Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Quan [2018] NSWCATOD 111 Hearing dates: 20 June 2018 Date of orders: 13 July 2018 Decision date: 13 July 2018 Jurisdiction: Occupational Division Before: Boland, ADCJ, Deputy President Professor P Procopis, Senior Member Dr K Ilbery, Senior Member M Kelly, General Member Decision: 1. Dr Dick Cheong Quan (the practitioner) is cautioned. 2. The practitioner is to pay 50 per cent of the Health Care Complaints Commission's costs of and incidental to the proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: PROFESSIONS AND TRADES – Health Practitioner – registered medical practitioner – Asserted wrongful prescribing and record keeping - Where practitioner concedes his conduct constitutes unsatisfactory professional conduct under the Health Practitioner Regulation National Law – whether the admitted conduct constitutes professional misconduct – consideration of appropriate protective orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law Legal Profession Uniform Law Application Act 2014 (NSW) Health Practitioner Regulation (New South Wales) Regulation 2010 Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630; [1997] NSWSC 297 Spicer v NSW Medical Council (unreported CA No 3 of 1981) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Dick Cheong Quan (Respondent) Representation: Counsel: R Mathur (Applicant) Dr P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Law Pty Ltd (Respondent) File Number(s): 2017/00343072 Publication restriction: Under cl 7 of 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. REASONS FOR DECISION Introduction 1. Dr Dick Quan (the practitioner) is a medical practitioner and a director of a general practice in East Sydney known as Holdsworth House Medical Practice (Holdsworth House). He has a high reputation in the medical and general community, and until these proceedings, had an unblemished record as a general practitioner for over thirty years. The practitioner has had a long term involvement in treating patients with HIV and Hepatitis C, and other marginalised and disadvantaged patients. 2. On 13 November 2017 the Health Care Complaints Commission (HCCC) lodged an Application for disciplinary findings and orders in the Tribunal with an annexed complaint against the practitioner. Four complaints are agitated against the practitioner under the provisions of the Health Practitioner Regulation National Law (the National Law). First, it is asserted that, without following proper professional procedure, he improperly wrote prescriptions for five patients. The prescriptions were for a combination of substances known as a "Myers' cocktail", as well as prescriptions for Methylcobalamin (Vitamin B 12) and glutathione to be administered by infusion or injection. Myers' cocktail is a combination of magnesium, calcium, various B vitamins and vitamin C. It is used by practitioners who provide "rehydration" services. Four prescriptions were written in the names of staff members of Holdsworth House. The fifth prescription was written in the name of a pharmacist. It is asserted in so doing the practitioner's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and/or constituted improper or ethical conduct. 3. The second complaint of unsatisfactory professional conduct brought by the HCCC asserts the practitioner prescribed a drug for the pharmacist (described in a schedule to the complaint as Patient E) namely glutathione for parenteral administration. It is asserted in writing a prescription for this drug the practitioner failed to comply with Part 3, Division 3 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (the Regulation). It is not in dispute that it is only when glutathione is to be administered by infusion or injection (parenteral administration) that the regulation is applicable. 4. The third complaint of unsatisfactory professional conduct is a complaint based on a failure to keep appropriate clinical records for the staff members and the pharmacist, under with the Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed). 5. The fourth complaint asserts the practitioner's conduct, arising out of the first three complaints, is of a sufficiently serious nature to justify suspension or cancellation of his registration and constitutes professional misconduct. 6. While the practitioner does not concede he is guilty of professional misconduct, he has made full and frank admissions relating to the writing of the prescriptions, and his failure to keep proper medical records for the patients. He concedes he is guilty of unsatisfactory professional conduct. 7. Details of the complaint and other factual matters were agreed between the parties and reduced to a Statement of Agreed Facts. This statement became Exhibit C in the proceedings and is reproduced below. 