Health Care Complaints Commission v Tan

NCAT Occupational|2016-08-16

REASONS FOR DECISION

On 25 August 2014, the Medical Council of New South Wales, after a show cause hearing, decided to suspend from practice Dr Chin Kuen (Tony) Tan, a registered medical practitioner (the respondent). It acted under s 150 of the Health Practitioner Regulation National Law (NSW) (National Law). That law gives the Council a discretion to suspend a practitioner for the protection of the health and safety of the community, or for other public interest reasons.
The Council referred the conduct to Health Care Complaints Commission (the Commission) for further investigation as to whether disciplinary action should be taken.
On 9 March 2016 the Commission applied to the Tribunal under the National Law to make disciplinary findings and orders against the respondent. Our hearing took place on 15 and 16 August 2016. There were eight complaints. As will emerge, the respondent has made a number of admissions.
In light of the evidence considered at our hearing, the Commission submitted that the Tribunal should order cancellation of the respondent's registration, place a time bar on any reapplication for registration and issue a prohibition order limiting the respondent's ability to offer health services that lie outside the practice of medicine.
The respondent acknowledged that disciplinary orders were required, but pleaded for a resolution that enabled him to resume practice. The respondent's submissions noted that he had already served a period of suspension of over two years. The respondent submitted that the Tribunal should be satisfied from the extent and nature of his admissions, and his evidence, that there was no risk to the safety and welfare of the community in allowing him to return to practice under strict conditions. He accepted that, in addition, he should be reprimanded and that a fine may be appropriate. He submitted that those orders would serve to mark, adequately the seriousness of his misconduct and operate as a suitable deterrent.
The power to order cancellation is given by s 149C(1) of the National Law, in these terms as relevant to this case: (1) The Tribunal may … 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) ... (d) the practitioner is not a suitable person for registration in the practitioner's profession.

Background

In its written reasons for its decision to suspend the respondent the Council provided the following summary of the events that led to its action. Dr Tony Tan is a 46 year old doctor specialising in cosmetic medicine. Up until just prior to the proceedings, he was the owner and only doctor at a cosmetic medicine clinic in Fairfield. He opened the clinic in October 2012 and employed a practice manager, dermal technician and a beauty therapist. Dr Tan would perform surgical procedures such as liposuction and botox. In July 2014 he was found unconscious in his clinic and was taken to hospital where he admitted to the use of Propofol, Pethidine and Midazolam. He was discharged from hospital to his family home however due to difficulties in his marriage he left Australia and went to stay with his parents in Malaysia. In the meantime his clinic in Fairfield was closed. He returned to Australia for the hearing however as of the date of the hearing he was unsure of his plans for the future.
We will provide some further context. The respondent was born in Kuala Lumpur in 1968. He completed his secondary education in Singapore. He undertook his medical studies at the University of New South Wales, graduating MB BS in 1996. Between 1997 and 2009 he worked mainly in locum and emergency ward settings. In 2009 he decided to work in the field of cosmetic medicine. In 2009-2010 he undertook a number of training courses in Australia and overseas, especially Korea. He provided the Tribunal with copies of numerous certificates of attendance at courses relating to various cosmetic procedures. On private visits to Korea he observed specific cosmetic techniques being performed during surgery including breast augmentations, rhinoplasties, liposuctions and fat grafting procedures. We note that none of these courses are accredited in Australia with the relevant professional colleges.
In October 2010 he commenced work in a cosmetic medicine clinic at Penrith. In October 2012 he established his own clinic at Fairfield (the Clinic, in these reasons). The respondent owns this business through his company Mediivest Trust Pty Ltd. The business employed several beauty therapists. He was the only doctor. He closed the Clinic in July 2014 as a consequence of the abuse of medications that led to his suspension from practice. He reopened the Clinic in February 2015, and it has operated intermittently since that time. At present, the Clinic has been operating continuously since April 2016, and has an operations manager, a doctor and two nurses. It opens on Tuesdays and Wednesdays.
He stated in a CV provided to the Commission in 2014 that he can perform the following procedures with confidence: hyalumoric acid fillers; botox and dysport; regen; radiesse; sculptra; thread lift; chemical peels; microdermabrasion; microneedling therapy; minor excision; intralesional steroid injection; and sclerotherapy. He listed the following as 'surgical specialties': threadlift; upper skin only blepharoblasty; Asian double eyelid folds; rhinoplasty; and scar reduction.
He has informed the Tribunal that he has a history of drug misuse and excessive drinking of alcohol. He said that he had drunk heavily at times during his university days, had given alcohol up, and then resumed in 2013-2014. It reached such an extent that on admission to the Wesley Ashfield Hospital rehabilitation program in September 2014, he had begun attending Alcoholics Anonymous meetings. He has now given up alcohol again. He said that he had been a heavy smoker for most of his adult life, but in 2015 he had also given that up.
He said that early in his career, in 1998 when he was a resident medical officer, he had experimented with the inhaling of nitrous oxide for a period of three months. He resumed that activity at his Clinic in March 2013, and used to inhale at the end of the week, every Friday night. He informed us that from about the same time he commenced using medications such as Morphine and Methoxyflurane (referred to in the proceedings by one of its brand names 'Penthrox'). These drugs were obtained either from the Clinic supplies or through a pharmacist. He began self-administering Mehtoxyflurane in March 2013. He also experimented with Morphine, self-administering it by intra-muscular injection. He said he used it on weekends and after work. Around May 2013 he began experimenting with Midazolam and Pethidine. He attributed his conduct to stress and tension in his personal life connected with the breakdown of his marriage, as well as financial difficulties with the Clinic. He informed the Commission in February 2015 that he had administered Pethidine to two patients who were also staff members of the Clinic, Patient B and Patient C.
He first obtained Propofol for the Clinic after seeing it used at workshops in Korea. In November 2013 he started experimenting with Propofol as it was a fast acting drug and might put him to sleep sooner than Pethidine or Midazolam. He referred to the dosage levels he used. On 4 July 2014 he self-administered Propofol (1-2ml) while performing a neck liposuction on a patient at the Clinic. He said he fell asleep for one hour and then awoke and completed the patient's procedure. He said this was the only occasion that he used a drug prior to performing a procedure, or during performance of a procedure at the Clinic. He stated that it was a couple of days later, 7 July 2014, that he was taken to Liverpool Hospital after his brother in law found him unconscious at the Clinic following use of Propofol. He was closely interrogated at hearing on a number of these statements. We will examine his responses later in these reasons.
The respondent's admission to Liverpool Hospital led the Medical Council to commence the investigation that led to its decision of 25 August 2014 to suspend him.
As to his personal circumstances, the respondent stated at our hearing that he married in 1999 and has three children aged from 7 to 14. He and his wife formally separated in July 2014. At hearing he stated that his wife commenced divorce proceedings in 2014. It was unclear whether those proceedings had reached any conclusion. He said that presently, under a mutually agreed arrangement with this wife, the two older children lived with him, and he was in effect a full-time parent, while the third child lived with his wife.

