Health Care Complaints Commission v Tan [2024] NSWCATOD 207 | Case summary

NCAT Occupational|2024-11-11

REASONS FOR DECISION

By application for disciplinary findings and orders filed 8 May 2024 the Health Care Complaint Commission ("the Applicant") sought the cancellation of the registration of Doctor Chin Ven Tan ("the Practitioner") pursuant to s 149C(1)(b) of the National Law with a non-review period of 12 months.
By way of amended complaint filed 26 September 2024 (Exhibit 3), the Applicant first complains that the Practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the Practitioner engaged in improper or unethical conduct by inappropriately altering patient records which were the subject of a review by the Director of Professional Services Review. Secondly, the Applicant further complains the Practitioner is guilty of unsatisfactory professional conduct because in amending medical records, the Practitioner did so in a way that obscured information already contained in patient records and made non-contemporaneous records for the provision of medical services. The Applicant finally complains that the unsatisfactory professional misconduct is of a sufficiently serious nature to justify cancellation of the practitioner's registration and constitutes professional misconduct.
In respect of certain categories of medical services which the Practitioner habitually billed, there were usually no contemporaneous records or clinical notes. When challenged, those records were created often years after the services were allegedly provided.
As we will describe in some detail, the alteration of medical records by the Practitioner was on an industrial scale and was perpetrated by him during a period in which he had received multiple warnings and was ultimately under investigation for the very behaviour that he continued to undertake.

History of the Practitioner's Practise of Medicine

In 1981, Dr Chin Ven Tan ("the Practitioner") obtained a Bachelor of Medicine from the University of NSW.
On 4 March 1981, the Practitioner was first registered as a medical practitioner in NSW.
In 1983, the Practitioner started working as a GP at a general practice in Wentworthville.
In 1995, the Practitioner became the director/founder of Tasly Healthpac International (Australia) Medical Cooperation Pty Ltd.
From 1995, the Practitioner set up a number of GP medical practices including in Hurstville (1995), Chatswood (2000), Goulburn Street Sydney CBD (2005) and Campsie (2005).
From 2012, the Practitioner was an RACGP accredited general practice registrar training supervisor.
Around 2014, the Practitioner sold his practices to Tasly Healthpac International (Australia) Medical Corporation Pty Ltd ("the company"). He became a director, shareholder and independent contractor and continued working as a general practitioner.
From 2017, the Practitioner set up a medical practice, MediCentral at Regent Place Shopping Centre, 501 George Street (Medicentral CBD). When the Practitioner worked at Medicentral CBD: 1. The Practitioner usually saw patients between 8am-4pm Monday-Friday and often worked until 6pm. 2. The Practitioner determined the Medicare items to be billed and entered this into the consultation note in Medical Director and/or into the billing software at the end of his consultations for the receptionist to do the billing. 3. Unless the patient asks for it, the Practitioner did not give the patient a copy of the item number billed on their behalf. 4. The Practitioner had access to resources regarding records and billing including: 1. Medicare resources, including the Medicare item schedule lists, a list of common items, a book of items and information about item numbers accessible through the computer. 2. MBA resources, including the "Good medical practice: a code of conduct for Australian doctors". 3. RACGP resources, including the "RACGP Standards for general practices" regarding content of patient health records. 4. Avant (his medical defence insurer) online resources. 5. Australian Doctor's MBS Guide.

Medicare Items 721, 723 and 36

The Practitioner regularly billed Medicare item 721 'Attendance by a general practitioner for preparation of a GP management plan for a patient'. A comprehensive written plan must be prepared describing: a. the patient's health care needs, health problems and relevant conditions; b. management goals with which the patient agrees; c. actions to be taken by the patient; d. treatment and services the patient is likely to need; e. arrangements for providing this treatment and these services; and f. arrangements to review the plan by a date specified in the plan. In preparing the plan, the provider must: a. explain to the patient and the patient's carer (if any, and if the practitioner considers it appropriate and the patient agrees) the steps involved in preparing the plan; and b. record the plan; and c. record the patient's agreement to the preparation of the plan; and d. offer a copy of the plan to the patient and the patient's carer (if any, and if the practitioner considers it appropriate and the patient agrees); and add a copy of the plan to the patient's medical records.
A copy of the written plan must be retained for two years.
The Practitioner regularly billed Medicare item 723 'Attendance by a general practitioner to coordinate the development of team care arrangements for a patient'. When coordinating the development of Team Care Arrangements (TCAs), the general practitioner must: a. consult with at least two collaborating providers, each of whom will provide a different kind of treatment or service to the patient, and one of whom may be another medical practitioner, when making arrangements for the multidisciplinary care of the patient; and b. prepare a document that describes: (a) treatment and service goals for the patient; (b) treatment and services that collaborating providers will provide to the patient; and (c) actions to be taken by the patient; (d) arrangements to review (i), (ii) and (iii) by a date specified in the document; and c. explain the steps involved in the development of the arrangements to the patient and the patient's carer (if any, and if the practitioner considers it appropriate and the patient agrees); d. discuss with the patient the collaborating providers who will contribute to the development of the TCAs and provide treatment and services to the patient under those arrangements; and e. record the patient's agreement to the development of TCAs; f. give copies of the relevant parts of the document to the collaborating providers; g. offer a copy of the document to the patient and the patient's carer (if any, and if the practitioner considers it appropriate and the patient agrees); and h. add a copy of the document to the patient's medical records.
The document described above must be retained for two years.
The Practitioner regularly billed Medicare item 36 '(Level C) Professional attendance by a general practitioner at consulting rooms (other than a service to which another item in the table applies)', lasting at least 20 minutes and including any of the following that are clinically relevant: a. taking a detailed patient history; b. performing a clinical examination; c. arranging any necessary investigation; d. implementing a management plan; e. providing appropriate preventive health care; for one or more health-related issues, with appropriate documentation for each attendance.
The medical practitioner may undertake all or some of the tasks set out in the item descriptor as clinically relevant, and this should be reflected in the practitioner's record.

