New South Wales Medical Tribunal CITATION : In Re Dr William Kwok Wa MA [2005] NSWMT 15 TRIBUNAL: Medical Tribunal PARTIES : Health Care Complaints Commission (Applicant) Dr William Kwok Wa MA (Respondent) FILE NUMBER(S) : 40010 of 2004 CORAM: Walmsley, SC DCJ - Glover, Prof W - Kusuma, Ms R - Wroth, Dr M CATCHWORDS: Unsatisfactory Professional Conduct - Professional Misconduct - Doctor hepatitis B positive - Did not disclose to Medical Board - Put Patients at Risk - Failed to comply with policy statement on Blood Borne Viruses - Dishonest at s.66 Enquiry LEGISLATION CITED: Ss 36 and 37 Medical Practice Act 1992 (NSW) CASES CITED: In re Dr Furey (unreported, 23 December 2002); Pillai v Messiter (No 2) (1989) 16 NSWLR 1 97 DATES OF HEARING: 8 February 2005 DATE OF JUDGMENT: 8 February 2005 LEGAL REPRESENTATIVES: Mr J G Renwick (Applicant) Mr I G Harrison SC (Respondent) ORDERS: 1.All parts of the complaint are proved 2.(a) The conduct proved amounts to professional misconduct (b)Dr Ma is reprimanded 3.Dr. Ma's right to practice is subject to the following conditions (a).To seek Board approval prior to commencing and/or changing employment (b).To advise any employer or associates of health status and these conditions to which his registration is subject (c).To observe the Medical Board and Department of Health policies on Blood Borne Viruses, with particular attention to the absolute avoidance of exposure-prone procedures (d).To attend for treatment with Dr Freiman, at a frequency to be determined by the treating doctor. To authorise the treating doctor to inform the Board of termination of treatment, failure to attend, or any significant change in Dr Ma's health status (e).To attend for a Board Review Interview at the Board in 6 months, and subsequently such frequency as is determined by the Health Committee (f).That copies of Board Review Interview reports be forwarded to Dr Ma's treating practitioner, currently Dr Freiman (g).These conditions may be released, varied or modified at the discretion of the Board or the Health Committee at such time it considers variation is appropriate (h).That Dr Ma authorise the Health Insurance Commission to release any information to the New South Wales Medical Board in order to ensure that these conditions are being complied with 4.Dr Ma to pay the Commission's costs 5.Suppression order as to any details which might identify any patients JUDGMENT: DEPUTY CHAIRPERSON: 1 The Health Care Complaints Commission, ("The Commission") has complained that Dr Ma has been guilty of unsatisfactory professional conduct, and/or professional misconduct; see sections 36 and 37 of The Medical Practice Act , ("The Act"). By reason of that complaint, the Tribunal has conducted an enquiry. 2 The complaint is in substance that Dr Ma, who has long been hepatitis B positive, was dishonest about that status when seeking registration as a doctor, performed exposure prone procedures on patients knowing his hepatitis B positive status, putting the patients at risk, failed to check on his own status from time to time, contrary to policy of the New South Wales Medical Board, and was dishonest to Medical Board members in a section 66 enquiry, to the Commission in correspondence and also with his treating doctor. 3 Hepatitis B is a serious condition. In Stedman's Medical Dictionary, (the 26th edition), the authors say of it, inter alia: "Viral hepatitis now ranks as a major public health problem in industrialised nations. The three most common types of viral hepatitis A, B and C, inflict over 500,000 in the US each year and millions worldwide. Hepatitis B alone ranks as the ninth leading killer in the world. … Hepatitis B is spread through blood, semen, vaginal secretions and saliva, approximately four to six weeks after symptoms develop. The virus may take up to six months to incubate and people may also become asymptomatic carriers. Hepatitis B may heal slowly and is a leading cause of chronic liver disease and cirrhosis." 4 The complaint, which is dated 1 July 2004, contains the following four complaints: (1)That Dr Ma demonstrated lack of judgment in the practice of medicine and/or has been guilty of improper or unethical conduct relating to the practice of medicine, or contravened sections 188 (d) and/or 188 (f) of the Act by answering "no" to the question, "Have you in the past or presently, suffered from any physical or mental disability that may impair your ability to practise medicine?" in his written application to the New South Wales Medical Board for registration as an intern on 23 October 1997, when he knew at the time, that he was, and had since 1989, been hepatitis B positive, that he had hepatitis B antigen