Complaints and Admissions

The respondent replied to the original application by reply filed 29 June 2016. The applicant amended the complaints on 22 July 2016, primarily by adding additional particulars. Consequently the respondent filed an amended reply on 5 August 2016. In these reasons any references to the complaints and the reply are to these later documents.
The Commission's application contained 8 Complaints, numbered 1, 2, 3, 3A, 4, 5, 6 and 7, some accompanied by several Particulars (we will refer to them, where convenient, as 'C1' or 'P1' and so on).
Complaints 1, 6 and 7 are linked. Complaint 1 refers primarily to his history of self-abuse of scheduled medicines, and his wrongful prescription of them to Patients B and C. Complaint 6 asserts that he suffers from an 'impairment' within the meaning of s 5 of the National Law, and refers as background to the particulars in support of Complaint 1. Complaint 7 asserted that he was not competent to practise within the meaning of s 139 of the National Law by virtue of his impairment. We agree with the respondent's closing submission that the expert report relied upon by the Commission (from Dr Fisher, see further below) did not provide a basis for such a conclusion. Complaint 7 was not pressed by the Commission in its closing submissions, and we will not consider it any further. For the sake of completeness of the record, we will enter a final order dismissing the complaint.
The respondent admitted all of the particulars of Complaint 1. He admitted in respect of Complaint 6 that he is impaired within the meaning of the National Law insofar as he 'suffers from an adjustment disorder with depressed and anxious mood currently in remission'. He contested the further assertion that he presently 'suffers from a substance dependence disorder'.
In essence, his position is that he has pursued an active rehabilitation program over the last two years, he has professional support for the progress he has made and his substance abuse problem is now under control.
Complaint 2 deals with a contravention of the relevant law in failing to respond on time to a Notice issued by the Commission in the course of its investigation.
Complaints 3, 3A and 4 relate to his treatment of Patient A.
In relation to each of Complaints 1, 2, 3, 3A and 4 the applicant seeks a finding that the respondent's conduct constituted 'unsatisfactory professional conduct' within the meaning of the National Law. The National Law deals at ss 139B and 139C with the meaning of 'unsatisfactory professional conduct', as it applies to medical practitioners. The following provisions of s 139B are relevant to this case: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (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. (e) Contravention of requirement under Health Care Complaints Act 1993 A contravention by the practitioner of section 34A(4) of the Health Care Complaints Act 1993. (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
In relation to Complaints 1, 3, 3A and 4, the respondent accepts that findings of unsatisfactory professional conduct are supported.
In relation to Complaint 2, he admits that he failed to respond within the time prescribed to the Notice, but contends that, in the circumstances, his conduct did not amount to unsatisfactory professional conduct.
Complaint 5 refers back to Complaints 1, 2, 3, 3A and 4, and seeks a global finding of professional misconduct. The respondent admits that he should be found guilty of professional misconduct. Section 139E defines professional misconduct as follows: 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.

Hearing

The hearing proceeded on 15 August 2016. The Tribunal received the following material into evidence. Commission: Three volumes of documents filed 4 July 2016 (Commission's bundle) filed in support of the application. The bundle includes a report from Dr Robert Fisher, MB BS, FRANZCP, Consultant Psychiatrist, Head of Psychiatry and Psychological Services, St Vincent's Private Hospital and Clinic, Darlinghurst, dated 15 July 2015 (see Commission's bundle, tab 8). In addition, the Commission relied on two further reports from Dr Fisher which took account of the respondent's filings in the present matter. They are dated 15 July 2016 and 9 August 2016. These reports relate primarily to the issue of the nature of the respondent's present impairment, if any (Complaint 6). Respondent: Updated Schedule of documents, as filed 5 August 2016, comprising two statements by the respondent, a statement from his solicitor, Ms Dominque Egan relating to Complaint 2, and professional certificates relating to courses completed and memberships.
The material before the Tribunal included reports and medical records from the health practitioners from whom the respondent has been receiving treatment over the last two years: Mr Tom Gross, Psychologist, Sydney (tabs 16A, 26, 27 and 28); Dr Lisa Juckes, Certified Addiction Psychiatrist, Wesley Ashfield Hospital (tabs 16B, 23 and 24); Dr Lai Leong, General Practitioner, Fairfield (tabs 29 and 30).
Counsel for the Commission noted, in opening, that because of the substantial admissions made by the respondent the main task of the Tribunal, in relation to the liability stage of the proceedings, was to make findings in relation to C2, C3 P 2(c), C3 P3(a), C6 P2, and C7. As previously noted C7 was not pressed in closing submissions.
The respondent gave oral evidence. Dr Fisher gave oral evidence. No other witnesses were required.

