Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Chen [2021] NSWCATOD 210 Hearing dates: 5 October 2021 Date of orders: 14 December 2021 Decision date: 14 December 2021 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member Dr L Liang, Senior Member Dr P Coop, Senior Member J Barker, General Member Decision: (1) Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) the registration of Edward Chen as a Chinese Medicine practitioner is cancelled. (2) Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW) Edward Chen may not apply for review of the cancellation order for a period of 2 years. (3) The respondent is to pay the costs of the applicant assessed in default of agreement. Catchwords: OCCUPATIONS – Chinese Medicine practitioner – Misconduct and discipline – disciplinary proceedings – findings of multiple incidents of misconduct – held constituted professional misconduct – held registration cancelled – costs order made. Legislation Cited: Health Care Complaints Act ss 4, 41A, 41C Health Practitioner Regulation National Law ss 5, 41, 109, 130, 139B, 139E,144, 149C,163A Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 Lee v Health Care Complaints Commission [2012] NSWCA 80 Category: Principal judgment Parties: Health Care Complaints Commission (applicant) Edward Chen (respondent) Representation: Solicitors: Health Care Complaints Commission (applicant) Respondent self-represented File Number(s): 2021/155695 Publication restriction: Non-publication order with respect to the name of Patient A referred to in the proceedings and any material which might tend to identify that person. Reasons for decision Introduction 1. These proceedings are constituted by an Amended Application filed by the applicant Health Care Complaints Commission which alleges certain misconduct as defined in the Health Practitioner Regulation National Law ("the National Law") against the respondent Edward Chen arising out of his practice as a Traditional Chinese Medicine practitioner and seeks the making of consequential protective orders. 2. The Amended Application is in the following terms The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Chinese Medicine Council of NSW in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Mr Edward Chen ("the practitioner") of (address omitted), being a Chinese Medicine practitioner registered under the National Law. BACKGROUND TO ALL COMPLAINTS In June 2009, completed a Diploma of Remedial Massage from Premier College, Caringbah, NSW. In 2012, the practitioner completed a Bachelor of Medicine in Chinese Medicine from the Fujian University of Traditional Chinese Medicine. The practitioner was first registered as a Chinese Medicine practitioner on 1 July 2012. The practitioner worked at and was the owner of Lingnan TCM Centre in Ashfield ("the Centre") from 1999. At the Centre, the practitioner would provide services, including massages, to his clients. COMPLAINT ONE Pursuant to section 144(a) of the National Law, the practitioner has been convicted of a criminal offence in NSW. PARTICULARS OF COMPLAINT ONE 1. On 28 January 2020, in the Local Court at Burwood, the practitioner was convicted of an offence of intentionally recording an intimate image without consent, pursuant to s 91P(1) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 3 years imprisonment and/or a fine of 100 penalty units. 2. The specific circumstances of the conduct underlying the conviction were that on 21 December 2018, Patient A attended the Centre for an appointment with the practitioner. The practitioner: a. did not cover Patient A with a towel b. took a photograph of Patient A's legs i. when her dress was raised to the area of her waist ii. without her consent iii. for the purpose of the practitioner's sexual gratification. These matters were detailed in a statement of Patient A dated 29 December 2018. They were also addressed in an Agreed Statement of Facts tendered at the practitioner's sentence proceedings on 9 December 2019, which is Annexure "A" to this Complaint and in the remarks on sentence of the Court on 28 January 2020. 3. The practitioner was sentenced to a community corrections order for two years, pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law, in that he contravened provisions of the National Law. PARTICULARS OF COMPLAINT TWO 1. The practitioner contravened s 130 of the National Law when he failed to notify the National Board within seven days of becoming aware of the fact that, on 15 January 2019, he was charged with the following offences: a. Intentionally recording an intimate image without consent, pursuant to s 91P(1) of the Crimes Act 1900, which carries a maximum penalty of 3 years, imprisonment and/or a fine of 100 penalty units; and b. Possess child abuse material, pursuant to s 91H(2) of the Crimes Act 1900, which carries a maximum penalty of 10 years imprisonment; 2. The practitioner contravened s 130 of the National Law when he failed to notify the National Board that he had been convicted of an offence punishable by 12 months imprisonment or more within seven days of becoming aware of the fact that, on 28 January 2020, he was convicted of an offence of intentionally recording an intimate image without consent, pursuant to s 91P(1) of the Crimes Act 1900; 3. The practitioner contravened s 109(1)(b) of the National Law by failing to notify the National Board of a change in his criminal history when: a. the practitioner renewed his registration as a Chinese Medicine Practitioner on 27 October 2019; b. in the online application for renewal, the practitioner declared there had been no change in his criminal history; c. on 15 January 2019, the practitioner had been charged with the offences outlined in Particular (1)(a)-(b) above. COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice of Chinese Medicine. PARTICULARS OF COMPLAINT THREE 1 (deleted by amendment) 2. The practitioner took photographs of the bare legs of multiple female clients at the Centre, which he kept on his phone, in circumstances where the photographs: a. depicted the bare legs of his clients; b. were taken without the consent of his clients; c. were taken for the purpose of the practitioner's sexual gratification. 