Liu v Chinese Medicine Council of NSW

NCAT Occupational|2019-03-20

Background

Dr Liu has been a practitioner of traditional Chinese Medicine for approximately 25 years. He commenced practice in Australia in 1996 and has been a registered Chinese Medicine practitioner since inclusion of the profession within the National Law in July 2012.
Dr Liu is the sole director of Traditional Chinese Medicine Australia Pty Ltd (TCMA). TCMA currently operates four clinics; two in NSW and one each in Victoria and Queensland. Dr Liu practices across all four clinics.
The Chinese Medicine Council of NSW (the Council) held a section 150 inquiry in October 2018 after it received a complaint from Police concerning a 41 year old woman, Patient A. Patient A suffered a cardiac event on 2 February 2018 and died six days later in hospital.

Relevant Law

In hearing an appeal under s 159 the Tribunal must consider the issues by way of a new hearing, and fresh evidence or evidence in addition to, or substitution of, the evidence before the Council, may be given.
Section s 159C provides that the Tribunal's powers on appeal are that it may confirm the decision, or set aside the decision or set aside the decision and make a new decision (being a decision that the Council could have made).
In exercising this power, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law.
Section 150 of the National Law provides the power for Councils to take immediate interim action. It does so by providing that a Council must suspend a practitioner's registration or impose conditions, if at any time it is satisfied it is appropriate to do so for the protection of the health and safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest.
In Karimi v Medical Council of New South Wales [2017] NSWCATOD 180, the Tribunal succinctly summarised the relevant principles and established approach to appeals from s 150 decisions [at 123]: Hanna v Medical Council of NSW [2017] NSWCATOD 27 and Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 provide useful guidance as to the nature of an external appeal under s 159 of the National Law against a decision of the Council to suspend a medical practitioner's registration under s 150. The applicable principles derived from the relevant provisions of the National Law, as discussed in Crickitt and Hanna, may be summarised as follows: (1) Nature of the appeal The Tribunal is to conduct the appeal by way of a new hearing and may consider evidence that was not before the Council as the original decision-maker. The Tribunal's task is not to review the decision of the Council and determine whether its decision was reasonably open in the circumstances. The Tribunal is called on to exercise afresh the administrative discretion in s 150(1) having regard to the material before it. (s 159(3) of the National Law and Hanna at [17]-[18]) (2) Protective jurisdiction The jurisdiction being exercised is directed to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest. (ss 3A and 150 of the National Law, Hanna at [17] and Crickitt at [47]) (3) Consequences of suspension The exercise of the power to suspend can be described as "draconian" and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. (Crickitt at [56]; see also X v NSW Medical Board (1993) 32 ALD 330 and Lindsay v NSW Medical Board [2008] NSWSC 40 at [80], which considered s 66 of Medical Practice Act 1992 (NSW), being the predecessor to s 150 of the National Law) (4) No need for a detailed enquiry The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that the Tribunal need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (Crickitt at [56]; see also Lindsay at [76]) (5) Not required to make any conclusive findings Because the circumstances in which the power under s 150 is to be exercised include that there may be a continuing dispute as to precisely what occurred and why and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. (s 150 of the National Law and Hanna at [19]) (6) Pre-conditions on power to suspend The Tribunal must assess whether "it is appropriate for the protection of the health and safety of any person or persons" or "is otherwise in the public interest" to make such orders as are permitted by s 159C. The Tribunal's task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest. (ss 150, 159 and 159C of the National Law and Hanna at [20]) (a) Scope of "protection of the health and safety of person or persons" The "protection of the health and safety of any person or persons" does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. (Section 150 of the National Law and Crickitt at [48]) (b) Scope of "public interest" The "public interest" consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession (ss 150 of the National Law, Hanna at [18] and Crickitt at [56]) (7) No need to determine whether conduct is "professional misconduct" or "unsatisfactory professional conduct" Apart from what is involved in assessing the risk referred to in the preceding subparagraphs, it is not otherwise necessary for the Tribunal to determine whether the conduct under notice constitutes "professional misconduct" or "unsatisfactory professional conduct" or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. Those are matters that may fall to be addressed at a later stage, if and when disciplinary proceedings are taken against the appellant. (s 150 of the National Law and Hanna at [22]) (8) Nature of suspension power under s 150 An order made under s 150, including a suspension order, is in the nature of an interlocutory order and often must be made on the basis of limited information. (s 150 of the National Law and Crickitt at [51] and the authorities cited there; Lindsay at [79]) (9) Council's separate power to reconsider suspension A practitioner may also apply directly to the Council for a review of a s 150 decision to suspend a practitioner's registration. If satisfied there has been a sufficient change in the practitioner's circumstances, the Council can affirm or vary the decision or set it aside and take any action it has power to take under s 150. (s 150A(2)(b) and (3) of the National Law).
While the Tribunal does not need to make conclusive findings of fact on allegations, or determine questions such as fitness to practice, it must nevertheless be satisfied to the Briginshaw standard that there is a basis for the conclusions necessary to enliven s 150. That is, it must be reasonably satisfied on the balance of probabilities that there is a risk to the health and safety of any person or persons, or that it is otherwise in the public interest to take such action.
The parties differed as to the Tribunal's duty to consider previous complaints in determining the appeal. Section 410 of the National Law requires that the Council in a s 150 proceeding 'must have regard to any of the following matters, to the extent the Council reasonably considers the matter to be relevant to the complaint': (a) another complaint or notification about the practitioner or student made to the Council or the National Agency, or made to a former Board under a repealed Act, including a complaint-- (i) in respect of which the Council, the Commission or a National Board has decided no further action should be taken; and (ii) that is not required to be referred, or that the Council or the Commission decides not to refer, under Division 3 of Part 8; (b) a previous finding or decision of a Council inquiry in relation to the practitioner or student; (c) a previous finding or decision of a board inquiry, professional standards committee or a tribunal established under a repealed Act in respect of the practitioner or student…
It was the appellant's position that to the extent that it considers relevant, the Tribunal may have regard to other complaints and previous findings of decisions, but that no weight should be given to complaints that have been dismissed or not proceeded with. The respondent argued that the Tribunal must have regard to all previous complaints.
The Tribunal finds that s410 applies to its determination under s 159 as it is standing in the shoes of the Council in deciding whether the decision is appropriate, meaning that we must have regard to the complaints, but only if we reasonably consider the matters in the previous complaints to be 'relevant' to this complaint.