status in 1992, that he had not made inquiries since 1993 as to his hepatitis B status, and that he was to undertake exposure prone procedures as a medical practitioner. (2)That he had been guilty of unsatisfactory professional conduct and/or professional misconduct in that he had performed exposure prone procedures on patients between 1998 and 2000, contrary to the principles set out in the New South Wales Medical Board policy statement 1997 update, Medical Practitioners and Blood Borne Viruses, particularly HIV, hepatitis B and hepatitis C, paragraph 2.4, and/or the New South Wales Department of Health HIV and hepatitis B Infected Health Care Workers Circular 95/8, in circumstances where he was and had, since 1989, been hepatitis B positive. Further, he had hepatitis B antigen status in 1992, had not made inquiries since 1993 as to his hepatitis B status, was between 1998 and 2000 aware that he was infected with a blood borne virus, namely hepatitis B, was aware of the risk of infecting patients when undertaking the procedures, and he put his personal interests of pursuing his medical career above the interests of his patients. (3)That he had been guilty of unsatisfactory professional conduct and/or professional misconduct in that, between 25 October 1997 and March 2000, he failed, contrary to the principles in the New South Wales Medical Board policy statement 1997, update Medical Practitioners and Blood Borne Viruses, particularly HIV, hepatitis B and hepatitis C, paragraph 2.2, to know or take steps to know his blood borne status and in particular, hepatitis B status, when undertaking or could reasonably have been expected to be undertaking exposure prone procedures on patients within that period. (4)That he was guilty of unsatisfactory professional conduct and/or professional misconduct in that he provided false and misleading information, (a) in an enquiry conducted by the Medical Board under section 66 of the Medical Practice Act on 7 April 2000, when he stated that Dr Lee had told him, "Everything was fine," and had not told him that he was HBeAG positive, (b) in a letter to the Health Care Complaints Commission dated 18 November 2002, when he stated, "To the best of my recollection I was not made aware that I was HBAG positive until I was admitted to hospital in March 2000." (c) when admitted to St George Hospital in March 2000, he stated to Dr Freiman, his treating doctor, "That he worked in a restaurant as a waiter," and did not disclose that he was a medical practitioner. 5 Dr Ma admits all particulars of each part of the complaint. 6 The complaint came on for hearing before the Tribunal today, 8 February 2005. The Commission was represented by Dr J Renwick of Counsel and Dr Ma by Mr I G Harrison, of Senior Counsel. 7 In its case, the Commission tendered a bundle of documents which became exhibit A. That bundle contains a documentary background to the complaint. None of the authors of the documents in the volume was cross-examined. In his case, Dr Ma tendered a volume of documents which became exhibit 1. It included a statement from him, a curriculum vitae, matters concerning his current hepatitis B status and treatment. and some references. 8 Dr Ma did not give evidence. Dr Renwick informed the Tribunal that we ought not draw any inference adverse to him as a result of his not giving evidence, and we draw no such inference. 9 Dr Ma's background is as follows. He was born in Hong Kong on 20 April 1971 and is aged 33. He is married. He attended school in Hong Kong, matriculating in 1988 to 1989. In 1989 he came to Australia; he attended Year 12 at Narwee Boys High School. He was dux of his year. From 1990 to 1997 he attended the University of Sydney, save, it seems, for a year, which he took off in order to earn money for his family. He graduated with the degrees MB, BS in 1997. 10 On 23 October 1997 he made an application for registration as a medical practitioner. He was asked a number of questions. He answered the questions by ticking a number of boxes and dating and signing the document. One of the questions he was asked was, "Have you in the past or presently suffered any physical or mental disability that may impair your ability to practice medicine?" He ticked the box "no". 11 In 1998 he undertook terms in general surgery at Campbelltown Hospital and also carried out respiratory work at Bankstown Hospital. His internship included as well aged care, gastroenterology, orthopaedics, and neurology. He did term 4 in the accident and emergency area at Bankstown Hospital. He did some surgery at Bankstown Hospital in his postgraduate year too. He did terms in 1999 in intensive care at Bankstown Hospital, accident and emergency at Campbelltown Hospital, general surgery at Campbelltown Hospital and worked in respiratory, oncology, orthopaedics and cardiology. 