3. By his conduct in Particular (2) above, the practitioner contravened rules 3.2(a) and (c), 3.4(f) and 8.1, 8.2(a) of the Chinese Medicine Board of Australia Code of Conduct for Registered Practitioners. COMPLAINT FOUR The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in 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 the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FOUR 1. Particular 2 of Complaint 3 is relied upon individually. 2. The particulars of Complaints 2 and 3 are relied upon cumulatively. 1. The applicant provided voluminous documentary material in support of its case. The respondent filed some documents, but not any formal Reply document in response to the Application. The respondent participated in the hearing by telephone from China using the services of a Cantonese interpreter. He furnished us orally with his responses to the applicant's documents and the complaints and particulars contained in the Application and responded to a number of questions asked of him by the applicant's solicitor and by the Tribunal. We shall refer to such parts of the evidence provided to us as is relevant to our reasons for decision. 2. We observe that the respondent was substantially reliant upon the services of the interpreter and was unable to comfortably converse with us in English. Furthermore, although the applicant had forwarded to the respondent copies of the documents upon which the applicant relied, the respondent informed us that he was unable to satisfactorily read those documents. It was necessary during the hearing for the applicant's solicitor to explain the substance of those documents in English and have that explanation translated into Cantonese in order to engage with the respondent about them. We have concern for the respondent's proficiency in English. We emphasise that these observations are not intended by us to have any relevance to the determination of these proceedings but may be of assistance if further consideration of the respondent's registration is necessary in the future. 3. In conformity with the jurisprudence of this Tribunal in dealing with matters of this kind we acknowledge that in view of the seriousness of the complaints the applicant must establish the factual matters alleged in them to the Briginshaw standard, namely that we must be "comfortably satisfied" on the balance of probabilities that they have been made out. The factual background 1. The proceedings arise out of a complaint made by Patient A then aged 31 to NSW Police following her attendance at an establishment for the purpose of a 30 minute oil massage to be carried out by the respondent to her lower back and legs. In a police statement Patient A said that she was wearing a green dress with black underwear. She had attended that establishment on previous occasions, and there was always a towel on the massage table which was placed on her body during the massage. On 21 December 2018 she noted that there was no towel in the room. She laid face down on the massage table and the respondent raised her dress to her waist area. At that stage she was only wearing her underwear. Patient A then noticed that the respondent was taking photographs of her, because she could see the use of a flash in the room, and he was only using one hand to conduct the massage. Because she had not given permission to the respondent to take photographs of her, she complained a few days later to NSW police. 2. A police officer attended at the establishment on 28 December 2018 to discuss the complaint with the respondent. At first the respondent denied that he had taken any photographs of Patient A and he handed his mobile phone to the police officer to demonstrate this. Whilst the officer was looking through photographs on the respondent's telephone, he noticed a number of small photographs of bare legs. The officer handed the telephone to the respondent and asked him to enlarge the photographs, but the respondent was seen to attempt to delete them. The officer took the telephone from the respondent and then used a body worn video camera to record a conversation with the respondent. The respondent refused to explain why he had sought to delete the photographs. The respondent did, however, explain that he had taken a number of photographs of the legs of females some of whom were his patients. He said he took the photographs so he could watch them later because the legs were of "nice shapes". He also said that he had not always obtained consent from his patients to take these photographs. 3. There is reference in documents furnished by NSW Police with respect to this matter that the respondent possessed similar photographs dating back to 2005. 4. We refer for completeness to the fact that the respondent was charged by the police with possessing child abuse material as is referred to in Particular 1 b of Complaint Two. Information contained within documents created by NSW Police indicates that that charge resulted from certain photographic images found on the respondent's telephone. The charge was ultimately withdrawn by the police. The relevance of that charge is confined, for the purpose of the Complaints which are the subject of these proceedings to the failure of the respondent to notify the relevant Board that he had so been charged. 