Hearing and Evidence

The evidence at the appeal hearing included two statements from Dr Liu, two expert reports comprising chemical analysis of the herbal decoction used in the 101 Wellbeing Program and an opinion from a dietician, Dr Alan Barclay. The clinical records of Patient A were also in evidence. Dr Liu gave oral evidence at the hearing with the assistance of an interpreter.
The Council evidence included a peer expert report from Dr Claire Zhang an experienced Chinese Medicine Practitioner, a statement by Patient B, and material related to all previous complaints, both open and concluded, concerning the practitioner. Patient B was a previous repeat patient of Dr Liu, and a friend of Patient A. Dr Zhang appeared by phone and Patient B in person, for cross examination.
Dr Liu is the originator of the 101 Wellbeing Program. He is also the only practitioner in the four clinics who prescribes and tailors the 101 Wellbeing Program.
It was Dr Liu's evidence that the program was developed by him based on Chinese medicine principles, although it is not a program used by other Chinese Medicine Practitioners. He has over the past 11 years prescribed the program to a great many patients. In the years 2016 to 2018 inclusive, he estimates that he treated approximately 3,800 patients, of whom 1,800 were repeat or returning patients. The majority of his practice involves the 101 Wellbeing Program.
It was Dr Liu's evidence that all patients on the program were given his business card with an email and mobile phone number and encouraged to contact him directly is they had any concerns during the program. All patients were also given a brochure explaining the program.
The program lasts for 101 days. It involves patients drinking a herbal decoction three times per day for the duration of the program.
For the first 14 days of the program patients are instructed not to eat any solid food, and only consume the herbal mixture and water, green or black tea.
It was Dr Liu's evidence that not all patients can tolerate the full 14 days with no solid food, and some patients undertake a lesser period.
The brochure states that the herbal decoction is 'rich in nutrients.' The brochure states, 'For the first two weeks it is essential that you don't consume food of any kind.' It also notes, During the treatment you will notice your bowel movements will be irregular and your urine acid could be high. This is absolutely normal and a sign the detox is working, but if you have any concerns at all, please discuss them with Dr Liu.
During the first 14 day period patients attend a TCMA clinic every day and undertake massage, acupuncture and the insertion of needles into acupuncture points (characterised as 'dry needling' by the appellant).
The object of such treatments is to monitor the patient's progress, assist the body to absorb the herbal mixture and increase energy.
The majority of treatments are undertaken by other therapists acting under the direction of Dr Liu who, because of his movements between the four clinics, generally sees each patient once a week. Some of those therapists are not registered Chinese Medicine practitioners.
After 14 days, patients are instructed to return to limited food intake and are provided with an 'Eating plan' (which specifies recommended portions such as half a cucumber per day or 50gms of cooked white protein per day), along with the continuation of the herbal mixture three times per day. Patients continue to attend TCMA clinics for further treatments, but at a lesser frequency.
The herbal mixture comprises a standard base formula designed by Dr Liu which can be 'tailored' with the addition of particular herbs for each patient. The decoction is mixed and brewed in the clinics to a formula set by Dr Liu, and generally sold to the patients in batches every two weeks.
The practitioner acknowledged in oral evidence that the sachets of herbs were not labelled with the ingredients, as required by current Chinese Medicine Board of Australia, Guidelines for Safe Chinese Medicine Herbal Practice (2015, cl 3).
Dr Barclay characterised the program as a form of 'modified' or 'supplemented fast', with the herbal decoction providing some essential nutrients including energy, carbohydrate, fat, protein and potassium. An uncontested chemical analysis of a median quantity of the standard herbal mixture was the basis of Dr Barclay's opinion that three servings of the decoction per day would contain less than 10 per cent of the daily nutritional requirements for an average adult.
Although there is no evidence of this instruction, Dr Barclay stated that he prepared his report based on the assumption that the patients of Dr Liu are 'generally overweight or obese.'
Dr Barclay opined that an average or overweight Australian adult should tolerate 14 days of fasting with 'relatively minor complications'. However he noted that fasting can be fatal in people with pre-existing health conditions, including but not limited to: cardiovascular disease, diabetes and kidney disease.
Dr Barclay's report also opined that the program would contribute to a decrease in potassium levels, but that such levels would only fall to a very low level (< 2.5 mmol/L) if there were excessive loss of potassium from urine or the gastrointestinal tract. Such losses could be caused by vomiting or diarrhoea, the use of laxatives or acidosis caused by diabetic ketoacidosis or chronic alcoholism. In a supplementary report Dr Barclay gave the opinion that the fasting period of the 101 Wellbeing Program was likely to lead to decreased frequency of bowel movements.
