Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Hearing dates: 22,23,24 and 25 August 2016 Date of orders: 25 October 2016 Decision date: 25 October 2016 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Dr N Willcocks, Professional Member Dr M Cox, Professional Member S Lovrovich, Lay Member Decision: 1. If Dr Qing Shan (John) Liu (the practitioner) was registered as a medical practitioner on the register of medical practitioners maintained by the Australian Health Practitioners (AHPRA) the Tribunal would have cancelled his registration. 2. The practitioner is disqualified from seeking registration for a period of twelve months from the date of these orders. 3. The Medical Council of NSW is requested to advise AHPRA as soon as practicable of Order 1 of these orders. 4. The practitioner shall pay eighty per cent of the costs of and incidental to the proceedings of the Health Care Complaints Commission as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: PROFESSIONAL DISCIPLINE – Where it is asserted respondent is guilty of unsatisfactory professional conduct and professional misconduct under the Health Practitioner Regulation National Law – whether practitioner failed to meet appropriate clinical standards – whether practitioner's conduct constituted improper or unethical conduct – whether the practitioner failed to keep proper medical records - whether practitioner's conduct is of such a serious nature that his registration could be suspended or cancelled. Legislation Cited: Health Practitioner Regulation (New South Wales) Regulation 2010 Health Practitioner Regulation National Law Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Clyne v NSW Bar Association (1960) 104 CLR 186 HCCC v Phung (No 1) [2012] NSWDT 1 Health Care Complaints Commission v Do [2013] NSWCA 307 Health Care Complaints Commission v Fisher [2016] NSWCATOD 62 Health Care Complaints Commission v Litchfield (1997) NSWLR 630; [1997] NSWSC 297 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v XC [2015] NSWCATOD 9 Office of Local Government v Toma [2015] NSWCATOD 21 Parker v Comptroller of Customs (2009) 83 ALJR 494; [2009] HCA 7 Qasim v Health Care Complaints Commission [2015] NSWCA 282 R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mr Qing Shan (John) Liu (Respondent) Representation: Counsel: A Britt (Applicant) J Downing (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridan Lawyers (Respondent) File Number(s): 1620051 Publication restriction: Pursuant to Cl7 Schedule 5D of the Health Practitioner Regulation National Law an order is made prohibiting the publication of the names of the patients set out in the schedule to the complaint to any person or entity save and except to the parties to these proceedings and the Medical Council of New South Wales. REASONS FOR DECISION Introduction 1. In March 2016 the Health Care Complaints Commission (HCCC) lodged in the Tribunal an Application for Disciplinary Findings and Orders with a complaint annexed. The complaint asserts that Mr Qing Shan (John) Liu, (the practitioner), a former registered medical practitioner, is guilty of unsatisfactory professional conduct and professional misconduct under the provisions of the Health Practitioner Regulation National Law (the National Law). 2. The events the subject of the complaint all occurred while the practitioner was employed at the Vegetable Creek Multipurpose Service (VCMS) at Emmaville NSW, or while he practised as a general practitioner at Emmaville and Ashford, NSW. Emmaville and Ashford are two small country towns near Glenn Innes NSW. VCMS includes a 4 bed hospital, an attached nursing home of 14 beds and rooms from which the practitioner conducted a private medical practice. The practitioner engaged in private practice at Ashford two days per week and at Emmaville for the remaining three days each week. He was on call for the hospital twenty-four hours per day, seven days each week and had responsibility for the medical care of the nursing home patients. 3. The complaint, which was amended on the first day of the hearing without objection, in broad terms firstly asserts that the practitioner's judgment possessed or care exercised by him in his treatment of five patients was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Complaint Two asserts that the practitioner engaged in improper or unethical conduct in the practice of medicine. It is claimed that he spoke in an unprofessional manner to members of the nursing staff of the small rural hospital where he was contracted as the visiting medical officer (VMO) and discussed another patient's death (Patient DD) in the presence of two unrelated patients. Complaint Three relates to the practitioner's conduct in making claims against Medicare to which he was not entitled. The fourth complaint alleges the practitioner failed to keep proper records. It is asserted by the HCCC in the fifth complaint that the complaints, either individually or cumulatively, amount to professional misconduct. 4. The HCCC seeks orders that the Tribunal would have cancelled the practitioner's registration had he been registered at the date of the hearing, and that he be disqualified from registration for a period of twelve months. The practitioner's response to the complaint 1. The practitioner in an Amended Reply has admitted a number of the particulars of the complaint that relate to his prescribing for Patient A, an elderly lady for whom he prescribed pethidine over an almost two year period without the requisite authority. However, he disputes a number of particulars in respect of his treatment of Patient A when she suffered a third degree burn to a significant portion of her left hand. 2. The practitioner also disputes that his care of Patient B, a paraplegic patient, who suffered breathing difficulties and hypotension, was sub-standard, including an asserted failure to attend the hospital to see this patient in a timely manner. 3. Patient D is a child who suffered deep lacerations to his knee and a compound fractured patella when he was riding a quad bike at speed. Although the practitioner admits a number of particulars about his care of this child, he denies he failed to conduct a proper examination of the child. 4. Patient F is a patient who is asserted to have reported a sleeping disorder. The practitioner does not admit that he inappropriately prescribed an antidepressant for Patient F, or that the patient reported suffering sleep apnoea. 5. The fifth patient, Patient DD, consulted the practitioner and is asserted to have complained of headaches. The practitioner denies his care of this patient was inappropriate. It is not in dispute that Patient DD, a relatively young man, died following a sudden heart attack some three months after he was last seen by the practitioner. 6. The practitioner does not dispute in one instance that he spoke in an unprofessional manner to the nursing staff, and that he discussed Patient DD's medical history with the Police in the presence of one unrelated patient. 7. The assertion that the practitioner spoke in an unprofessional manner to a registered nurse when he was treating Patient A's burn is denied by the practitioner, although he admits the accuracy of the words asserted to have been spoken. 8. The practitioner substantially admits the claim relating to his billing practices to Medicare. It was not in dispute before us that after an inquiry by a Professional Services Review Committee the practitioner is required to repay Medicare the sums of $5,347.50 and $514,968.14 respectively, and is disqualified from claiming certain Medicare items for a period of twelve months. 9. The practitioner also admits the complaint asserting a failure to keep adequate records for ten patients. 10. The practitioner admits he is guilty of unsatisfactory professional conduct insofar as the complaint relates to his billing and record keeping practices. He denies his conduct constitutes professional misconduct. Conduct of the hearing 1. The proceedings were conducted over four hearing days and the practitioner gave evidence and was cross-examined. Although directions were made for him to file any material on which he sought to rely as well as a Reply, the practitioner chose not to file a statement or any other evidence. Two documents were admitted into evidence on behalf of the practitioner. We will refer to these documents later in these reasons. 2. The practitioner did not ask for the proceedings be conducted in two stages. Rather, we were requested to make findings on the matters asserted in the complaint, and as a result of those findings, to make appropriate protective orders. 3. A number of witnesses relied on by the HCCC were not required for cross-examination (the practitioner's former receptionist, Patient F, Patient DD's wife). Issues in dispute and structure of these reasons 1. The nature of the complaints, the way they are pleaded, and the particulars in the support of them, make it difficult to identify, in a summary manner, the matters in issue before the Tribunal. In the most general terms the issues we were required to determine may be defined as follows: 1. Was the practitioner's care of the five patients named in the complaint reasonable given his level of experience and the rural setting in which he practised? 