Health Care Complaints Commission v Tan

Relevant legislation and principles

1. The principles outlined in the National Law at s 3A and s 3B have at their core a requirement for us to make a determination which attempts to protect public health and safety as our paramount consideration.
2. Section 139B(1)(a) of the National Law provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill and judgment processed 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.
3. In Health Care Complaints Commission v Amal Akumar [2019] NSWCATOD 173 at [25], the Tribunal said: Determining whether the "knowledge, skill or judgment" possessed by a practitioner, or the "care exercised" by a practitioner is significantly below the standard reasonably expected, in order for the elements of s 139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard.
4. Section 139B(1)(b) of the National Law provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes... - … (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.
5. The Applicant seeks a finding that the Practitioner is guilty of conduct described in s 139B(1)(b) on the grounds that the Practitioner has contravened regulation 6 of the Health Practitioner Regulation (New South Wales) Regulation 2016. Regulation 6 provides that a medical practitioner must in accordance with that part of the regulation and schedule 4, make and keep a record, or ensure that a record is made and kept, for each patient of a medical practitioner.
6. Schedule 4 of that regulation relevantly provides that a record must include the following - (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and any information concerning allergies or other factors that may require special consideration when treating the patient).
7. Section 139E of the National Law sets out the meaning of "professional misconduct": 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.
8. Whether the unsatisfactory professional conduct is serious enough to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 ("Sabag") at [82].
9. "There is no category of unsatisfactory professional conduct which is not capable, depending upon the circumstances, of giving rise to professional misconduct": Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20].
10. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297.
11. In Health Care Complaints Commission v Robinson [2022] NSWCA 164 ("Robinson"), Kirk JA (Leeming JA agreeing) said at [34]: The focus is on the character of what occurred which is the subject of the complaint. The categorisation exercise involved an "evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct", citing Basten JA (Leeming JA agreeing) in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20].
12. The seriousness of the conduct may take colour not only from the acts or omissions in question by also in the circumstances in which they occurred: Robinson at [35].
13. When considering those circumstances, the Court of Appeal noted at [36] that they could include: 1. the practitioner's state of mind at the time of the impugned conduct; eg whether the conduct was deliberate or inadvertent 2. knowledge of the patient's vulnerabilities 3. risk of harm arising from the conduct 4. the practitioner's knowledge, skill and training 5. the practitioner's disciplinary history
14. Section 149A(1)(a) of the National Law provides a general power to the Tribunal to caution or reprimand a practitioner.
15. Section 149C(1)(b) of the National Law provides that the Tribunal may suspend a registered health practitioner's registration for a specific period or cancel the registered health practitioner's registration if the Tribunal is satisfied that the practitioner is guilty of professional misconduct.
16. Section 149C(4) of the National Law provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] … (4) If the person is no longer registered, the Tribunal may - (a) decide that if the person was still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person disqualified from being registered in the health profession for a specific period or until specific conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.

The Factual Background and Our Findings in Respect of the Complaints

1. The Practitioner was born on 9 January 1961 and was aged 60 at the time of the conduct which is the subject of this hearing.
2. The Practitioner gained his Bachelor of Medicine/Bachelor of Surgery from the University of New South Wales in 1989. In 1991 the Practitioner returned to his country of birth, Malaysia, and worked for three years in a general hospital, followed by 16 years in his own solo general practice.
3. Patient A was born 24 August 1949. At the time of the events which form the basis of the complaints, she was 71 years old. Patient A had a complex medical history, including gastro-oesophageal reflux disease and cardiovascular disease.
4. Between 18 January 2021 and 1 March 2021, the Practitioner had five consultations with Patient A at Ochre Health in Lithgow.
5. On 2 March 2021, Patient A presented to the emergency department at Lithgow Hospital.
6. On the night of 2 March 2021, Patient A was transferred to Nepean Hospital via air ambulance and was admitted to the intensive care unit. She remained there, with her condition deteriorating until 8 March 2021 when she died at 12:50pm.
7. The cause of Patient A's death was sepsis and multi-organ failure, Escherichia coli infection, acute myocardial infarction, acute renal failure and likely liver metastases.
8. The Practitioner's short comings have been documented in Dr Kertez's report who is critical of the poor standard of the Practitioner's care. In oral evidence at the hearing, Dr Kertez elaborated on the degree to which the Practitioner's conduct was substandard.