The program is not a remedy for any specific illness, but is said to assist patients to achieve optimum health and to prevent illness. A 'common and usually welcome effect' of the program referred to in the brochure, an effect specifically sought by Patient A and Patient B, is weight loss. Dr Liu stated at the Council inquiry that 'most of my patients come from referrals, from the patients who have done the program' and so they know 'what sort of result they're going to get'. However Dr Liu does not characterise the 101 Wellness Program as a weight loss program.
In his first statement Dr Liu stated that patients with certain conditions 'are generally not well suited to take part in the 101 Wellbeing Program', which he identified as: cancer, blood disease, diabetes, high blood pressure, chronic fatigue, seizure and previous heart bypass.
Patient A undertook the program twice. On the first occasion she undertook the full 101 days from July to October 2016. On the second occasion she began the program on 9 January 2018. Patient A's recorded diagnosis on both occasions was a kidney and liver yin deficiency. This was also Patient B's recorded diagnosis.
On 16 July 2016 Patient A's clinical records indicate that she disclosed that she had a medical history of 'heart condition (leaking valve- congenital)' with previous open heart surgery and a family medical history of high blood pressure and heart disease. Her presenting issue was recorded as 'not sleeping well, feeling tired, wants to lose weight'.
In his written statement of 31 January 2019 Dr Liu details his recollection of the initial consultation in which he recalls Patient A saying, 'HI Dr Liu, I'm [Patient B's] friend. She did very well on your 101 Wellbeing Program. I want to lose some weight - I think about 15-18 kgs.'
It was Dr Liu's evidence that Patient A had reported at the intake that she was not on any medication for her heart condition which was 'okay' and that she was 'healthy' and 'fully recovered'. He did not ask her more detailed follow up questions, such as whether she had any on-going treatment or monitoring for the condition or had any symptoms such as arrhythmia or shortness of breath. Results of a tongue and pulse examination are recorded in the clinical notes.
There is no record that Patient A was not on any medication. In oral evidence the practitioner stated that if a patient was not on any medication he made no record of this, and gave the view that this was acceptable professional practice because the absence of any such notation in the clinical record should be taken as a record that the patient was not on medication.
The practitioner did not consult with Patient A's treating GP or cardiologist prior to Patient A commencing the program. On 16 July 2016, that is the same day that he prescribed the program, Patient A signed an 'acknowledgment of advice' prepared by the practitioner which provided: Dr Liu has prescribed a treatment, which includes the consumption of liquid food at meal times comprising herbs from sachets, instead of solid food, until further notice; Dr Liu recommended that I did not undertake such treatment without the consent of, and under the supervision of, my GP or other specialist; I acknowledge the advice in paragraph 2 above which I have considered, but I have elected to accept the treatment plan prescribed by Dr Liu, without obtaining the prior consent of my GP or other specialist, and without being under the supervision of my GP or other specialist; I agree that Dr Liu gave me every opportunity to seek the consent and supervision of my GP, and I have made the decision freely in the absence of any pressure or inducement by any; I understand that I can stop the treatment whenever I wish, but in such event, I cannot entitle to a refund for goods or services already supplied.
Dr Zhang was critical of the 'acknowledgement of advice' form provided by the practitioner and opined that it was insufficient to record informed consent of the patient. This was because it did not explain the risks of the program to a healthy adult nor differentiate that there may be specific risks to those with pre-existing conditions.
In oral evidence Dr Liu could not give evidence of any specific disclosures of potential risks, or of particular side effects to be alert for, that he would as part of his usual practice provide to patients in response to them disclosing pre-existing health conditions.
There were 33 'follow up treatment forms' in evidence concerning Patient A's 2016 treatment. Dr Liu is recorded as providing treatment on 14 of those forms. Each form has completed sections for 'original weight' and 'today's weight' and a number between 1 and 9 for 'energy level' (generally recorded as 6 or 7). There are three boxes for 'pain' (headache, lower back pain and abdominal pain) none of which are ticked on any of the forms.