History of the Practitioner's Conduct and the Investigation of the Practitioner

In about March 2018 following a complaint from a patient, the Practitioner acknowledged his medical records for that patient did not adequately reflect what had happened during the consultation. The Practitioner received a letter from the Commission warning him about the importance of accurate medical records.
From 2019, the Practitioner was obliged to comply with the Health Insurance (Professional Services Review Scheme) Regulations 2019. For all Medicare items billed, the practitioner was obliged to keep adequate and contemporaneous records: (a) the record must include the name of the patient; and (b) the record must contain a separate entry for each attendance by the patient for a service; and (c) each separate entry for a service must: i. include the date on which the service was rendered or initiated; and ii. provide sufficient clinical information to explain the service; and iii. be completed at the time, or as soon as practicable after, the service was rendered or initiated; and (d) the record must be sufficiently comprehensible to enable another practitioner to effectively undertake the patient's ongoing care in reliance on the record.
In 2020, the Medicare Practitioner Review Program (PRP) commenced a review of the Practitioner's Medicare billing for the period 1 July 2019 to 30 June 2020.
On 18 September 2020, the Practitioner created a number of inauthentic referral letters dated 10 April 2019 purporting to refer Patient A and Patient D to specialists.
On 7 October 2020, the Practitioner attended a PRP interview.
On 21 October 2020, the Practitioner received a PRP letter (via his solicitor) including "Due to concerns over the extent of possible inappropriate practice, a delegate of the Chief Executive Medicare will review your Medicare servicing and determine if a request will be made to the Director of Professional Services Review to review your provision of services. The delegate will contact you about this review." The letter then explained the PRP concerns regarding: Chronic Disease Management (CDM) services - MBS items 721, 723... ("The magnitude of your variance to GPs in rendering CDM items, which remains only partially explained, along with persisting uncertainty regarding the clinical relevance of rendering the items on all occasions, results in a high level of concern remaining, and as a consequence you are being referred to the delegate."). The letter also included "If you think you have incorrectly claimed a Medicare benefit, you can let us know and repay any amounts owing."
On 19 occasions between 29 October 2020 and 5 January 2021, the Practitioner created inauthentic letters purporting to refer Patients A,B,C,D,E and F to specialists.
On 8 February 2021, the Practitioner received a letter from PRP (via his solicitor). The letter attached the Practitioner's daily services report and MBS/PBS summary and invited him to provide submissions by 8 March 2021. The letter explained PRP's concerns, including regarding CDM services and Item 36.
Around March 2021, the Practitioner had a consultation with an Avant risk advisor to assist him in assessing and identifying any risks in his billing practice.
On 6 April 2021, the Practitioner provided submissions to the PRP. The Practitioner included his CV, training documents and his flow chart.
On 30 April 2021, the PRP referred the matter to the Director of Professional Services Review (PSR) to review the Practitioner's provision of services for the period 1 July 2019 to 30 June 2020. The PRP's concerns included: 1. that the Practitioner had rendered more services as Items 721 and 723 than at least 99 percent of all general practitioners active under Medicare in Australia during the review period, that Chronic Disease Management (CDM) services comprised 27.7 % of his total services and were rendered to 37.2 % of his patients, that the Practitioner had rendered 16-32 CDM services on certain days alongside Level C consultations, health assessments and mental health services requiring time and complexity and that his patients had a disproportionately low uptake of Medicare rebated allied health services 2. that the Practitioner had rendered a disproportionately high ratio of item 36 (Level C consultations).
On 30 April 2021, the Practitioner received a PRP letter (via his solicitor). The letter notified the Practitioner about the referral to the PSR: "Following my review of your Medicare servicing, I have concluded that you have not addressed all of the concerns, and therefore I have requested the Director of Professional Services Review to review your provision of services for the period 1 July 2019 to 30 June 2020" and attached the referral letter."
On 4 May 2021, the Practitioner created three inauthentic letters dated 2004 purporting to refer Patients D and F to specialists.
On 7 May 2021, the Practitioner received a PSR letter (dated 6 May 2021), including: I have decided to undertake a review into your provision of those services ...I may review any or all of the services you provided or initiated during the Review Period that attracted a Medicare or Pharmaceutical benefit... I may decide to issue a formal notice requiring you to produce any documents (including clinical or practice records) that are relevant to my review.... The PSR process can have significant outcomes, including directions to repay Medicare benefits and the imposition of periods of disqualification from participation in the Medicare Benefits Scheme or from prescribing under the Pharmaceutical Benefits Scheme." The letter also attached an information booklet, an information form and invited the practitioner to contact the PSR with any questions.
On 18 May 2021, the Practitioner provided his completed information form to the PSR, indicating that he can provide his clinical records in electronic format.
On 25 May 2021, the Practitioner created four inauthentic letters purporting to refer Patient A to specialists in 2015 and 2016.
On 2 June 2021, the Practitioner (via his solicitor) received a PSR letter and PSR notice under section 89B of the Health Insurance Act 1973 (Cth) to produce 111 patient records to PSR by 22 June 2021. The PSR letter included "please find enclose a formal notice to produce documents in accordance with section 89B of the Act" and invited the practitioner to contact the PSR with any questions. The PSR notice required the practitioner to produce complete clinical records for the 111 patients on the attached list including progress notes and specialist referral letters.
On 24 June 2021, the Practitioner's solicitor received a reminder to comply with the PSR notice.
On 25 June 2021, the Practitioner's solicitor again received the notice (previously served on 2 June 2021) then requested an extension to comply by 26 July 2021 which the PSR approved.