8. We found the practitioner's conduct constituted an aberrant episode occurring over a two day period. We had no hesitation in accepting he is genuinely remorseful and distressed that he made an uncharacteristic, but serious, error of judgment in writing the prescriptions. We are confident that the practitioner will not engage in similar unprofessional conduct in the future. We did not find the conduct satisfied the definition of professional misconduct. 9. Based on the practitioner's admissions and our findings, we have determined that the appropriate orders are that the practitioner should be cautioned. We have also determined that he should pay 50 per cent the Health Care Complaints Commission's costs of and incidental to the proceedings. Our reasons for our determinations are set out below. The issues 1. Given the admissions contained in the practitioner's Reply and Agreed Statement of Facts, our primary focus was whether the admitted aspects of the practitioner's conduct constituted professional misconduct as defined in the National Law and the appropriate protective orders to be made. 2. The parties agreed on the following agreed statement of facts: 1. Dr Dick Cheong Quan (the respondent) is a founding clinical director of Holdsworth House Medical Practice, which opened in Sydney in 1992. Holdsworth House now has practices in Byron Bay and Brisbane. 2. Holdsworth House is an integrated, holistic practice. It provides medical services encompassing general practice, sexual health, women's health and travel medicine. It also offers allied health services, including physiotherapy, podiatry, dietetics and exercise physiology, as well as specialists and dental services. 3. A particular focus for the Sydney clinic has been on sexual health, HIV, Hepatitis and virology. From the time it began, the Sydney clinic was at the forefront of providing holistic care to persons living with HIV and other sexually transmitted diseases, and supporting ongoing education for patients and practitioners 4. Dr Quan has never been the subject of a previous complaint. 5. In early 2016, in his capacity as a Director of Holdsworth House Medical Practice, Dr Quan together with other practice representatives, met with registered pharmacist,[redacted] (Patient E) who was seeking to rent rooms at Holdsworth House from which to operate her business - iV.me Hydration Clinic ("the Clinic). 5. [Patient E] told the practice representatives of Holdsworth House, including Dr Quan, that her business would offer intravenous infusions and intramuscular injections of vitamins, mineral, antioxidants and other similar products. 7. The iV.me hydration clinic was owned and operated by a registered pharmacist, [Patient E]. None of the directors of Holdsworth House were involved in the operation, ownership or management of the iv.me hydration clinic. 8. Following the meeting, [Patient E] was approved for a trial tenancy of rooms at Holdsworth House. 9. [Patient E] requested that Dr Quan write prescriptions for various drugs so that the Clinic would have stock available for when it opened. 10. On 13 January 2016, Dr Quan wrote prescriptions in the names of Patient A, B and C for Myers cocktail, in the quantities and with the repeats, as set out in the complaint at par [7]. 11. At the relevant time, patients A, B and C were staff members of the clinic and performed the role of receptionists. 12. On 14 January 2016, Dr Quan wrote a prescription in the name of Patient D, who was then the Practice Manager of Holdsworth House. 13 . On 14 January 2016, Dr Quan wrote prescriptions in the name of [Patient E] for a Myers cocktail, Glutathione and Methylcobalamin B-12, in the quantities and with the repeats, as set out in the complaint at par [7]. The words 'test patient' were subsequently blacked out, and the name [Patient E] was handwritten. 14. [Patient E] treated her first client at the iv.me Hydration clinic on 22 January 2016. Neither Dr Quan, nor any of his employees, was involved in any assessment or treatment of any of the clients who saw [Patient E]. 15. On 13 February 2016, [Patient E], assisted by a registered nurse whom she employed for the business, administered a "Myers' cocktail" (Magnesium, Calcium, Vitamin B&C) and Intramuscular injection of Glutathione in a female patient at iV.me hydration clinic. At no time was Dr Quan was aware of the patient, or involved in any care of the patient. 16. The Glutathione for parenteral use and most of the other parenteral preparations had been compounded by a pharmacy in Ballina NSW, which is unconnected to Dr Quan 17. Shortly after receiving an infusion at the Clinic, the patient presented to St Vincent's Hospital reporting fever, myalgia, abdominal pain and hypotension. The patient was suspected to have endotoxaemia following administration of an infusion at the Clinic. 18. On 16 February 2016, the Pharmaceutical Regulatory Unit (PRU) received an email from Dr Vicky Sheppard, Director of Communicable Disease Branch, reporting an incident of hospitalisation of the patient. The source of the problem was unknown, but the possibilities include a contamination of the injection during the compounding process (bacterial, bacterial toxin, fungal) or poor aseptic technique by the nurse at the time of administration (sterility issues). 