Under 'other symptoms' the forms appear to mostly record the answer to questions about how Patient A 'felt' and slept. The following 'other symptoms' were recorded in Patient A's consecutive consultation forms from 17 July to 7 October 2016: Feeling tired, sleeping is not good. Lack of energy, not sleeping well. Feeling hungry, dry mouth. Hungry, not sleeping well. Feeling well, sleeping is ok. Stressed, not sleeping well. Missing taste of food. Sleeping is ok. Thinking clear. More energy. Feeling hungry. Lack of energy. Dry mouth. Clear skin. Feeling well. More energy. Lost over 5 kg. Feeling lighter sleeping better. Continue [indistinct] and herbs. Feeling well. Sleeping is ok. Feeling well, more energy. Missing taste of food. Sleep is ok. Stressed, not sleeping well. Thinking clear, more energy. Feeling lighter, more energy. Feeling well, sleeping is ok. Feeling much better, lost 9kgs. Condition [indistinct] same [indistinct]. Feeling lighter, sleeping is ok. Missing taste of food. Sleeping is ok. Feeling well, thinking clear. Feeling hungry, stressed. Feeling well, sleeping is ok. Feeling lighter, more energy. Lost over 10kg feeling much better. Sleeping better. Wants to lose more weight, eating more healthy. Same herbs. Feeling well, sleeping is good. Thinking clear, more energy. Feeling well, sleeping is good. Feeling well, more energy, sleeping is good. Feeling well, sleeping is good. Feeling well, sleeping is good.
The forms also have check boxes for acupuncture points that have been utilised for acupuncture or dry needling, massage areas that have been addressed, and an 'other treatment section' that records occasional reflexology.
It was the practitioner's oral evidence that it was his usual practice to check tongue and pulse (undertaken by noting beats per breath not per minute) at initial consultations, but not during the fasting period when he believed it would not be useful to do so. He also stated that he asked female patients about menstrual patterns and all patients about bowel movements at the initial consultation.
It was Dr Liu's position throughout the hearing that pre-existing medical conditions which rendered certain patients inappropriate for the program would be identified by the patient notifying him of such conditions. He did not accept that he had a duty to elicit such information through specific questioning or any diagnostic process.
For example, when the practitioner was asked about how he would identify a patient with high blood pressure his response was that normally a person with high blood pressure would have this issue diagnosed already by a GP and would be taking medication. This information would be provided in response to the intake question about whether the patient was on any medication. Or if a patient disclosed that they were experiencing dizziness or a feeling of pressure in the head he might suspect high blood pressure. Dr Liu did not accept that this method may be insufficient to detect patients in whom high blood pressure posed a risk if the program were undertaken.
Dr Zhang's opinion was that the practitioner's intake processes were insufficient, in particular for a patient with a pre-existing medical condition. In her opinion, a patient with a cardiac condition should have their vital signs assessed through blood pressure and heart rate, and be questioned in detail about their current symptoms, other treatment and medications. Because patients are not always able to describe their own medical conditions, a practitioner treating a patient with such a disclosed condition should seek a summary of the condition and current treatment from their treating GP.
The appellant characterised Dr Zheng's approach as a Western medical approach to intake and diagnosis, and argued that the measuring of vital signs in the terms she framed them (a pulse as beat per minute rather than breath, or as a numerical value rather than 'rapid' or 'slow') were not a part of the practice of Chinese Medicine. In cross-examination Dr Zhang claimed that elements of Western Medicine such as heart rate and blood pressure are now well incorporated into Chinese Medicine, which is a developing discipline, and as such can be regarded as an orthodox aspect of competent practice.
We note that the practitioner did appear to interweave various non-traditional Chinese Medicine or Western elements into his treatment program, including weighing and recording the weight of the patient to the tenth fraction of a kilo on each visit.
From March 2018 the practitioner commenced taking the blood pressure and heart rate of patients. In oral evidence he clarified that this is a technique to show patients their improvement from first to last consultation in terms that they could understand. The practitioner did not, and did not propose to, use these tests as a diagnostic test or as part of a process to determine whether there was any underlying medical condition that meant the program was unsuitable for the patient. Nor would he use them to monitor whether patients were experiencing any adverse effects during the program.
When Patient A attended on 8 January 2018 she saw an unregistered practitioner who recorded, 'feeling tired, sleeping is not good. Massage and acupuncture'.
On 9 January 2018 Dr Liu saw Patient A. In his January 2019 statement he provides a recollection of that consultation as involving Patient A requesting the program and saying words to the effect of, 'I felt a lot better after the last treatment, and I want to do it again. I want to lose about 8-10 kgs.'
The practitioner prescribed the program as an eight week plan, including modifications to the standard herbal formula to add herbs that would assist with relaxation and sleep. It was Dr Liu's evidence that none of the herbs in that formula are diuretics or cause vomiting.
Although it was 14 months since Dr Liu had last seen Patient A he did not take or record a revised medical history or complete any new intake or consent documentation for Patient A in 2018. It was Dr Liu's evidence that repeat patients were not asked to sign new consent or 'acknowledgement of advice' forms and that in those circumstances his usual practice was to orally recommend that patients get consent from their treating GP or specialist.