Between 29 June 2021 and 6 July 2021, the Practitioner created inauthentic referral letters dated between 28 February 2014 and 17 January 2016 purporting to refer Patients B, D, E and F for specialist appointments.
On 20 occasions between 8 July 2021 and 23 July 2021, the Practitioner altered patient medical records for consultations extending as far back as those that had taken place 2,694 days before. In the same period, the Practitioner wrote more inauthentic historical referral letters.
On 27 July 2021, the Practitioner's solicitor received a reminder to comply with the PSR notice then requested an extension to comply by 23 August 2021 which the PSR again approved.
Between 9 September 2021 and 20 September 2021, on six occasions, the Practitioner inappropriately altered the medical records of patients extending as far back as those that had taken place 2,694 days before.
The next day, on 21 September 2021, the Practitioner produced 111 patient records to PSR (the Practitioner's solicitor provided the records on USB via courier to PSR). This software allows manual adjustment to some aspects of the client's records but not to other parts of those records. The PSR analysed the 111 patient records using Parser (a custom piece of software to identify date discrepancies between the date of service and the date a related record was created), The following emerged: a. On 24 occasions between 23 September 2020 and 23 December 2020, (Particular 1.1) the practitioner had altered 24 entries in 11 patient records (during the Practitioner Review Program, a review conducted by Medicare prior to the referral to PSR) and the average delay between the consultation date and the update to the record was 914 days. b. On another 24 occasions between 8 July 2021 and 20 September 2021, (Particular 1.3) the practitioner had inappropriately altered the medical records of Patients A - F. c. Between 29 June 2021 (after the notice was issued) and 20 September 2021 (when the documents were provided in response to the notice) the practitioner inappropriately altered 3,923 of the practitioner's patient record entries, at least two weeks after the consultation and the average delay between the consultation date and the update to the record was 1,104 days.
When reviewing his notes for chronic care plans (to see whether they fulfil the criteria for items 721 and 723), the Practitioner tried to delete the item numbers, then changed the record to cover his tracks, so that it looked consistent with that EPC item that he had billed. He changed the dates of the consultations and added text about patient consent.
The Practitioner had amended a substantial volume of the patient records that he produced to the PSR on 21 September 2021, including the consultation notes for Patients A-F, by retrospectively amending some patient records by adding additional notes regarding the patient's history, reason for contact, and management plan, amending some chronic disease management plans and backdating patient referral letters. The Practitioner had made substantial amendments to the records extending far beyond a note about consent, spelling errors, shorthand references, abbreviations, and acronyms.
On 21 October 2021, the Practitioner received an email (via his solicitor) inviting him to attend a PSR meeting. A number of reminders were sent. On 1 December 2021, the Practitioner attended a PSR meeting, was invited to explain the discrepancies in his records and chose not to provide a response.
On 3 December 2021, the Practitioner provided the PSR with a signed Voluntary Acknowledgement of Incorrect Payment for Item 11318 and repaid $6,850.10 billed for that item.
On 16 December 2021, the Practitioner received an email and letter (via his solicitor) inviting him to provide submissions about the PSR's report deciding to take action. The PSR report included "I am concerned that your peers may consider you engaged in inappropriate practice in the provision of MBS items 36, 721, 723, in failing to keep adequate and contemporaneous records. A significant majority of the clinical records produced in response to the Notice appear not to be contemporaneous. The date of entry of progress notes made in the clinical record for services under review where you provided MBS items 36, 721, 723, 732, ...almost always departs from the actual date of service'.
On 7 March 2022, the Practitioner received a PSR email (via his solicitor) including concerns about amended records and proposing an agreement which included a requirement that he repay $400,000.
On 8 March 2022, PSR referred a complaint to AHPRA.
On 16 March 2022, the Practitioner's solicitor emailed the PSR that the Practitioner accepted the agreement.
On 18 March 2022, the Practitioner received a PSR email and letter (via his solicitor) enclosing the agreement.
On 23 March 2022, the Practitioner's solicitor sent an email to the PSR attaching the Practitioner's signed agreement (which was then signed by the PSR on 24 March 2022) in that the practitioner: a. acknowledged that, during the review period, he engaged in inappropriate practice in connection with providing Medicare Benefits Schedule (MBS) items 36, 721, 723, .... b. received a reprimand; c. was required to repay $400,000; d. was fully disqualified from billing Medicare for 3 months commencing 19 April 2022; and e. was partially disqualified from billing Medicare for certain items (36, 721, 723, ...) for 12 months commencing 19 April 2022.
On 21 April 2022, the Practitioner received a PSR reprimand and a PSR letter confirming the disqualifications.
On 22 April 2022, the Practitioner gave evidence at the Council s 150 hearing. The Council imposed conditions on the Practitioner's registration, effective 28 April 2024. The conditions included not to undertake solo medical practice, not to see more than 28 patients per day and not to work more than five days per week, not to supervise or deliver any training to any medical practitioner or student, to practise under category C supervision, to submit to an audit of his medical practice and to complete the Ethics Counsel Program for Health Professionals organised by the Ethics Centre within 12 months.
On 21 June 2022, the Practitioner received a letter from the Commission (via his solicitor) with a notice to provide information and produce documents.
In July 2022, the Practitioner returned to practice (after his 3 month disqualification period).
On 25 January 2023, the Practitioner received a notice from the Commission requesting information and documents.
On 21 February 2023, the Practitioner was subject to a medical record audit.
On 2 March 2023, the Practitioner provided a letter in response to the Commission's notice with the "original version of the consultation notes" for Patients A-E and spreadsheet containing the audit history for 775 documents.
On 27 March 2023, the Practitioner provided an "audit trail document".