2. Did the practitioner's communication with other professionals and his failure to keep confidential patient details fail to meet appropriate standards? 3. How should the practitioner's admitted overbilling of Medicare be regarded? 4. What are the consequences of the practitioner's admitted record keeping complaints? 5. Does the admitted conduct and/or the factual determinations made by us, constitute unsatisfactory professional conduct and/or professional misconduct? 6. What orders will best protect the public, act as a deterrent to like conduct, and uphold the standards of the profession? 1. After setting out some relevant background material and the relevant legal principles and statutory provisions dealing with proceedings in the Tribunal under the National Law, we propose to deal with the complaints admitted by the practitioner namely Complaints Three and Four (the Medicare and Record keeping complaints). 2. We will then deal with the limited contentious particulars in respect of Complaint Two. We will refer to this complaint, which is centred on the practitioner's inappropriate communication style with the nurses at Emmaville, and discussing Patient DD in the presence of another patient, as the "communication complaint". 3. We will then consider those particulars in respect of Patient A that are not admitted by the practitioner in respect of Complaint One. We will thereafter follow a similar examination of the disputed particulars in respect of each of Patients B, D, DD and F. 4. Finally, we will discuss and make findings about the assertions of unsatisfactory professional conduct and professional misconduct. 5. In the course of the structure outlined above, we will answer the questions we have posed as the issues to be determined in these proceedings. Background 1. Following a direction made at a case conference held shortly before the hearing to narrow issues in dispute the parties lodged with the Tribunal an agreed statement of facts. The practitioner, with leave, gave oral evidence in chief of a number of relevant factual matters. We now set out relevant facts to aid understanding of these reasons. 2. The practitioner was born in China in 1960. 3. In 1983 the practitioner graduated from the University of Hainan, China. Between 1984 and 1986 he was employed in the internal medicine department of a hospital in Hainan. 4. In 1988 the practitioner moved to Australia. Between 1988 and 2001 he engaged in health related work in Australia including venesection and pathology collection. 5. In 2001 the practitioner obtained Australian Medical Council certification. That year he undertook internships at the Repatriation Hospital, Concord and Bankstown Hospital. 6. Later in 2001 the practitioner commenced his general practice training in Bathurst but did not continue in this position because his son was unwell. 7. Between 2005 and 2008 the practitioner engaged in locum work in emergency departments at Liverpool, Westmead, Ryde and Bankstown hospitals. 8. In 2008 the practitioner moved to Tenterfield, NSW where he practised in general practice and also practised two days each week at Emmaville. He returned to Sydney on weekends and engaged in work in Sydney emergency departments. The practitioner's family lived in Sydney. They remained living in Sydney at the date of the hearing. 9. In 2009 the practitioner moved to Emmaville. He was appointed as the visiting medical officer at the VCMS and commenced conducting general practice in Emmaville each Tuesday, Wednesday and Friday and additionally provided services at Ashford Community Health Centre each Monday and Thursday. 10. In August 2009 the practitioner first attempted the Royal College of General Practitioners' examinations. He was unsuccessful. 11. On 12 May 2014, following complaints to the local area health service, the practitioner was suspended as the VMO at the VCMS. 12. The practitioner attended a hearing before the delegates of the Medical Council (the Council) convened under s 150 of the National Law on 17 October 2014. On 24 October 2014 conditions were placed on the practitioner's registration. At a further hearing on 8 December 2014 the conditions imposed were confirmed. The practitioner was required only to practise in a group practice approved by the Council of two or more general practitioners. He was also required to have a supervisor. The practitioner has not been employed as a medical practitioner since the imposition of the conditions on his registration. 13. In September 2015 the practitioner failed to renew his registration. 14. In 2015 the practitioner returned to China for a number of months where he opened a restaurant. Relevant statutory provisions and legal principles 1. The Application asserts the practitioner is guilty of unsatisfactory professional conduct under s 138B (1) (a) (b) and (l). Those sections relevantly provide: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) 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) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Complaint Five asserts the practitioner is guilty of professional misconduct. Professional misconduct is defined in s 139E of the National Law in the following terms: 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 standard of proof required to establish these complaints is the civil standard. By reason of the seriousness of the allegations and the gravity of their consequences, the Tribunal must have "a reasonable satisfaction" that the particulars of the complaint have been proved (see Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34). 2. In determining what is reasonable conduct by a professional such as the practitioner the remarks of the Court of Appeal in Health Care Complaints Commission v Litchfield (1997) NSWLR 630; [1997] NSWSC 297 are apposite: The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal. 1. It is to be remembered that in determining professional disciplinary proceedings concerning health practitioners, orders made at the conclusion of the proceedings, if appropriate to do so, are for the protection of the public and not for the purpose of punishing the practitioner (see Clyne v New South Wales Bar Association (1960) 104 CLR 186). 2. The Tribunal is in all matters before it under the National Law guided and informed by s 3A. Section 3A provides as follow: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. The Medicare complaint and the record keeping complaint (Complaints 3 and 4) The Medicare Complaint 1. It is asserted that the practitioner engaged in improper or unethical conduct in his billing practices to Medicare, and that his medical record keeping did not comply with the Health Practitioner Regulation (New South Wales) Regulation 2010. The practitioner admits he is guilty of unsatisfactory professional conduct in respect of each of these complaints. In his Reply the practitioner states that he: made some claims for Medicare Benefits (MBS) items stated in the column titled 'MBS item' in Annexure B that exceeded his entitlement. Given he failed to make adequate records of many consultations the Respondent is unable to specify those claims with particularity. 1. The HCCC helpfully provided us with a schedule as an aid-memoir based on Annexure B to the complaint which demonstrates overcharging based on the practitioner working an eight hour day. The daily hours overcharged vary from the minimum overcharge on 16 August 2012 of 7 hours 10 minutes to an overcharge of 12 hours 55 minutes on 25 September 2013. The HCCC submit that the 19 days particularised in the complaint are a sample from the review for a closed period 1 June 2012 and 31 May 2013. Correspondence from the Professional Services Review dated 18 August 2016 (Exhibit K) discloses the repayment ordered by the determining authority to be respectively $5,347.50 and $514,968.15. 2. Mr Downing, counsel for the practitioner, in his written submissions, acknowledged the practitioner's errors in making claims against Medicare, and noted that a large number of the consultations charged were not based on the actual time spent with the patient. However, it is asserted on the practitioner's behalf that his overcharging was based on a mistaken belief "because his patients were attending for multiple and sometimes complex issues, he was entitled to claim for Level C and D consultations". The submissions go on to note that during his oral evidence the practitioner stated he believed "the length of time for the consultation was not the only criteria for entitlement to claim a particular MBS items". It is submitted on behalf of the practitioner that his conduct was an error on his part "and is indicative of a poor understanding of MBS items, but not proof of dishonesty". For the reasons that follow we are unable to accept the thrust of the submissions made on behalf of the practitioner. 3. The practitioner's answers to questions posed in cross-examination on this topic demonstrated a pattern of seeking to justify his actions on the basis of "fairness". It was evident from his answers he well understood that a consultation needed to be of at least 40 minutes duration or more to claim at Level D from Medicare and at least 20 minutes for a Level C. He agreed that it was not his secretary who determined the billing code used to claim for a consultation, and that the majority of his patients were bulk billed. He was challenged about his billing on 24 October 2012. This day he saw 37 patients and charged 11 level C consultations and 22 level D consultations. He agreed, if correct, this would mean that had seen patients for 19 hours 15 minutes. 