5. Proceedings were commenced against the respondent by the Chinese Medicine Council of NSW under section 150 of the National Law. The respondent did not participate in the hearing which occurred on 12 March 2020. The delegates of the Council published reasons on 14 April 2020 by which they confirmed suspension of the respondent's registration with effect from 12 March 2020. In doing so the Council concluded that: On the evidence of Mr Chen's criminal charges and conviction at Burwood Local Court on 28 January 2020, Council considers that these charges and conviction directly relate to Mr Chen's conduct as a Chinese Medicine Practitioner. In determining whether the practitioner's behaviour accords with the public interest, Council considers that, by taking unauthorised photographs of patients without their consent, exploiting his professional position for his own personal sexual gratification, maintaining inappropriate patient images on his personal phone and not disclosing his criminal charges upon renewal of his registration, such conduct does not ethically meet a standard of behaviour expected by a Chinese Medicine practitioner. Council is therefore satisfied that Mr Chen's conduct amounts to a serious departure from the Code of Conduct and overall poses a serious risk to the health and safety of the public, if permitted to practise. 1. The respondent's registration remains suspended. In addition, we are informed by the applicant that it has made a determination permanently prohibiting the respondent from providing any health services as defined in section 4 of the Health Care Complaints Act under section 41A of that Act. This definition is extensive and includes the practice of Chinese Medicine. Prima facie, therefore, the respondent may arguably already be permanently prohibited from practising his profession, as his time to seek administrative review of that decision under section 41C of that Act has long since expired. 2. Evidence of the conviction which is referred to in Particular 1 of Complaint One is provided in the applicant's evidence by way of a Certificate of Conviction. We have also been provided with a copy of the agreed Facts Sheet, and the respondent confirmed the contents of that document in the course of the proceedings before us. Included in this document is the following: In relation to the photographs taken of the legs of the victim, the accused said, "Sometimes I feel that there (sic) shape is nice. Sometimes I want to enjoy myself". Police asked, "What do you mean enjoy yourself?", The accused stated, "You want to see it again when you feel boring…. I just look at them". 1. Having regard to the documentary evidence filed in the proceedings, corroborated by the respondent in his oral evidence to us we are satisfied to the requisite standard that all of the Particulars of Complaint One have been established, save for 2 b iii, which alleges that the photograph of Patient A's legs was taken for the purpose of the respondent's sexual gratification. We shall return to this aspect later in these reasons for decision. 2. The Particulars of Complaint Two refer to a failure to notify the National Board firstly that he had been charged with criminal offences on 15 January 2019, secondly that he had been convicted of an offence punishable by 12 months imprisonment or more on 28 January 2020 and thirdly that there had been a change in his criminal history when he renewed his registration on 27 October 2019. 3. These are matters which are regulated respectively by sections 130 and 109 (1) (b) of the National Law the relevant portions of which are in the following terms 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (3) In this section— relevant event means— (a) in relation to a registered health practitioner— (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment; or … 109 Annual statement (1) An application for renewal of registration must include or be accompanied by a statement that includes the following— … (b) details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration; Note— See the definition of criminal history which applies to offences in participating jurisdictions and elsewhere, including outside Australia. 1. The definition of criminal history is contained in section 5 of the National Law criminal history, of a person, means the following— (a) every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law; (b) every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence (c) every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law. 1. The applicant has provided copies of renewal applications made by the respondent on 27 October 2019 to AHPRA for the renewal of his registration as a Chinese Medicine Practitioner in the divisions of acupuncturist, Chinese herbal medicine practitioner and Chinese herbal. With respect to each of these divisions the respondent said that there had been no change to his criminal history in Australia that he had not declared to AHPRA. 2. The respondent said that he was not aware that he was obliged to disclose any outstanding charges relating to criminal matters because at the time he had not been convicted of any offences and assumed that he was considered innocent of the charges until proven guilty. 3. The respondent also said that he was not aware of his obligation to inform AHPRA of the fact of his convictions because he assumed that this information would have been provided by the police following his conviction. 