19. At approximately 11:37am on 17 February 2016, representatives of the PRU arrived at the premises of iV.me hydration clinic, interviewed [Patient E] and the registered [Ms IW], and seized all stocks from her clinic. 20. The stock in the clinic had been prescribed by two doctors, the majority by Dr Michael O'Gorman, Chappel Street, South Yarra, and other amounts, as set out in the complaint, by the respondent. 21. On learning of the incident, Dr Quan and his fellow Director at Holdsworth House terminated [Patient E'] tenancy.[original spelling]. 22. On 1 March 2016, Ms Dolan, principal pharmacist of the PRU, conducted a phone interview with Dr Quan. Dr Quan cooperated with Ms Dolan and acknowledged that he had written the prescriptions. Dr Quan expressed that he was "full of remorse" and he regretted ever being involved in the hydration clinic. He said, inter alia, that he had been naïve. 23. On 6 June 2016, Dr Quan responded to questions asked of him by Ms Claire Douglas of the HCCC. In that letter, he admitted to filling out the prescriptions and expressed embarrassment and shame for his uncharacteristic actions. 24. On 9 January 2017, Dr Quan wrote again to the HCCC after being invited to comment on the HCCC's expert report. He again apologized for his lack of judgement and lack of diligence and acknowledged a grave error. He noted that the matter had caused him great distress and remorse. 25. Dr Quan has received no financial gain by writing the prescriptions for [Patient E]. 26. Dr Quan has cooperated with the HCCC investigation into this incident. 27. Dr Quan has had no further involvement with [Patient E] since her tenancy was terminated. The relevant law and authorities 1. In the circumstances of this case, it is only necessary we refer briefly to the relevant provisions of the National Law and the well-established principles to be applied by this Tribunal when determining professional disciplinary proceedings. 2. First, and of primary importance, are the object and principles of the National Law found in s 3 and s 3A. Section 3A requires that in hearing and determining this matter we have the protection of the health and safety of the public as our paramount consideration. Consistent with this principle the authorities stress it is not the function of the proceedings to punish the practitioner, but to protect the public. 3. Proceedings in the Tribunal are to be conducted in accordance with the objects and principles of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal must afford procedural fairness to parties before it (s 38). It is the responsibility of the Tribunal, and the parties, to conduct proceedings to ensure the real issues in dispute are dealt with in a timely and cost effective manner proportionate to the matters in issue (see s 3 and s 36). 4. The onus of proof is that of the HCCC. That onus must be satisfied to the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336 [1938] HCA 34). 5. The Tribunal may determine not to conduct an inquiry into a complaint if the practitioner admits the complaint in writing (s 165H). In this case, although the practitioner has admitted three of the four complaints agitated against him, he has not admitted that he is guilty of professional misconduct. Thus it was necessary that we conducted an inquiry. The expert reports relied on by the HCCC and by the practitioner 1. There were three reports in evidence before us. None of the experts was required for cross-examination or required by us to give evidence. Dr Emery Kertesz 1. Dr Emery Kertesz (Dr Kertesz) was retained by the HCCC and produced a primary report dated 2 October 2017 (the report) and a supplementary report dated 7 June 2018. 2. Dr Kertesz in his detailed report refers to a Myers' cocktail being "the colloquial name for an intravenous nutrient mixture invented by Baltimore physician John Myers". He notes Myers' cocktail "is claimed to be beneficial for a broad range of conditions. The treatment is commonly used by Naturopaths in the United States and Canada". 3. At pages 10 -12 Dr Kertesz sets out the medical record keeping requirements for a doctor when prescribing. In respect of the practitioner's failure to make a record of the prescribing he opines that the practitioner's conduct fell significantly below the required standard [reasonably required of a practitioner of an equivalent level of experience to the practitioner] and attracted his strong criticism. 4. Dr Kertesz expresses his criticism of the practitioner's conduct if it is established that he wrote the prescriptions at Patient E's request without the patients' consent or permission. He further opines that, if the prescriptions were written at Patient E's request, and with the consent of staff members, but the purpose of ensuring the clinic would have stock, the practitioner's conduct was significantly below standard and attracts his strong criticism. 