First consultation on 18 January 2021

1. 18 January 2021 the Practitioner made notes that were brief and imprecise; failed to record what examinations or procedures were undertaken; failed to record what comments he made regarding Patient A's symptoms; failed to record that he had requested a follow up appointment with Patient A.

Second consultation on 21 January 2021

1. On 21 January 2021, the Practitioner treated Patient A at Ochre Health and: 1. Failed to perform an adequate follow-up examination of Patient A including temperature, blood pressure, pulse, cardiovascular, respiratory, abdominal, legs, ankles and feet; 2. Ordered inadequate and less than appropriate tests, both blood and other tests for Patient A in circumstances where: 1. he failed to request correct and appropriate tests, such as a hepatitis screen and an upper abdominal ultrasound, within a short timeframe to enable proper investigation of Patient A's abnormal liver function results; and 2. he requested a further blood test but failed to request results regarding viruses commonly affecting the liver, or to order tests for parasites that could occur in the area Patient A lived. 1. Failed to follow the suggested advice of pathologists when abnormal blood test results were received; 2. Incorrectly diagnosed Patient A with viral infections (glandular fever or cytomegalovirus ["CMV"]) in circumstances where his notes for the previous consultation indicated no Upper Respiratory Tract Infection ["URTI"], and there is no evidence that he took Patient A's temperature, or performed an ear, nose, and/or throat examination; 3. Failed to consider a significant array of alternative differential diagnoses affecting the liver such as: 1. Hepatitis A, Hepatitis B or Hepatitis C viral infections; 2. fatty liver disease caused by lifestyle issues or medication (as prompted by the pathology company); 3. parasites known to have occurred in/near the area where Patient A lived; 4. malignancy which was plausible due to the sudden onset and rapid deteriorating liver function tests; and 5. bacterial infections once the liver commences to fail due to multi-systems failure by which stage the patient would require ICU hospitalisation.

Third consultation on 4 February 2021

1. On 4 February 2021, the Practitioner treated Patient A at Ochre Health and: 1. Mismanaged his care of Patient A by failing to follow the process of history, examination, investigation, diagnosis, and management in his consultation with Patient A; 2. Failed to take an extended history from Patient A in circumstances where the blood test results excluded his earlier diagnosis of a viral infection such as glandular fever or CMV; 3. Failed to undertake a cardiovascular respiratory or abdominal examination of Patient A; 4. Did not consider requesting an ultra-sound for a liver assessment in circumstances where Patient A presented with signs of clinical deterioration; 5. Ordered further blood tests for a month's time and asked Patient A to return for review, but failed to request appropriate blood investigations indicated immediately; 6. Failed to undertake logical, sequential diagnostic reasoning in his treatment of Patient A in circumstances where the blood test results excluded his earlier diagnosis of a viral infection such as glandular fever or CMV.

Fourth consultation on 18 February 2021

1. On 18 February 2021, the Practitioner treated Patient A at Ochre Health and: 1. Failed to perform an abdominal examination despite the presence of dyspnoea tachycardia, bilateral ankle oedema, persistent abdominal liver function tests, and persistently elevated white blood cells; 2. Failed to perform urinalysis in the presence of bilateral leg swelling; 3. Failed to appreciate the requirements for tests other than serial blood tests due to his poor examination techniques and inability to interpret the examination findings and test results; 4. Failed to refer Patient A for specialist tests such as electrocardiogram ("ECG"), echocardiography, abdominal ultra-sound, abdominal CT scanning and chest X-Ray; 5. Inappropriately determined that the swelling of Patient A's legs was due to her medication, namely Coveram, which she had been taking for 8 years without such a side effect; 6. Inappropriately determined that Patient A's shortness of breath was not due to a cardiac cause; 7. Did not conduct a proper cardiovascular examination or refer her for appropriate tests to confirm his conclusion that Patient A's shortness of breath was not due to a cardiac cause; 8. Inappropriately attributed a slight increase in Patient A's pulse rate to anxiety, did not exclude cardiac failure through a physical examination, and did not request a surgery ECG to confirm his diagnosis; 9. Inappropriately determined that the burning throat symptom of which Patient A complained was related to her gastro-oesophageal reflux disease in circumstances where he did not consider this was a symptom which can be typical of angina in a female or refer Patient A for specialist assessment; 10. Inappropriately prescribed Lasix 40mg to Patient A in an effort to reduce the swelling, in circumstances where he was treating a symptom, not a cause, and no effort had been made to illicit a pathological cause for Patient A symptoms; and 11. Failed to illicit appropriate differential diagnoses and eventual definitive diagnoses as a result of his failure to undertake appropriate investigations, including: 1. onset of coronary artery disease; and 2. severe liver dysfunction.