Complaint 1 - inappropriately altering records and creating false referral letters

Complaint 1 is that the Practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(I) of the National Law because he engaged in improper or unethical conduct relating to the practice of medicine by inappropriately altering entries in patient records and creating false specialist referral letters, intending to mislead the PRP and PSR and justify his billing.
In professional disciplinary proceedings, impropriety means a breach of the standards of conduct that would be expected of a person in the position of the practitioner; it is not necessary to state an exhaustive definition of improper or unethical conduct as it encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of practitioners, in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession; HCCC v Liu [2016] NSWCATOD 133 at [54]-[55].
Section 41 of the National Law provides that codes approved by the National Board are admissible evidence of what constitutes appropriate professional conduct or practice for their profession and so may be relevant to whether conduct is improper or unethical.
As detailed in the history set out above, the Practitioner produced 111 patient records to PSR on 21 September 2021 and the PSR analysed those records and detected discrepancies between the date of the consultation and the date of the record.
On 24 occasions between 23 September 2020 and 23 December 2020 (during the PRP review), (Particular 1.1), the Practitioner had altered 24 entries in 11 patient records and the average delay between the consultation date and the update to the record was 914 days.
On another 24 occasions between 8 July 2021 and 20 September 2021 (during the PSR review) (Particular 1.3), the Practitioner had inappropriately altered the medical records of Patients A - F.
On at least another 40 occasions between 18 September 2020 to 21 July 2021 (during the PRP review and during the PSR review), the Practitioner had inappropriately altered patient records by adding specialist referrals to the medical record which were not discussed at the consultation so that it appeared that patients had been referred to specialists, (Particulars 1.4) and inappropriately created false specialist referral letters for the patients (Particulars 1.5). He did this to justify his billing to Medicare.
Between 29 June 2021 (after the PSR notice was issued) and 20 September 2021 (when the documents were provided to PSR in response to the notice) (Particular 1.2), the Practitioner inappropriately altered 3,923 of the practitioner's patient record entries, at least two weeks after the consultation and the average delay between the consultation date and the update to the record was 1104 days.
In amending the medical records in Particulars 1 to 5, as asserted in Particular 1.6, the Practitioner: a) knew or ought to have known that it was inappropriate to amend the patient records significantly after the consultation dates; b) knew or ought to have known that it was inappropriate to amend patient records which were being sought as part of a review by a health regulator and/or in response to a statutory notice to produce; c) intended to mislead the PRP and PSR that the altered records were the original, contemporaneous records of the relevant consultations; d) intended to persuade the PRP and PSR that he was justified in billing Medicare for the item numbers for the corresponding consultation dates, when he knew he was not justified in doing so.
In amending the medical records as particularised in particulars 1 - 5 above, the Practitioner acted contrary to clauses 8.4 and 8.10 and clauses 10.5 and 10.11 of the Medical Board of Australia (MBA) Good medical practice: a code of conduct for doctors in Australia, 2014 and 2020 respectively (Particular 1.7).
The Practitioner's conduct is improper because it is clearly wrong and it is a breach of the standards of conduct that would be expected of a medical practitioner.
The Practitioner's conduct is unethical because it is dishonest, contrary to the MBA Code of Conduct, influenced by self-interest and has the potential to bring the profession into disrepute.
Complaint 1 is established, and we find that the Practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law.

