Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Kwan [2014] NSWCATOD 72 Hearing dates: 2, 3, 4 June 2014 Decision date: 07 July 2014 Jurisdiction: Occupational Division Before: Acting Judge J L O'Meally, Principal Member Dr E Kok (Medical Member) Dr R Spark (Medical Member) Dr C Berglund (Lay Member) Decision: 1. The registration of Dr Kwan as a medical practitioner be cancelled for a period of two years from this date. 2. Dr Kwan to pay the costs of the Health Care Complaints Commission. Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a Poisons and Therapeutic Goods Act 1966 Poisons and Therapeutic Goods Regulation 2008 Medical Practice Regulation 2003 Cases Cited: Spicer v NSW Medical Council [NSWCA 3 of 1981] Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3 at [200] Health Care Complaints Commission v Dr Della Bruna [2014] NSWCAOD 31 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Ching Kun Edmond Kwan (Respondent) Representation: Counsel Mr Britt (Complainant) Mr Hunt (Respondent) Health Care Complaints Commission (Complainant) Avant Law (Respondent) File Number(s): 1420070 Publication restriction: The name and address of and any other personal information relating to or tending to identify, Patient A should not be disclosed or published. Cl 7 Schedule 5D Health Practitioner National Law reasons for decision 1Dr Ching Kun Edmond Kwan is a medical practitioner carrying on practice at 90 George Street, Parramatta NSW 2150. He graduated from the University of Sydney in 1979 and in September 1981 began general practice. In August 1996 he began providing GP care to Patient A whose treatment is the subject of these proceedings. 2This is the second time the Health Care Complaints Commission (the Commission) has initiated proceedings before the Tribunal in respect of Dr Kwan. 3In 1991 the Pharmaceutical Services Branch (PSB) visited him regarding his provision of drugs to drug addicted and drug seeking patients. Between 1993 and 1994 further notifications were made to PSB by pharmacists who were concerned about Dr Kwan's prescribing practices. In June 1994 the PSB spoke to Dr Kwan about his prescribing habits. 4In 1999 the PSB received further complaints about Dr Kwan's prescribing benzodiazepines. On 20 October 1999 the PSB recommended that his right to prescribe Schedule 4D drugs be withdrawn. He did not oppose that recommendation. 5The PSB then referred a complaint to the Commission which initiated an investigation of Dr Kwan's prescribing benzodiazepines and/or codeine compounds to patients between 1997 and 1999. The complaint was heard by the Medical Tribunal. Dr Kwan admitted that his conduct constituted professional misconduct. 6In August 2005 protective orders were made which prohibited Dr Kwan from possessing or prescribing Schedule 4D drugs. Furthermore, he was ordered to undergo educational counselling about boundary setting, with a particular focus on the appropriateness of giving religious instruction to patients. He was also ordered to submit to practice audits to review his patients' records, observation of his patients' consultations, review his drug register and drug storage facilities and to submit to supervision. THE PRESENT COMPLAINT 7On 25 July 2013 a complaint was lodged in the Medical Tribunal of NSW constituted under S 165 of the Health Practitioner Regulation National Law (NSW), against Dr Kwan and are "unheard proceedings". It is unnecessary to consider the transitional provisions and it is accepted by Dr Kwan as well as by the Commission that the Tribunal has jurisdiction to deal with the complaint. The complaint has been amended and as the Tribunal is considering it, is in this form: COMPLAINT ONE [Dr Kwan] has been guilty of unsatisfactory professional conduct under section 139B (1) (a) and (l) of the National Law in that the practitioner has: (i) Engaged in conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably excepted of a practitioner of an equivalent level of training or experience; and (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Background At all relevant times Dr Ching Kun Edmond Kwan of 90 George Street, Parramatta NSW 2150 was a registered medical practitioner practicing [sic] as a medical practitioner in the State of New South Wales. The practitioner provided GP care to Patient A from August 1996 to October 2011. Patient A's clinical history includes respiratory compromise and chronic pain syndrome. Her mental health history includes an eating disorder; agoraphobia; depression; borderline personality disorder; hospital admissions to psychiatric care and detoxification and occasions of self harm. Patient A has a history of dependence on licit and illicit drugs. PARTICULARS OF COMPLAINT ONE 1. Between January 2009 and November 2010, the practitioner when prescribing morphine sulphate injections to Patient A, exceeded the authority provided by the NSW Health Department, in the quantities set out in the schedule attached and marked A. 2. Between January 2009 and October 2010, the practitioner when prescribing oxycodone to Patient A, exceeded the authority provided by the NSW Health Department, in the quantities set out in the schedule attached and marked A. 3. Between 1 November 2010 and 4 October 2011, the practitioner prescribed and supplied oxycodone, a Schedule 8 drug of addiction to Patient A, in the quantities set out in the schedule attached and marked A: Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; Without obtaining an authority to prescribe drugs of addiction to a drug dependant person within the meaning of section 27 of the Poisons and Therapeutic Goods