Fifth consultation on 1 March 2021

1. On 1 March 2021 the Practitioner treated Patient A at Ochre Health and: 1. Failed to undertake a comprehensive examination including blood pressure, pulse, temperature, respiratory rate, oxygen saturations, complete cardiovascular examination, complete respiratory examination and an examination of Patient A's legs; 2. It is to be noted that up until this consultation the practitioner had failed to make timely investigations, namely ultra-sound or CT imaging, where the initial blood test results received by the Practitioner on 20 January 2021 included a note from the pathologist noting the abnormal liver function results and suggesting that an ultra-sound be performed if indicated and the Practitioner did not order this test until 1 March 2021; 3. Inappropriately disregarded the symptoms being expressed by Patient A regarding the status of her generalised oedema; 4. Failed to realise that Patient A was suffering from coronary heart disease in circumstances where he should have referred her to hospital for management; 5. Failed to recognise acute coronary symptoms in Patient A in circumstances where he failed to discard a diagnosis of gastro-oesophageal reflux disease; 6. In circumstances where Patient A had severe gastro-intestinal symptoms less likely from reflux but from possible angina/ischaemic heart disease; the Practitioner inappropriate prescribed Pariet as a substitute for Nexium; and 7. He failed to provide Patient A with adequate information about the decision to refer her for ultra-sound and CT scan to investigate her abdominal liver function test results;

Record keeping

1. We make the following findings in relation to the Practitioner's record keeping: 1. On 18 January 2021, he: 1. made notes that were brief and imprecise; 2. failed to record what examinations or procedures were undertaken; 3. failed to record what comments he made regarding Patient A's symptoms; 4. failed to record that he had requested a follow up appointment with Patient A. 1. On 21 January 2021, he: 1. made notes that were sparse and contained inadequate content regarding further diagnostic possibilities and the ongoing management of Patient A; 2. failed to record whether examinations or procedures were undertaken; 3. failed to record whether the symptoms Patient A presented with were elicited during an examination or expressed by her; 4. failed to record whether he questioned Patient A regarding alcohol, toxins, lifestyle issues or medication review which may have provided an explanation for her abnormal liver function results. 1. On 4 February 2021, he: 1. made notes that were inadequate in content; 2. recorded Patient A as being asymptomatic when she had increased swelling in her legs, and increased pain on the burning sensation in her throat and chest.

Conclusions in Relation to Unsatisfactory Professional Conduct

1. Based on the factual background and findings as described, we find that the Practitioner is guilty of unsatisfactory professional conduct both on the basis that the Practitioner's conduct was significantly below reasonable standard and that the Practitioner had contravened regulations in relation to medical record keeping.