4. We are comfortably satisfied to the requisite standard that each of the particulars of Complaint Two have been established. We shall refer further to the respondent's explanations for having failed to comply with these requirements later when considering the gravamen of these matters in the context of assessing what protective orders should appropriately be made. 5. We have already referred to the factual bases for the particulars of Complaint Three. They cover the multiple photographs of the bare legs of multiple female clients discovered by the police when they took possession of the respondent's phone. We are comfortably satisfied to the requisite standard that Particular 2 has been established save for Particular 2 c which alleges that the photographs were taken for the purpose of the respondent's sexual gratification. We shall return to this aspect later in these reasons for decision. 6. Particular 3 of Complaint Three refers to certain provisions of the Code of Conduct established by the Chinese Medicine Board of Australia. We set out those provisions hereunder 3.2 Partnership 3 A good partnership between a practitioner and the person they are caring for requires high standards of personal conduct. This involves: a being courteous, respectful, compassionate and honest … c protecting the privacy and right to confidentiality of patients or clients, unless release of information is required by law or by public interest considerations 3.4 Confidentiality and privacy Practitioners have ethical and legal obligations to protect the privacy of people requiring and receiving care. Patients or clients have right to expect that practitioners and their staff will hold information about them in confidence, unless release of information is required by law or public interest considerations. Good practice involves: … f providing appropriate surroundings to enable private and confidential consultations and discussions to take place 8.1 Introduction In professional life, practitioners must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct. The guidance contained in this section emphasises the core qualities and characteristics of good practitioners outlined in Section 1.2 Professional values and qualities. 8.2 Professional boundaries Professional boundaries allow a practitioner and a patient/client to engage safely and effectively in a therapeutic relationship. Professional boundaries refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or clients and a practitioner's own personal views, feelings and relationships which are not relevant to the therapeutic relationship. Professional boundaries are integral to a good practitioner–patient/client relationship. They promote good care for patients or clients and protect both parties. Good practice involves: (a) maintaining professional boundaries 1. We note that by reason of section 41 of the National Law we are entitled to have regard to the above provisions of the Code for the purpose of determining what is appropriate professional conduct or practice in the circumstances of the respondent 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession. 1. We agree with the submissions of the applicant that in engaging in conduct involving taking photographs of patients without their consent for his own admitted gratification, the respondent engaged in an activity which bore no relationship to the discharge of his professional care to his patients. This conduct intruded into the privacy of his patients, and certainly in the case of patient A caused her considerable distress. The only beneficiary of this conduct was the respondent. We have no hesitation in concluding that the respondent has breached the provisions of the Code as alleged in Complaint Three, save for our consideration of what is meant by the words "sexual gratification." 2. We add for completeness that when participating in these proceedings the respondent informed us that he had never read the Code of Conduct. He said that he had attended training courses and "heard about" the Code but had still not read it. Was the respondent's conduct for the purpose of his sexual gratification? 1. At all times the respondent has denied that he took the photographs of the legs of his patients for sexual gratification. He conceded, however in statements to the police and to us during the course of the hearing, that he did so because he found the legs of these female patients beautiful, he admired things of beauty and he liked to look at them. In his statement to us the respondent distinguished between the legs of his patients and their breasts and "private parts". He was no doubt referring to the genital area. 2. The respondent was unrepresented. Throughout the hearing he maintained that the patients' legs represented things of beauty to him, and that looking at them did not give him any gratification of a sexual nature. We have not been afforded any expert evidence as to what would constitute sexual gratification as opposed to the type of gratification one might experience upon looking at something which is perceived to be beautiful. There is simply no evidence available to us which would allow us to determine on any informed basis whether, in engaging in the conduct of taking many photographs of the legs of his female patients the respondent did so for "sexual" gratification. There is no doubt that the respondent gained personal gratification which he readily conceded. He described his sensation when viewing the photographs as giving him a "comfortable" feeling. By that we understand him to have conveyed the fact that he found doing so to be pleasurable. We understand that it might be argued that sexual gratification involves some bodily process which is engaged in or in connection with an activity of a sexual nature. 