Complaint 1

The complaint is that by reason of some or all of the conduct particularised in the complaint the respondent is guilty of unsatisfactory professional conduct within the meaning of the National Law in that he engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
Particulars 1-8 refer to his acts of self-administration, P9 refers to his prescription of Pethidine for Patients B and C, and P10-12 refer to his giving of false information to the authorities - to the Medical Council about his self-administration (P10, P11) and to the Commission about his administration to Patients B and C (P12).
Schedule A to the application sets out a table of types of drugs, and their dispensing history to the respondent in the period September 2013 to June 2014. The table showed that Propofol had been dispensed four times in the dosage 1 x 1% 20ml (5 vials), fifteen times in the dosage 200mg 5 x 20ml, eighteen times in the dosage 500 mg 50 ml; that Pethidine had been dispensed five times in the dosage 100 mg 5 x 2ml, and twenty five times in the dosage 100 mg 10 x 2ml; and Midazolam Alphapharm fifteen times in the dosage 5mg/1ml x 10.
The respondent admits that he inappropriately self-administered the above drugs after obtaining them from the Clinic's medication supplies. He admits that he did so on or during the evening before days on which he operated or consulted with patients. In the case of his use of Pethidine and Midazolam he admits that his conduct breached relevant laws (Drug Misuse and Trafficking Act 1985 (DMT Act), cl 12 (Pethidine)) and Poisons and Therapeutic Goods Regulation 2008 (Midazolam). He acknowledges that his conduct was contrary to the ethical standards set out in the Medical Board's 'Good Medical Practice: A Code for Conduct for Doctors in Australia'.
He admits that he failed to keep a drug register at the Clinic from October 2012 to the end of 2014, contrary to cl 111 of the Poisons Regulation.
He admits that on or about 4 July 2014 while performing a neck liposuction operation on a patient he self-administered Propofol (1-2ml).
He also admits that on or about 20 November 2013 and 16 June 2014, he wrote prescriptions for Pethidine in the names of Patients B and C knowing that the Pethidine was for his own use. He admits that in doing so, he made false representations to pharmacists to obtain the drug, contrary to s 17 of the DMT Act.
He admits that he falsely informed the Medical Council at its hearing on 25 August 2014 as follows: that he started self-administering drugs from his clinic only about 3 months prior to the hearing, when he actually started around March 2013; and that he self-administered Pethidine from his clinic only once or twice, in circumstances where he administered it from his clinic a significantly greater number of times. Further, on 13 February 2015, he falsely informed the Commission's investigators that he had supplied Pethidine to Patients B and C, when they were not his patients at the time and he had written the prescriptions for his own use.
It will be seen that the matters admitted involve issues of self-abuse, breach of relevant laws, and the active misleading of investigative bodies.
Unsatisfactory professional conduct is clearly established.

Complaint 2

As noted earlier, this complaint is contested. The complaint is that the respondent is guilty of unsatisfactory professional conduct in that he contravened s 34A(4) of the Health Care Complaints Act 1993 by not responding to a notice issued 23 December 2014, and given under s 34A(1), which required a response on or before 12 January 2015. Section 34A provides: 34A Power of Commission to obtain information, records and evidence (1) If the Commission is investigating a complaint and is of the opinion that a person is capable of giving information, producing documents (including medical records) or giving evidence that would assist in the investigation, the Commission may, by notice in writing given to the person, require the person to do any one or more of the following: (a) to give the Commission, by writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation) and within such time as is reasonable, and in the manner, specified in the notice, any such information of which the person has knowledge, (b) to produce to the Commission, in accordance with the notice, any such documents, (c) to appear before the Commissioner or a member of staff of the Commission authorised by the Commissioner at a time and place specified in the notice that is reasonable and give any such evidence, either orally or in writing, and produce any such documents. (2) (Repealed) (3) Information and documents may be given or provided to the Commission in compliance with this section despite any other Act or law (but not despite a provision of Division 8 of this Part or Division 6B or 6C of Part 2 of the Health Administration Act 1982). (4) A person who is subject to a requirement under subsection (1) must not, without reasonable excuse, fail to comply with the requirement. Maximum penalty: 20 penalty units.
The respondent admits the contravention in the sense that he respondent after the due date. In mitigation, he notes that he did provide a complete response to the Notice four weeks later, on 13 February 2015 (tab 14 of the Commission's bundle). In explanation he highlighted two considerations: one, the time of year when he received the Notice - the Christmas/New Year holiday period; and two, the stress he was under at the time because of the breakdown of his marriage.
In his first statement for these proceedings (28 June 2016), the respondent stated that he was living away from the marital home when he received the Notice dated 23 December 2014, and at the time he was not able to see his children regularly. As noted earlier in our reasons, he and his wife had separated in July 2014. He stated that his wife had commenced the divorce proceedings earlier in the month that he received the Notice. These factors, he said, contributed to his feelings of stress and depression over the holiday period. He said he was in such a state during that time that he cut himself from treating practitioners and his lawyers. In his second statement (4 August 2016), he gave additional detail as to his health status in the period December 2014 and January 2015.
In addition, his solicitor, Ms Egan, provided an affidavit in relation to the circumstances surrounding the handling of the Notice. She stated that her office received the Notice on 24 December 2014. The firm closed from 25 December 2014 to 4 January 2015. Her office left a voicemail message for the respondent on 6 January 2015, followed by several more messages over the next few days especially after the deadline of 12 January passed. The firm eventually received a response from Mr Tan on 5 February 2015, and the response was prepared. Mr Tan confirmed that in his statement. The solicitor's letter of 13 February 2015 gave reasons for his delay in responding in similar terms to the respondent's evidence for our hearing. The solicitor's letter concluded: 'Dr Tan did not feel well enough to deal with any matters, including responding to the Notice'.
The applicant cross examined the respondent in relation to his account of his circumstances during this period. That he was in a state of despair during the period under notice is borne out by the patient records for the respondent (from Dr Leong) that form part of the Commission's bundle (tab 30). The respondent was questioned as to notes by Dr Leong made 28 January 2015 which traversed the issue of whether he had relapsed, and resumed taking Propofol. His denied that he had done so. We make no finding.
We doubt, on the evidence as it is, that the respondent was so disabled in the period in issue (23 December 2014-12 January 2015) that he could not have responded, at the least to the extent of advising the Commission that he needed more time. However, we do think that there is some strength in the respondent's complaint about the difficulty of being called on to deal with such a Notice on a 20 day turnaround at that particular time of year. As previously noted, his reply was ultimately sent on 13 February 2015 under cover of a solicitor's letter. His reply was in an itemised form.
The first question contained in the Notice required a detailed answer. It asked: 'Provide a list of patients who were supplied and/or administered Schedule 8 (S8) drugs from the S8 drugs purchased by you (as detailed in your letter dated 17 November 2014). Please include the type and the amount of the S8 drug that was supplied and/or administered to the patient and the date on which this was done.') He responded by setting out a list of 26 occasions where patients had been supplied with Pethidine (stating that this was the only drug mentioned in the letter of 17 November 2014), and related dosage details.
Like that question the other five questions were of a kind that required a considered answer, and where it was in his interests to do so after receiving professional advice.
He was late in his reply, and could and should, we think, have taken some steps to let the Commission know that he might be unable to respond to the Notice by the due date.
While we accept that the respondent failed to adhere to the time line set by the Notice, we are not inclined to enter a formal finding of unsatisfactory professional conduct even though any contravention of a relevant law may give rise to such a finding.
A finding of unsatisfactory professional conduct is a serious one. This is a case with the mitigating factors - the time of year at which the Notice was issued, the reasonable need for the respondent to obtain professional advice, and ultimately the giving by him of a detailed response to all questions by 13 February, albeit a month later than the date prescribed by the Notice. Moreover, the medical records corroborate his account of his mental state at the time.

