Health Care Complaints Commission v Ng

The "Stage 2" Hearing

1. The Stage 2 hearing was held on 21 October 2015. The HCCC was represented by Mr O'Donnell of counsel, and Dr Ng was represented by Ms Lonergan of senior counsel.
2. At the hearing Ms Lonergan for Dr Ng tendered a folder containing 10 statements of colleagues and patients. The folder of statements was admitted without objection as Exhibit R1.
3. Mr O'Donnell provided written submissions to the Tribunal and spoke to those submissions. In summary, the HCCC submitted that: 1. The professional misconduct of Dr Ng was of such a serious nature, and his lack of insight and remorse so pronounced, that the only disciplinary order appropriate was cancellation of his registration as a health practitioner for a period of at least two years. 2. Dr Ng should, during that time, be prohibited from providing any form of health service that involves the physical examination or physical treatment of patients, including physical therapy or assessment or bodywork.
4. The HCCC sought an order that Dr Ng pay its costs of the proceedings.

Relevant principles

1. The HCCC submitted that the following principles were applicable in considering the appropriate order to impose on Dr Ng. 1. The jurisdiction being exercised by the Tribunal was protective, not punitive: Clyne v New South Bar Association (1960) 104 CLR 186; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; 2. There are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include the reminder to other members of the profession of the public interest in maintaining high professional standards and the unacceptability of certain kinds of conduct and the maintenance of confidence in the high standards of the profession: New South Bar Association v Meakes [2006] NSWCA 340. 3. There is a deterrent aspect to the protective nature of the jurisdiction: HCCC v Do [2014] NSWCA 307. 4. Reasons for the Tribunal's view that cancellation and disqualification is the only appropriate course include the objective seriousness of the conduct, a practitioner's lack of insight into their conduct, a compulsion to continue with the conduct despite knowing it was contrary to ethical and moral standards, deception, lack of care and a failure to engage in treatment: Health Care Complaints Commission v Dawes [2015 NSWCATOD 8. 5. In Health Care Complaints Commission v Parajuli [2010] MNSWNT 3 the Tribunal held that the practitioner's acknowledgement of wrongdoing, contrition, remorse and active steps towards getting a better understanding of patient boundaries suggested that the risk of repetition of the offending behaviour was low. Nevertheless, the Tribunal was concerned about that practitioner's lack of insight into the impact of his conduct on the patient and held that the protection of the public required an order of deregistration. The Tribunal held that an order short of that would be an inadequate response to the seriousness of the misconduct. 6. The fact that a significant period of time may have passed since the relevant misconduct is not, on its own, capable of proving a reformation of character: Lee v Health Care Complaints Commission [2012] NSWCA 80. 7. There is a special relationship of trust between medical practitioners and female patients, and the inappropriateness of chaperone conditions in cases such as the present one: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. 8. The test for cancellation of a practitioner's registration under the National Law was stated by the Tribunal in Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 at [278] to [281] as follows: [278] In making a finding of professional misconduct the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": HCCC v Perroux [2011] NSWDC 99 at [18]. [279] The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. [280] Whether the gravity of the misconduct was such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. [281]Past cases referred to the determination of whether the practitioner is "permanently unfit to practice" in making an order for de-registration: Stanoevski v Law Society of New South Wales [2008] NSWCA 93 at [52]- [54]. More recent consideration of these cases clarify that an undue focus on the word "permanent" is a gloss. It is demonstrated current unfitness, not a prophesy of permanent unfitness, that is required to justify deregistration: Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 at [102]; Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31.
2. We note that Ms Lonergan for Dr Ng accepted that these principles were "entirely accurate". We accept that these principles apply to all health practitioners. We consider that fundamental to public confidence and trust in health professions is that touching of a patient's body will be limited to that necessary to provide the required health services.