Complaint 2 - altering and making non-contemporaneous records

Complaint 2 is that the Practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law because he contravened the Health Practitioner Regulation (NSVV) Regulation 2016 (HPR) by altering records and making non-contemporaneous records. Complaint 2 relies on the same evidence as Complaint 1.
Clause 6 of the HPR relevantly provides that a medical practitioner must make and keep a record in accordance with Schedule 4. Clause 8 relevantly provides that a record must be made contemporaneously with the provision of the medical treatment or other medical service or as soon as practicable afterwards. Clause 1 of Schedule 4 sets out the information which the record must include. Clause 5 of Schedule 4 relevantly provides that a medical practitioner must not alter a record in a way that obliterates, obscures or renders illegible information that is already contained in the record.
The Practitioner's conduct contravened clause 5 of Schedule 4 because he altered the medical records for Patients A-F in a way that the original text was obscured.
The Practitioner's conduct contravened clause 8 because he created referral letters for Patients A-F non-contemporaneously, well after the consultations.
We are comfortably satisfied that Complaint 2 is established.

Legal Principles

The Commission seeks a finding pursuant to s 139E of the National Law, that the Practitioner is guilty of professional misconduct. Professional misconduct is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation; Chen v HCCC [2017] NSWCA 186 at [19]. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment; Sabag v HCCC [2001] NSWCA 411 at [99]. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards; HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at [638].

The Practitioner's Knowledge

The Practitioner had been a medical practitioner for a long time (he obtained a Bachelor of Medicine from the University of NSW in 1981 and started working as a GP in 1983). We conclude he was familiar with his obligations to make accurate and contemporaneous medical records. The Practitioner had extensive experience as a general practitioner (he set up a number of GP practices in Sydney from 1995). He was an RACGP accredited general practice trainer from 2012. The Practitioner was familiar with general practice working full time at Medicentral CBD from 2017.
We conclude that he well knew that it was wrong to alter medical records and create inauthentic referrals.
The Practitioner determined the Medicare items to be billed at the end of each consultation and he regularly billed Medicare items 721, 723 and 36. He was familiar with his obligations to appropriately bill Medicare and make adequate records. Item 721 requires a written GP management plan. Item 723 requires a written Team Care Arrangements document with copies given to the collaborating providers and their agreement to be part of the "team". Item 36 requires a written record reflecting the tasks undertaken during a consultation lasting at least 20 minutes.
We find he was familiar with his important obligations about record keeping (the MBA Code of Conduct applicable since 2014 and updated in 2020 and the HPR applicable since 2016) and keeping adequate and contemporaneous records for all Medicare items billed.
The Practitioner has access to resources regarding records and billing (such as Medicare resources, including the Medicare item schedule lists, a list of common items, a book of items and information about item numbers accessible through the computer, MBA resources including the Good Medical Practice Code of Conduct, RACGP resources including the Standards for general practices regarding content of patient health records, Avant (his medical defence insurer) online resources, and Australian Doctor's MBS Guide) so he must have known that it was important to make accurate and contemporaneous records to justify each billing.

The seriousness of the practitioner's conduct during an investigation

We have no difficulty in finding that the Practitioner's conduct was calculated. The PRP started reviewing the practitioner's Medicare billing for the period 1 July 2019 to 30 June 2020.
On 18 September 2020, the Practitioner then started creating inauthentic referral letters so that it appeared that patients had been referred to specialists. He did this to justify his billing. There is no clinical reason for the practitioner to create retrospective referral letters in 2020 for consultations back in 2019.
When the Practitioner's conduct started in September 2020, he knew that it was wrong to make false medical records. He had previously received a letter from the Commission in 2018 warning him about the importance of accurate medical records.
As set out above, in October 2020, the Practitioner attended a PRP interview and received a letter about the PRP concerns. The Practitioner could have ceased his conduct and sought help.
Instead, eight days after the PRP letter, the Practitioner continued creating inauthentic referral letters, purportedly written many months previously, and continued creating inauthentic referral letters during October 2020 and into January 2021.
The Practitioner received another letter about the PRP concerns in February 2021. The letter mentions concerns regarding CDM services and Item 369.
The Practitioner had a consultation with an Avant risk advisor around March 2021 about any risks in his billing practice. He then received another PRP letter in April 2021 in the terms set out above referring the matter to the PSR. The Practitioner did not cease his conduct. Instead, in May 2021 the practitioner continued creating inauthentic referral letters.
After the practitioner received the PSR letter dated 6 May 2021, the practitioner continued creating inauthentic referral letters in late May 2021.
The Practitioner received the PSR notice on 2 June 2021 which clearly required the practitioner to produce complete clinical records for the 111 patients on the attached list including progress notes and specialist referral letters. The PSR notice is obviously an important document (it is headed "OFFICIAL", is on PSR letterhead and attached the relevant legislation). The PSR notice is easy to understand. The PSR cover letter invited the practitioner to contact the PSR with any questions. The practitioner continued creating inauthentic referral letters during late June and into mid July 2021 and also started inappropriately altering medical records from July 2021.
After receiving a reminder to comply with the PSR notice and obtaining an extension to comply, the Practitioner continued inappropriately altering medical records until 20 September 2021, the day before he provided his altered records to the PSR.

