Shuquan Liu v Health Care Complaints Commission

Background to the Proceedings

1. The plaintiff is a practitioner of Chinese medicine registered to practice under the Health Practitioner Regulation National Law (NSW) ("the National Law"). Having received a complaint from a former patient of the plaintiff (designated "Patient A"), the HCCC brought an action against the plaintiff before NCAT seeking disciplinary findings and orders, as provided for by the National Law, and the Health Care Complaints Act 1993 (NSW). It alleged both unsatisfactory professional conduct and professional misconduct.
2. Complaint One alleged, that [Dr Liu] is guilty of unsatisfactory professional conduct under section 139B of the National Law in that [Dr Liu] engaged in conduct that the knowledge, skill or judgement possessed or care exercised by the practitioner in the practice of Chinese medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
3. Although there were originally nine particulars advanced, due to the failure of Patient A to attend the hearing and give evidence, only three particulars were ultimately advanced with respect to the complaint, being, Particular 4: In or around the month of October 2014, the practitioner failed to make a proper assessment of Patient A before recommending fasting as treatment, including failing to appropriately consider the Patient's co-existing medical conditions. Particular 7: In or around the month of October 2014, the practitioner arranged for treatment including remedial massage and acupuncture to be provided to Patient A by staff who were: (i) Not registered Chinese medical practitioners; (ii) Not adequately skilled; Particular 9: In or around the month of October 2014, the practitioner failed to maintain clinical records for Patient A in accordance with the standards of the Chinese medicine board of Australia ("The Board") "contained in the guidelines for patient records" and "guidelines for patient records; explanatory statement from the board" in that he failed to record; (a) An accurate or complete case history; (b) An adequate diagnosis; (c) A treatment plan; (d) Consultations in chronological order; (e) Accurate progression notes on the Patient's symptoms, including in relation to: Symptoms reported by the Patient. The dietary regime for the Patient. (f) Entries in the English language only.
4. Of the particulars that proceeded, the HCCC contended that particular 7 of itself justified: "a finding of unsatisfactory professional conduct. In the alternative, when two or more particulars are taken together, a finding of unsatisfactory professional conduct is justified".
5. That is, it was the HCCC's case that the Tribunal could find that there had been unsatisfactory professional conduct if particular 7 was proved or, in the alternative, if any combination of two of the particulars was proved.
6. Complaint Two alleged that the plaintiff was, guilty of professional misconduct under section 139E of the National Law in that he has: engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration or; engaged in more than one instance of unprofessional conduct that when considered together amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioners registration.
7. Complaint Two relied upon the same particulars as advanced in support of Count One, "individually and cumulatively".
8. As to the orders sought by the HCCC, the Application for Disciplinary Findings and Orders stated that, "in the event that the complaints against [Dr Liu] are proved or admitted", orders pursuant to ss 149A, 149B, and / or 149C of the National Law should be made. Those provisions give the Tribunal powers to caution, reprimand, fine, suspend or cancel the registration of a practitioner.
9. The Tribunal heard evidence and submissions over 7, 8, and 9 October 2016. In submission, Dr Liu drew particular attention to, and relied upon, what he asserted was a qualification to the complaint, extracted at [7] above. In written submissions he argued: 4 It is important to note the terms of the Complaint as it relates to particulars 4, 7 and 9: […]. Complaint One alleges unsatisfactory professional conduct. Under Complaint One there is a qualification which states: Each of the particulars 1, 2, 3, 5 and 7 in themselves justify a finding of unsatisfactory professional conduct. In the alternative, when two or more particulars are taken together, a finding of unsatisfactory professional conduct is justified. 5 The same qualification necessarily applies to Complaint Two, which alleges professional misconduct. Professional misconduct involves unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. It follows that the relevant conduct must first constitute at least unsatisfactory professional conduct.
10. The point was emphasised in oral submissions: "I've drawn attention in para 4 and following of the written submissions to a curious feature of the complaint. […] on the first page of the complaint, you'll see at the bottom of the page under Complaint 1, it says: "Each of the particulars 1, 2, 3, 5 and 7 in themselves justify a finding of unsatisfactory professional conduct. In the alternative, when two or more particulars are taken together, a finding of unsatisfactory professional conduct is justified." Now, 1, 2, 3 and 5 are now out of play. They've been deleted. So of the three particulars that remain, it's only particular 7 that the Commission ever alleged was serious enough in itself to constitute unsatisfactory professional conduct. We've made the point in the submissions that two things follow from that. If you find particular 7 is made out, then, on the Commission's case, that would or could constitute unsatisfactory professional conduct, but if you didn't find particular 7 made out, then you would only find unsatisfactory professional conduct if you found both of the others made out. It's a curious way of doing it, but that's the way the Commission has brought the complaint and, with respect, the Tribunal must treat the complaint. We've also made the observation that is a fair reflection of the relative seriousness of the matters set out in 4, 7 and 9 and that the Commission accepted in the complaint that 4 and 9 are of lesser seriousness.