3. In the absence of any expert evidence as to what might be regarded as sexual gratification, we are unable to conclude to the requisite standard that the respondent derived sexual gratification from this course of conduct. However, it is clear that the respondent derived personal and satisfying gratification from his conduct and that conduct did not perform any function associated in any way with his professional treatment of his patients. We approach each of the sub- particulars of Complaints One and Three on this basis. That is, that the photographs were taken for the purpose of the respondent's personal gratification unassociated with his professional treatment of the patients and we will determine on this basis whether in the case of each of these Complaints the respondent is guilty of unsatisfactory professional conduct as alleged. The consequences of our finding that Complaint One has been made out. 1. This matter is governed by section 144 (a) of the National Law 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. … 1. Notwithstanding the qualification which we have made concerning the purpose of the respondent's conduct, it remains clear that he has been convicted of a criminal offence. The nature and extent of that offence can be taken into account when considering the gravity of Complaint One. 2. The applicant submitted that the fact of this conviction was sufficient to warrant cancellation of the respondent's registration because it rendered him unfit to practise as contemplated by section 149C (1) (c) of the National Law 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— … (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; 1. The offence for which the respondent was convicted was confined to the circumstances of Patient A. However, the respondent engaged in similar conduct with respect to other patients. It is preferable that in determining what protective orders should be made, we should take into account the totality of the circumstances as they pertain to the respondent, and we propose to do so. That is, the circumstances of the offence itself render the respondent unfit in the public interest to practise his profession when considered in the context of the other instances involving the other patients. Is the respondent guilty of unsatisfactory professional conduct? 1. Each of Complaints Two and Three allege that by virtue of the conduct of the respondent he is guilty of unsatisfactory professional conduct as defined respectively in sections 139B(1)(b) and (l) of the National Law. Those provisions are in the following terms 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— (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. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. The respondent contravened the National Law on three occasions as particularised in Complaint Two. These are serious matters because they go to the heart of the regulation of the respondent's profession as a health practitioner in the interests of and protection of the public. The significance of these matters was adverted to by this Tribunal in Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 at [31] Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. Moreover by not notifying, a practitioner continues to hold the benefits of registration, and depending on the nature of the transgression, could potentially give themselves the opportunity to continue the same or similar conduct which brought them to the attention of the police and criminal justice system in the first place. In our view Mr Holbrook's delay was a contravention of the National Law. We are satisfied that his delay in notification constitutes unsatisfactory professional conduct. 1. Further comment to similar effect was made by the Tribunal in Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 which apply equally to the practice of Chinese Medicine 31 The dental profession is a regulated profession, designed to ensure inter alia the health and safety of the public and to enhance the confidence of the public in the integrity and competence of the profession. A requirement that dentists are compelled to inform the regulatory authority of any criminal charges and convictions for criminal offences, in each case of a serious nature, is a means by which the regulatory authority is able to maintain control over any practitioner who has engaged in conduct which is inimical to the proper and ethical conduct of dentists. Not only is there a requirement to provide this information as and when it occurs, but also on renewal of registration. A failure to comply with these requirements as and when compelled to do so is potentially a matter of some seriousness. 32 We agree with the submissions of the applicant that the contravention of section 130 is capable of constituting, in all the circumstances, unsatisfactory professional conduct. The respondent sought to argue before us that his conduct was due in part to the fact that he thought that NSW Police would have made notifications on his behalf, that he was unaware that there was more than one regulatory body, and that he thought that he was not obliged to report these matters after he had been suspended. We reject these submissions. It is incumbent upon health practitioners to inform themselves of the regulatory requirements under which they practice. A failure to do so does not excuse non-compliance. The practice of the respondent's profession included compliance with the matters which are the subject of Complaints Three and Four which, as we have earlier observed play an integral part in the regulation of the profession of dentistry. The offences which are particularised are serious offences, especially those involving prohibited drugs. We find that the respondent is guilty of unsatisfactory professional conduct. 