The ability to detect the practitioner's conduct

On the whole the Practitioner's conduct was difficult for the regulator to detect. The PSR only realized that the records had been altered after analysing the records using custom software.
Some of the reconstruction of records by the Practitioner was quite complex. For example, an element of billing item 723 for a patient is that the patient benefits from a written referral to another health provider participating in a Team Care Arrangement. That required the practitioner to create a team that never existed.
The Practitioner's conduct was deliberate. When reviewing his notes for item 36, the practitioner had realised that a lot of his consultation notes were not sufficient to qualify to bill item 36, so he amended his notes.
The Practitioner's conduct was intended to deceive. When reviewing his notes for chronic care plans (to see whether they fulfil the criteria for items 721 and 723), the practitioner tried to delete the item numbers, then changed the record, to cover his tracks, so that it looked consistent with that EPC item that he had billed, by copying, pasting and changing the date of the consultation and adding text about patient consent.
There are examples where detection is easier. For example, on 25 May 2021 the practitioner created a referral letter which he backdated to the 1 September 2015. The letter is addressed to a specialist and relates to a particular patient. However, when producing the letter using the practice's automated systems, the referral incorporated a list of current medications with prescription dated in 2021 and a past history which includes entries from 2014 through to 2021, most of which demonstrated that the date of the referral letter being September 2015 was entirely bogus (Exhibit 1 volume 2 pages 22 and 23).
Generally the Practitioner's conduct was difficult for patients to detect. Unless the patient asked for it, the Practitioner did not give the patient a copy of the item number billed on their behalf. Patients would be unaware their records were altered long after their consultation and that referral letters which they were not given had been added to their files.

Motivation for the practitioner's conduct

The Practitioner's conduct was motivated by self-interest. When amending his notes, the Practitioner wanted to protect his reputation, escape punishment, avoid a black stain on his reputation and thought that if he produced a better (albeit false) record, he might not be punished (see Exhibit 1 Volume 3; s 150 hearing transcript pg 195 and 196).
The Practitioner placed his personal interests (to justify his billing and to avoid PSR criticism) above the public interest (to investigate any inappropriate billing to ensure appropriate expenditure of Medicare funds).
The Practitioner placed his personal interests above the interests of his patient's interest (to have accurate records which reflect what actually occurred during their consultations to ensure safe continuity of care).

Conclusion in relation to professional misconduct

The Practitioner's conduct was extensive and perpetrated continuously over more than a 12-month period. He was given multiple warnings and failed to heed any of them.
The Practitioner's conduct is contrary to the expected standards of ethical medical practice. As the Standards of General Practice makes clear, maintaining accurate and comprehensive patient health records is crucial in providing patients with continuity of high-quality and safe care (Royal Australian College of General Practitioners Standards of General Practice 5th edition; Core Standard 7; Exhibit 2 page 58). The ability to acknowledge errors in judgment is particularly crucial for health professionals because covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions because such behaviour may pose a risk to the safety of patients; HCCC v Picones [2018] NSWCATOD 56 at [104].
The Practitioner's conduct posed a risk to the profession. Patients rely on medical practitioners creating accurate contemporaneous medical records. Patients expect that medical practitioners will record what actually happened during their consultations. Inaccurate/incomplete medical records may jeopardise safe continuity of care. The Medicare system also relies on medical practitioners creating accurate contemporaneous medical records. The regulators expect that medical practitioners will record which services were actually provided. False/non-contemporaneous medical records may jeopardise the integrity of the billing scheme and jeopardise public confidence in the medical profession.
In Sabag v HCCC [2001] NSWCA 411 at [82] the Court of Appeal said: The definition of "professional misconduct" involves a degree of seriousness sufficient to warrant suspension or deregistration, a matter of degree and judgement.
When the Practitioner's conduct is viewed in its entirety and looked at in the context of the investigation to which the Practitioner was being subjected, we are comfortably satisfied that conduct is sufficiently serious to amount to professional misconduct.

Legal Principles

When considering what protective orders we should make, public safety and health is paramount. The Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community. Deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession.
In HCCC v Do (2014) NSWCA 307 at [35], Meagher JA said: the objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining the standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practice, including those who have been guilty of serious misconduct. Denouncing such conduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the requisite standard will not be permitted to practise
In HCCC v Litchfield [1997] NSWSC 264 the Court of Appeal said: The gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which it departs from proper standards.