Professional Misconduct

1. As earlier indicated, the Applicant did not take up the opportunity to amend their Complaint to assert that either individually or when considered together, the incidences of the Practitioner's unsatisfactory professional conduct amounted to conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration.
2. We have reached the conclusion that various parts of the Practitioner's conduct, by themselves and the various findings of unprofessional conduct taken as a whole, are sufficiently serious in nature to justify suspension or cancellation of the Practitioner's registration, and consequently to constitute professional misconduct.
3. We have reached those conclusions based upon an overview of the entirety of the evidence but in particular, the following matters.
4. At the consultation on 21 January 2021, the Practitioner had access to the results of blood tests done on 19 January 2021. These included the following abnormal results: 1. elevated total white cell count and neuterophil subset (see "hematology on page 518 of Exhibit 1); 2. grossly abnormal liver function tests, in particular GGT 934 (normal range 5-35 - see "biochemistry on page 519); 3. low ferritin of 15 (normal range 30-300 - see iron studies on page 523).
5. This cluster of results is alarming and mandated urgent and complete assessment. At a minimum it meant taking appropriate history, performing relevant examination, considering a range of diagnoses (including the most likely diagnoses as well as serious diagnoses that needed to be excluded) and formulating a management plan with safety netting.
6. It appears that the Practitioner's level of knowledge was so poor that he did not recognise the significance of these blood tests. Further, he lacked the skill to perform the required assessment and did not demonstrate appropriate judgment that would have led him to urgently investigate this patient's presentation further. In our opinion, this demonstrated a level of care sufficiently poor to justify a finding of professional misconduct. On multiple occasions in his evidence at the s 150 hearing held on 19 October 2021, the Practitioner justified his lack of further action (history taking, examination or ordering of more relevant tests), by stating that the patient was asymptomatic, or had symptoms that had resolved - see s 150 transcript at various places including p 191 (lns 5, 30 and 35), p 194 (ln 40), p 196 (lns 10-15) and p 197 (lns 15 and 45). This simplistic attitude indicated very poor judgment and a severe lack of knowledge.
7. The Practitioner admitted during the questioning at the s 150 hearing, that in relation to the low ferritin result on 19 January 2021, an appropriate course would have been referral for a colonoscopy to detect cancer (see p 199 (ln 28)). Again the fact that the Practitioner did not take that course demonstrates a very low level of knowledge and judgment. In the context of malignancy, the Practitioner was asked at the s 150 hearing why he had not ordered some imaging of the liver (see p 200 (ln 28)) and the Practitioner again stated that the reason for his inaction, even assuming the possibility of malignancy, was that the patient had no symptoms (see p 200 (ln 33)).
8. That assertion by the Practitioner is alarming. Firstly, the cluster of results in the blood tests alone mandated urgent further inquiries. Secondly, the Practitioner's assertion that the patient did not present with symptoms flies in the face of the evidence as to the symptoms presented by Patient A in the consultation on 19 February 2021 (p 515), namely, significant symptoms including:

• Gross swelling of both legs
• SOBOE (shortness of breath on exertion); and
• Reduced exercise tolerance to 5 metres

1. The examination on that day also revealed new concerning signs including tachycardia (pulse 108 which was 84 on previous consultation on 4 February 2021), and ankle oedema ++ to knees.
2. As noted by Dr Kertez on page 448, the incomplete assessment and examination, failure to investigate with ECG and urinalysis and inappropriate prescribing in response to the elicited history and examination, were all significantly below the standard.
3. On 29 June 2022, the Applicant wrote to the Practitioner setting out details of the complaint by Patient A's daughter regarding his treatment of her mother. On 27 July 2022 the Practitioner provided a response pursuant to s 49 of the Health Care Complaints Act 1993 (NSW).
4. In that response, the Practitioner attempts to deflect the blame for the Practitioner's mismanagement, with comments such as "there was no indication to treat for infection prior to admission" and by casting doubt on the accuracy of information provided by Patient A's daughter's account. He attempts to put a favourable interpretation on his woeful medical records regarding the existence of leg swelling. He continues to ignore the finding of low ferritin, and does not acknowledge his failure to consider malignancy, or urgently arrange liver and abdominal imaging.
5. It appears even after having time to reflect and the benefit of expert commentary, the Practitioner continues to be unaware of how bad his treatment of Patient A was.
6. In summary, the management of the patient, particularly on 21 January 2021 and on 19 February 2021 and the Practitioner's attempt to explain his management, both at the s 150 hearing and in his s 40 response, demonstrate global deficiencies and a lack of insight which we find warrant a finding of professional misconduct.