In the 2018 initial consultation there is no record on the clinical form of any information concerning Patient A's tongue or pulse checks; nor whether she is on any medication. Urine, bowel movements and menstrual cycle are recorded as, 'No 1 ok No 2 ok, period regular.'
Dr Liu's evidence was that he had inquired into whether there were any 'updates' to Patient A's medical history and she told him that there had been no changes. This is not recorded in the clinical notes.
The subsequent treatment forms again contain no checks on the 'pain' boxes, record to a tenth of a kilo 'original' and 'todays' weight on each occasion, and record Patient A's 'other symptoms' from 10 January to 25 January 2018 as: Lack of energy, not sleeping well. Dry mouth, sleeping is not good. Lack of energy, not sleeping well. Feeling well, more energy. Thirsty, not sleeping well. Feeling well, sleeping is ok. Feeling lighter, more energy. Missing taste of food. Sleeping is ok. Feeling well, sleeping is ok. Feeling much better. Lose 4.9kg. Continue [indistinct] same herbs. Feeling well, more energy. Thinking clear, sleeping is ok. Feeling lighter, more energy. Feeling well, sleeping is good. Feeling well, sleeping is good. Feeling well, sleeping is good.
In Dr Liu's statement of 31 January 2019 he details a consultation with Patient A on 20 January 2018 in which he recalls her saying that she hadn't been following the program strictly with eating. It was his recollection that he told her to just eat 'as much as her body requires' of cooked green vegetables, cooked white protein and raw cucumbers, and advised the therapist seeing her the following day to put Patient A on a' food plan' (as described above) from 22 January 2018. There is no record of this discussion or change in plan in the clinical notes, but there is a further document titled 'TCM Follow Up Summary Sheet' which lists the date of consultations accompanied by a column with weight on that date and an additional column for 'Lost' which records on each of those dates the total weight lost since the first consultation. That summary sheet contains annotations indicating eating plans on 21 January for 22 to 28 January, and on 30 January for 30 January to 5 February 2018.
Dr Zhang gave the opinion that when seeing a patient after a break of more than 6 months, a 'comprehensive' assessment should be undertaken once more before any treatment, because of the possibility that a patient's underlying health condition may have changed in the interim.
It was Dr Zhang's view that the on-going monitoring of patients on the program evinced in the clinical documentation was inadequate. In her view the practitioner ought to have checked tongue and pulse on every return visit and also checked on and recorded 'daily life status' including urination and bowel movements (or delegated such checks and made a diagnosis based upon the results). For a patient with an underlying cardiac condition more careful monitoring would be required, especially during the 14 day period in which no food was taken.
The Chinese Medicine Code of Conduct permits registered practitioners to delegate aspects of the care of patients, but the practitioner remains responsible for the overall management of the patient: Code 4.3.
The practitioner's oral evidence was that when he delegated monitoring of patients, he required therapists to whom he delegated care to ask five questions of patients: how you're feeling today, are you feeling tired, how are you sleeping, are you happy with the progress of your treatment and do you have any abnormal symptoms from the program?
This approach was not recorded in any written policy at the clinics, but was part of the training provided. Dr Liu went on to state that he received an email report every day from each clinic updating him on how many patients went through and if there were any changes made to the treatment plan or any minor problems. If there was a serious or dramatic change patients would phone him directly.
It was uncontested that most of the clinical notes do not record pulse or tongue checks. Dr Liu asserted that this was not a breach of professional standards because the herbal decoction was being continued, not changed, and so there was no diagnosis undertaken. It was the practitioner's position that there was no need to diagnose patients during the 101 day program unless there were 'abnormal symptoms.' There was no clinic protocol or consent document identifying 'abnormal symptoms'.
The practitioner accepted that neither he nor his delegates questioned patients about their bowel movements as part of their monitoring in the program. This was because he would expect them to disclose diarrhoea when asked about 'abnormal symptoms'. He also stated that patients were asked if they were 'happy' with their progress, and he believed that someone with diarrhoea would not be happy. Thus, although he accepted that diarrhoea could pose a risk of serious complications for a patient, it was the practitioner's position that it was not necessary to ask specific questions about bowel movements during the many monitoring follow-up treatment appointments in the program.
When asked in cross examination whether he accepted that Patient A had not in fact disclosed that she had diarrhoea during the 2018 program, Dr Liu responded that he disagreed because it was 'very strange' for a patient to have diarrhoea on the program (noting some confusion in the various hospital records about how long Patient A had experienced diarrhoea) and have 'only lost 7 kilos.'