Cancellation

The Commission seeks an order that the Tribunal cancel the practitioner's registration based upon the circumstances of the practitioner's professional misconduct.
The Practitioner has demonstrated limited insight: 1. On 6 April 2021, the Practitioner assured the PRP that his Medicare billing was appropriate and that his usual practice included drafting plans referring patients with chronic conditions for allied health services, many working onsite at the practice, but some patients are reluctant to engage with allied health specialists. 2. On 1 December 2021, was invited during a PSR meeting to explain the discrepancies in his records and chose not to provide a response. 3. On 28 February 2022, the Practitioner acknowledged that he altered a large portion of the consultation notes that were produced to the PSR but claimed he only did so because some consultation notes were unclear and contained spelling errors, shorthand references, abbreviations and various acronyms. The Practitioner assured the PSR that he only amended the entries "to make the entries clearer", "to make the records easier to understand". The Practitioner assured the PSR that he had completed further education regarding records"' and had taken steps to improve the quality of his records going forward."' The letter assured the PSR that CDM items were appropriately billed, that GP Management Plans and TCA for patients with chronic illness were discussed with collaborating in-house allied health providers. 4. On 14 April 2022, the Practitioner assured the Council that he wanted to improve his record keeping. 5. On 22 April 2022, the Practitioner assured the s 150 delegates that he prepared chronic disease plans with patients and provided them to the specialists "most of the time" except some in-house providers but some patients don't comply. The Practitioner assured the delegates that he has only "very recently" realised that he could add notes later without altering the original record. When asked about what he had learnt from training about medical records, the Practitioner stated that his records were previously not adequate, not concise or comprehensive, incomplete, and he used a lot of abbreviations, acronyms, shortcut because he was "so bad in typing". The Practitioner assured the delegates that "I didn't change the content of the record, but I just changed ... so that it looked consistent with that EPC item that I have done" and claimed that he only changed things like abbreviations and acronyms and to record consent. When asked about how long it took (to go through over 3000 records), the Practitioner stated "I didn't change the content of the thing ... it is only to change the copy and paste and I suppose it's only take a few minutes each consult" over a month. The evidence in fact shows that he amended/recreated over a period of more than 12 months. When asked further questions about whether there were any other changes that he made to other aspects of the notes that he felt he needed to fix and how many hours it took, the practitioner declined to answer. 6. On 28 April 2022, the Practitioner assured the Commission that he "amended some of the consultation notes and plans by fixing the spelling errors and clarifying the shorthand references, abbreviations and acronyms only to make the records clearer, not to in fact alter the content" and assured the Commission that he did not intend to deceive the PSR and mentioned further training. 7. On 21 February 2023, the Practitioner assured the auditor that he had improved his medical records. 8. Only on 28 November 2023,(only after receiving the Commission's letter detailing the entirety of his conduct), did the Practitioner belatedly acknowledge that he retrospectively amended patient records by adding additional notes referable to the patient's history, reason for contact, and overall management plan for the patient's health concern, amended chronic disease management plans and backdated patient referral letters and that his amendments "were substantial and extended further than confirming the patient's consent after the event, fixing spelling errors and clarifying the shorthand references, abbreviations, and acronyms." The Practitioner admitted that he had provided conflicting explanations to the PSR and the Council, claiming he had found it difficult to admit what he had done. 9. The Practitioner has elected not to file any Reply with any admissions. 10. The Practitioner has elected not to file any statement with any reflections.
Accurate patient records serve several purposes: to ensure patient safety including in case: 1. the practitioner needs to review a returning patient; 2. another Practitioner at the practice needs to assume care; 3. Medicare or a private fund requires the notes; 4. the patient requests the notes, in case another Practitioner requires the notes; 5. the Practitioner receives a summons or subpoena; or 6. the Practitioner receives a claim or a complaint.
The Practitioner has apparently recently retired and changed his practicing status to non-practising in 2024. However, it is unknown whether the Practitioner intends to return to practice. It currently remains open to him to apply to return to general registration. The Practitioner has not surrendered his registration and has not filed any statement about his current or future employment.
Bearing in mind that our jurisdiction is protective rather than punitive, we conclude that cancellation of the Practitioner's registration is required to denounce the Practitioner's serious professional misconduct, deter the Practitioner from similar misconduct, to deter other practitioners from similar misconduct and to uphold high professional standards.