11. No issue was taken with that submission by the HCCC.
12. In its judgment, Health Care Complaints Commission v Liu [2017] NSWCATOD 18 ("the first stage decision"), the Tribunal dealt with each of the three particulars in turn. As to particular 4, it was "reasonably satisfied" that the particular was not proven. Some concerns were expressed as to some aspects of the plaintiff's conduct encompassed by particular 7, but the Tribunal's conclusion, whilst somewhat unclear, was ultimately to conclude the particular not proved.
13. Particular 9 was found proved in part. The Tribunal concluded: Having considered the evidence given and the documentation available, the Tribunal was reasonably satisfied that Complaint particular 9(a) is proven in that the notes created by [Dr Liu] do not constitute a complete case history in respect of Patient A. In respect of paragraph 9(b), the Tribunal was reasonably satisfied that an adequate diagnosis was made in that [Dr Liu] referred to "damp heat" which is an adequate diagnosis in the circumstances. In respect of paragraph 9(c), the Tribunal was reasonably satisfied that [Dr Liu] inadequately recorded the decoction where he refers to B Plus additional herbs. B Plus is 16 herbs, these should be listed, because a B prescription would not be understood by all other practitioners. In addition, there were no acupuncture points recorded in the records made at the initial consultation and despite the fact that the practitioner stated that he gave the acupuncture points to Nan Li over the telephone on the 20th of October, this was not recorded for the initial consultation. In respect of complaint particular 9(d), [Dr Liu] stated that he operates on a system of keeping treatment notes separate from examination notes, and both sets of notes were in fact in chronological order. However, the initial intake form has subsequent treatment notes written on it throughout the form making it not in chronological order. It is decipherable with time and attention, but not at a glance as in case of emergency. In respect of complaint particular 9(e), the Tribunal was satisfied that tab 81, pages 3 - 4 were adequately complied with. In respect of complaint particular 9(f), the recording of records in the English language only was not a requirement by the guidelines at the time of [Dr Liu's] treatment of Patient A. In the circumstances, this particular was not proven. The Tribunal is aware that the recording of entries in the English language only will become a requirement from January 2017 but that is irrelevant for the purposes of this complaint.
14. That is, the Tribunal concluded that Dr Liu had failed to record a complete case history of Patient A, inadequately recorded prescription and acupuncture details for the patient, and did not keep treatment notes in chronological order and in a manner that could be quickly reviewed by others. On the basis of those findings, it concluded "While the Applicant failed to prove all aspects of the complaint against the practitioner, the aspects of the complaint against the practitioner which the Applicant was able to prove in the view of the Tribunal are complaints which are so serious as to warrant a finding of professional misconduct. It is an essential element of a practitioners treatment of a patient that any person should be able to understand what treatment has been provided to a patient and be in a position to take over the treatment of the patient, should that be required. It is clear that no practitioner looking at the records of Patient A made by the Respondent would have been capable of informing such practitioner of exactly how to proceed in the case of emergency" (at [96] of the first stage decision).
15. Judgement was delivered on 27 January 2017, with Dr Liu found guilty of unsatisfactory professional conduct.
16. The matter was adjourned, with the Tribunal to consider what orders should be made as a consequence of its finding.
17. On 22 May 2017 the Tribunal heard further evidence and submissions relevant to the question of the orders to be made. On 2 June 2017, the Tribunal imposed conditions on Dr Liu's registration pursuant to s 149A(1)(b) of the National Law. Orders were made in the following terms: 1a. Over the period of 18 months from the date of this decision, the Respondent is to submit to audits of a random selection of his patient records in all of his clinics by a person or persons nominated by the Chinese Medicine Council of NSW. 1b. In this period, the Respondent shall submit to three audits, the first of which is to be held within three months from the date of this decision and subsequently the remaining two audits on dates to be determined by the Council. 1c. The auditor(s) is to assess the Respondent's compliance with the Chinese Medicine Board of Australia's Guidelines for Patient Records and Legislative requirements. The auditor(s) should pay particular attention to whether the clinical notes contain: (i) an accurate or complete case history that complies with the Chinese Medicine Board of Australia Patient Health Record Guidelines (2016); (ii) a treatment plan, including a detailed listing of Chinese herbal medicines prescribed or supplied; (iii) a record of acupuncture treatment points administered. 1d. To authorise the auditor(s) to provide the Council with the report on their findings; 1e. To meet all costs associated with the audits and any subsequent reports; 1f. The Chinese Medicine Council of New South Wales is the appropriate review body of these conditions for the purpose of part 8 of the National Law.
18. This is the "second stage judgment": Health Care Complaints Commission v Liu [2017] NSWCATOD 88.
19. The plaintiff appeals against both decisions.