4. A number of the practitioner's answers to questions posed by Mr Britt, counsel for the HCCC, on this topic were convoluted. The practitioner sought to avoid the questioning by suggesting he had seen patients without bookings and that some billings were correct and some were incorrect. 5. We found the practitioner's own evidence tellingly demonstrated his attitude to making claims from Medicare. In response to a question from Mr Britt about the sums found to be repayable as a result of the Professional Services Review the practitioner said: Q. You see there the two dot points. That's the sums of money which are being sought from you? A. Yeah but I also had a..(not transcribable)..letter to them as well and I said to them I will..(not transcribable)..or..(not transcribable)..fulltime GP can make average at least $500,000 a year and I did some procedure as well and in that year which is 2012 to 2013 and in total I claim from Medicare the total amount of the dealing was 600 and roughly $10,000 was so. So then I paid back to the Medicare half a million dollars. How much I left is a little bit over $100,000 for the fulltime busy GP down to the..(not transcribable)..area, whether is reality or not. So I explained to the committee this punishment or this payback probably is not fair for me. I worked for the whole year down there. I got paid $110,000. 1. We draw the inference from the considerable number of inappropriate claims, and the frequency with which they were made that the billing was not a simple error by the practitioner. We do not accept the billing was a result of a mistaken belief about what may be billed to Medicare. We are fortified in this view by the practitioner's own evidence that he well knew a level D consultation was for not less than 40 minutes duration. We also take into account relevant billing information is readily available to all medical practitioners. Even making allowances for the practitioner responding in a language other than his first language, we find he deliberately prevaricated in answers to questions about the number of hours he would have had to consult in a day to be entitled to the billing he claimed. 2. The words "improper" and "unethical" are not defined in the National Law. The Macquarie Dictionary defines improper as follows: 1. not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3. unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. abnormal or irregular. 1. Unethical is defined as follows 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. 1. The word improper was the subject of discussion by. French CJ in Parker v Comptroller of Customs (2009) 83 ALJR 494, [2009] HCA 7. The Chief Justice said: … [t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong". 1. Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term "impropriety" in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (see HCCC v Phung (No 1) [2012] NSWDT 1, Health Care Complaints Commission v Fisher [2016] NSWCATOD 62). The test of whether the conduct is improper is an objective one. 2. The words improper and unethical were considered by this Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes & Hopwood, noted: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. In Dallas Buyers Club LLC v iiNet Limited (No 3) [2015] FCA 422 at [5], Perram J said, aptly for present purposes: The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on. In my opinion the conduct I have found and which the Respondent has not contested clearly falls on the wrong side of the line. It reduces public confidence in the institution of local government. It amounts to improper and unethical 1. We adopt the discussion of the principles set out Office of Local Government v Toma. 2. The Medicare scheme relies substantially on the integrity of medical practitioners and other health professionals entitled to claim on it. That reliance is, of course, able to be tested by examination of computer records showing the percentile in which a practitioner's billing falls. Conduct such as engaged in by the practitioner, whose evidence, taking the most benign view, is that he perceived he was entitled to a greater income because of his work in a rural area, diminishes or potentially diminishes the integrity of the scheme by increasing the quantum of publicly available funds needed to provide health services for the Australian population. 3. Dr S C Howle, (Dr Howle) the HCCC's expert, described the practitioner's billing as "not a one off aberration". Although he posed his opinion in terms of "significantly below the expected standard", rather than the question of improper or unethical conduct as pleaded in the complaint, the tenor of his report was that the conduct attracted his strong criticism. 4. We are satisfied, viewed objectively, that the practitioner's overbilling practices were not occasional or aberrant. His overbilling formed a regular pattern throughout the relevant year. The conduct was a serious departure from the standard expected of the medical profession. We are satisfied that the practitioner's billing was improper. 5. We accept, using the dictionary definition "unethical", such conduct may be grounded in one or both "limbs" of the definition (immoral conduct or a contravention of a professional code). While we were not directed to any specific provision in "Good Medical Practice: A Code of Conduct for Doctors in Australia" in force at the relevant time we observe that the Code at 1.4 states of doctors that "They must be ethical and trustworthy". Part 5 of the Code deals with working within the Health Care System. While it does not directly refer to billing practices, the code states, at 5.2.3, the requirement that doctors should support "the transparent and equitable allocation of health care resources". The Code, at 5.2.4, states "Understanding that your use of resources can affect the access other patients have to health care resources". We are satisfied that the practitioner's repeated and gross overbilling breached the Code. It was not ethical, and if undetected, could have affected the transparent and equitable allocation of health care resources. It was a serious breach of the standards to which the profession should conform. In summary, we are satisfied the practitioner's conduct was both improper and unethical. The record keeping complaint 1. The practitioner does not dispute that his record keeping was deficient and did not comply with the relevant regulation. An examination of the records before us demonstrates that the practitioner's conduct was improper, not being in accordance with the regulation. It is clear that another practitioner looking at a patient's records would not be in a position to properly treat that patient without independent examination and inquiry. Dr Howle highlighted the inadequacy of the records when commenting about each specified patient. We accept his evidence. The practitioner's conduct was irregular in that it did not conform to the regulation. We are independently satisfied the complaint of improper conduct is established. The Communications complaint 1. Complaint Two asserts two occasions when the practitioner's verbal communication with other professionals was unprofessional, and a separate complaint in discussing Patient DD's death in the presence of two other persons. 2. The first allegation is that the practitioner spoke to a Registered Nurse (described in the schedule to the complaint as Nurse A) during the treatment of Patient A in an unprofessional manner by saying words to the effect "Well do what you want to do", "I don't care what you do", and "I don't care, do what you want, I've got patients to see". 3. This language was asserted to have been used by the practitioner when the nursing staff suggested setting up a telehealth conference with a burns specialist after Patient A was admitted suffering a significant burn to her hand. At the relevant time Nurse A was the holder of a managerial position in the Tablelands Cluster of the Hunter Area Health Service. She was present at the VCMS for a meeting. She observed Patient A shortly after her admission to the Emergency Department. 4. Nurse A was required for cross-examination. She was not challenged about her report of the conversation with the practitioner after she suggested setting up a telehealth conference. She described the practitioner as getting angry and eventually yelling at her. 5. In his Reply the practitioner admits the words spoken, but does not admit that his manner was contrary to the respect "required to be shown to other health professionals by section 4.2 of the Good Medical Practice: A Code of Conduct for Doctors in Australia (the Code)". The Code at 4.2.2 states "Acknowledging and respecting the contribution of all health care professionals involved in the care of the patient". 