Act 1966 ("the PTG Act"), from the NSW Health Department, contrary to section 28 (3) of the PTG Act; For a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008 ("PTG Reg 2008"); In circumstances where the quantities prescribed increased over this time and were in excess of normal or usual quantities, contrary to clause 79 of the PTG Reg 2008; In circumstances where the practitioner had received correspondence from the Westmead Pain Clinic in 2008 and from Neurologist A/Prof Brian Owler in October 2009 which did not support the pattern of prescribing narcotic analgesia to Patient A; The practitioner knew or ought to have known that the drug prescribed was being, or was likely to be, abused by Patient A. 4. Between 1 November 2010 to 3 October 2011 the practitioner administered morphine sulphate injections, a Schedule 8 drug of addiction to Patient A, on the dates and in the quantities set out in the schedule attached and marked A: Without exercising responsible medical judgement as to whether it was appropriate to administer this medication; Without obtaining an authority to prescribe drugs of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act) from the NSW Health Department, contrary to section 28 (3) of the PTG Act; For a period exceeding two months without obtaining an authority to prescribe drugs of addiction from the NSW Health Department, contrary to section 28(2) of the PTG Act; For a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Reg 2008; In circumstances where the quantities prescribed were in excess of normal or usual quantities, contrary to clause 79 of the PTG Reg 2008. 5. Between 1 November 2010 to 4 October 2011 the practitioner failed to adequately communicate, monitor, advise, liaise with and compare management of Patient A's chronic illnesses with other treating practitioners in relation to, Response to medication; and/or Possible abuse of prescribed medication. 6. Between 1 November 2010 to 4 October 2011 the practitioner obtained supplies of oxycodone and morphine sulphate injections from the Pharmacy Nutrition Warehouse in Parramatta for Patient A. The practitioner failed to maintain a drug register for Schedule 8 drugs, in breach of clauses 111 and 112 of the PTG Reg 2008. 7. Between January 2009 and October 2011 the practitioner's medical records with respect to Patient A were inadequate in that he failed to adequately record the amount of morphine administered to Patient A in breach of clause 82 of the PTG Reg 2008. 8. Between 1 November 2010 to 4 October 2011 the practitioner inappropriately attempted to manage Patient A's complex physical and psychological problems by himself in circumstances where he should have: [withdrawn]; [withdrawn]; Consulted with a colleague/s about Patient A's management. 9. Between 1 November 2010 and 5 October 2011 the practitioner failed to observe proper professional boundaries with respect to the treatment of Patient A in that he; Conducted an excessive number of consultations, namely 126 home visits, as set out in the schedule attached and marked 'B'. Such frequent home visits from her GP over a period of several months were not indicated, having regard to Patient A's chronic medical conditions, and were likely to increase Patient A's dependency on the practitioner; Provided non medical services to Patient A such as delivering medications and occasionally food; Personally taught and supervised chest physiotherapy and postural drainage for Patient A; Taught and supervised medication techniques with Patient A; [withdrawn]; Assumed the role of Patient A's friend and caregiver. 10. On or about 4 February 2010, the practitioner failed to observe proper professional boundaries when he paid for Patient A's consultation with a specialist, Dr Paul Despas. COMPLAINT TWO Is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or engaged in more than one instance of unsatisfactory 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 Background The background of Complaint One is repeated. PARTICULARS OF COMPLAINT TWO The particulars of Complaints One and Two are repeated and relied upon, individually and cumulatively. ADMISSIONS 8Both in the witness box and through his counsel, Dr Kwan admitted that he is guilty of unsatisfactory professional conduct and guilty of professional misconduct. However, in respect of particular 3a, that is, without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions, Dr Kwan says that he believed he was. In relation to particular 4a, that is, without exercising responsible medical judgment as to whether it was appropriate to administer this medication, he says he believed he did. In respect of particular 4d, that is, for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Reg 2008, Dr Kwan said he believed he was exercising responsible medical judgment. In respect of particular 9f, Dr Kwan denies that he assumed the role of Patient A's friend, but he does not dispute that he assumed the role of Patient A's caregiver. Otherwise the particulars are admitted unconditionally and without qualification. 9Here it should be observed that the parties have agreed that the Tribunal may deal with this complaint to finality, that it may conclude that the complaint is made out and make orders appropriate to the circumstances of the case. NATURE OF THE JURISDICTION 10It is important to observe that the jurisdiction of the Tribunal is protective in nature and not punitive, realising, however, it may be that by making a protective order, the effect upon the person affected may have punitive results. We are required to take into account the maintenance of the standards of the medical profession, maintenance of public confidence in the medical profession and the protection of the community. Our primary purpose is the protection of the health and safety of the community. 