Non-review period

The Commission seeks a 12-month non-review period.
As noted above, at the conclusion of the hearing, the Tribunal indicated that it was possible, having regard to the currently undisputed facts upon which the complaints were alleged, the Practitioner's registration might be cancelled with a non-review period of up to three years. The Practitioner was afforded procedural fairness to respond to the Tribunal's proposed amendment to the application and confirmed that he did not wish to do so.
During the hearing, there was a discussion about whether there was any other case where the falsification of medical records was on such an industrial scale. We reviewed 12 cases. That review only underlined the warning given by the Court of Appeal in Lee v HCCC [2012] NSWCA 80 at [23]-[34] of the limited utility of attempting to benefit from the accumulated experience and wisdom of other decision makers by undertaking a comparison with the outcomes in earlier cases to discern some range or pattern.
By way of illustration, there were a number of examples where poor record keeping was found to have only amounted to unsatisfactory professional conduct.
In HCCC v Liu [2016) NSWCATOD 133 at [61] and [135], the practitioner overcharged Medicare about $500,000, which by itself was found to be professional misconduct. There were other complaints in that case including in relation to the practitioner's failure to keep proper clinical records. That failure however did not involve rewriting of records and was not sufficient by itself to constitute professional misconduct. This practitioner's registration was cancelled with a non-review period 12 months.
There were a number of other examples where poor record keeping was found to have only amounted to unsatisfactory professional conduct including HCCC v Fleisch (2019] NSWCATOD 69 at (195-198], (212-215], [217]; HCCC v Godwin (2022] NSWCATOD 17 at (97] and HCCC v Gao [2022] NSWCATOD 73 at [272-273].
There are a number of examples where poor record keeping was found to have amounted to professional misconduct.
In HCCC v Nguyen [2018] NSWCATOD 168, the practitioner's failure to maintain appropriate medical records over a period of eight years was found to be professional misconduct. The practitioner had also been guilty of professional misconduct as a result providing inappropriate care and treatment for a patient. The practitioner was reprimanded and allowed to continue to practise under strict conditions.
In HCCC v Knowles [2020] NSWCATOD 80 at [408-418], a medical practitioner was involved in inappropriate prescription of Schedule 8 and Schedule 4 drugs for a significant number of patients which was deserving of strong criticism. In addition, the practitioner had altered records in a clumsy attempt to cover up his failure to make proper and contemporaneous medical records for two patients whose records he had been required to produce under a notice from the HCCC. Together they formed the basis of a finding of professional misconduct. The practitioner had rehabilitated himself, was working in a group practice and was heavily supervised. The practitioner was suspended with conditions imposed.
In HCCC v Huda (2019] NSWCATOD 109 at [191-201; 234) a medical practitioner provided poor clinical care. After a complaint was made, he deliberately added to the patient's notes creating the impression that they were made contemporaneous with the original notes. Both types of conduct by the practitioner was sufficient to ground a finding of professional misconduct. His registration was cancelled with a non-review period of 12 months.
In HCCC v Jamnagarwalla [2022] NSWCATOD 61, the practitioner breached conditions previously placed upon him not to see female patients and was found guilty of professional misconduct. His record keeping failures involved several examples of not recording any history, examination or management plan. In one circumstance the practitioner admitted that he had deliberately failed to record essential information in the patient's clinical notes to give the impression that he had not consulted the patient who was female. The Tribunal at [288] found that failures of record keeping were sufficiently serious on their own to amount to professional misconduct. Based on both findings of professional misconduct, the practitioner's registration was cancelled for one year.
In HCCC v Lucire (No 2) [2023] NSWCATOD 31 at [61]-[64], decisions that the practitioner had made had placed the health and safety of patients at risk, she had a lack of knowledge, and exercised extremely poor professional and ethical judgment. Her deficient record keeping on its own was found to be professional misconduct (HCCC v Lucire [2022] NSWCATOD 74 at [438]) but was only part of that mix when considering the protective orders. The practitioner's registration was cancelled for one year.
In HCCC v Dr Mohammed Sadiq Asar [2016] NSWCATOD 157 at [81] The medical practitioner was found to be guilty of professional misconduct in circumstances where he had inappropriately prescribed drugs of addiction without authority as well as failing to keep adequate clinical notes. The practitioner's registration was cancelled with a non-review period of two years.
There were other cases involving examples of non-contemporaneous record keeping where the practitioner's registration was cancelled but not because of the poor record keeping.
For example in HCCC v Von Marburg [2019] NSWCATOD 85 and three other decisions in that piece of litigation involving Dr Von Marburg, the practitioner was involved in egregious conduct involving multiple patients who had suffered long term injuries as a result of surgery. Whilst the practitioner had created some non-contemporaneous records, that alone was insufficient to constitute professional misconduct. His registration was cancelled with a non-review period of eight years.
While some of these cases have some aspects which are similar to this matter there are also many dissimilarities in each and none of these cases is directly comparable to this one. Given that the paramount consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what is necessary to ensure the protection of the public.
A non-review period is not confined: 1. to the Tribunal predicting the time in which a practitioner may reasonably take steps to demonstrate whether he has gained any insight, whether he has addressed his risk factors, whether he has completed any relevant further education and whether his character is reformed before the Tribunal could be confident that he can practise in a competent and ethical manner, or 2. To holding open to the practitioner the possibility of return to the profession at a later time.
If it was so confined, a 12-month non-review may have sufficed.
A non-review period also is an important part of providing for the safety of the public by ensuring that only those who are suitably trained and qualified to practise in a competent and ethical manner are registered; by sending a clear message of denouncement of the practitioner's conduct to other professionals; by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breaches.
We noted above that the gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which it departs from proper standards. Worst cases are simply those which depart from proper standards by a long way. The conduct in this case is the worst example of the inappropriate alteration of patient records that the members of this Tribunal have seen.
It is our view a non-review period of three years was more appropriate given the Practitioner's behaviour was at the extreme end of the spectrum in relation to the type of serious conduct which is the subject of the complaints.

Costs

Costs are awarded to compensate the successful party and the accepted general presumption is that costs follow the event. There is no disentitling conduct by the applicant which would displace that presumption.
The Practitioner should pay the Commission's costs as agreed or assessed.

Orders

We make the following orders: 1. Pursuant to section 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) (National Law), Doctor Chin Ven Tan's registration is cancelled, with a non-review period of 3 years. 2. The Respondent is to pay the Applicant's costs as agreed or assessed under clause 13 of schedule 5D of the National Law.

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: 20 December 2024

Health Care Complaints Commission v Tan

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (16)