Complaint 3, Complaint 3A, Complaint 4 (Treatment of Patient A)

Complaints 3, 3A and 4 relate to the respondent's treatment of Patient A. It in each instance it is asserted that by reason of some or all of the matters particularised the respondent engaged in unsatisfactory professional conduct. Complaint 3 deals with the patient's clinical treatment of Patient A. Complaint 3A concerns his engagement of an unregistered person to treat Patient A. Complaint 4 relates to inadequacies in his recordkeeping in respect of the treatment of Patient A.
Circumstances: On 11 September 2014, Patient A, a married woman then 29 years of age, complained to the Commission about the respondent's performance of rhinoplasty (procedure for a change in the shape or appearance of the nose). She wanted a minor change to the shape of the tip of her nose. She described the procedure to which she had agreed as 'tip plasty'. In his statement the respondent described is at 'tip rhinoplasty'. She complained that he had done the work in a way that resulted in a major change in the shape of her nose, and used procedures beyond those that were appropriate to her wishes. The first operation on her nose occurred on 5 February 2014. She was dissatisfied with the outcome. The respondent offered to undertake a second procedure at his own cost. The patient agreed. The second operation occurred on 13 March 2014. She made a number of complaints about the way he conducted that operation, its outcome, and serious after-effects that she suffered. The respondent had in attendance at the second operation, a doctor who had come from Malaysia at his request, Practitioner B. This aspect of the matter is the subject of Complaint 3A. Her primary complaint is the subject of Complaint 3.
Patient A made her formal complaint to the Commission in October 2014. She referred to the stress she now felt because of the change in the shape of her nose, and the effect she believed the surgery had had on her voice, passage of air through her nostrils, and the difficulty that she now had sleeping. She referred to the overall effect his work had had on her confidence and self esteem. She had been left, she considered, with a serious deformity of her nose.
Patient A gave a full statement of evidence to the Commission on 30 June 2015, tab 33). She was not required for cross-examination.
An expert, Dr Kim Son Vu, a cosmetic surgeon of standing, reviewed the respondent's conduct from the time of his first consultation (5 October 2013), and had regard to the respondent's responses to the Commission's investigation (see Tab 39). Patient A's statement and Dr Vu's report provides the basis for most of the particulars of Complaints 3 and 3A. In her statement Patient A gave an account of the information that the respondent had given her at consultations and in other contacts between October 2013 and February 2014.
Complaint 3: The respondent has admitted (P1) that in consultations on 16 November 2013 and 16 January 2014 he failed adequately to inform Patient A of the following information and risks concerning the first surgery on 5 February 2014, i.e. that the swelling to her nose would get worse in the second and third post-operative weeks, that it could to take up to two months for the swelling to resolve; and that it could take up to four months for the final aesthetic result. In relation to the first surgery on 5 February 2014, the respondent has admitted (P2) that he exercised poor clinical judgment in proceeding when he did have enough knowledge, training, skill or experience to undertake surgery, and had not adequately discussed with Patient A referral to a more experienced surgeon. He admits that he did not refer Patient A to a more experienced surgeon to perform the first surgery.
He does not admit that he failed to inform Patient A about the possibility of a referral to a more experienced surgeon (part of P2(c)). In her statement Patient A gave a detailed account of her recollections as to what was said to her by the respondent about the procedure to be performed. There is no reference to any discussion in connection with the first procedure that it might better be done by a more experienced surgeon. She reports the respondent as stating that he had done many rhinoplasties. This account is consistent with the statement made by the respondent in his CV, to which he referred earlier in our reasons, that his 'surgical specialties' included rhinoplasty.
At hearing, the respondent was unable to give a specific account of what he said to the patient in relation to referral to another surgeon, but repeatedly asserted that he believes that did tell her about his limited experience in rhinoplasty, and would have suggested that she consider going to another surgeon. He acknowledged that he had only done two rhinoplasties under supervision in the course of his training.
In our view, it is unlikely that the respondent would have given the patient any such warnings. The patient's depiction of their relationship is one in which the respondent had agreed to do the work, had spoken of it in a reassuring way, had referred to his experience in a positive way, had spoken of the lowness of his fees as compared to other surgeons, and had actively dealt with her enquiries in preparation for the first procedure in an encouraging way.
We find that he did not advise her to consider using a more experienced surgeon in relation to the first surgery.
The next particular (P3) refers to the period 3 March to 10 March 2014, the lead-up to the second surgery. Patient A refers to it as 'revision tip plasty' using the description given to it by the respondent.