5. In considering the number of repeats written (noted in the complaint to be 72 but later amended to 84), Dr Kertesz explains: Dr Quan's conduct with regard to the amount of product he prescribed for each person, and the number of repeats he authorized can be seen from the above figure to bear no relationship to individual patient management and hence it can be assumed that his pattern of prescribing was for the accumulation of stock rather than patient management at the clinic. 1. We pause to note that the practitioner has at all times admitted that, while he asked his staff members if they were interested in attending the clinic, he knew that the quantities he prescribed would predominantly be used for stock. He said he did this based on his understanding of how consultations would occur based on Patient E's web-site. This web-site, he said, showed a patient would have a consultation with a medical practitioner before the administration of drugs such as a Myers' cocktail. He also took into account the recommendation he received from a Melbourne medical practitioner about Patient E. 2. In considering the practitioner's lack of knowledge that prescription of parenteral glutathione meant it was classified as a S 4 drug, Dr Kertesz explained this lack of awareness was "not surprising". He went on to explain that this drug is available over the counter and used for homeopathic and off label reasons in various conditions including chronic fatigue. But he is critical of the practitioner's failure to research the drug he was prescribing. 3. In her supplementary report, Dr Kertesz was asked to comment on opinions proffered by Dr Kinga Price (Dr Price) and Dr Craig Lilienthal (Dr Lilienthal) in their reports (which we discuss below). Essentially, Dr Kertesz points out that while Dr Price is critical of the practitioner's behaviour that his report avoids the "specifics of responsibility and duty of care that Dr Quan should have considered when he wrote prescriptions for patients, sight unseen on the request of a woman who he believed 'was a fully qualified pharmacist'". 4. Further, in his supplementary report, Dr Kertesz explains, in his view, while Dr Lilienthal is critical of the practitioner's prescribing for the five patients, that he "omitted to consider all other aspects of a consultation including systems review, examination for new patients, surgery tests that may be applicable, investigations that may be applicable, and a management plan for patients especially those about to undertake 'off label' treatments with intravenous vitamin administration". 5. At the conclusion of his report, Dr Kertesz, very fairly opines: As outlined above many aspects of Dr Quan's conduct, that I have been requested to comment on, are below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct. However I also believe that his error of judgement is due to being misinformed and possibly somehow pressured by other health care providers, who he had thought had expertise in areas of medical practice that he had not. Although it is not appropriate, there are many instances in which many other general practitioners would possibly "give in" to requests of other health care providers or patients, in particular when dealing with alternative medicine. 1. Dr Kertesz limits his opinions to conduct significantly below the standard reasonably expected of a practitioner of similar experience to this practitioner. He does not directly address in his reports whether the conduct (as set out in the alternative in the complaint), or part of it, was improper and or unethical. Dr Kinga Price 1. The HCCC originally retained Dr Price as its expert. However, her report was not relied on in the HCCC's case. When this fact became known to the practitioner's lawyers they sought a supplementary report from Dr Price. 2. In her report Dr Price explains that, prior to prescribing intravenous Myers' Cocktail, intravenous or intramuscular glutathione and intramuscular or intravenous methylcobalamin, the practitioner should have known the patient's medical history, indications for treatment, allergies and any possible contraindications. He does, however, note that intramuscular vitamin B 12 can be purchased over the counter without a prescription, and "therefore without any assessment by a medical practitioner". 3. Dr Price is also critical of the practitioner's failure to maintain medical records for the five patients and says that the failure to maintain records was below the expected standard. 