Previous Complaints

We find that the relevant previous complaints, notifications and findings in this matter are those that concern the practitioner's practice of the 101 Wellbeing Program (and other treatments involving the practitioner recommending fasting or greatly reduced food intake), including alleged deficiencies in patient intake, monitoring and clinical record keeping associated with such treatment.
In 2014 a complaint was made by a patient with a pre-existing medical condition who undertook the 101 Wellbeing Program. That patient was not willing to appear before the Tribunal and the matter was prosecuted by the HCCC as a complaint concerning the adequacy of that patient's clinical records: HCCC v Liu [2017] NSWCATOD 18 and 88. Following an appeal to the Supreme Court (Liu v HCCC [2018] NSWSC 315) and remittal of the matter, it was ultimately determined that the practitioner was guilty of unsatisfactory professional conduct and conditions were imposed on his registration requiring audits of his clinical records: HCCC v Liu [2018] NSWCATOD 77.
The practitioner admitted during the course of the first proceeding in April 2017 that his clinical record keeping was deficient.
In June 2015 a patient in Melbourne complained to AHPRA that she had vomiting, heart palpitations and dizziness on the '14 day herbal diet which included only herbal tea.' The Board investigated whether the practitioner's care of the patient was adequate and appropriate, in particular whether the patient was advised to remain on a restricted calorie diet despite having reported cardiac symptoms. The clinical records documented the patient had trouble sleeping, feeling tired and had abdomen discomfort. As there was no independent evidence to support the allegation that Dr Liu had advised the patient to remain on the diet after she reported tachycardia and dizziness, the Board determined that it was unable to prefer one version of events over the other, and closed the matter.
In June 2017 a complaint was made concerning the practitioner's treatment of a 3 year old girl with Type 1 diabetes. On 21 December 2017 the Office of the Health Ombudsman (OHO) notified the practitioner of proposed immediate action and sought a response from him. On 31 January 2018 the OHO took urgent action under the equivalent of s 150 of the National Law imposing conditions upon the practitioner, including that he must not treat any patient for Diabetes, must not provide any dietary advice to any patient under the age 18 years and must not provide or refer to the 101 Wellness program to any person under the age of 18 years.
That immediate action was based upon the Ombudsman having formed a reasonable view that the practitioner posed a serious risk to persons based upon him having failed to make a proper assessment of the patient before recommending a reduced food intake, in particular her pre-existing medical condition, age and weight, his failure to recognise serious risks of dehydration, hypoglycaemia and diabetic ketoacidosis, and continuing lack of insight about such risks. The Ombudsman formed the belief that the practitioner's conduct caused serious harm to the patient and could have resulted in the loss of her life.