The Submissions of the HCCC

1. The HCCC submits that the following matters support its submission that the only disciplinary order appropriate was cancellation of his registration as a health practitioner for a period of at least two years. 1. Dr Ng engaged in very serious misconduct that involved an abuse of his position as an osteopath and an abuse of the position of trust he occupied as Patient A's practitioner. 2. Dr Ng's conduct amounted to a serious, non-consensual physical violation of Patient A which, had it been proved the relevant context to the appropriate standard could have constituted a sexual assault. It was a most serious breach of practitioner-patient boundaries without any professional justification. 3. Patient A was very traumatised as result of the misconduct. 4. Dr Ng had shown no regret or remorse for his conduct, including the adverse effect it had on Patient A. 5. Rather he has demonstrated a continued state of denial and lack of candour that continued into the hearing. 6. Dr Ng has not confronted the personal and professional failings underlining his misconduct or the reasons or motivation for it, and has demonstrated no insight into his misconduct or made progress towards development of genuine insight. 7. Dr Ng gravely and wrongly challenged Patient A's interpretation of the sensations of penetration that she described as mistaken, and he gave extensive false evidence to the Tribunal when he denied placing his finger under Patient A's underwear and inserting his finger into Patient A's vagina for about 30 seconds.

Submissions of Dr Ng

1. Ms Lonergan made the following oral submissions. 1. Section 149C of the National Law is not mandatory. It gives the Tribunal a discretion. 2. Dr Ng denies the conduct that was found, but does not deny providing treatment to Patient A's groin area. He maintains that Patient A misunderstood what occurred. 3. Dr Ng has always been cooperative in his approach to the complaint cooperated, and while maintaining a denial of the offensive conduct, held an understanding of the own personal effects felt by Patient A. 4. The Tribunal should consider the various references from male and female patients and practitioners, all of which provide positive statements of support towards Dr Ng. Ms Lonergan submitted that this should be contrasted with cases where practitioners had no references at all: citing Health Care Complaints Commission v Baez (No 2) [2014] NSWCATOD 26. 5. Dr Ng has been in practice of osteopathy for seven years and has never been the subject of a complaint. This is a "one off" incident.
2. In the circumstances, Ms Lonergan submitted that: 1. Dr Ng be allowed to continue to practise; alternatively, 2. Dr Ng be allowed to practise with "chaperone conditions"; and such other requirements as the Tribunal thought necessary, such as education about "trigger points", and communication; alternatively, 3. Dr Ng's registration be suspended for a period of three months; alternatively, 4. If deregistration be thought the only appropriate order, a period of two years' deregistration was too high, and a period of one year made as much logical sense as two years.
3. As to the prohibition order sought pursuant to s 149C(5) of the National Law, Ms Lonergan submitted that this too was a discretionary order and that the Tribunal should only consider making it if it were persuaded that there was a substantial risk to the health of public.