11In view of the concessions made by and on behalf of Dr Kwan and the attitude taken by counsel for the Commission we are able to deal with the complaint rather more expeditiously and with less attention to detail than might otherwise be the case. THE EVIDENCE 12The Commission engaged Dr Emery Kertesz as an independent expert to provide a report to the Tribunal. Dr Kertesz in fact provided two reports and gave evidence before us. With two exceptions, the report is accepted by Dr Kwan. These were dealt with by Dr Kertesz when he gave evidence. In speaking of the relationship between Dr Kwan and Patient A in his first report, Dr Kertesz described it as 'draconian'. In evidence, Dr Kertesz explained that by 'draconian' he did not mean hard or harsh, but rather he meant, old fashioned. In respect of the number of home visits, Dr Kertesz expressed a qualified view when informed that the bulk of those home visits had been made at the request of Patient A. 13It is nevertheless the case that the prescribing of Schedule 8 drugs by Dr Kwan did exceed the normal and acceptable limits of therapy for even the most severe medical issues. Narcotics were administered in excessive quantities and for reasons that were outside acceptable medical parameters. The prescribing regime, in the opinion of Dr Kertesz, significantly varied from evidence based medicine. The prescription of narcotic drugs exceeded normal and acceptable limits of therapy even for the most severe of medical illnesses. He thought that the excessive quantities were well outside acceptable medical parameters. It was Dr Kertesz's view that the prescription of Schedule 8 drugs to Patient A was excessive, irresponsible, and potentially life threating. He thought that the only lifesaving factor was the inevitable tolerance she had developed over the years to continuous repeated administration of narcotics by Dr Kwan. 14As earlier noted, when Dr Kwan's authority lapsed on 1 November 2010 he continued to prescribe Schedule 8 drugs to Patient A. The prescribing of drugs of addiction without authority to a drug dependant patient was in breach of S 28 of the Poisons and Therapeutic Goods Act 1996. 15It is significant also to note that between 1 November 2010 and 5 October 2011 Dr Kwan prescribed an average daily dosage of 176mg of oxycodone. Dr Kertesz pointed out this was 35mg per day more than the dose Dr Kwan admitted prescribing in his response to the Commission. It may be that on some days the dose was less than the earlier amount approved, though it should be borne in mind the average was 35mg per day more than he admitted. Between the same dates, that is 1 November 2010 and 5 October 2011, Dr Kwan continued prescribing the same amount of morphine as previously, at a time when he held no authority to do so. He injected doses which varied between 7.5ml and 15ml every few days. 16It was the view of Dr Kertesz that Dr Kwan's clinical management and his professional conduct each fell significantly below the standard expected. Dr Kwan, as the primary caregiver of Patient A, should have monitored, advised, liaised with and compared management with all other providers. In view of his past history with Patient A and also with Dr Scragg, whom he knew was prescribing benzodiazepines, Dr Kwan was likely to have been aware that Patient A was a drug dependent person. The explanation given by Dr Kwan for delivering oxycodone in Webster style packs was described by Dr Kertesz as bizarre and in his view demonstrated a serious and major breach of professional boundaries. He did observe that there were numerous avenues available to Dr Kwan to ensure that therapeutic quantities of medication were delivered to Patient A from a pharmacy. 17Dr Kertesz believed that Dr Kwan's treatment, including the provision of counselling, postural drainage, exercise regime, and meditation was vastly different from the usual doctor-patient relationship. It was Dr Kertesz's view that from the commencement of the doctor-patient relationship Dr Kwan failed to observe professional boundaries. Dr Kertesz also expressed the view that evidence based medicine has shown major disadvantages of the use of narcotic drugs in management of medical illnesses such as migraine and low back pain for which Dr Kwan was treating Patient A. He further said that narcotic treatment is a highly specific discipline and must, by definition, involve a multi-disciplinary team of specialists. Notwithstanding that a large number of home visits was initiated as a result of Patient A's requests, Dr Kertesz's view was that the number of visits was excessive and increased the patient's dependency on Dr Kwan. None of these matters is disputed by Dr Kwan. 18In her witness statement which is before the Tribunal, Patient A said that Dr Kwan had a strong religious belief and would often "tell me stories about his experiences with God". Dr Kwan has admitted to boundary issues relating to his care of Patient A. These included chest physiotherapy and postural drainage and the teaching and supervision of meditation techniques to reduce her perception of pain. Dr Kwan also provided food assistance to Patient A. Dr Kertesz was of the view that despite references to food assistance and religious references, the fact remained that the management of the care of Patient A was far outside normal parameters when compared to the acceptable management of dependent, housebound