Health Care Complaints Commission v Quach

NCAT Occupational|2015-04-10

Introduction

By decision dated 5 February, 2015 we found a number of complaints made against the respondent Dr Michael Quach proven and held that his conduct constituted, inter alia, professional misconduct. (See Health Care Complaints Commission v Quach [2015] NSWCATOD 2). In that decision we described in detail the conduct proven against the respondent which constituted the professional misconduct. We do not intend repeating our findings in any detail for the purpose of these reasons for decision, and these reasons should be read in conjunction with that earlier decision. For present purposes we shall summarise our findings as including conduct involving a number of patients extending to misdiagnosis, inappropriate treatment regime, poor communication skills, propensity to diagnose certain conditions and failure to accept advice from peers.
In addition we found that the respondent had a mental impairment, disability, condition or disorder which detrimentally affected or was likely to detrimentally affect his capacity to practise medicine in that he suffers from narcissistic personality disorder and, furthermore, is thereby not competent to practice the profession under section 139 of the National Law as he does not have sufficient mental capacity to do so.
It then became necessary to determine whether it was appropriate to make any protective orders, and the form of any such orders, consequent upon our findings.
The nature and extent of any permissible protective orders are set out in Sec 149C of the Health Practitioner Regulation National Law (NSW), ("The National Law"). Sec 149C is in the following terms; 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. (2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied- (a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or (b) the student is otherwise not a suitable person to undertake clinical training in the health profession. (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (4) If the person is no longer registered, the Tribunal may- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order" ) do any one or more of the following- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note : Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. (6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order- (a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and (b) give the Council, National Board and Commission an opportunity to make a submission. (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.

Relevant principles

The principles governing the approach to determining whether and what protective orders should be made are well-established. A succinct and convenient summary may be found in the decision of the Medical Tribunal in Health Care Complaints Commission v Dr Jamieson [2014] NSWCATOD 56 and we gratefully adopt them for the purpose of these proceedings. Principles Concerning Appropriate Protective Orders 99. In determining the appropriate protective orders that it should make in this matter, the Tribunal has applied the following principles taken from Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88] to [91]: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637, (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at[20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. Although the Tribunal has concluded that Dr Jamieson's conduct was of a sufficiently serious nature to justify suspension or cancellation of his registration, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the present case. Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 was a decision under the Medical Practice Act 1992 (NSW) but the relevant provisions of that Act are substantially the same as the applicable provisions of the National Law and the Court of Appeal's reasoning is equally applicable to the present case. At [67] it was held: ... However, it is clear that the definition [of professional misconduct] is focused on the nature of the conduct, which must have the capacity to justify such an order [suspension or cancellation], whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64 [which are substantially the same as ss 149 to 149C of the National Law], which provide that the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1) [s 149C(1) of the National Law is to a similar effect]. Further, the power to impose a fine depends upon a finding that the person is guilty of unsatisfactory professional conduct or professional misconduct: s 62(2) [see s 149B(2) of the National Law]. Otherwise, the discretion of the Tribunal is at large and will depend upon the circumstances of the individual case : see, in relation to legal practitioners, Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [76] (McHugh, Kirby and Callinan JJ). 101.In Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3, the Medical Tribunal said at [200]: The authorities also clearly establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit, for a protective purpose, this Tribunal needs to find that the practitioner is probably permanently unfit to practice: see Ex Parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 424 - 425 (Latham CJ, Dixon and Williams JJ (Rich and Starke JA dissenting)); The Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987 unreported), (Kirby P, Mahoney and McHugh JJA). 102. This quotation should not, however, be taken to support the proposition that the Tribunal may order deregistration only if it finds that the practitioner is permanently unfit to practise - seeHealth Care Complaints Commission v King [2013] NSWMT 9 at [25]). The expression used by the High Court in Ex parte Lenehan was "probable permanent unfitness" and referred to the finding which usually underlies an order striking off a solicitor. It serves to indicate that striking off a lawyer or deregistering a medical practitioner will generally only be appropriate if he or she is unfit to practise at the time of making the order and is likely to remain so for a significant or indefinite period.