12 In the first quarter of the year 2000 he worked in the area of neurosurgery at Liverpool Hospital. While he was engaged in that surgical work, he suffered a flair up of long standing Hepatitis B and was admitted to St George Hospital under the care of Dr Freiman, a gastroenterologist and hepatologist. 13 Dr Ma did not tell him at the time that he was a doctor, fearing, it would seem, and with some justification, that exposure of the fact would prevent his continuing to work in the surgical area. Cases he had been working on and would have had he continued to work in the area, included performing retraction with the hands and the moving of organs within body cavities. These, we accept, are classic examples of exposure prone procedures. 14 Although Dr Ma told the New South Wales Medical Board on 23 October 1997 in the document to which we have earlier referred, that he had not in the past suffered any physical disability that might impair his ability to practise medicine, the fact was that he had for many years been Hepatitis B positive. 15 In 1989 he had been diagnosed as a chronic Hepatitis B carrier. This, we were told, was not uncommon for Hong Kong residents. On his arrival in Australia he consulted a general practitioner, Dr Ian Lee of Penshurst. He later saw at the same practice, Dr John Lee. 16 It will be recalled that part of one particular of the complaint, namely complaint 4, is that he concealed from his treating doctor his Hepatitis B status. A further part of 4 is that at a section 66 enquiry he said that his general practitioner had told him earlier apropos his Hepatitis B status, "Everything was fine." 17 In a letter to the Commission of 18 November 2002, Dr Ma informed the Commission that he did not know that he had Hepatitis B e antigen until his March 2000 admission to St George Hospital. 18 The statements that his doctor had told him, "Everything was fine," and that he did not know his status in relation to Hepatitis B e antigen till March 2000, were, it is conceded, false. 19 In a letter dated 31 March 2003, Dr Ian Lee wrote to the Commission as follows, inter alia: "I'm not absolutely certain exactly when I was informed that Dr Ma was a doctor but I do remember Dr Ma telling me such at some stage after 16/3/2000 and my reading about this fact in Dr Freeman's report dated 13/4/2000. I can confirm that on 26/11/92 I ordered blood tests and found that HBeAg to be positive. The patient was informed of this and was told that he was of high infectivity. Furthermore, matters in relation to possible complications, follow up management and preventative measures had been discussed with Dr Ma on 11/12/92." 20 In a letter on 8 April 2003, Dr John Lee, from the same practice, said this regarding Dr Ma and his treatment of him: "I consulted Dr Ma on 11 December 92. Based on what I recorded in the progress notes for the consultation and based on the markings and the diagrams that I illustrated on the front and back pages of New South Wales Pathology Laboratory's blood test report (report date 10 December 1992), I can state what I would have told Dr Ma. I explained to Dr Ma the nature of his infection, which is highly infectious, as indicated in his blood test report, the possible complications and treatment he needed for his infection. Further, I told Dr Ma that he should have yearly progressive blood tests of his LFT and Hepatitis B profile to monitor his infection." 21 It is to be noted also that when he was a year 3 medical student, Dr Ma was taken by ambulance to St George Hospital after receiving a laceration to the left wrist when doing car repairs. He is recorded as informing ambulance officers that he was Hepatitis B positive and also later telling hospital staff, both that he was Hepatitis B positive and a year 3 medical student. 22 The tribunal is satisfied that Dr Ma knew full well his Hepatitis B status long before 1997. He concedes that, notwithstanding the advice of Dr John Lee, he did not have yearly progressive blood tests to monitor his condition. 23 On Dr Ma's admission to St George Hospital on 21 March 2000, he was found to be jaundiced and lethargic. He gave a history of being a Hepatitis B carrier, and having three brothers and a sister who were also carriers. 24 As we have observed, he came under the care there of Dr Freiman. Dr Ma had in the past worked as a waiter in a Chinese restaurant. He did not tell Dr Freiman that he was a doctor at that time, telling him, instead, that he was a waiter. However, when he saw Dr Freiman at his rooms after discharge from hospital, he did disclose his occupation. 