1. As has been observed in the extracts cited above, the ignorance of the respondent does not excuse his failure to comply with these statutory requirements. These are serious matters which we will consider when determining whether, in the aggregate, the respondent's conduct constitutes unsatisfactory professional conduct. 2. On one view, a narration of the factual circumstances which apply to each of the particulars of each of these Complaints is sufficient per se to indicate that overall the respondent has engaged in improper and unethical conduct. The photographing of the partially exposed bodies of Patient A and the other patients without their consent for his own personal satisfaction and pleasure, unrelated to his treatment of them and the storage of those photographs on his telephone all constitute improper and unethical conduct. Our assessment is corroborated by the observations of the delegates of the Council in their reasons given in the course of the section 150 determination which we have earlier set out. We conclude that having regard to all of the particulars contained in each of the Complaints, the respondent is guilty of unsatisfactory professional conduct. Is the respondent guilty of professional misconduct? 1. This matter is the subject of Complaint Four, which relies upon and is based upon the misconduct particularised cumulatively in Complaints Two and Three and in Particular 2 of Complaint Three. 2. Professional misconduct is defined in section 139E of the National Law 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. The discriminating factor which changes unsatisfactory professional conduct to professional misconduct is that it is sufficiently serious to justify suspension or cancellation of registration. Suspension or cancellation of registration is part of the armoury of protective orders that this Tribunal may make consequent upon a finding of professional misconduct. The orders which can be made must be protective in nature, having regard to the health and safety of the public. The underlying principles have been succinctly summarised in the New South Wales Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307. Meagher JA (Basten and Emmett JJA agreeing) said: [35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. [36] In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." [37] In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. Some assistance in exercising the value judgment which is inherent in determining whether unsatisfactory professional conduct is sufficiently serious to constitute professional misconduct is provided in the judgment of Basten JA (Leeming JA agreeing) in the NSW Court of Appeal in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct..." 52 We proceed on the basis that it is appropriate to consider all of the findings that we have made in the aggregate. In so stating we should not be taken to have determined that there are no individual findings which in themselves would justify a determination that the respondent is guilty of professional misconduct. Indeed, the respondent's misconduct with respect to all the patients as particularised against him is of a most serious nature. 53 We should make it clear that in determining whether the conduct of the respondent may be characterised as professional misconduct justifying cancellation or suspension of registration, such a characterisation is not necessarily determinative of any consequential appropriate protective orders. Our concern for present purposes is to determine whether or not the conduct is such that cancellation or suspension is warranted. In determining this matter we have regard to the protection of the public, the maintenance of public confidence in the integrity of the profession, and the deterrent effect both on the respondent and on other members of the profession of Chinese medicine. 1. In concluding that the respondent is guilty of professional misconduct as alleged by the applicant we take into account the following matters proposed by the applicant for our consideration 1. the respondent intentionally photographed the bare legs of his female clients in states of undress; 2. in many cases the respondent did so without the knowledge and the consent of these patients; 3. in doing so the respondent acted for his own personal satisfaction and pleasure; 4. the respondent's conduct was unrelated to any treatment which he afforded to his patients; 5. in doing so the respondent was in breach of relevant portions of the Code of Conduct which apply to the practice of his profession; 6. the respondent's conduct was not isolated and extended over a period of time; 7. the respondent's conduct left Patient A feeling violated and vulnerable; 8. the respondent's conduct was of a serious kind and subject to a criminal sanction and breached the trust reposed in him by vulnerable patients; 9. the respondent displayed an absence of insight into his conduct by seeking to evade detection by deleting photographs from his telephone when confronted by police officers; and 10. the consequences of the respondent's conduct are damaging to the reputation of his profession and undermine the foundations of the patient – health professional relationship. 