4. In considering the practitioner's prescribing on the advice of Patient E, Dr Price opines it is the practitioner who takes full responsibility for the prescription issued. He goes on to express the view that if the practitioner wrote prescriptions for the four staff members only at the request of Patient E, that his conduct was below the expected standard. Like Dr Kertesz, Dr Price is critical of the practitioner's prescribing for the staff members without a consultation with them. He opines this behaviour too is below the standard to be reasonably expected of a practitioner. He is also critical of the conduct in providing repeat prescriptions. Dr Craig Lilienthal 1. Dr Lilienthal's opinion of the practitioner's conduct substantially accords with that of Dr Price. He finds the conduct below standard, but not significantly below standard. 2. After a member of the panel pointed out that the number of prescriptions for Myers' cocktail issued for each patient was not 72 vials as set out in the complaint but 84 vials (original prescription plus 6 repeats) leave was sought and granted to amend the complaint. As the practitioner conceded, he understood when he wrote the prescriptions that the majority of the medications would not be for the personal use of the four staff members but for stock for the clinic. Dr Lilienthal refers to the fact "it is not uncommon for GPs to have 'excessive' ampoules of single parental [sic] use medications in their practices for potential use with patients other than those for which they were originally prescribed and dispensed". After giving examples of the type of medication which may be "stocked" he goes to explain: …the concept and practice of medical practitioners holding small quantities of injectables, in excess of usage for one patient, to be used for a subsequent patient, is not new in General Practice. Conclusions – expert evidence 1. We note that in his full and frank admissions in the Reply and before us the practitioner accepts that his conduct in respect of Complaints One, Two and Three constitutes unsatisfactory professional conduct, that is, conduct which is significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience, or improper or unethical. 2. As we discuss more fully below, we accept and prefer the evidence of Dr Kertesz where it differs from that of Dr Price and Dr Lilienthal. In reaching this finding we do not reject the practitioner's evidence about his belief, albeit it appears mistaken, that before any patient received hydration therapy they would be assessed 'on line' by a medical practitioner. We agree with the practitioner when he says he was naïve. The practitioner's statement and oral evidence 1. The practitioner provided a statement dated 20 March 2018 which he verified on oath at the commencement of his oral evidence. He also gave extensive oral evidence and was cross-examined by counsel for the HCCC. Additionally, the practitioner responded candidly to questions posed to him by the panel. 2. In summary, the practitioner in his statement refers to his long history of practice, his care and concern for his patients, and a willingness to be respectful to those patients who "hold alternate views" to western medicine. In his oral evidence he explained his attitude was, in part, formed because of his cultural upbringing. He related the engagement of allied health professionals at Holdsworth House, including, at one time, having an acupuncturist associated with the practice. He also explained in his oral evidence, because of his involvement in HIV research, he respected the expertise of pharmacists he had worked with in a team environment at St Vincent's Hospital, Darlinghurst. 3. In his statement, and in his oral evidence before us, the practitioner explained how Patient E approached him seeking to set up a clinic. She did this via his then temporary practice manager. He explained that he had relied, in part, on Patient E's credentials based on a report from a Melbourne medical practitioner. A presentation was made to the directors of Holdsworth House by Patient E before a decision was made to permit her to rent premises on a provisional basis for an IV infusion clinic. The practice manager, who was undertaking the position while the regular practice manager was on maternity leave, was charged with independent checking of Patient E's credentials. 4. At [12] of his statement the practitioner states that he was "naïve and ill-informed as to the services offered". 5. The practitioner told us that he was initially asked to write prescriptions in the names of persons he did not know, and refused. He explained how he felt he was "badgered" into writing prescriptions which he knew were essentially for stock. He also told us at the time he did not find it extraordinary that Patient E needed to have stock. This view was based on his experience of having stock of anti-viral medication to be prescribed for a patient in a limited window after exposure to HIV. 6. The practitioner explained the casual circumstances in which he asked staff if they were interested in trying the new clinic's services. He candidly acknowledged his conversations with the staff occurred in the reception area, that no formal consultation occurred and that no simultaneous medical record was made. We accept in these circumstances that at least Patient C had no knowledge a prescription had been written in her name. 7. On being notified that a patient of the clinic suffered an adverse outcome (fever, myalgia, abdominal pain and hypotension, and elevated inflammatory markers) and had been admitted to St Vincent's Hospital, the practitioner terminated Patient E's temporary tenancy, and refused subsequent approaches from her to have accommodation at Holdsworth House. 