or institutionalised patients. ORDERS SOUGHT 19The Commission seeks orders that Dr Kwan's registration be cancelled for a minimum period of one to two years and that he be ordered to pay its costs of these proceedings. The latter order is not resisted by Dr Kwan. 20On 16 August 2005 in the first proceedings brought in respect of Dr Kwan, the Medical Tribunal made a finding of professional misconduct and ordered that he be reprimanded. Further orders were made which prohibited Dr Kwan from possessing, prescribing, supplying or administering Schedule 4, Appendix D drugs. It also ordered him to complete a course offered by the Pharmaceutical Service Branch to ensure that he had proper knowledge of prescribing practices and requirements, particularly in respect of Schedule 4, Appendix D drugs and Schedule 8 drugs. Orders were also made requiring Dr Kwan to submit to an audit with particular attention to the prescribing, administering and recording drugs of addiction and drugs of dependency. An order was made that he nominate one or more approved supervisors to meet with him and conduct an inspection of his medical records with a view to monitoring and reviewing them in order to assist him in complying with the requirements of the Medical Practice Regulation 2003. He was also ordered to attend upon a Board nominated senior general practitioner for educational counselling about boundary setting in the doctor-patient relationship with a particular focus on the appropriateness of giving religious instruction or advice or recommending particular religious programs in the course of professional consultation and in relation to any other relevant issues. 21It will be seen that the matters which were considered by the Tribunal in 2005 bear a remarkable similarity to those we are now considering. 22Whilst acknowledging the Tribunal has the power to make the orders sought by the Commission, it is submitted on behalf of Dr Kwan that such orders should not be made. Instead, it is said, orders maintaining prescribing restrictions, requiring mentoring and supervision would suffice, together with an undertaking by Dr Kwan to complete an educational course provided by Monash University which is relevant to the matters now under discussion. That course is available only to registered practitioners and if Dr Kwan were not such a person he would not be permitted to embark upon the course. His evidence is that he has made enquiries about enrolling in the course, but he is not permitted to do so until his academic record from the University of Sydney is provided. That will take something in the order of two months to obtain. It is interesting to note that his enquiries of Monash University were made relatively recently and to bear in mind that this complaint was initiated in July 2013. 23A number of character references has been placed before us and we have heard the oral evidence of Dr Ng. Those references attest to the fact that Dr Kwan has a reputation as a caring and compassionate general practitioner and is of good character. It is undisputed that in the back area of the ground on which his surgery is located he assists and facilitates local businessmen in providing Saturday morning breakfast to homeless people in the Parramatta district, in his role as 'Pastor Ed', before opening the Saturday morning general practice. He acknowledged in evidence that some of the people who attended the breakfast later attended as patients. The contents of the character references and the evidence of Dr Ng confirm Dr Kwan's compassionate attitude, but in large measure they do not assist us in determining the appropriate outcome of these proceedings. 24Mr Hunt, of counsel for Dr Kwan, has put to us that there was no effective challenge to the credibility of Dr Kwan in the witness box, though he conceded there may have been a lack of insight. We bear in mind that Patient A was a difficult patient; in the view of Dr Kwan the most difficult patient he has had to deal with. She is no longer his patient. It is said, however, that he does have some insight into his offending because of the admissions he made. 25Dr Kwan did not set appropriate boundaries on the doctor-patient relationship. He allowed himself to be influenced by a demanding and manipulative patient. He contributed to the pattern of the patient's reliance on increasing dosages of opiates and he allowed himself to be influenced by the demanding and manipulative behaviour of the patient. We accept Dr Kwan's honesty. The fact he made the admissions noted and conceded that he had been guilty of unsatisfactory professional conduct and professional misconduct, indicate what we believe to be a preliminary stage of developing insight to his misconduct. 26We are, however, of the view that further insight is needed before the public is sufficiently protected. We note that the previous findings and Dr Kwan's experience of undergoing specific direction in professional responsibilities of prescribing and setting boundaries in his practice in accordance with the orders of 2005 were ultimately not sufficient protection for the public. His evidence revealed a reticence to accept that the treatment of Patient A could have been improved had he involved other practitioners. Additionally, the proximity in both time and place of religious and medical activities continued to blur the boundaries of the doctor-patient relationship. 