6. The practitioner disclosed in cross-examination that he was stressed. He also said he was frustrated and angry. He explained that the nursing staff appeared to be panicking about Patient A's condition. He said: - I want to control the floor and I say if you are qualified doctor then you can, you know, look after [Patent A], I can go away. Definitely I need to control the floor. If I don't have authority to control the floor the job won't be done by the nurse. [transcript 23 August 2016 p 162] 1. We find that the practitioner did raise his voice when he spoke to Nurse A. We accept that, by reason of the practitioner's cultural background, he perceived that his clinical judgment was being undermined by the nursing staff and as a result endeavoured to assert his authority. In so doing we find that his behaviour did not conform to the Code, but is explicable in the circumstances. 2. The second incident pleaded in the complaint concerns the manner in which the practitioner spoke to Nurse C. The practitioner admits that he shouted and acted in an aggressive manner to this nurse in the presence of other patients telling her he did not have time to see residents of the nursing home. This occurred when Nurse C had called the practitioner about an elderly patient (Patient C) who had suffered two falls in relatively close proximity and who was taking Warfarin. 3. Given the practitioner's admission of this aspect of Complaint Two it requires little comment. We accept that the practitioner was angry and did inappropriately shout in an aggressive manner at Nurse C. We find the practitioner's admitted conduct did not accord Nurse C appropriate respect. We find his behaviour was improper. 4. The third communication complaint concerns the death of Patient DD. The practitioner was telephoned by officers of NSW Police and responded to the call in the presence of another patient. The practitioner admits that he did so, but says he was shocked at the news of the patient's death and responded to telephone enquires without realising he was breaching patient confidentiality. 5. The practitioner also admits that he stated to a Patient, described as Patient EE in the schedule to the complaint, words to the effect "if I was allowed into A and E I would have saved [Patient DD]." It is not in dispute that Patient DD's death occurred after the practitioner's VMO status was suspended. 6. Patient DD's wife makes assertions about other members of the community telling her that the practitioner had told them about her husband's death. The practitioner's receptionist also reports, in generalised terms, an assertion that the practitioner discussed the medical affairs of other patients with third parties. The evidence of Patient DD's wife and the practitioner's receptionist raise suspicion about the practitioner's conduct, but given the hearsay nature of their statements we do not place significant weight on them. Although the HCCC rely on another incident when the practitioner purportedly discussed Patient DD's medical condition immediately after his death, we are not satisfied the evidence meets the Briginshaw standard. 7. In summary, we are satisfied that each of the communication complaints, save in respect of the asserted communication about Patient DD's death to a second patient, are established and that the practitioner's conduct on each occasion was improper. In reaching those conclusions we accept the evidence of Nurses A and C. The practitioner's care of the five patients Patient A Prescribing of pethidine 1. The first aspect of complaint concerning Patient A relates to the practitioner's prescribing practices. With the exception of two repeat prescriptions the practitioner admits that he prescribed Pethidine for this patient over a two year period, and that he did so for a period exceeding two months without the appropriate authority from the Ministry for Health. He did not dispute that Patient A was an elderly woman who smoked heavily and suffered chronic back pain, and other medical conditions. But he denies in his Reply he failed to make adequate enquiries about her medical history, failed to conduct a regular review of the use of Pethidine for this elderly patient, and failed to seek the assistance of a pain specialist. In his oral evidence the practitioner conceded he failed to seek the assistance of a pain specialist for this patient. 2. The practitioner explained in his oral evidence that he was surprised when Patient A first presented and requested a script for pethidine. He relied on copies of letters (some unsigned) dated 7 August 2007, 31 August 2007, [obliterated] July 2008, 24 February 2009 and 17 February 2010 each from Dr Geoffrey Needham to two general practitioners at Lidcombe. Dr Needham, a consultant in rehabilitation and pain medicine, noted in his correspondence that Patient A remained addicted to pethidine and that her prescriptions should not exceed 5 x 100mg injections per month. These letters are found in Patient A's file but it was not clear when and how the practitioner obtained them. 3. The practitioner did not dispute that he had not attempted to contact Dr Needham or stop prescribing until Patient A attended a pain specialist. His notes do record that on several occasions the practitioner conducted "a pain control review". He described Patient A as a difficult and demanding patient who refused pain relief medication other than pethidine. However, her clinical records disclose she was simultaneously prescribed other pain relief (endone) during the relevant period. 4. Dr Howle is critical of the practitioner's failure to prescribe for this patient without making any enquiries. The expert opined that the practitioner's conduct in this regard is significantly below the standard and it invited his strong criticism. Although noting Patient A had been on pethidine for many years, he opined it would have been appropriate for her to have been reviewed by a pain specialist or clinic. He acknowledged in a rural setting the time which may elapse before such a consultation could take place, but noted a consultation could have occurred via video. 5. We observe from the documents tendered by the HCCC, that Patient A was reviewed by the Transitional Nurse Practitioner, Aged and Chronic Care, following referral by Nurse D. The transitional nurse wrote to the practitioner on 20 March 2014 advising that she had obtained Patient A's medical reports "from several years back when she was in Sydney". The nurse practitioner also noted that as a result of a number of factors, including Patient A's use of pethidine and Diazepam, the patient had a 49 per cent chance of falling in the next twelve months. The nurse practitioner opined: I believe that the current medication regime is placing her at high risk of falls and repeat readmissions into hospital because of withdrawal symptoms. 1. The practitioner's evidence given in answers to cross-examination provided some understanding of his treatment of this patient. We accept his evidence that Patient A was a difficult and demanding patient, and that she refused to attend a pain clinic. However, even if the practitioner did have Dr Needham's letters when he first saw Patient A and prescribed pethidine for her, we do not find that it was appropriate for the practitioner to rely on the letters. Dr Needham's letters were, at best, then over two years old. We accept Dr Howle's opinion that this aspect of the practitioner's treatment did not meet the appropriate clinical standard. We also accept that the practitioner failed to make adequate enquiries about the patient's history, the efficacy of pethidine to treat her complaints, or to obtain her records or to seek assistance of, or review by, a pain specialist particularly where the patient's use of pethidine was unusual. The practitioner agreed in cross-examination he had not told Patient A that he would cease prescribing pethidine unless she had a review by a pain specialist. 2. We are not, however, satisfied that the practitioner failed to conduct a regular review of the use of pethidine by the patient. Although scant, the patient's medical records disclose that the practitioner did conduct some review of her medication. We accept his evidence that he had lengthy discussions with Patient A about trialling medications other than pethidine. We are not satisfied to the requisite standard that particular 3 of Complaint One is established. Care of Patient A's burn 1. A considerable portion of the hearing was devoted to the practitioner's actions, or lack thereof, when Patient A, who was at the relevant time, an inpatient at the VCMS left the hospital to smoke. Her jacket caught alight when she tried to burn off a loose thread, resulting in a severe burn to her left hand and she was taken to the emergency department for treatment. 2. The practitioner denies that he unnecessarily delayed speaking with a burns specialist, failed to apply, or properly apply, the Burn Transfer Guidelines by not telephoning Royal North Shore Hospital, failed to prepare or implement any management plan for Patient A's burn, and failed to provide follow up treatment. 