The respondent does not admit (P2(a)) that he failed to adequately inform Patient A of the increased complexity of the second surgery as compared with the first surgery. He does admit that he failed to inform her of similar post-operative matters to those to which he admitted in respect of the first surgery, i.e. the worsening of the swelling to her nose in the second and third weeks after the surgery, the time it would take for the swelling to resolve (in this instance, two months) and the time would take for a final aesthetic result (six months).
The respondent has admitted all of the matters raised by Ps 4 and 5. In the case of P4, he admits that he exercised poor clinical judgment and care concerning the second surgery, in that he did not have the required expertise to undertake the second surgery, he recommended that the second surgery proceed prior to the patient's nasal swelling settling down and healing after the first surgery, and he did not inform her about the possibility of a referral to a more experienced rhinoplastic surgeon to do the work. Particular 5 is that he failed to provide adequate post-operative care to Patient A following the second surgery, first, in that he did not review Patient A's post-operative recovery either early (Days 1 and 2) or regularly thereafter (i.e. approximately Days 7, 21 and 30); and, secondly, other than on 27 March 2014, he did not adequately assess her to review any primary or secondary bleeding, assess swelling, infection and general health.
As to the one contested allegation (P 3(a)), he said in evidence in chief that he simply recollected that he did tell Patient A at some point that he had advised her as to the second procedure's complexity. There is no medical record to corroborate this account. The patient's account of her conversations with the respondent does not refer to any such advice. It is apparent that the respondent had embarked on a course of action in which he chose to continue to treat the patient, and to that end had enlisted the assistance of Practitioner B. Under cross examination, he conceded that he never suggested that she see a more senior specialist or that the second procedure was more complicated that the first. Particular 3(a) is proven.
Complaint 3A: Patient A (in her initial complaint and in her statement made 30 June 2015) referred to her awareness that Practitioner B was present at the second surgery on 13 March 2014. She said her understanding was that he was there in a role of assistance and that the respondent performed the surgery. In the course of its investigation the respondent acknowledged that Practitioner B had undertaken the surgery.
The Complaint is that he is guilty of unsatisfactory professional conduct in that he knowingly enabled a person who is not otherwise authorised by a National Board to perform operative surgery on a patient in respect of a matter requiring professional discretion and skill, and has engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
In his statement dated 28 June 2016, the respondent gave a detailed account of his use of Practitioner B. He begins by stating that he was concerned after finishing the first procedure on 5 February 2014 that he had not produced a satisfactory result. He spoke first to a plastic surgeon, Dr Paul Laniewski. He conceded in cross examination that he had not considered asking Dr Laniewski to take over the case, as he feared he might be reported.
About three days later he contacted Practitioner B, a Kuala Lumpur based cosmetic and skin doctor who he knew as a friend. The respondent described what he had done (trimmed excess fat on the tip of the nose, refined the tips and placed them back together, and did not cut the nose cartilage). He said that Practitioner B recommended that he undertake a revision procedure, as it was likely the sutures in Patient A's nose had given way. He recommended that the procedure be undertaken in late February or early March 2014. He stated that he advised Practitioner B that he would pay him $6000 to perform the revision procedure. He confirmed in evidence that he subsequently made the payment. He also referred to calls that he made to two Korean doctors for assistance and they had advised him to inject Patient A with triamcinolone to reduce inflammation. He had had been to Korea on occasions to observe doctors performing procedures.
He referred to advice he gave Patient A in relation to the wearing of compression bandages on her nose, injecting her with triamcinolone (0.2ml) and the photographs that he had sent to Practitioner B. Practitioner B told him that the cartilage of Patient A's left nostril had collapsed, and a revision procedure would be necessary. He told Practitioner B that he had advised Patient A late in February that Practitioner B would be in attendance as a training doctor visiting Sydney, and he would be assisting the respondent to complete the revision procedure.
In his statement he said that after the surgery he referred the patient to Dr Paul Gerachi, an Ear Nose and Throat Specialist for ongoing management and care. He conceded in cross examination that he did not do that.
The respondent admitted the particulars of Complaint 3A in full. First, that he allowed Practitioner B to perform the second procedure when Practitioner B was not registered as a medical practitioner with the relevant authority (the Australian Health Practitioner Regulation Authority). Secondly, he knowingly provided false information to the Commission on 29 May 2015 when he said that he performed the second procedure. Thirdly, he mislead Patient A on 3 March 2014, and prior to the procedure on 13 March 2014, into believing that he would be performing the surgery. Finally, he mislead Patient A, after surgery on 13 March 2014 in that he informed her that he, the respondent, had performed the surgery.
A finding of unsatisfactory professional is clearly warranted.