The Plaintiff's Case

1. The plaintiff argues that, in reaching its first stage decision, the Tribunal failed to consider the implications of the framing of the complaint, and the importance of the qualification with respect to particular 9. It is submitted that, having found that the only particular relied upon by the HCCC as grounding a finding of unsatisfactory professional conduct, particular 7, was not proved, it was not open to the Tribunal to make a finding of unsatisfactory professional conduct. Dr Liu contends that, having regard to the framing of the complaint, a finding of unsatisfactory professional conduct could only be made if either particular 7 had been found proved, or where two of the three particulars were found proved. It was an error for the Tribunal to make such a finding in circumstances where particular 7 was not proved, and nor were any two particulars. Further, to make that finding without warning Dr Liu that it might be made, was to deny him procedural fairness.
2. Since the second stage decision is dependent upon the erroneous stage one decision, it too demonstrates error.

The Position of the HCCC

1. The HCC argues that the powers of the Tribunal in conducting the inquiry into the plaintiff's conduct, and making the findings that it did, were wide, and not restricted by reference to the way in which the complaint was drafted. It submits that ground 1 should be dismissed.
2. As to ground 2, it is submitted that the plaintiff has failed to show that any practical injustice was occasioned to him, and this ground also should be dismissed.

Consideration

1. It is important to bear in mind that, when hearing and determining a complaint of the nature of that made by the HCCC against Dr Liu the Tribunal is not exercising the powers of a criminal court hearing a criminal charge, and it is not obliged to meet the same procedural or evidentiary standards. It's function is quite different.
2. The Tribunal must conduct itself in a manner consistent with the objectives and guiding principles of the National Law, set out at ss 3 and 3A. Importantly, the National Law is intended to safeguard the protection of the public by ensuring that a high standard of medical and related care is provided by suitably qualified and competent practitioners. The protection of the health and safety of the public must be the paramount consideration.
3. The Tribunal is not a court presided over by a judge; it is constituted by a combination of lawyers, relevant health professionals, and lay persons, as required by s 165B of the National Law. Its particular expertise is in providing a mechanism for dealing expeditiously and practically with problems that arise in medical practice, always with the aim of protecting the public. In carrying out its functions, the Tribunal is not obliged to observe the rules of evidence; it may inform itself in any manner it thinks fit: clause 2 of Schedule 5D of the National Law. It can determine its own procedure with respect to any matter not provided for by law: s 38 of the CAT Act.
4. In hearing a complaint, the Tribunal is not confined to the complaint as made. It may, if it appears that another complaint could have been made additional to or in lieu of that before it, and whether or not by the same or a different complainant, proceed as if that other complaint had been referred to it, and deal with it: cl 6(2) of Schedule 5D of the National Law. Pursuant to cl 6(3) the Tribunal may have regard to all of the evidence before it, relevant to that complaint or any other complaint, in making a finding of unsatisfactory professional conduct or professional misconduct.
5. Any person may make a complaint: s 144B of the National Law. Section 144D(1) requires that the complaint be in writing and contain particulars of the complaint, but there is no requirement that the terms of the complaint conform with the language of the statute: s 144D(2). What is meant by a complaint is not restrictively defined, with the statutory definition (contained in s 4 of the Health Care Complaints Act 1993 (NSW)) given only as a complaint made under this Act or a complaint made under another Act that is able to be dealt with by the Commission under this Act.
6. Given that a complaint may be made by anyone, it is clear that the complaint need not be drafted by a person with legal training or one who plays a formal legal role in the proceedings initiated by the complaint. Whilst that is what in fact happened in this case, it is not a statutory requirement. Necessarily, there is no requirement for the complaint to be drafted in the same restrictive form and with the same care as an indictment, information, or pleading.
7. The complaint "initiates the chain of inquiry which may bring matters before the Tribunal": King v Health Care Complaints Commission [2011] NSWCA 353, at [5] per McColl JA, who was in agreement on this and other points with Handley AJA; Macfarlan J dissenting). Handley AJA said on that point that a complaint functions as a "summary or distillation of the complaints, formulated as an aide memoire for the benefit of the [person the subject of the complaint] and the Tribunal" (at [171]). It's purpose is to inform the proceedings, not to confine them.