3. On the first day of the hearing Nurses A, D and C were crossed examined about their recollection of the size and shape of Patient A's burn and the practitioner's treatment of Patient A. On the third day of the hearing, following the request by the panel, Nurse D was able to send the photos of Patient A's hand to the Tribunal. The photos became Exhibit J. We mention this because the evidence of each of the nurses of their respective recollections of Patient A's burn accorded much more closely with the photographs than did the practitioner's oral evidence or the drawing in his clinical notes. The practitioner's description of the burn when interviewed by the HCCC as a small burn was clearly erroneous. We find that the practitioner attempted to minimise the extent and seriousness of Patient A's burn. 4. Nurse A confirmed in her oral evidence that the practitioner had said in her presence that he did not intend to transfer Patient A out of the VCMS because she was resistant to being moved. She readily acknowledged that she had not been present when the practitioner first examined Patient A, or heard any conversation at that time. She also acknowledged she did not know what was in the practitioner's mind by way of a management plan. 5. Nurse A was adamant that the specialist who took part in the telehealth conference, having seen Patient A's hand on the video, explained that it was a serious burn, that it would be necessary for photos to be sent to Concord or RNSH for advice, and that Patient A would require transfer to another hospital because of the limited facilities at VCMS. Nurse A gave her evidence in a balanced manner. She made appropriate concessions. We accept her as an accurate and reliable witness. 6. We also received evidence from Ms AB, a long standing senior registered nurse, who is a nurse educator in rural critical care. She was at the VCMS for a meeting on the relevant day. Ms AB's name was not included in the Schedule to the complaint, as was the case with another nurse, but we have determined, consistent with the agreed non-publication order in respect of all patients and certain named nurses, to anonymise her name. 7. Ms AB was also an impressive witness who made appropriate concessions. We accept that the practitioner initially said that he would not transfer Patient A out of Emmaville. The practitioner explained in his oral evidence that Patient A was reluctant to leave Emmaville, and that she had suffered a bad experience on another recent transfer out. We also accept Ms AB's evidence that the practitioner did not instigate the telehealth conference; rather that he acceded to the staff suggestions for such a conference to occur. We also note that Ms AB's description of the burn, given prior to the obtaining and tendering of the photographs, provided a much more accurate description of it than the practitioner's evidence and clinical notes. 8. Dr Howle in his report is not critical of the initial treatment given to Patient A by the practitioner although he notes she may have needed a Tetanus injection. However, he opines that if the practitioner had not instigated a telehealth conference or adhered to the burns guidelines, then his treatment was significant below the appropriate standard and invited his strong criticism. 9. The practitioner explained in answer to questions posed in cross-examination that he was grateful for advice received on the telehealth conference from Dr Shepherd, the Emergency Physician at Tamworth Base Hospital, about the appropriate burn dressing. He said that following Dr Shepherd's advice that photographs were sent to RNSH. He explained that Patient A was transferred initially to Armidale, and the following day to Tamworth for debridement of the burn and suffered no adverse consequences. 10. In his oral evidence Dr Howle agreed that if Nurse D had told the practitioner before he had seen the patient that she would need to be transferred out that could have provoked some frustration in the practitioner. He acknowledged that elderly patients in rural areas can be resistant to transfer and need careful counselling by a practitioner. He also agreed that although there may have been some slight delay, once the practitioner had engaged in the telehealth conference with Dr Shepherd, and followed his advice about the appropriate dressing and had photographs sent to RNSH that the management of the patient should be regarded as reasonable. 11. We had some concerns about the practitioner's evidence about his treatment of Patient A, particularly his description of the burn which sought to minimise the severity of the injury, and his initial reluctance to use the telehealth facility and apply the burns guidelines. But he did, albeit with the encouragement of the nursing staff and the experienced nurses who happened to be visiting VCMS that day, participate in a telehealth conference, and obtain and accept Dr Shepherd's advice. Thus, we are not satisfied that particulars (a), (b) and (c) are established. 12. Particular (d) asserts the practitioner failed to provide appropriate follow up and review for Patient A's burn. Dr Howle notes there is nothing in the medical records of further conversation, or in fact any conversation between the practitioner and Dr Shepherd, nor is there any evidence of who arranged for the patient's transfer the following day to Armidale and thereafter to Tamworth. 13. In his oral evidence the practitioner explained the following day the patient went to Armidale, but as she had not been treated there, he spoke to Dr Shepherd again and Patient A was transferred to Tamworth where the wound was debrided and her dressings changed. Patient A then returned to Emmaville. We accept the practitioner's evidence on this topic while noting that it was information that should have been recorded in Patient A's clinical notes and the one word "consulting" was entirely inadequate. 14. In summary, while the practitioner's recording of his treatment of Patient A was grossly deficient, and his participation in the telehealth conference occurred substantially because that conference was set up by the registered nurse who first treated Patient A, we are not satisfied particulars 5 (a), (b), (c) or (d) are established. Patient B 1. Patient B, a paraplegic patient, had been admitted to the VCMS on a number of occasions prior to 30 March 2014 where he had been treated by the practitioner. The practitioner does not dispute that a registered nurse, Nurse B, telephoned him at his residence about 9.20am some two hours after Patient B presented at the emergency department. At the time of the telephone call Patient B's blood pressure was 82/40. Nurse B requested the practitioner come to the hospital to review Patient B. 2. At about 2pm Nurse B again contacted the practitioner. She informed him that Patient B was hypotensive, dizzy and lethargic. 3. It is asserted by the HCCC that the practitioner failed to take appropriate action such as arranging to review the patient. 4. In his Reply the practitioner admits the factual circumstances pleaded but denies he failed to take appropriate action. The practitioner states "that he opined that Patient B should respond well to antibiotics due to previous episodes of urosepsis when his low blood pressure responded to antibiotics". 5. Dr Howle, in both his report and oral evidence, was extremely critical of the practitioner's failure to attend the hospital on a Sunday and see this patient notwithstanding the practitioner said he was unwell. He said that the practitioner should have, probably as early as Thursday prior to this incident, notified the hospital of his illness so that other appropriate arrangements could be made. 6. Before us, the practitioner repeated his earlier evidence given in the interview with the HCCC to the effect that he was ill from Thursday onwards that week, although he attended his surgery on Friday morning and saw patients. He said he intended to come into the hospital but as he had not eaten for some time, when he did get up he needed something to eat and that he ordered medication over the phone and came into the hospital shortly after 2p.m. He explained that although he had been sick in the past while he was at Emmaville, he had never previously been so ill that he could not attend his duties. He also explained that he knew Patient B very well, and that during past frequent admissions he had always responded well to antibiotics. 7. Ms CD, a registered nurse who formerly worked at the VCMS, provided a statement and gave evidence before us by telephone. She explained that she had a good relationship with the practitioner, and that he was generally responsive to calls to see patients. She also conceded in cross-examination that Patient B's blood pressure, on his not infrequent admissions when she was working, was normally low. She explained she had not recorded in a complaint form the fact that Patient B's blood pressure had returned to its usual range at about 12 noon on the day of his admission because that was not of concern. 