25 At that time, the New South Wales Medical Board had issued guidelines for health workers, requiring that they take certain steps to know, and keep contact with, their Hepatitis B status. In part those are set out in and referred to in complaint parts 2 and 3. Dr Ma acknowledges that he had read those and was aware of their terms, and that he did not comply with them. 26 The result, as he concedes, was that by assisting in a number of surgical procedures he put patients at risk and put his own interests in pursuing a medical career above the interests of his patients. 27 The Health Department, on learning of Dr Ma's Hepatitis B status in March/April 2000, and that he had worked in areas with potential to transfer Hepatitis B to patients, took swift action. It demanded, and received, an undertaking from Dr Ma not to perform any surgery or exposure prone procedures until interviewed by the Medical Board. 28 The Health Department also took action to trace and did in fact, trace, 25 of the 27 patients considered at risk and with whose care Dr Ma had assisted. Most of them were tested, and fortunately no case of Hepatitis B transfer was disclosed. However, that fact does not detract from the gravity of Dr Ma's conduct to that stage. 29 A section 66 enquiry was conducted on 7 April 2000, at which Dr Ma and his counsel, (not Mr Harrison SC), was present. The notes of the enquiry record that he had been aware of his positive status since 1989, although he had little knowledge of the implications for his career until the fourth year of his studies; that he had attended the same GP since 1989, but had been reassured that everything was fine and did not mention that from 1992 he was Hepatitis BE antigen positive; that his treating GP had been told that he was a medical student, although Dr Ma speculated that he may have forgotten that; that he had answered "no" in response to the question, "Have you in the past or presently suffered any physical or mental disability?" when he applied for registration; that he had become acutely unwell in March 2000 and was admitted to hospital for two weeks and had not advised his treating specialist that he was a medical practitioner. 30 Dr Ma had, he said, been under considerable financial pressure to graduate from medical school. This had occurred against a background of a stressful situation involving his extended family, and due to financial pressures he had taken a year off from his studies and worked as a waiter. He told the enquiry he had had an intention to gain as much hospital experience as possible, including surgery, then work in a general practice clinic situation; he fully appreciated the risks associated with his illness, at least from the time of medicine 4; he had never disclosed his Hepatitis B status to his employer or supervisor, although he fully appreciated he should have done so; he had most recently been employed as a neurosurgery senior resident, and was uncertain whether he was registered with the college as a surgical trainee. 31 The panel noted that he undertook not to do exposure prone procedures in the future and was now aware that his actions were wrong. It gave consideration to imposing a condition on his registration that he not undertake exposure prone procedures, but considered, by reason of the serious history of denial and concealment of his status, and his act of seeking out of positions where the risk of transmission to patients was high, that a suspension at that time was warranted, and accordingly, he was suspended. 32 The period of his suspension was extended on a number of occasions, with effect until 12 September 2000, a total of five months. 33 At a further s 66 enquiry held on 12 September 2000, it was resolved that he be permitted to resume practice subject to certain conditions. He has continued to practise ever since that date subject to those conditions. 34 He has been seen annually, at least, by a review board panel, for the past three years and each time the reviewers have noted that he has been complying with the conditions on his registration and has recommended that the conditions remain unchanged. 