Consideration

Although we have taken into account all of our findings made in the earlier decision we wish to repeat some of them, to emphasise the seriousness of the respondent's professional misconduct; 300. We now come to consider the circumstances of this patient, AS. It is patently clear from the narrative in the respondent's own notes and the other evidence that she was dependent to a very large degree on the respondent. It is equally clear that he originally initiated that dependency and that he continued to encourage it throughout the course of their relationship. Furthermore, much of the interaction that the respondent had with AS was of a dubious therapeutic nature and outside the realms of treatment usually afforded by a general practitioner to a patient. The respondent manipulated the patient and took advantage of her in such a way that he was able to derive fees from her which can only be described as reprehensible in all the circumstances. Furthermore, he unnecessarily and inappropriately interfered with and intruded into decisions which could only properly be made by her, based upon medical advice being given to her by a range of specialists, and which should have been properly given to her by the respondent if he had been conducting himself in an appropriate and responsible manner. The conduct of the respondent as we have described it, and as we shall examine in greater detail is not only so removed from the standard of the practice of medicine which should have been applied in the circumstances of these proceedings, but it is of such a nature that it warrants, in the interests of the public and for the protection of the public a finding not only of unsatisfactory professional conduct, but also of professional misconduct. 380. We are also comfortably satisfied that, for the purpose of complaint six below, in the circumstances, the treatment afforded to these patients by way of intramuscular injection of penicillin constitutes professional misconduct. It demonstrates an inappropriate and unsafe approach to the treatment of a common condition, a lack of clinical knowledge and a poor approach to diagnosis. 398. Dr Young was critical of the conduct of the respondent with respect to this patient. It appeared that the respondent had not taken a thorough history to establish exactly which swab was done at the hospital, he did not enquire about what testing had been undertaken for asthma when the father disagreed with his diagnosis, he failed to request any notes from the treating specialist about the asthma condition, and he failed to make any differential diagnosis such as post viral, post pertussis cough receptor hyper sensitivity and psychogenic cough. 399 In impulsively diagnosing asthma, the respondent did not ask about exercise or nocturnal symptoms, did not consider any lack of wheeze on examination and ignored the advice from the parents that previous testing for asthma had been negative. He did not perform a spirometry to measure lung function or consider a skin prick or allergy testing. Dr Young thought that from reading the clinical notes the respondent lacked empathy and that his tone seemed "authoritative and not particularly patient centred." 407. In his clinical notes of 6 March 2012 the respondent confirmed that the patient had denied that she was pregnant and said that she was a virgin, and then he recorded "own belief." Having examined her throat and eardrums he also noted his impression that cigarette smoke exposure had caused a middle ear infection. 408. We have already referred to the statement of Dr Jeong made in connection with his supervision of the respondent. It will be recalled that he said that in the course of a conversation with the respondent about this patient that the respondent denied that he accused her of being sexually active or that he had suggested she was not telling the truth. Dr Jeong then pointed out to him that he had made reference to her denial of pregnancy in his clinical notes and that he had ordered a pregnancy test. 409. Dr Young thought that a conclusion that exposure to cigarette smoke could cause an ear infection was "odd and non-conventional". He thought that the respondent showed little evidence of insight into the patient-doctor relationship, and into the complexities and delicacies of discussing the sexual proclivities of a young patient. 414. We have found in connection with a discussion of complaint 1 that in a number of significant situations that the respondent was guilty of conduct significantly below a reasonable standard as explained in section 139B(1)(a). They cover a variety of circumstances including a failure to diagnose and mis-diagnosis of a number of common conditions, a misunderstanding of the side effects of medication commonly used, a failure to carry out appropriate testing and a failure to display empathy and understanding of the needs of patients and to communicate with them appropriately. All of these matters in the aggregate are indicative to us that the respondent has serious failings and inadequacy in the practice of medicine and is guilty of professional misconduct. 414. Dr Pethebridge was asked to explain why he thought that some aspects of the respondent's practice were dangerous or could be dangerous. He pointed to problems identified in the various practice audits, which had been made available to him. He mentioned in particular the patient VK who had travelled alone with an allergy condition, and patient AC who have arguably been given the wrong vaccination. Furthermore, the respondent had no respect for the abilities of the practice assessment panel as shown by the complaints that he had made about each of the doctors. 433. Dr Pethebridge was asked a number of questions by Dr Giuffrida concerning the elements of a narcissistic personality disorder. He said this occurred when there was a breakdown in behaviour which adversely affects the patient. In the case of the respondent this went to his impairment and his capacity to practice. The condition is more than eccentricity, it is a dysfunction. His diagnosis had evolved over time after he had an opportunity to interact with the respondent and consider a number of episodes. It was the termination at the Newtown practice that first made him think that the respondent had a disorder. This caused him to look again at the reports of the supervisors with respect to the respondent's interactions with them and with patients. Elements of the dysfunction include the way someone communicates. Most relationships evolve and change over time and we develop patterns of behaviour. However, there is no flexibility in this development with a person who has a personality disorder. Such a disorder is enduring and inflexible and because of its rigidity and structure it can be resistant to intervention. The disorder impacts on the perception of a person about situations and about how he or she comes to conclusions. The personality itself will cloud a person's world view. Therefore such a person is apt to make incorrect interpretations, and will always be suspicious. This creates an impairment of cognition and in logical reasoning. Such a person will always be suspicious that others will want to cut them down, and they will be jealous. They jump to early conclusions and remain fixated on these. This is a function of their cognitive impairment. For example, "I think the patient has illness A - I am such a great doctor - the person must have illness A". All of these observations made by Dr Pethebridge as set out above are, in our opinion, of critical importance in evaluating whether complaints 3 and 4 are made out. 434. Dr Pethebridge also said that such a disorder could be part of a larger constellation and there could be an overlap with paranoia. Someone with a narcissistic personality disorder can perceive the world as glorifying them, or as a threat with ulterior motives and such a person may start to become paranoid. This is the originating source of paranoia. Anyone who has complained about such a person or has been critical of him is clearly inferior and not worthy of the criticising conduct. Such a person will have an adverse effect on others, for example a particular patient critical of the respondent would be seen as unworthy. He would create a defence by reason of his personality disorder. 