8. The gist of her evidence was, that notwithstanding the practitioner had given telephone instructions for IV administration of antibiotics he had not come to see the patient within reasonable proximity of her call at 9.20a.m. 9. In answer to questions posed by the officers of the HCCC the practitioner conceded he knew at 9.20a.m. that the patient could suffer cardiac arrest and that he should be transferred out if he could not attend to see him. We agree with the proposition put to the practitioner by the HCCC's officers that he sought to justify his actions, not on the patient's clinical presentation, but reconstructed his answers from his past experience of the patient. We find the practitioner's clinical care of this patient was significantly below the required standard. If he was not well enough to attend the patient the practitioner should have made this fact known to his superiors in a timely manner so that alternate arrangements could be made during the weekend in question. We are satisfied particulars 9 and 10 of Complaint One are established. Patient D 1. In 2014 Patient D was aged 10. He was brought to the emergency department following a fall from a quad bike. He sustained a puncture wound injury to his right leg and was initially not weight bearing. X-ray results obtained two days after the accident showed a compound fracture to the child's patella and evidence of surgical emphysema. 2. The practitioner denies he failed to carry out an adequate neurological, chest, abdominal and limb examination of Patient D because such examination was indicated by the nature of the injury and possible speed involved in a quad bike accident (particular (a)). He does admit that he failed to otherwise appreciate the severity of the injury (particular (d)) including failing to obtain a pre-suture X-ray or to diagnose that the child had a compound fracture. 3. The practitioner also admitted he had failed to check the child's immune status and failed to provide a tetanus booster or tetanus immunoglobulin. He also admitted that on obtaining the child's X-ray results he failed to ensure the patient's transfer to a facility for care by an orthopaedic specialist and/or to make a proper referral to an orthopaedic specialist. But, he says that he was working at Ashford at the time the X-ray results were received and that he recommended, via a message from his secretary to the child's mother, that Patient D attend Glenn Innes Hospital. 4. Nurse C was the first health professional to see Patient D. She made comprehensive notes of her examination of the child. In his report Dr Howle notes the practitioner conducted a "brief but targeted history and examination". He assumes the practitioner read Nurse C's triage notes prior to seeing the patient. He is, however, critical of the practitioner's failure to document a neurological, chest and abdominal examination as well as an examination of other limbs. He opined the examination, based on the practitioner's notes, was below the standard expected. 5. Dr Howle is critical of the practitioner's treatment of the child. He opines that good practice would have been to conduct a pre-suture X-ray and probably to explore of the child's injury under general anaesthesia. In his oral evidence he said that he would have sutured the child's wound under a general anaesthetic. In his supplementary report dated 29 June 2015 Dr Howle opines that the practitioner's treatment was below the expected standard with respect to assessment and diagnosis and significantly below with respect to immune status. Mr Downing submitted on the practitioner's behalf that Dr Howle was not strongly critical of the practitioner's first examination of the child. We accept that is the case, rather his criticisms are directed to the subsequent treatment of the child and failure to ensure his knee was X-rayed and a referral was made to an orthopaedic specialist in a timely way. 6. In answers to questions posed by Mr Britt the practitioner sought to justify his notes, being the only contemporaneous record of his first examination of the child by explaining that, as a rural general practitioner, he could not say if he recorded all positive findings. 7. We concur with Dr Howle's assessment that the practitioner's notes of his first examination of the child, whilst brief, give some indication that he made appropriate enquiries about the child. It is noted that in Nurse C's detailed notes she recorded the child was wearing a helmet at the time of the accident which was intact. She also noted some tenderness of the child's cervical spine (a note also appears in the practitioner's clinical records about the child's cervical spine). We are not satisfied that particular (b) of Complaint 7 is established. 8. However, we agree completely with Dr Howle's overall assessment of the practitioner's failures in respect of this child's injury including his lack of follow up to ensure he received specialist attention. We find the practitioner's admissions in respect of Patient D are properly made. His treatment of the child was significantly below the standard of a practitioner of similar expertise and expertise. Patient DD 1. This complaint is centred on a statement from the late Patient DD's wife, and the practitioner's clinical records. As noted earlier in these reasons, Patient DD was seen by the practitioner on 15 April 2014. He died, aged 56, in July 2014 following a cardiac arrest. Patient DD consulted the practitioner between October 2010 and April 2014. The HCCC assert on 15 April 2014 the practitioner failed to take "a history of Patient DD's symptoms including their onset, site, severity and nature". It is also asserted that the practitioner failed to discuss with the patient his smoking and alcohol intake, to conduct a proper physical examination, and make a provisional diagnosis and medical plan. 2. In support of the particulars the HCCC rely on the statement of Patient DD's wife, the report of Dr Howle, and the patient's medical records. 3. The practitioner's medical records disclose that he saw Patient DD on 14 occasions between October 2010 and April 2014. At three consultations the practitioner recorded the patient presented with "rashes on scalp" (18 October 2011, 26 February 2013 and on 15 April 2014). The notes also record on 11 May 2011 "counselling for cessation of smoking". 4. We have already concluded that the practitioner's medical records in respect of this patient were inadequate. The statement of the patient's wife does not support a finding that her husband complained to the practitioner on 15 April 2014 that he had a headache. The practitioner's notes disclose that he did, albeit minimally, record Patient DD's presenting complaints at each consultation. The records also disclose that the practitioner referred Patient DD for an MRI of his brain when he complained of dizziness and near fainting on 20 October 2010 the results of which disclosed no abnormality. 5. The practitioner explained that he had only seen Patient DD in 2014 on one occasion when his presenting symptom was his scalp condition. He referred the patient for specialist opinion. 6. Although the practitioner's record keeping is deficient we are not satisfied that the particulars in relation to Patient DD are established. Each of the particulars as pleaded refer to the consultation on 15 April 2014. As Dr Howle notes relying on the statement of Patient DD's wife One can be critical of [the practitioner's] apparent disregard for [Patient DD's] complaints in April 2014 and the poor records at that time which are below the expected standard. However, I am unable to attribute [the practitioner's treatment] to [Patient DD's] demise 3 months later, as there is nothing in the statement from [Patient DD's wife] or the clinical file, to suggest underlying heart disease. 1. We do not find the particulars pleaded in respect of Patient DD are proved to the necessary civil standard. Patient F 1. It is asserted by the HCCC that the practitioner did not appropriately investigate whether the patient had sleep apnoea or suffered depression on or around 7 March 2014. It is asserted that between 13 December 2013 and 7 March 2014 the practitioner prescribed Avanza, an antidepressant which has sedative effects for Patient F. 2. Patient F provided a statement relied on by the HCCC. He was not required for cross-examination. He records that he attended a meeting of the Vegetable Creek Local Health Authority Committee in February 2014. He records saying at the meeting, when complaints were raised about the practitioner, that the practitioner had not taken his blood pressure in approximately twelve months. He also reported telling the practitioner that he was concerned he may have sleep apnoea because he was waking up in the middle of the night, and his father and brother had suffered from the condition. He asserts he asked the practitioner for a referral to a specialist in Armidale. He further asserts the practitioner asked him if he was depressed and he replied "No I am not". He says the practitioner prescribed Mitrazapine (Avanza) 30mg. 3. Mr Downing submitted that we should treat Patient F's statement with caution. 4. He pointed out that the patient's clinical records show that in the twelve months preceding February 2014 the practitioner recorded the patient's blood pressure was stable. 5. The patient records disclose the practitioner first prescribed Avanza on 13 December 2013 and repeated the prescription on 7 March 2014. There is no record of any discussion about the patient reporting depression or sleep apnoea. Each consultation is shown for a "skin check". As with other named patients, we have already found the practitioner's record keeping in respect of this patient was deficient. 