1. We regard the misconduct of the respondent overall as being incompatible with the standard reasonably expected by the public of a Chinese Medicine practitioner with the qualifications and experience of the respondent such that we have grave concerns for his ability to practice in an appropriately safe manner. Such an assessment is indicative of misconduct which is incompatible with his continued ability to practice his profession in the interests of the safety of the public and would justify cancellation of his registration. Accordingly, we find that the respondent is guilty of professional misconduct as alleged in Complaint Four Consequential protective orders 1. The protective orders which may be made consequent upon a finding pursuant that the respondent is guilty of professional misconduct are to be found in section 149C of the National Law the following portions of which are relevant 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— … (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. We observe that the applicant did not rely on the provisions of section 149C(1)(c). 2. The determination of whether an order for cancellation or suspension of registration should be made involves the exercise of a value judgement made in the context of the factual circumstances pertaining to the proceedings, but having regard also to the other matters which are relevant to the making of protective orders in the interests of the health and safety of the public, namely the deterrent effect to both the respondent and to other persons who practice in the profession of Chinese Medicine, as well as enhancing public confidence in the integrity and professionalism of persons practising that profession. 3. The respondent informed us during the hearing that he had not sought any psychological or other assistance to endeavour to explore why he had engaged in conduct involving the inappropriate photography of his patients and other female persons. He said that this was not necessary because he had now developed an aversion to seeing the legs of female persons. He said that he had "a psychological unease" about seeing them and would never engage in this form of conduct again. In the absence of some form of expert assistance to explain why the respondent engaged in this behaviour, and to provide some form of comfort that he would never engage in behaviour of this nature again we conclude that we cannot have confidence in his continued ability to practice his profession in a safe and appropriate manner. 4. Assertions of reformation of character per se made by this respondent cannot be accepted without some form of "clear proof" that this has occurred, especially as he engaged in a course of conduct extending over a period of time. In Lee v Health Care Complaints Commission [2012] NSWCA 80 Barrett JA said (Macfarlan JA and Tobias AJA agreeing) 72 Finally on this aspect, there is the point that emerges from the decision of this Court in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630. Gleeson CJ, Meagher and Handley JJA there noted (at 637) that, despite the passage of four and a half years since the last complaint of misconduct, there was no explanation offered that would make it unlikely the misconduct would reoccur or to suggest that the practitioner had become a changed person. They said: "In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; 84 WN (NSW)(Pt 2) 275 at 286: "... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man." 73 A finding of reformation thus cannot be made by reference merely to the passage of time without renewed misconduct. 1. In addition, there must be some concern about the ability of the respondent to safely engage in the massage of his female patients' legs in circumstances where he has a professed aversion to seeing them. 2. In these circumstances and having regard to the gravity of the respondent's misconduct as we have described it, we conclude that it is appropriate that his registration be cancelled. 3. We are empowered by section 149C (7) to order that any application to review our decision under Section 163A of the National Law should not be made for a specified period. As we have said, we have no knowledge why the respondent engaged in the conduct which he did, and no information about whether he is capable of again practising Chinese Medicine without engaging in similar conduct in the future. We are also cognisant of the respondent's lack of knowledge of the regulatory framework in which he practised his profession, which we have described when dealing with Complaint Two, and his failure initially to be aware of the applicable Code of Conduct compounded by his failure to have read that Code after becoming aware of its existence. In all the circumstances we fix a period of two (2) years before the respondent is able to seek a review of the cancellation of his registration as being an appropriate period in which to allow him to contemplate the reasons for his misconduct and engage in an appropriate process to remove or ameliorate any propensity to engage in such conduct in the future. Costs 1. This is a costs jurisdiction. The applicant sought a costs order in its favour. There is no conduct on the part of the applicant which would disentitle it to a costs order, nor is there any other reason why such an order should not be made. We propose to make a costs order as sought. Orders 1. We make the following orders 1. Pursuant to s 149C (1) of the Health Practitioner Regulation National Law (NSW) the registration of Edward Chen as a Chinese Medicine practitioner is cancelled. 2. Pursuant to s 149C (7) of the Health Practitioner Regulation National Law (NSW) Edward Chen may not apply for review of the cancellation order for a period of 2 years. 3. The respondent is to pay the costs of the applicant assessed in default of agreement. ********** 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: 14 December 2021