Submissions

The appellant argued that his practice posed no risk to the safety of the public. It was the practitioner's position that all reasonable steps were taken to ensure that patient safety was not compromised; namely information provided to patients, information obtained from patients, and daily monitoring through the supplemented fasting period.
The appellant vigorously contested that the complaint history established any risk to the public. In particular, Mr Free argued that the matter of HCCC v Liu [2018] NSWCATOD 77 was ultimately determined to be a case concerning inadequate record keeping and did not involve any finding of risk to the public. The complaint in 2015 was considered on its merits and dismissed. Further the imposition of conditions on the practitioner by the Health Ombudsman in Queensland following a complaint in July 2017 had not been followed by any further action since March 2018, and that such inaction should be taken as evincing an attitude of unconcern. As such, the Tribunal should not attach weight to these complaints.
The appellant submitted that areas of concern previously identified by the Council did not justify suspension and could be appropriately addressed through the imposition of conditions. Such conditions could include: not prescribing the 101 Wellbeing Program to patients with a current or previous heart condition or serious health condition unless 'such treatment is approved in writing by a Western-trained health practitioner', requesting that new patients with previous or current 'significant health issues' consult their GP or specialist for advice on possible risks of undergoing the 101 Wellbeing Program and allowing time for such consultation before commencing the Program, and undertaking a check of the patient's blood oxygen level, heart rate and blood pressure before recommending the 101 Wellbeing Program.
Mr Free submitted that the Council argument on the public interest aspect of the s 150 power did not add anything to the public safety considerations. It was Mr Free's submission that the public interest limb of s 150 has been ordinarily concerned with safeguarding the honour and integrity of the profession and in that context, for example where a member of a profession was convicted of a serious crime, it added to the grounds for action. In circumstances such as this matter in which the suspension sought to be justified was because of a perceived risk to the health and safety of the public, there was no additional ground. In short, in a case which does not concern the integrity of the profession, there can be no public interest in suspending a practitioner who does not pose a risk to the public.
The Council stressed that in making the s 150 order the decision-making body was obliged under the current National Law to consider whether immediate action was 'appropriate' and not whether it was 'necessary'. This was a lower threshold for action than under previous legislation, and should be contemplated as reflecting the high priority accorded to public safety in the legislative framework of the National Law when considering disturbing such order on appeal.
The Council submitted that suspension was appropriate for the protection of the health of the practitioner's patients, in particular his patients with underlying medical conditions, and was otherwise in the public interest in order to maintain public confidence in the health regulation system.
The Council contended that suspension was warranted by reason of three areas of deficiency in Dr Liu's practice: 1. Initial assessment of patient's health (comprising insufficiencies in physical tests of patients, questioning of patients, communication with treating Western medical practitioners for patients with underlying medical conditions, assessment of returning patients and consent procedures); 2. Monitoring of patients; 3. Clinical records.
The Council argued suspension was also 'otherwise in the public interest' in the circumstances of this case to maintain confidence in the capabilities of health professionals generally and the effectiveness of the healthcare system. In essence this was a claim that the public would expect the suspension of the practitioner in the present circumstances. While suspension would not be warranted for every health practitioner facing a complaint following the death of a patient, there were two factors which would lead to such an expectation in this case. First, all the facts of the case including that the Patient had suffered undetected diarrhoea while under treatment when her underlying cardiac condition made that condition particularly dangerous, and secondly the practitioner's 'troubling complaint history' particularly the immediate action finding by the Ombudsman that Dr Liu's treatment of a child in 2017 could have resulted in the loss of her life.