8. The important aspect of the complaint is its "subject matter": s 149 of the National Law. That section provides the jurisdictional gateway for the Tribunal to exercise its disciplinary powers. It is in these terms: The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if - (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal.
9. The section refers not to proof of the complaint, but to proof of its subject matter. What the subject matter might be will depend upon the matters raised relevant to the complaint, bearing in mind s 144 of the National Law, which sets out (in wide terms) what may constitute grounds for a complaint.
10. It is clear that the subject matter of the complaint may or will be broader than individual particulars of it, and include those matters of fact advanced in support of it. That must be so having regard to the overall aims and objectives of the National Law, and the wide procedural powers given to the Tribunal. In particular, the Tribunal's power to inform itself in any way it sees fit, and to determine any complaint it considers should be determined, regardless of the complaint advanced, is inconsistent with a narrow reading of the Tribunal's power to range beyond the particulars of a complaint.
11. The role of the Tribunal is to conduct an inquiry into a complaint made against a health practitioner, informed as it thinks necessary, and determining any complaint it considers arises on the material before it. There can be no basis in such circumstances to consider the Tribunal bound by the way in which a complaint is particularised, or to confine the exercise of its powers to make findings and orders by strict reference to the terms of the complaint as originally advanced.
12. I am not persuaded by the plaintiff's arguments to the contrary.
13. Whilst the HCCC particularised its complaint, and asserted that unsatisfactory professional conduct (or professional misconduct) could be found only upon proof of certain particulars, the Tribunal was in no way bound by that assertion. It was a matter for the Tribunal to consider all of the information before it, whether that relating to particular 9 or other evidence, and determine whether or not the subject matter of the complaint was proved. Having found in the affirmative, it was a matter for the Tribunal to assess the evidence and determine for itself the seriousness of the conduct.
14. That is what the Tribunal did here: all of the evidence was considered, including it seems some of the matters relevant to particular 7, and a conclusion was reached as to the gravity of the plaintiff's conduct, in the overall context of the need to ensure the protection of the public. The Tribunal concluded that the plaintiff's conduct was sufficiently grave as to constitute unsatisfactory professional conduct, and to require the imposition of conditions on his registration.
15. It was open on the evidence for the Tribunal to reach the conclusions it did, and to make a finding of unsatisfactory professional conduct.
16. Ground 1 of the plaintiff's appeal should be dismissed.
17. Ground 2 of the appeal should, however, be upheld. Although the conclusions and orders made by the Tribunal were well open to it, in light of the way in which the HCCC argued its case it was not open to the Tribunal to proceed without warning the plaintiff that a finding of unsatisfactory professional conduct might be made on a basis other than that advanced by the defendant.
18. Ordinary principles of procedural fairness required such a possibility to be clearly articulated.
19. The complaint itself did not give Dr Liu notice that the Tribunal might make findings outside the allegation of the HCCC. Whilst Dr Liu and those who advised him should have been aware of the Tribunal's wide-ranging powers in that regard, what is unusual in this case is the odd way in which the particulars relied upon by the HCCC were qualified. That feature of the matter, in circumstances where a significant plank of Dr Liu's argument - not contradicted by the HCCC - was to submit that the Tribunal was bound by the particulars and the qualification to them, required warning to be given to the plaintiff that the Tribunal did not accept that limitation to the findings that could be made.
20. The plaintiff should have been advised of that, and invited to call relevant evidence, or make submissions, against that possibility.
21. The defendant argues that the plaintiff was denied no more than an opportunity to repeat matters already raised, and submits that no practical injustice has been demonstrated. Reliance is placed upon the decisions of CSR Limited v Eddy (2008) 70 NSWLR 725, at 735 per Basten JA; and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1, at [149] per Callinan J.
22. Whilst the plaintiff had an opportunity to advance evidence and make submissions that were clearly relevant to the ultimate determination of the matter, I am not able to conclude, as the HCCC contends, that the framing of the particulars did not lead the plaintiff to structure his case specifically to meet them, particularly in circumstances where the HCCC did not at any stage refute the plaintiff's reliance upon the qualified nature of the complaint and its particulars. Had he been warned that the Tribunal was not bound by the qualification to the complaint, the plaintiff may have adduced evidence or advanced submissions of direct relevance to an overall assessment of the gravity of his conduct.
23. In that sense, there has been a denial of procedural fairness.