Protective Orders

1. Having found the Practitioner is guilty of professional misconduct, we need to consider what protective orders should be made.
2. The Applicant indicated in response to our inquiry, that even if we made a finding of professional misconduct against the Practitioner, the Applicant continued to assert that a reprimand was an appropriate protective order. The Applicant did not proffer any submission to support that position.
3. Our discretionary discipline powers are set out in Subdiv 6 of Part 8 of the National Law. As earlier indicated, they range from reprimand through to cancellation of the Practitioner's registration.
4. We find that the reprimand sought by the Applicant would not be an appropriate exercise of our discretionary disciplinary powers in the protection of the public.
5. Before we move to consider whether a cancellation order pursuant to s 149C(1)(b) should be made, we need to address whether there is some other protective order that could be made to cater for the degree of seriousness of the conduct which we have found. We need to be satisfied there is no other appropriate alternative to cancellation of the registration (Sabag at [82]). Section 149A(1)(b) allows us to impose conditions we consider appropriate on the Practitioner's registration.
6. In that context, we note that the events that gave rise to our finding of professional misconduct against the Practitioner took place at a time when the Practitioner was subject to level C supervision (see letter from Associate Professor John Dearin at p 156 and the s 150 transcript at p 213 (lns 32 onwards)). This supervision proved to be ineffective in preventing the conduct that has led us to the finding of professional misconduct. Associate Professor Dearin indicates that the Practitioner and he discussed Patient A's case on 23 February during routine monthly clinical reviews. However, it should be noted that this was over a month after the alarming cluster of blood test results carried out on 19 January 2021.
7. We are unable to say based on the information provided by Associate Professor Dearin, whether the Practitioner made the full record available for scrutiny or whether there was an underlying systemic problem with the provision of supervision. We do conclude however that the supervision, for whatever reason, was ineffectual and that the Practitioner's responses thereafter continued to demonstrate limited insight into the Practitioner's inadequate performance. For those reasons, we conclude that the imposition of further conditions upon the Practitioner's future registration would not be an appropriate protective order.
8. The management of Patient A on 21 January 2021 and on 19 February 2021 and the Practitioner's attempt to explain his management at the s 150 hearing and in the subsequent s 40 response, demonstrate global deficiencies and a lack of insight which we think warrant the cancellation of the Practitioner's registration.
9. The Practitioner is no longer registered as a medical practitioner. He declared via statutory declaration on 10 October 2023 that he undertakes not to practise as a medical practitioner in Australia. This statement of intention by the Practitioner, however, is not of any weight. What is relevant is that our orders reflect the seriousness with which we regard the Practitioner's conduct and that the orders ensure that the public is protected from the Practitioner or other practitioners engaging in similar conduct: Health Care Complaints Commission v Blackstock [2020] NSWCATOD 110 at [323].
10. We have decided that if the Practitioner was still registered, we would have cancelled his registration. Further, we have decided that the Practitioner is to be disqualified from being registered in the health profession for a period of two years and we require the National Board to record the fact we would have cancelled the Practitioner's registration in the National Register kept by the Board.

Costs

1. Clause 13(1) of Schedule 5D of the National Law allows the Tribunal to make an order for costs. The Applicant seeks an order for costs as agreed or assessed.
2. It is generally accepted that the costs of proceedings before the Tribunal should follow the event (Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[46]).
3. Although the Applicant was not successful in obtaining the protective order that they sought, the Applicant was successful in establishing that the Practitioner was guilty of unsatisfactory professional conduct. There was no other disentitling conduct by the Applicant to warrant a departure from the general rule that would reward the Applicant for establishing the fundamental basis for the complaint that was eventually found against the Practitioner. In those circumstances, we find that the Applicant is entitled to receive an order that the Practitioner pay their costs as agreed or assessed.

Orders 1. An order is made prohibiting the disclosure of the names of Person A and Person A's daughter under s 64 of the Civil and Administrative Tribunal Act 2013. 2. Pursuant to s 149C(4)(a) of the National Law, that if the Practitioner was still registered, the Tribunal would have cancelled his registration pursuant to s 149C(1)(b). 3. Pursuant to s 149C(4)(b) of the National Law, the Practitioner is disqualified from being registered in the health profession for a period of two (2) years from the date of this decision. 4. Pursuant to s 149C(4)(c) of the National Law, the National Board is required to record the fact that if the Practitioner were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. 5. Pursuant to clause 13 of Schedule 5D of the National Law the Practitioner is to pay the Commission's costs 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: 19 March 2024