6. We accept that Patient F's statement that the practitioner failed to take his blood pressure at all during the twelve months prior to February 2014 was erroneous. We find that Patient F is an unreliable historian and that it would be unsafe to find particulars (a), (b) and (c) established, particularly when the practitioner's clinical notes record his visit in March 2014 was for a skin check. 7. We accept that Dr Howle is critical of the practitioner's prescribing of Avanza, which we note occurred prior to the reporting of an assertion of sleep apnoea. 8. We concur with Dr Howle that the medical record of 13 December 2013 gives no clue on what basis the antidepressant was prescribed particularly when the stated reason for the consultation is "skin check". 9. Particular (d) is pleaded as follows: On 7 March 2014 the practitioner failed to investigate whether Patient F had sleep apnoea in that he failed to: … (d) investigate whether Patient F suffer from depression in that he failed to utilise appropriate diagnostic tools and/or questionaires. 1. The pleading is confusing. It conflates two investigations - an investigation for sleep apnoea, and as part of that investigation that the practitioner failed to investigate whether Patient F suffered from depression. It appears to us that particular (d) is dependent on a finding that the practitioner did fail to investigate sleep apnoea. This asserted failure has not been established. Accordingly, the particular must fail. Discussion and Findings Unsatisfactory Professional Conduct and Professional misconduct 1. At the commencement of these reasons we recorded that the practitioner admitted he was guilty of unsatisfactory professional conduct in respect of his Medicare billing practices and his failure to keep proper medical records. He disputed that his conduct constituted professional misconduct. 2. We turn to the issues we identified at the commencement of these reasons to consider the questions of unsatisfactory professional conduct and professional misconduct. Was the practitioner's care of the five patients named in the complaint reasonable given his level of experience and the rural setting in which he practised? 1. We have independently found that the practitioner's prescribing practices in respect of Patient A were significantly below the standard expected of a practitioner of an equivalent level of training and experience. We have reached a similar conclusion in respect of the practitioner's care of Patients B and D. In respect of each of these patients we find the practitioner guilty of unsatisfactory professional conduct. Did the practitioner's communication with other professionals and his failure to keep confidential patient details fail to meet appropriate standards? 1. We concur with the practitioner's concession that he failed to keep confidential details of Patient DD's medical condition and disclosed details of that patient's medical records in the hearing and presence of another patient. We also found his communication with nursing staff was improper. We are satisfied these complaints constitute unsatisfactory professional conduct. How should the practitioner's admitted overbilling of Medicare be regarded? 1. The practitioner's evidence on this topic was defensive, obstructive and lacked cogency. He showed no remorse or insight into his ethical obligations as a health practitioner in billing Medicare. We will not repeat what we have said about the consequences for the Australian Health system as a whole by practices such as adopted by this practitioner. We find his conduct should be regarded as a very significant breach of his ethical obligations. While professional misconduct is not to be judged by the worst case or example, we find that this aspect of the practitioner's conduct alone constitutes professional misconduct as defined in s 139E. Objectively viewed it was a serious abuse of the system which the practitioner sought to justify by the fact he engaged in work in a rural setting and should receive a larger income than that to which he was actually entitled. What are the consequences of the practitioner's admitted record keeping complaints? 1. Dr Howle's evidence about the practitioner's clinical records is not subject of challenge. It is a relevant factor that, in any setting, another practitioner should be able to assume a patient's care and obtain a relevant history from medical records. We reject the practitioner's suggestion that a lesser standard should apply in a rural setting. The practitioner's explanation of why his records are so brief fails to grasp the importance of compliance with the regulation. We find the concession of unsatisfactory professional conduct in respect of the 10 record keeping complaints is one properly made. This finding of itself would not lead to a finding of professional misconduct, but when considered with the other established complaints, it supports such a conclusion. Does the admitted conduct and/or the factual determinations made by us, constitute unsatisfactory professional conduct and/or professional misconduct? 1. Our cumulative findings in respect of the prescribing for Patient A, and the lack of appropriate care for Patients B, and D, together with the established record keeping complaints are themselves of such a serious nature to ground a finding of professional misconduct as defined in s 139E. We are fortified in this view when we couple those findings with our conclusions about the practitioner's breach of confidentiality in respect of Patent DD's medical history, and his rude communication with Nurse C. 2. We have already concluded the Medicare claim of itself is of sufficient seriousness to justify the suspension or cancellation of the practitioner's registration. However, even if we are wrong about that, we find considering the cumulative established particulars of Complaints One, Two, Three and Four, that professional misconduct is established. Protective orders What orders will best protect the public, act as a deterrent to like conduct, and uphold the standards of the profession? 1. Before commencing our discussion of appropriate protective orders we refer to the remarks of Meagher JA in Health Care Complaints Commission v Do [2013] NSWCA 307 about the role of the Tribunal in making protective orders. His Honour said: 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. 1. The practitioner seeks that we do not make the orders sought by the HCCC. Rather, he seeks that he should be permitted to practise in a practice conducted by Dr Edward Or at Tamworth with Dr Or acting as his supervisor. 2. Dr Or provided a letter dated 23 August 2016 in which he stated that, should the practitioner "be permitted to practice medicine again, I would be prepared to employ him and supervise him in accordance with any conditions concurrent to his registration". He also undertook to provide regular reports to the Council. 3. Dr Or gave oral evidence by telephone and was cross-examined. He confirmed that he had not witnessed the practitioner's clinical work, rather he explained that the practitioner had consulted him by telephone. Dr Or is a fellow of the Royal Australian College of General Practitioners and a Fellow of the Australian College of Rural and Remote Medicine. He practises in a solo practice at Tamworth as a general practitioner/ GP surgeon. He referred to the fact that the practitioner had, while he was practising at Emmaville, referred patients suffering from skin cancers to him. He also explained that he had acted as the practitioner's supervisor for the rural workforce task while he was doing his fellowship examinations for the Royal Australian College of General Practitioners. 4. Dr Or had only been told of the practitioner's debt to Medicare by the practitioner's solicitor shortly prior to the hearing. He readily conceded that he was not present at the Tamworth practice at all times as he generally travels to Inverell one day per week to carry out surgery at that town. Dr Or explained that because the practitioner had carried on solo practice for six years in a rural setting his attitude was "unless you give him some credit – I mean he might have done something not 100% but he can be suitably retrained and give him a chance that's what I mean". 5. Dr Or acknowledged in cross-examination by Mr Britt that he had not seen the practitioner for many years since about 2009 or 2010. Notwithstanding this, we did not doubt that he was genuinely prepared to employ the practitioner, and would provide reports to the Council. 6. The practitioner did not display any contrition, remorse or insight into the matters that brought him before the Tribunal. He had not, with the exception of some very limited unspecified on-line continuing professional development, engaged in any courses such as a medical records keeping course, a communications course, or an ethics course such as conducted by Monash University. He sought to explain that he had not taken any steps about professional development because he was awaiting the outcome of these proceedings. His evidence of attempts to locate employment after conditions were imposed on his registration was scant and only elicited when prompted by questioning from the panel. 