8. When the practitioner was contacted on 20 May 2016 by the HCCC investigation officer he made frank admissions about his conduct by letter dated 6 June 2016. He expressed embarrassment and shame at his conduct. He explained he had been "shocked and saddened" to hear a client of Patient E had become ill. 9. In his oral evidence the practitioner told us about the courses he had undertaken and how he is now very conservative in any advice given and cautious about his prescribing conduct. 10. We found the practitioner to be a witness of truth and we accept both his oral and written evidence. Our conclusions on the admitted complaints and particulars Was the practitioner's conduct significantly below the standard? 1. We commence our discussion of this topic by setting out s 139 (1) (a) of the National Law. The provision is framed as follows: (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. The prescribing authorities 1. We turn now to the principles applicable to cases where a practitioner has been guilty of unsatisfactory professional conduct because of his or her lack of judgment or care in prescribing where such prescribing is below the standard expected of that practitioner. 2. This is well explained by Hope JA in Spicer v NSW Medical Council (unreported CA No 3 of 1981). His Honour, with whom Reynolds and Hutley JJA agreed, said: In my opinion it is clear beyond argument that the 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 that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner. Discussion and conclusions 1. While not condoning the practitioner's prescribing, we are however satisfied the circumstances of this case are distinguishable from a medical practitioner such as the one referred to by Hope JA. This is because: 1. the practitioner's conduct occurred in unusual circumstances and was for a limited period of 2 days; 2. the practitioner erroneously relied on the representations on Patient E's web-site that patients would be assessed by a medical practitioner prior to receipt of IV therapy; 3. the practitioner inappropriately but innocently, relied on advice of his then practice manager about Patient E's credentials; 4. the practitioner immediately upon being contacted by the Pharmaceutical Services Unit (the PSU) acknowledged his role in writing the prescriptions; 5. the practitioner made a full disclosure to the HCCC when his conduct was investigated in 2016; 6. the practitioner has at all times since his knowledge of the clinic patient's illness expressed genuine remorse, shame and embarrassment for his conduct; 7. there was no direct financial gain to the practitioner albeit Holdworth House would benefit from the rental received from the clinic; 8. the practitioner has taken steps to re-educate himself; 9. The practitioner's peers and senior members of the profession express support for him and confidence in his character. 1. There is no dispute that the practitioner failed to keep proper medical records as required by the regulation in force at the relevant time. We adopt the opinions expressed by Dr Kertesz about this failure. 2. We have already noted that we accept Dr Kertesz' opinion that the conduct was significantly below the standard reasonably expected of a practitioner of similar experience to that of this practitioner. That level is one of a long-term, very experienced general practitioner in respect in whom a high level of judgment is expected. We are satisfied the admissions of the complaints made by the practitioner under s 139(1)(a) are property made. Improper or unethical conduct 1. In a number of cases this Tribunal discusses the meaning to be attributed to the words improper and unethical conduct as found in s 139B (1) (l). Those cases have relied on the dictionary definition and the context in which the words appear in the National Law to ascertain their meaning. 