435. Dr Pethebridge gave a number of examples of the respondent's narcissistic personality disorder. He instanced the allegation made to the young girl that she was pregnant. He thought that the behaviour of the respondent was bizarre. 437. Dr Pethebridge was uncertain about whether the respondent would recover from such a disorder. He would need to be willing to become involved in intense therapy and he would need to be under very close supervision. Dr Pethebridge would have expected some improvement over the last five years. However, there has been no significant change and he has not responded to any treatment given to date. 453. The respondent conceded that he was impaired, having so been found during the course of the section 150 proceedings. He denied, however, that he was impaired by reason of a narcissistic personality disorder. 462. The manner in which the respondent's capacity to practice medicine has been affected by his narcissistic personality disorder has been described by Dr Pethebridge in his evidence, which we have summarised above, but which we set out below for easy reference; 462. There were 3 ways in which his narcissistic personality structure "has and will detrimentally affect his capacity to practice medicine." Firstly he is likely to make premature diagnostic decisions and not consider any differential diagnoses. This was based on particular instances contained in the statements of supervisors and others. Secondly "he has and will be likely in the future to ignore or neglect patients that disagree with him." This was based on a statement of a supervisor. Thirdly "His interpersonal manner will be significantly disruptive to the doctor-patient (and doctor-carer) relationship." He instanced the high frequency of patient complaints, and his reported use of derogatory comments about patients in file notes and conversations with staff. 462. We accept these observations and adopt them for the purpose of our findings concerning complaints 3 and 4. There are many instances in the evidentiary material which support these observations, and the five nominated indicia of a narcissistic personality disorder. The evidence reveals that the respondent has had a consistent pattern of problems in communicating with patients and with his peers, and especially his supervisors. There is also demonstrated a clear inadequacy in his flexibility in dealing with others, especially concerning queries about diagnosis and appropriate treatment raised by patients, supervisors, practice auditors and even delegates of the Council who discussed a number of matters with him in the course of formal enquiries. It is clear on the evidence that the respondent has perceived that his diagnosis and the treatment regime which he formulated was always correct. He consistently rejected any suggestions to the contrary made by patients, supervisors (with some minor exceptions), practice auditors and Council delegates. We instance his advice given to patients generally that calcium channel blockers and statins were harmful, and his incorrect understanding of the effect of Lipitor on patient KM. He has demonstrated an overly authoritarian and disparaging approach to the treatment of AS. This is abundantly clear from his own notations and comments contained within his own clinical notes concerning this patient. (eg not the nurse of AS, AS is required to be compliant to my advice). His level of charges for this patient, and the circumstances in which they were raised is indicative of a view of his own self-importance which cannot be justified. There was also a tendency to distort the truth when explaining to supervisors the circumstances in which he came to cease work at the last practice, and the circumstances in which practice conditions had been imposed. (See, for example, the statements of Drs Jeong and Hoang and the advice through his solicitors that Drs Jeong and Poulos could no longer supervise him, and that the termination at Botany came from an ongoing disagreement). He clearly lacked empathy for a number of his patients, and was dismissive of their concerns. Evidence of this can be seen from the statement of Dr Jeong, his many interactions with AS, and his termination of the relationship with AC. His behaviour in making complaints to AHPRA concerning the many medical practitioners with whom he became involved, and to DOCS about the father of TJ and RJ, was bizarre. 465. We emphasise that the material set out above is not intended to represent an exhaustive examination of all of the evidence. For example, the respondent has given evidence and made explanations in the course of earlier enquiries and performance assessments which corroborates the material set out above. We have already set out the effect of this evidence earlier in these reasons. Overall, the evidence is indicative that the respondent suffers from an impairment in his cognitive and logical reasoning ability that is likely to detrimentally affect his clinical practice, and the capacity to be supervised effectively over a period of time longer than a few months to maintain him in safe clinical practice. 466. Having regard to the particular matters referred to above as well as our general understanding of the effect of the totality of the evidence given in these proceedings, we are comfortably satisfied to the requisite standard that the respondent is detrimentally affected and likely to be detrimentally affected in the practice of medicine by reason of his narcissistic personality disorder. His ability to practice medicine has been severely compromised, weakened and damaged because of the impact of his narcissistic personality disorder on his ability to diagnose appropriately, create appropriate treatment regimes, relate appropriately to patients, relate appropriately to his peers, and otherwise conduct himself in a manner appropriate to standards of behaviour expected within the community of medical practitioners.
The above extracts from our earlier decision paint a compelling picture. The evidence and the conclusions manifested in our findings lead inexorably to the only possible conclusion, namely that the respondent, by reason of his impairment and the numerous failings in his medical knowledge, diagnosis, treatment and patient interrelationships, as we have found, is incapable of practising safe medicine. The only conclusion open to us is that the respondent should not be permitted to continue to practise medicine in the interests of the protection of the public. We are not sure that any further discussion or analysis would elucidate the situation.
We are of the opinion that we can comfortably conclude that the respondent is probably permanently unfit to safely practise medicine. The "probably permanent" aspect arises from the uncertainty about whether the respondent will ever recover sufficiently from the impairment constituted by his narcissistic personality disorder. For reasons which we shall shortly give in discussing the review period limitation, any improvement in his condition will be conditional upon demonstrated insight, and the willingness to undertake a long period of intensive therapy and treatment. It follows that in the interests of the protection of the public, the registration of the respondent as a medical practitioner must be cancelled.