Complaint 4

The Complaint is that the respondent is guilty of unsatisfactory professional conduct in that he contravened the Health Practitioner Regulation (NSW) Regulation 2010 (the Regulation) in the ways particularised.
The respondent has admitted the particulars in full. First that he failed from 4 October 2013 to 20 May 2014 to keep adequate clinical records of Patient A's treatment and care, and that the records lacked sufficient information about her history, his examinations and care provided, and the clinical opinions and advice given to her. Secondly he therefore breached the following provisions of the Regulation: cl 7; Sch 2, cl 1(2)(a), (b) and/or (c); Sch 2, cl 1(3); and Sch 2, cl 2(1) and/or (2). We will not detail these provisions in this decision.
Thirdly, he failed to include adequate particulars of medical treatment performed on Patient A on 13 March 2014, including the name of all persons who gave treatment, and the type of anaesthetic if any given to the patient. Fourthly, he therefore acted contrary to Sch 2, cl 1(4) of the Regulation. Finally, he failed to maintain a level of detail in Patient A's clinical record appropriate to her case and to medical practice and in doing so acted contrary to Sch 2, cl 2(1).

Complaint 5 (Professional Misconduct)

This Complaint relies on the conduct to which the previous complaints refer and seeks a finding because of the seriousness of the matters proven of professional misconduct. The respondent has admitted professional misconduct. In our view, the matters proven in respect of Complaints 1, 3, 3A and 4 clearly establish professional misconduct within the meaning of the Act. The unsatisfactory professional conduct proven is of a sufficiently serious nature to justify the suspension or cancellation of the respondent's registration.
In this regard, we agree with the Commission's submission that self-administration of drugs of addiction (Complaint 1) in the scale and frequency seen in this case amounts to professional misconduct. See further Spicer v NSW Medical Council (NSWCA, unreported, 19 February 1981); HCCC v Nemeth [2012] NSWMT 4.
Furthermore, we agree that the counts admitted of giving false information to the Medical Council and the Commission, and making false representations to pharmacists were grave derelictions.
We also agree that the conduct demonstrated by Complaints 3, 3A and 4 involved repeated failures of clinical judgment, skill and accountability. Moreover the introduction of a practitioner without local registration or qualifications into the advice and treatment relationship with the patient constituted an extremely serious breach of professional standards. His conduct was laced with failures to deal frankly and transparently with his patient, and involved active deceptions of her. He acted in his own interests, and sacrificed her interests, I the steps he took to repair the damage done by the first procedure. These failures constitute professional misconduct in a high degree.

Complaints 6 (Impairment)