7. We have taken into account the fact that English is not the practitioner's first language and at times he did not appear to understand some of the questions posed to him. 8. We find there were personality clashes between the practitioner and some patients and staff at the VCMS exacerbated or caused by different cultural considerations or expectations. We have taken these factors into account in our consideration of whether the practitioner's conduct, if he were registered, was such that suspension or cancellation of his registration would not be an appropriate order. 9. We were provided with a petition addressed to the Local Area Health Service by a large number of Emmaville and Ashford residents supporting the practitioner's re-instatement to VCMS. The authors of the letter annexing the petition note that they were not aware of the nature of the complaints made against the practitioner. We understand that since the practitioner's suspension as VMO he has not been replaced. We are unable to give any meaningful weight to the petition. This petition appears predicated on the erroneous assumption that the Tribunal can re-instate the practitioner's VMO status at the VCMS. 10. We are not satisfied that the practitioner's proposals for re-registration will protect the health and safety of the public. First, the only supervisor he proposes would not be in a position to be available to monitor his performance at all times by reason of his surgical commitments in Inverell. While that difficulty may be overcome by limiting the hours the practitioner could practice to those when Dr Or is present in Tamworth, we were more fundamentally concerned that Dr Or had not been fully apprised of the practitioner's billing conduct, or, at best, had only been told about it shortly before he gave oral evidence. His supervision proposal was made in the absence of reading this decision, and in circumstances where he had not seen or personally experienced the practitioner's clinical skills at least since 2010. 11. Secondly, the practitioner showed an almost complete lack of insight into his poor clinical practices, his inability to communicate with other health professionals and ethical boundaries. Without such insight we could not be confident that the practitioner's practise of medicine, even if supervised, would not compromise patient safety. 12. Thirdly, although the practitioner acknowledged his clinical records were deficient, when questioned as to how he would maintain records in the future his answer was convoluted. We could not be satisfied that he had shifted from his view that because he was operating in a solo rural practice his abbreviated or poor records were acceptable. He had not addressed his deficiencies in this regard by, for example, doing an on-line medical records keeping course. 13. Much of the practitioner's evidence about his treatment of Patients A, B, and D revealed a lack of current good medical practice including prescribing practice. His evidence of lack of any meaningful continuing professional education meant that we could not be confident that he would not repeat prior practices. 14. The practitioner adduced no evidence of steps he had taken, if any, to repay Medicare the overbilled amounts. He continued to assert the unfairness of the PSR decision and to excuse his consistent overbilling. His evidence at the hearing demonstrated a lack of remorse and/or insight into his Medicare billing. 15. Taking each of the above matters into account, and having regard to the serious nature of our findings, we conclude that the orders sought by the HCCC are appropriate ones to protect the health and safety of the public. We conclude that, if the practitioner had been registered, we would have cancelled his registration. Period of disqualification and whether a period of restraint should be imposed before re-instatement order may be sought 1. Mr Britt submitted that we should impose a period of disqualification on the practitioner under s 149C (4) (b) of the National Law for a period of twelve months. 2. He submitted that we could also make an order under s 149C (7) that a period 12 months be imposed before the practitioner may apply to the Tribunal for a re-instatement order. 3. In Health Care Complaints Commission v Do Meagher JA explained that where a practitioner's registration had lapsed and a disqualification period had expired, the practitioner did not need to seek a re-instatement order from the Tribunal. Since that decision the National Law has been amended to include sub-section (2) to s 149E. The effect of the amendment is that even if a practitioner's disqualification period has elapsed it is necessary for the practitioner to apply to the Tribunal for a re-instatement order under Division 8. 4. As the practitioner will not be in a position to apply to the Tribunal for a period of twelve months (the disqualification period) it is unnecessary to also make an order under s 149 (7). That provision has relevance when a practitioner's registration is cancelled and the Tribunal, in its discretion, finds reasons why the practitioner should be precluded from seeking a re-instatement order for a defined period. 5. We conclude that a disqualification period of twelve months is appropriate. That period will give the practitioner the opportunity to engage in updating courses which address the deficiencies in his clinical practices we have noted including his communication with other professionals, record keeping and prescribing. It will also give him the opportunity to demonstrate insight into his improper and unethical behaviour. He may gain insight by participation in a suitable ethics course. 6. The disqualification period will send a message to the profession and the public that conduct such as that engaged in by the practitioner is unacceptable because it may, or has, infringed the safety and protection of the public and the professional standards of the profession. Costs Relevant legal principles 1. The relevant principles to be applied in determining costs under the National Law have been discussed recently in a number of appellate authorities. The most recent discussion in Qasim v Health Care Complaints Commission [2015] NSWCA 282 succinctly captures those principles as follows: In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".) Discussion and conclusion – costs 1. Mr Downing submitted that we should not award the HCCC all the costs of the proceedings. He pointed out that the practitioner had made a number of admissions in his Reply, and suggested a fair apportionment of costs would be that the practitioner pay fifty per cent of the HCCC's costs. He relied on the decision of this Tribunal in Health Care Complaints Commission v XC [2015] NSWCATOD 9. The predominant distinguishing factor between this case and Health Care Complaints Commission v XC is that in the latter case the practitioner conceded all complaints and particulars which enabled the Tribunal to deal with the matter in one day. She also voluntarily surrendered her registration, rather than allowing it to lapse at the practitioner has done. 2. While the practitioner made a number of significant, and we would say, appropriate concessions, and was successful in defending certain particulars of the complaints he was unsuccessful in achieving the orders he sought. 3. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Meagher JA noted: As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. 1. Here the practitioner disputed that he was guilty of professional misconduct. He has been unsuccessful in that claim. The HCCC were unable to establish some particulars in relation to the practitioner's care of Patient A, and D. They were unsuccessful in establishing the complaints in relation to Patients DD and F. 2. We note that the practitioner conceded the particulars of the Medicare claim but nonetheless sought to defend his conduct. He was unsuccessful. Likewise, he conceded the record keeping complaint, but asserted in certain instances that as a rural practitioner a different standard could apply to record keeping. 3. While we note the authorities do not require circumstances to be exceptional to effect a change from the usual rule, there must be material upon which the discretion may be exercised. 4. On balance, we are not satisfied that the matters raised by the practitioner in favour of reducing costs payable by him by fifty per cent are established. Rather, giving some credit for the concessions made by the practitioner in his Reply, and particularly the claims unsuccessfully prosecuted by the HCCC, we find that the practitioner should pay eighty per cent of the costs of and incidental to the proceedings of the HCCC. orders 1. If Dr Qing Shan (John) Liu (the practitioner) was registered as a medical practitioner on the register of medical practitioners maintained by the Australian Health Practitioners (AHPRA) the Tribunal would have cancelled his registration. 2. The practitioner is disqualified from seeking registration for a period of twelve months from the date of these orders. 3. The Medical Council of NSW is requested to advise AHPRA as soon as practicable of Order 1 of these orders. 4. The practitioner shall pay eighty per cent of the costs of and incidental to the proceedings of the Health Care Complaints Commission as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 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: 25 October 2016