35 On 3 November 2004, the panel recommended that he leave the review program in six months because nothing further of a useful nature could be gained by his continuing membership of it. 36 The panel recommended the following conditions on his employment, however, viz that he seek board approval prior to commencing or changing employment, inform employers or associates of his status, observe the policies of the Board and the Health Department on blood borne viruses, attend for treatment with Dr Freiman, attend an exit interview, and that copies of Board review reports be sent to his treating practitioner, Dr Freiman. Those conditions could be eased at the discretion of the Board and the Health Committee at such time as either considered any variation was appropriate; he was to authorise the Health Insurance Commission to release information to the New South Wales Medical Board to ensure that those conditions were being complied with. 37 Dr Ma has said that he will comply with those conditions, or conditions similar to them, if he is permitted to continue to practise. 38 A number of reports have been prepared about Dr Ma's health by Dr Freiman. On 14 January 2005, Dr Freiman wrote about Dr Ma, inter alia: "I last saw Kwok Ma in mid July 2004. He has been stable now for many years. He remains Hepatitis B surface antigen positive. His E antigen is positive, but his viral DNA is adequately suppressed on his Lamivudine treatment. He has clearly been completely compliant with treatment as evidenced by these results. I am in receipt of his most recent blood tests which show normal liver function tests and adequately suppressed viral DNA as of January this year. With the suppression of his viral DNA his infectivity status to others is extremely low. Ever since I have followed William in my rooms for his Hepatitis B, he has been fully compliant with treatment. He displays genuine understanding of his situation and has adapted his medical career so that he no longer provides any risk to patients. This was clearly difficult for him as I know he had previously had his heart set on pursuing a surgical career. I genuinely believe he was sincere in the remorse he displayed for the initial concealment of this hepatitis B status. He now shows mature insight into the problem. I believe his prognosis for his hepatitis B should be extremely good. He continues to be well controlled on Lamivudine. There is a risk that he may develop resistance to the Lamivudine. But we now have very effective replacement treatment with Adefovir, which he would be suited for and other antiviral agents are rapidly becoming available so that ongoing treatment should be possible. It is still possible he may sero convert himself and enter into an inactive phase of hepatitis B but even so I would plan to keep him on an antiviral agent given his very severe initial flare of hepatitis." 39 The three directors of Immex Green Square Pty Limited, a company by whom Dr Ma is employed, have spoken well of his professional ability. A principal area of his practice has become occupational medicine. The directors wrote of him on 20 December 2004, inter alia: "We believe that Dr Ma has become a much better physician as a result of this adversity due to his personal health situation. This has been reflected by his approach in practising occupational medicine especially in relation to risk assessment and management for his patients. On a professional level we have no hesitation to support Dr Ma in his endeavour to continue his practise and training to be an occupational physician as his career of choice. … During the time we have been associated with Dr Ma we honestly believe that he has shown genuine remorse and contrition over his past actions in relation to the hepatitis B medical status. Once again, we are very happy and proud to be able to provide this personal reference for Dr William Ma." 40 A peer review report was provided at the request of the Commission by Dr Paul Curtis, Director of Clinical Services, Greater Murray Area Health Services. He expressed the view that being aware that he was hepatitis B positive, Dr Ma knew that he should not perform surgical procedures or assist. Dr Curtis was of the view that in those circumstances Dr Ma's actions would be seen by his peers as meeting with severe disapproval. 41 Deliberately concealing his status from the Medical Board, however, Dr Curtis thought was not to be seen in the same light. He said of that concealment that he would mildly disapprove of it. 42 Not checking on his own hepatitis B status between 1997 and 2000, he said, warranted severe disapproval. 43 Dr Curtis was not asked to express a view about those parts of the complaint which alleged that Dr Ma deliberately gave false information to the section 66 enquiry and to the Commission, but the Tribunal considers that such conduct would be regarded by practitioners of good standing as meeting with severe disapproval. 