The medical profession has a well developed system for overseeing and assisting practitioners who suffer from an impairment. A finding of impairment cannot, of itself, give rise to the making of an order preventing the practitioner from continuing to practice. There must be a further finding that the practitioner is, by virtue of that impairment, no longer competent to practise. As noted, the Commission ultimately did not press its complaint of lack of competence due to impairment, Complaint 7.
Section 5 of the National Law (as relevant to this case) provides: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) for a registered health practitioner ..., the person's capacity to practise the profession; ...
The respondent admitted that he 'engaged in inappropriate drug use from approximately March 2013 to July 2014, and relapsed during the period December 2014 to January 2015' (Reply (a) to P1) and that he does suffer 'from an adjustment disorder with depressed and anxious mood currently in remission' (Reply (c) to P3).
In contest is whether he also suffers from 'a substance dependence disorder' (P2).
Dr Fisher's reports go to this area of the case.
In his report of 15 July 2016 (revised to take account of amendment to the text of point 1 made by later report, 9 August 2016), Dr Fisher expressed the following opinion and made the following recommendations (we have omitted point 5 dealing with Dr Tan's beliefs as to the outcome of the disciplinary proceedings): 1. I believe that Dr Tan has suffered from an impairment in that he has engaged in polydrug misuse and that misuse was very serious and extreme, and potentially life threatening. When intoxicated with drugs he may have been rendered severely impaired in his capacity to practise medicine. He says that he has been completely abstinent from these drugs since January 2015. He says that he has evidence in the way of supervised urine drug screening and hair testing for the last 9 months which would support his contention that he has been abstinent. 2. Dr Tan claims that misuse of the various drugs was as a result of feeling stressed and suffering from stress induced headache, but that he had rapidly become tolerant and developed dependence upon some of the medications he was abusing. He has been through an inpatient detoxification but lapsed back into use in January 2015. 3. He has engaged in a serious breach of professional conduct in having arranged for an unregistered doctor from Malaysia to come to Australia and perform a repeat rhinoplasty on a patient and then purported have conducted the surgery himself. ... 4. I do not believe that Dr Tan is currently impaired in the context of him not using the drugs which he was previously and it was not for the breach of professional standards, with the rhinoplasty issue, he may have been a suitable candidate for the Impaired Registrant's Program under the usual conditions for doctor who has developed a problem with polydrug misuse.
The Commission asked Dr Fisher to clarify whether he regarded the respondent as impaired within the meaning of the definition found in the National Law. He stated in his letter dated 9 August 2016. I believe that Dr Tan does suffer form an impairment in that he has abused and become dependent upon a range of drugs including Penthrox, Morphine, Midazolam, Pethidine and Intravenous Propofol as well as having used Nitrous Oxide during his residency at the emergency department in 1998. Dr Tan does not admit using street drugs and there is no evidence to hand to suggest that he has. Nonetheless this is not beyond the range of possibilities. As Dr Tan presented to me at my last review of home on the 15th of July 2016 he reported having been abstinent from all prohibited substances and in that state I did not believe he was impaired in his capacity to practise medicine whilst abstinent from such drugs. Nonetheless I am of the opinion that should he lapse he would in all likelihood be impaired in his capacity to practise medicine and therefore he does suffer from an 'impairment' within the meaning of the Act. The nature of Dr Tan's impairment due to an established history of polydrug abuse and dependence will remain a life long vulnerability and there is no room for complacency regarding the risk of lapsing.
As noted, Dr Fisher and the respondent both gave oral evidence.
Consideration: To establish that a practitioner has an 'impairment' within the meaning of the two elements must be demonstrated: first, the possession of one or more of the following attributes - 'a physical or mental impairment, disability, condition or disorder'; and, secondly, that the attribute 'detrimentally affects or is likely to detrimentally affect ... the person's capacity to practise the profession'.
We are satisfied that the respondent has, as stated by Dr Fisher, a 'life long vulnerability' to substance abuse and dependence. He now has a long history of misuse of drugs and alcohol, with evidence of this pattern (on his own admissions) going back to his days at university, and returning at various points during his career, especially in circumstances of wider stresses in his life. The self-abuse at the core of this case was extreme and very serious, as noted by Dr Fisher. His present remission is still quite recent in time (for a little more than 12 months), and has not gone on long enough, we consider, to give any great confidence that the vulnerability to which Dr Fisher refers is under a high degree of control.
The respondent himself did not deny outright the assertion that he had a condition (adjustment disorder with depressed and anxious mood) but described it as being in remission. In that way he confined it to the past as had the relevant Particulars, i.e. the period preceding the Medical Council suspension, March 2013 to July 2014, and the period of relapse, December 2014 to January 2015.
We accept that the respondent has since July 2014 being engaged in an active program of seeking assistance and advance (from Mr Gross, Dr Juckes and Dr Leong). He has taken a number of personal steps to discipline and control his vulnerabilities (for example, no alcohol, no smoking, obtaining prescriptions for any medications requiring prescriptions). In evidence at hearing, he spoke of his belief in prayer and a higher power as a way to address his vulnerability. He continues to use herbal cigarettes as a form of relaxation. As noted by the Commission in its closing submissions, he gave evidence that he left Australia and spent time overseas to get away from the temptation to use drugs. This is an extreme strategy.
We consider that his history supports the conclusion that he has something more than an adjustment disorder with depressed and anxious mood. We are satisfied that he has in the past and still has a substance dependence disorder. We accept that at present it is under control.
In our opinion the recency of his adverse history and the relapse as late as January 2015 are such that he can only be considered to be in the early stages of remission from that disorder. Dr Fisher expressed a similar view. It is a disorder that might detrimentally affect his ability to practise medicine. In our view, P2 is established.
With the further passage of time, and continuation of the program of assistance and rehabilitation that he has now embarked upon, the point may be reached where it is reasonable to conclude that he no longer has such impairment, though the vulnerability to which we referred remains. We think it important in this area of discourse to maintain a distinction between an impairment of the kind to which the Law refers and underlying vulnerabilities. Care must be shown before treating a vulnerability as an attribute that falls within the first part of the meaning given to 'impairment' by the National Law. To that extent we agree with the submissions of counsel for the respondent.
On the other hand we accept that there are issues of degree and judgment involved in deciding whether a 'vulnerability' is so real and serious that it should be classified as an attribute that falls within the first element of the definition and warrants the further conclusion that its possession may detrimentally the person's capacity to practice medicine.
We do not think the point has been reached in this case where it can be confidently concluded that the state of impairment has ended.