27It is submitted for the Commission that the admissions and evidence demonstrate that Dr Kwan has engaged in conduct that establishes that the knowledge, skills or judgment possessed, or care exercised by Dr Kwan are significantly below those reasonably expected of a practitioner of an equivalent level of training or experience, and that he engaged in improper or unethical conduct relating to his medical practice. It is also submitted for the Commission that the particulars both individually and cumulatively establish that Dr Kwan engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. Neither submission is disputed by Dr Kwan. 28Our attention has been drawn to the decision of the Court of Appeal in Spicer v NSW Medical Council [NSWCA 3 of 1981, 19 February 1981] Hope JA, with Reynolds and Hutley JJA agreeing, said: In my opinion it is clear beyond argument that proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said he is fitted at such a time to be a medical practitioner. In my view the view expressed by the Tribunal has implicit in it that not merely he was presently unfitted to treat those addicted or habituated to drugs but unfitness in itself demonstrated his present unfitness to be a medical practitioner. 29It is plain that over-prescribing medications contrary to law by a medical practitioner can amount to conduct warranting the removal of the practitioner's name from the Register of Practitioners. Dr Kwan's conduct was reckless and showed a blatant disregard of the law. 30Our attention has also been drawn to the decision of the Tribunal in Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3 at [200] where it was said, among other things: The authorities also clearly established that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit for a protective purpose, the Tribunal needs to find that the practitioner is probably permanently unfit to practice. That observation has undergone further consideration, most recently in a later decision of the Tribunal. See Health Care Complaints Commission v Dr Della Bruna [2014] NSWCAOD 31. At para 91 the Tribunal under the Presidency of Wright J, referring to that quote, said: This quotation should not, however, be taken to support the proposition the Tribunal may order deregistration only if it finds that the practitioner is permanently unfit to practice ... 31The expression used by the High Court in Ex parte Lenahan was 'probable permanent unfitness' and referred to the findings which usually underlines an order striking off a solicitor. It serves to indicate that striking off a lawyer or deregistering a medical practitioner will generally only be appropriate if he or she is unfit to practice at the time of making the order and is likely to remain for a significant period. 32The orders proposed by Mr Hunt may have been appropriate if this were the first time Dr Kwan had come before the Tribunal. Orders of a similar nature were, as noted, made in the proceedings concluded in 2005 and, in our view, are inappropriate to this case. As a result of the earlier proceedings Dr Kwan had the benefit of individual input by Pharmaceutical Services Branch officers and a professional colleague appointed to assess and guide him. He also had specific training, directing him to his responsibilities in prescribing as a medical practitioner. He did have an adverse finding made against him concerning his prescribing practices. 33Dr Kwan was aware of his obligation to obtain an authority in order to prescribe, supply and administer Schedule 8 drugs to Patient A, a patient who in his own assessment was drug dependent, and whose long term prognosis was to remain dependent. It was Dr Kwan who initiated Patient A to Schedule 8 medication for complaints of pain. 34The safeguards that are built in to obtaining an authority to prescribe, of requiring a second physician assessment and a pain clinic assessment were available to Dr Kwan for Patient A. The advice given after one such assessment was that Patient A's reported neck and leg symptoms were inconsistent with her radiology. At a time when no supportive or required assessments were obtained for Patient A by Dr Kwan and when Dr Kwan had not reapplied for a continuing authority, he nevertheless continued to prescribe, supply and administer Schedule 8 drugs to Patient A. In doing so, he demonstrated he had little insight into the importance of the safeguard inherent in the prescribing regulations as exercised by a responsible medical practitioner. 35Public safety is reliant on the proper exercise of discretion by a medical professional and on the willingness of the practitioner to practise within the limits set by the profession and by the community. Dr Kwan has breached the trust placed in him by his patient, the community and the medical profession. He has flagrantly and over a long period broken the law. 36We think it significant that when asked what he would do differently in dealing with situations such as those under consideration, Dr Kwan answered in terms of his own career choices. He did not answer in terms of his patient until he was specifically asked to do so by a member of the Tribunal. 37We believe Dr Kwan has demonstrated insufficient insight into the gravity of his misconduct and therefore he is likely to pose a risk to the public were he to remain on the register at this time. We have come to the conclusion that maintaining prescribing restrictions and reinstituting counselling and educational requirements will not afford adequate protection to the public. 38Accordingly, we order that the registration of Dr Kwan as a medical practitioner be cancelled for a period of two years from this date. 39We order Dr Kwan to pay the costs of the Health Care Complaints Commission. ********** 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: 07 July 2014