44 For the Commission, Dr Renwick, in helpful written submissions supplemented orally, submitted that the complaints cumulatively (and, in the case at least of some, - namely, 4 alone) - would justify a finding of professional misconduct. He referred the Tribunal to a Tribunal decision, In re Dr Furey , (unreported, 23 December 2002), especially paragraph 22(b) where the Tribunal quoted extensively from a decision of Kirby P (as he then was) of the Court of Appeal in Pillai v Messiter (No 2) (1989) 16 NSWLR 1 97 @ 201. 45 By reason of the time for which Dr Ma was suspended in 2000 - namely, five months - and by reason of his having been fully compliant with the conditions ever since then, Dr Renwick submitted that although the Tribunal ought make a finding of professional misconduct, it ought not impose any further suspension, and that the appropriate penalty ought be the imposition of a reprimand. 46 He submitted that it was open to the Tribunal by reason of the provisions of section 37 of the Act to make such a finding without then proceeding to suspend. The Tribunal accepts that such a finding may be made without proceeding to suspend. 47 Mr Harrison of Senior Counsel urged the Tribunal not to make that finding. 48 He drew our attention to that part of the decision of Kirby P in Pillai where His Honour described such a finding as a "drastic consequence" . (See page 201 F of the report). However the Tribunal sees that description of the finding as in the context of His Honour's drawing a distinction between certain serious cases which warranted removal from the register and those much less serious. His Honour was not there considering a finding of professional misconduct in a context where it was not followed by removal from the register or suspension of the right to practice. 49 The Tribunal considers that cumulatively the admitted conduct amounts to professional misconduct and that a finding of professional misconduct ought to be made. It is satisfied Dr Ma knew at all relevant times of his status, yet put his own well-being and professional advancement ahead of the interests of his patients. And when he was exposed, he was dishonest with the Board and later with the Commission. 50 The Tribunal considers that there is utility in making a finding expressing its view of the proved and admitted conduct. The Tribunal is comfortably satisfied on the balance of probabilities that all parts of the complaint are made out and it finds that in the circumstances the conduct amounted to professional misconduct. 51 When the Commission submitted to the Tribunal that the appropriate penalty ought be a reprimand, Mr Harrison SC did not disagree with that. The Tribunal considers also that that is the appropriate penalty. It is satisfied that Dr Mar has shown genuine contrition, has learned, has insight into the difficulties of his creation, has fully complied with the conditions imposed on him and has moved to work in areas away from those which caused these complaints to arise. As well as that, it is to be noted that he was relatively junior at the time when these events occurred. 52 Accordingly, a reprimand is the appropriate penalty. Through his counsel, Dr Ma did not contest the Commission's right to costs and the Tribunal considers that Dr Ma should pay the costs of the Commission. The findings and orders are: 1. All parts of the complaint are proved. 2. (a) The conduct proved amounts to professional misconduct; (b) Dr Ma is reprimanded. 3. Dr. Ma's right to practice is subject to the following conditions: (a) To seek Board approval prior to commencing and/or changing employment. (b) To advise any employer or associates of health status and these conditions to which his registration is subject. (c) To observe the Medical Board and Department of Health policies on Blood Borne Viruses, with particular attention to the absolute avoidance of exposure-prone procedures. (d) To attend for treatment with Dr Freiman, at a frequency to be determined by the treating doctor. To authorise the treating doctor to inform the Board of termination of treatment, failure to attend, or any significant change in Dr Ma's health status. (e) To attend for a Board Review Interview at the Board in 6 months, and subsequently such frequency as is determined by the Health Committee. (f) That copies of Board Review Interview reports be forwarded to Dr Ma's treating practitioner, currently Dr Freiman. (g) These conditions may be released, varied or modified at the discretion of the Board or the Health Committee at such time it considers variation is appropriate. (h) That Dr Ma authorise the Health Insurance Commission to release any information to the New South Wales Medical Board in order to ensure that these conditions are being complied with. 4. Dr Ma to pay the Commission's costs. 5. Suppression order as to any details which might identify any patients. ********** 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.