Appropriate Orders

The misconduct proven in this case against the respondent is very serious. As stated by Gleeson CJ in A Solicitor v Council of the NSW Law Society [2004] HCA 1 at [21]: Professional misconduct may not necessarily require a conclusion of unfitness to practise, and removal from the roll. In that regard, it is to be remembered that fitness is to be decided at the time of the hearing.
Disciplinary orders have as their ultimate purpose the protection of the community. In particular they seek to protect the public from similar conduct or incompetence of other practitioners and to uphold the public confidence in the standards of the profession. They serve a number of other goals: deterrence to the individual concerned, as well as to the general body of practitioners. An order for cancellation, if appropriate to the case, 'maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise': see Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA (with whom Basten and Emmett JJA agreed).
The respondent's submission referred to case law, primarily found in disciplinary decisions relating to the legal profession, that the disciplinary tribunal should before making an order that deprives a practitioner of his livelihood satisfy itself that the practitioner is 'probably permanently unfit to practise': Re Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 422 per Latham CJ, Dixon and Williams JJ; Prothonotary of the Supreme Court of New South Wales v Ritchard (NSWCA, 31 July 1987, unreported) per McHugh JA; New South Wales Bar Association v Maddocks (NSWCA, 23 August 1988, unreported) per Kirby P; New South Wales Bar Association v Cummins [2001] NSWCA 284; [2001] 52 NSWLR 279.
There is a distinction drawn in the regulation of the legal profession between holding a practising certificate and having one's name recorded in the public register of persons who have been admitted to practice (the local roll), in the sense that they are now seen as qualified to apply for a practising certificate if they wish. In the case of the legal profession, a sufficient disciplinary order may be one that denies the person a practising certificate but does not go so far as to order removal from the roll. The concept of 'probable permanent unfitness' is concerned with the taking of that second step: see further, New South Wales Bar Association v Murphy [2002] NSWCA 138, per Spigelman CJ at [25]-[28]; and per Giles JA at [41] ff.
Though there are many cases in the medical discipline case law which refer to the test of 'probable permanent unfitness', some care needs, we think, to be shown in applying that standard to the making of cancellation orders in the field of medical discipline. The medical profession's machinery of regulation does not draw a similar distinction between cancellation and removal from the register.
It would be a strange outcome if a practitioner found not to be presently fit to practise (in the sense of lacking the required integrity of character or of lacking competence) could avoid cancellation because the relevant tribunal might not be confident that his present unfitness is 'probably permanent'. The review mechanisms provided by Division 8 enable a former medical practitioner to bring forward a case for reinstatement in a way that is relatively flexible, and allows for early recognition of cases where the former practitioner has remedied the unfitness. Therefore, as we see it, the focus should be on present unfitness, and the test for cancellation in the case of the medical profession should not default in the way suggested by the respondent's submissions to one where the question asked is whether the unfitness of the practitioner is probably permanent.
Respondent's counsel submitted that the respondent's admissions and evidence demonstrated genuine insight into and contrition for his misconduct. He noted that his client had already suffered a considerable punishment in being suspended for almost two years. He submitted that any further suspension could only be justified in order to act as a marker of the seriousness of his misconduct. He listed the many cases under the National Law where the Tribunal had ordered suspension rather than cancellation for professional misconduct.
In our view the respondent's admitted breaches of professional standards were very serious. He is to be commended for his recognition, belatedly, of the gravity of his conduct. On the other hand he did not communicate frankly and honestly on all matters in the earlier stages of this process, with the Medical Council or with the Commission (the later Particulars of Complaint 1). In his evidence at hearing, he changed his account again of some matters, and made fresh admissions. We have noted some of this instances in our consideration of Complaints 3 and 3A relating to the treatment of Patient A.
His administration of drugs to staff members Patients B and A was a very serious dereliction of responsibility. The introduction of Practitioner B into then fraught treatment relationship with Patient C bespeaks great irresponsibility. The practitioner did not hold Australian registration. Not only that, he undertook the surgery on Patient A without her knowledge. Though not particularised in the grounds of Complaint, as pointed out by the Tribunal in its questioning of the respondent, he took no account of the privacy and confidentiality implications of introducing Patient A's case and its treatment to Practitioner B. Moreover, he misled her as to the role of Practitioner B in the theatre on the day of the operation.
We have little confidence at this stage that the respondent has a mature, and well developed understanding of his ethical and professional obligations around matters such as full disclosure of implications of treatment especially cosmetic treatment, with its special significance for the sense of self confidence and enjoyment of life of patients. There is little evidence that the respondent recognises the need to improve his ethical understandings.
We have little confidence from the review of the certificates presented to us that the respondent did much more than attend courses and participate. There was little evidence of rigorous testing or supervised engagement in typical procedures done in cosmetic surgery practices.
We view dimly the drug relapse that occurred around January 2015, and his engagement in a practice event at the Clinic around that time while on suspension. We acknowledge that he has been open in this regard, and that stands in his favour.
For this combination of reasons, we do not think he is presently fit to remain in practice, and continuation of the suspension is not a sufficient response.
We have reviewed the more recent decisions of the Tribunal where suspension orders have been made. Typically a detailed case is put forward as to why preservation of registration is desirable, covering such matters as: the practitioner's degree of insight and remorse, the efforts made or to be made to remedy the failures that give rise to the findings of professional misconduct or unsatisfactory professional conduct, the details of any rehabilitation program, support from practitioners of standing in relation to prospects of a satisfactory return to practice, progress reports form the rehabilitation providers, evidence that the misconduct is unlikely to be repeated, proposed arrangements for possible practice under conditions of mentoring and supervision. Little material of this kind was provided in this case.
In our view the respondent cannot reasonably be regarded as a person fit to practise. As he has already served a two year suspension, we think a non-review period that is not draconian should be set. We do not agree with the Commission's submission that the non-review period be set at three to five years. That would have the effect of leaving the respondent unconnected with the practice of medicine for a period of five to seven years, which would be oppressive. We set the non-review period at 12 months. We recognise, in response to the submissions made on the respondent's behalf, that this will mean that, on any reapplication, he may have to address recency of practice concerns.
To obtain a prohibition order, the Commission must satisfy us that the person 'poses a substantial risk to the health of the members of the public' (s 149C(5)): see further Health Care Complaints Commission v Sharah [2015] NSWCATOD 99 at [153] ff. In closing oral submissions, counsel for the Commission submitted that the respondent should be prohibited from engaging in any form of 'cosmetic services', and that should include the provision of botox treatments. He said that the respondent presented a 'substantial risk to the health of members of the public' when one looked at the matters similar to those we have referred to in connection with our decision to cancel the respondent's registration: untruthfulness to the regulatory bodies, and to Patient A, and the placement of his own interests above those of Patient A in his choices as to her further treatment.
We accept that there is some risk that the respondent may behave without integrity in the future in his dealings with people seeking cosmetic assistance. We think that he has now begun to recognise the wrongfulness of his past conduct, and he is engaged in the early stages of a rehabilitation program. We are not satisfied, on the limited material relied upon by the Commission, that there is any 'substantial risk' to the health of members of the public such that his opportunities to work outside the practice of medicine should be restricted.

Costs

In proceedings of this kind where the outcome is adverse to the respondent the usual order is that the respondent pay the applicant's costs of the proceedings. The respondent has not pressed any case to the contrary. The usual order will be made.

Orders Complaints 1, 3, 3A, 4 and 5 of the disciplinary application are upheld. Complaints 2 and 7 are dismissed. The Tribunal finds the respondent guilty of professional misconduct. In relation to Complaint 6, the Tribunal that the respondent is suffering from an impairment within the meaning of s 5 of the National Law, i.e. substance dependence disorder. The Tribunal orders that:

The respondent's registration be cancelled.
The Tribunal orders that an application under Division 8 for review of order 1 not be made before 12 months from the date of order 1.
The respondent pay the applicant's costs of, and incidental to, the proceedings, as agreed or assessed.

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: 06 December 2016

At a glance

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Judgment (14 paragraphs)

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Cases Cited (7)

Cited By (1)