Review period limitation

There is the ability under section 149 C (7) to fix a period within which no review of the cancellation may be attempted. The complainant suggested that an appropriate period would be a minimum of three years, but without being able to point to any particular indicia as to why this may be a suitable period.
On the evidence which we have outlined above in this decision, and which is included within our earlier decision, there must be grave concern as to whether the respondent will be able to manage his narcissistic personality disorder and the impairment which results, within the near future. Nothing can be attempted to ameliorate his condition and its impact upon him unless and until he demonstrates some insight into his disorder and the fact that he is impaired. During the course of submissions the respondent denied that he was impaired in any way. He continued to deny any impairment when confronted with the submissions which had been made by his counsel in the earlier proceedings that he was indeed impaired, as previously found in section 150 proceedings, but not impaired by reason of any narcissistic personality disorder. The respondent stated categorically that he was not impaired. Furthermore, he denied that he did indeed suffer from a narcissistic personality disorder.
The evidence is that any improvement in the condition of the respondent will require intensive dynamic psychiatric treatment. On the evidence, the respondent has never undertaken such treatment because that which has been afforded to him to date has been of a passive variety. There must be considerable doubt, therefore, whether the respondent will be able to overcome his impairment, at the very least in the medium term.
It is difficult to know how much of the demonstrated incompetence in the practice of medicine by the respondent, and how much of his inappropriate and sometimes bizarre behaviour is inextricably bound up with his narcissistic personality disorder condition. Prima facie the respondent has been found not to be competent to practise medicine in a number of ways, which we have earlier referred to. It is difficult to assess whether and to what extent the respondent will ever be able to overcome these deficiencies in the practice of medicine, and indeed it would be to engage in speculation to make any worthwhile assessment.
In all the circumstances we prefer to approach this matter on the basis that currently the respondent lacks any insight about his difficulties and his psychiatric condition, and even if he were to gain such insight and to undertake appropriate therapy and treatment, it would be many years before he would be able to safely practise medicine again. We think that a minimum period of seven years is an appropriate timeframe in which to preclude any review of the cancellation of his registration.

Prohibition order

Ancillary to our conclusion that the respondent's registration should be cancelled, the complainant sought a prohibition order pursuant to section 149C(5). Again, it is obvious that the nature and extent of the misconduct of the respondent and of his impairment is such that is appropriate to make a prohibition order. We propose to do so, accordingly.

Costs

The complainant sought an order for costs in its favour. This is a costs jurisdiction and the normal principles apply, namely that a successful party should prima facie have its costs unless there is some reason to come to a contrary conclusion. The complainant has overwhelmingly succeeded in prosecuting these proceedings. Considerable costs were incurred in unsuccessfully litigating a number of jurisdictional and other points raised by the respondent, which we have dealt with in our earlier decision. There is no reason why a costs order should not be made in favour of the complainant, and we shall do so. Lest there be any difficulty in agreeing on the quantification of costs we shall grant liberty to apply with respect to this issue which may be exercised by either party upon giving two days' notice in writing.

Orders

We make the following orders; 1. The registration of the respondent is cancelled 2. No application for review may be made for a period of 7 years from this date 3. The respondent is prohibited from providing any health service on a public, private or volunteer basis including community health services, counselling, teaching, mental health services, health education services and welfare services. 4. The respondent is to pay the costs of the complainant in and about these proceedings. 5. Liberty to apply is granted with respect to costs 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: 21 April 2015

Medical Practice Act 1992(NSW)

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