Costs

1. Given that the plaintiff has been successful in his appeal, costs of these proceedings should be in favour of the plaintiff. Such an order additionally recognises the role of the HCCC in failing to refute the plaintiff's mistaken understanding of the Tribunal's powers, in circumstances where the framing of the complaint led to that mistake. Each party should bear his or its costs of the Tribunal proceedings. Whilst the plaintiff has been successful on ground 2, the proceedings before NCAT were otherwise unremarkable. The plaintiff has lost nothing but the opportunity to lead further evidence and submissions, and that can be made good before the Tribunal. It is reasonable in those circumstances not to make any costs order with respect to the NCAT hearings.

orders

1. The orders of the Court are: 1. Extend the time in which the appeal is to be filed to 14 November 2017. 2. Dismiss ground 1. 3. Uphold ground 2. 4. Set aside the findings and orders of the Civil and Administrative Tribunal in the matter of Health Care Complaint Commission v Liu, [2017] NSWCATOD 18 made on 27 January 2017, and [2017] NSWCATOD 88 made on 2 June 2017. 5. Remit the matter to the Civil and Administrative Tribunal for further hearing according to law, to determine whether the facts found by the Tribunal amount to unsatisfactory professional conduct. 6. Subject to order 7, costs of these proceedings on an ordinary basis in favour of the plaintiff. 7. Should any party wish to be further heard as to costs, submissions in writing are to be filed and served within 14 days from the date of these orders. In the absence of any submissions filed by either party, order 6 will take effect.

Amendments 20 March 2018 - [50] Amended. 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 March 2018