Consideration

1. The Tribunal accepts the HCCC's submissions that Dr Ng engaged in very serious misconduct that involved an abuse of his position as an osteopath and an abuse of the position of trust he occupied as Patient A's practitioner. The conduct complained of, and found to have occurred amounted to a serious, non-consensual physical violation of Patient A which, had it been proved the relevant context to the appropriate standard could have constituted a sexual assault. It was a most serious breach of practitioner-patient boundaries without any professional justification. We also accept that Patient A was very traumatised as result of the misconduct.
2. However, the Tribunal does not accept that Dr Ng had shown no regret or remorse for his conduct, including the adverse effect it had on Patient A. So much is plain in the response made by Dr Ng during the investigation of the complaint. While it appears that Dr Ng still does not accept that the conduct occurred, and therefore does not recognise any personal and professional failings underlining that conduct, we consider that Dr Ng in his communications has displayed some understanding of the ramification of such conduct. It would be incorrect to suggest that Dr Ng gravely and wrongly challenged the truthfulness and integrity of Patient A, or wrongfully attributed to her a motive to be untruthful in the evidence. We note that this written submission was withdrawn in oral submissions. It was clearly indicated during the course of the Stage 1 hearing that Patient A's truthfulness and motives were not being challenged, and what was submitted was that she was mistaken about what had occurred.
3. Nevertheless, the Tribunal considers that, objectively, the professional misconduct of Dr Ng is of such a serious nature that the only disciplinary order appropriate is the cancellation of Dr Ng's registration. We repeat and summarise the relevant findings made at the conclusion of the Stage I hearing that on 16 August 2011: 1. Dr Ng inappropriately placed his finger under the patient's underwear and inserted his finger into Patient A's vagina for about 30 seconds. 2. In so doing Dr Ng failed to provide adequate information or explanation to Patient A in relation to the assessment and/or treatment in relation to the groin complaint, and failed to obtain consent from Patient A prior to commencing assessment and/or treatment in relation to the groin complaint. 3. The conduct of Dr Ng was without clinical indication or justification, amounted to inappropriate conduct of a sexual nature towards Patient A, was improper or unethical conduct relating to the practice or purported practice of osteopathy, and demonstrated that the knowledge, skill or judgment possessed, or care exercised, by Dr Ng in the practice of osteopathy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
4. The Tribunal considers that cancellation of registration is the only appropriate course where there is objective seriousness of the conduct and there is a lack of insight or acceptance of that conduct. In this respect the Tribunal considers that any order short of deregistration, such as the alternative orders suggested by Ms Lonergan, would be an inadequate response to the seriousness of Dr Ng's misconduct: Law Society of NSW v Foreman (1994) 34 NSWLR 408.
5. The Tribunal considers that Dr Ng's registration should be cancelled, and that he should not be permitted to apply for reregistration for a period of 18 months from the date of these reasons.
6. The HCCC also seeks a prohibition order pursuant to s 149C(5) of the National Law to prevent Dr Ng from providing any health service that involves the physical examination or physical treatment of female patients for the period of his deregistration. The HCCC submits that the "substantial risk to the health of members of the public test" that is a precondition to the making of such an order is a risk that is real or apparent on the evidence presented not a risk that is without substance, or which is fancy or speculative: Health Care Complaints Commission v Taylor [2010] NSWNT 10; Health Care Complaints Commission v Sharah [2015] NSWCATOD 99.
7. We consider, given the findings made at the Stage 1 hearing, there is a substantial risk to the health of the members of the public, and that a prohibition order should be made.

Orders

1. For the above reasons, the Tribunal orders that: 1. Dr Ng's registration is cancelled pursuant to s 149C(1)(b) of the National Law. 2. Dr Ng cannot reapply for registration for a period of at least 18 months pursuant to s 149C(7) of the National Law. 3. Dr Ng is prohibited pursuant to s 149C(5) of the National Law from providing any health service that involves the physical examination or physical treatment of female patients for the period of deregistration.

Costs

1. The principles governing award of costs in this jurisdiction are well-established: costs should follow the event unless the circumstances of the case require, in the exercise of the Tribunal's discretion, not to do so. Costs generally should follow the event: Health Care Complaints Commission v Cieslak [2013] NSWNMT 23; Health Care Complaints Commission v Phililpiah [2013] NSWCA 342.
2. Accordingly, the HCCC having been successful in its two complaints, is prima facie is entitled to an award of costs in its favour.
3. It was submitted by Ms Lonergan that the function of the jurisdiction is protective and not punitive. She submitted, on instructions, that the imposition of order of the costs would amount to an improper imposition of a punishment.
4. The Tribunal does not accept this submission. It is well established that, as a general rule, costs should follow the event in proceedings of this nature. As the Court of Appeal relevantly stated in Phililpiah: [42] As a general rule, costs of proceedings before the Tribunal should follow the event . . . [45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner.
5. It follows that Dr Ng should pay the HCCC's costs of the proceedings. 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: 09 December 2015