Consideration and Reasons

The Tribunal is satisfied that it is appropriate for the protection of the health and safety of any person or persons to suspend the registration of the practitioner.
The available evidence demonstrated a risk to the health and safety of patients through a number of serious deficiencies in the appellant's practice over a considerable period of time. This included the practitioner's failure to ensure patient safety through inadequate initial assessments of patients' health, lack of informed consent procedures and minimal and poorly documented monitoring of patients on the program.
The Tribunal accepted the criticisms made by Dr Zhang in this regard, which were aligned to the evaluation made by the professional members of the Tribunal. We accept the submissions of the Council about the serious nature of the risks to the public which flowed from these deficiencies.
The Tribunal is not required to make conclusive findings. On the material before us we are reasonably satisfied that there is potential for serious harm to the health and safety of persons through the practitioner's practice. This evidentiary basis includes the appellant's own expert, Dr Barclay, who gave the opinion that fasting can be fatal in people with pre-existing health conditions, including but not limited to cardiovascular disease, diabetes and kidney disease. He also noted the health risk posed by vomiting or diarrhoea while on a fasting program.
The Tribunal is reasonably satisfied that the practitioner did not have adequate measures in place to ensure that patients were informed of the potential risks of the program. Nor were there adequate measures in place to monitor all patients for adverse effects during the program.
The Tribunal is reasonably satisfied that the practitioner did not have adequate measures in place to identify and exclude from the program patients with potentially dangerous pre-existing health conditions. Nor were those patients for whom pre-existing health conditions were identified given appropriately detailed and targeted information of the potential risks of the program, or of specific symptoms to be alert for during the program if they undertook it.
The 'acknowledgement of advice' form appears to be no more than a waiver form, completed in a perfunctory manner at the time of commencement of the program. It did not inform patients with underlying conditions of potential risks of the program nor encourage all patients to genuinely seek the input of other health or medical professionals before undertaking it.
The failure to undertake a fresh intake procedure, including a new medical history and informed consent for patients returning after a prolonged period of absence from treatment further exacerbated these risks. It meant that Dr Liu proceeded with treatment based upon an outdated and incomplete understanding of the health situation of patients such as Patient A, and demonstrably incomplete clinical records.
The practitioner did not accept that his questioning of patients at intake or during the program was inadequate. The material before us is sufficient to satisfy us that it was inadequate to ensure patient safety. Just as asking a patient at intake after 14 months whether they have 'any changes' to their health may not elicit sufficient information to formulate an adequate medical history, asking whether they are 'happy with their progress' during a lengthy supplemented fast may not elicit risk factors such as diarrhoea.
The questioning of patients by the practitioner's delegates, who undertook the majority of follow up appointments for patients on the program, was not structured through any written policy or protocol. On the practitioner's evidence of this practice we are satisfied that it was not sufficiently specific or detailed to ensure that risk factors or adverse symptoms which could point to serious risks, such as diarrhoea or tachycardia, were likely to be identified and communicated to the practitioner.
The Tribunal is not satisfied that the 'follow up' clinical records (or an email summary of such records which were apparently provided to the practitioner by his delegates but were not in evidence), would be sufficient to allow Dr Liu, or any other registered practitioner, to provide continuing care of the patient. The follow up treatment forms and summary sheet are insufficient to allow for appropriate changes in diagnosis or treatment and, specifically, to identify risk factors for patients undergoing a supplemented fast.
Dr Liu's commitment to the 'success' of his program gave the panel real concern for his professional judgment. It was apparent that Dr Liu believed that his program was widely suitable with a few exceptions - and those exceptions were based on self-disclosures of patients to determine unsuitability. The question from Dr Liu's perspective appeared to be whether the patient was obviously unsuitable for 101, not whether the program was necessary or appropriate for the needs of each particular patient. In response to a question from a professional member of the Tribunal, Dr Liu stated that he would not in future adapt the program to include small amounts of food throughout, because if he did so it would be less 'successful'.
The Tribunal is reasonably satisfied that the serious and systemic nature of these issues and the demonstrated lack of professional judgment, specifically the practitioner's lack of acceptance of his own primary responsibility to ensure that patient safety was not compromised through his treatment program, mean that the imposition of conditions would not adequately protect the safety of the public.
The previous relevant complaints were given weight in consideration of the question of unacceptable risk to public safety because they pointed to longstanding issues with the practitioner's responsiveness to identified risk in patients with pre-existing medical conditions, and in his attitude to his professional responsibilities. It reflects poorly on the practitioner that his clinical records continued to be inadequate after facing a serious complaint and adverse finding on this issue. Likewise it is cause for grave concern that having been the subject of more than one complaint about patients with pre-existing medical conditions undergoing the program or other forms of restricted dietary treatment, the practitioner's intake procedures did not materially alter; and indeed with the return of Patient A in 2018, were even less rigorous than the original 2016 process.
On the issue of public interest, the Tribunal notes that this limb of the requirement for immediate action is an alternative to the safety ground. The Council contented for a public interest in immediate action in this case based upon a public expectation of regulatory action in the context of this complaint. We accept the appellant's characterisation of this argument as simply a reformulation of the safety ground. This is because the circumstances that the Council points to as the basis for any public expectation of regulatory action are exactly those which establish a serious potential risk to public safety. Thus the Council's public interest argument does no more than restate what is the combined effect of the safety ground and the paramount consideration under s 3A of the National Law.
In the decisions of Hanna, Crickitt and elsewhere, the Tribunal has held that the public interest consideration includes the need for patients and the public to have confidence in the competence of health practitioners, including confidence that the practitioner will exhibit traits consistent with the honourable practice of an honourable profession.
It was the view of some members of the Tribunal that the available evidence may be sufficient to establish that Dr Liu's practice of the program brought the profession of Chinese Medicine into disrepute, through promoting an extreme weight loss program as a form of Chinese Medicine treatment. If that were established, arguably the public interest ground would also be enlivened. However the case was not run on such a basis, and there was no peer expert evidence, or any evidence apart from that given by the practitioner, about the relationship of the program to Chinese Medicine practices and principles. We therefore make no finding on this issue.

Order 1. The decision of the Council to suspend the registration of the practitioner is confirmed; 2. Appellant to pay the respondents' costs of this appeal, and the related stay application, 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: 15 May 2019

Medical Practice Act 1992(NSW)

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