2. Section 139B (1) (l) of the National Law is as follows: (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. In HCCC v Liu [2016] NCATOD 133 the Tribunal referred to the discussion of French CJ in Parker v Comptroller-General of Customs (2009) ALJR 494; HCA 7. There his Honour said: The relevant ordinary meanings of "improper" include "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong" 1. "Unethical" is defined in the Macquarie Dictionary as follows: contrary to moral precept; immoral. in contravention of some code of professional conduct. Discussion and conclusions improper and unethicalconduct 1. We are satisfied that the practitioner's conduct was improper. This is because he failed to obtain proper informed consent from the staff patients, failed to take a proper medical history and failed to keep proper medical records Further, without checking the regulations, he prescribed an S 4 drug. 2. We are also satisfied the conduct was unethical. Aspects of the practitioner's conduct breached the Good Medical Practice: A Code of Conduct for Doctors in Australia particularly 3.5 of the Code (which deals with the informed consent of a patient) and 8.4 (which deals with keeping proper medical records). Professional misconduct Statutory definition 1. The National Law contains a definition of what constitutes professional misconduct in s 139E. It is in the following terms: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The authorities 1. It is necessary that we apply an objective test to evaluate the gravity of the conduct the subject of this complaint. The gravity of the conduct to be assessed is not to be measured by reference to the worst cases, but rather by reference to the extent it departs from proper standards (see Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630; [1997] NSWSC 297). 2. In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA explained professional misconduct in this way: The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation.[14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience,[15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest,[16] overservicing [17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession.[18] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). [footnotes omitted]. Discussion and conclusions 1. We have already noted some of the factors that ameliorate the seriousness of the practitioner's wrongful conduct in this case. While we do not condone the practitioner's actions in writing the prescriptions, failing to conduct proper consultations with the patients and to record those consultations, we accept that he made a grave error of judgment in unusual circumstances. Our assessment of the practitioner's character, and taking into account his actions since February 2016, is that error of judgment is highly unlikely to be repeated. His ignorance of glutathione being a S 4 drug when administered parenterally was understandable given its availability over the counter as is the case with vitamin B for intravenous use. 2. We accept the practitioner was influenced, in part, to provide the services of a hydration clinic to patients of Holdsworth House based on his knowledge that at least one other highly reputable senior medical practitioner in his locale offered such services. We also accept he received patient requests for access to a hydration clinic. 3. The practitioner has acknowledged he made a serious mistake and expresses remorse and regret for his actions. The documents relied on by the HCCC include an article published in the "Sydney Morning Herald" on 27 January 2016 about Patient E's practices, and criticisms of them by the President of the Pharmacy Board of Australia. It is inherently unlikely that if the directors of Holdsworth House knew how Patient E was operating the clinic she would have been offered a tenancy, nor would the subject prescriptions have been written so she obtained stock. Subsequent media publications report Patient E was convicted of stealing from a pharmacy in Victoria over the period 2014 to 2016. The directors of Holdsworth House acted wisely in not renewing the trial tenancy. 4. Weighing up all the evidence in this matter particularly those matters set out above in [50] we are not satisfied that the actions and failures of the practitioner are so serious that either individually or collectively they support a finding that his registration should be suspended or cancelled. Appropriate protective orders Relevant principles 1. We have at the commencement of these reasons noted the principles relevant to protective orders and it is unnecessary that we repeat those well-known principles. 2. Our focus, in the facts of this case, largely revolve around issues of deterrence and the upholding of the standards of the profession. We are conscious that our reasons and orders should send a strong message to practitioners and the public that irregular prescribing, without proper consultation and recording, is unacceptable practice. Further, these reasons, and the orders flowing from them, should reflect the due diligence practitioners should observe before being involved in provision of prescriptions or supplies for services offered by other allied health professionals or non-registered persons which service or services may cause a risk to the health and welfare of the public. This is particularly important in the case of services like hydration clinics and cosmetic clinics. The practitioner's referees 1. The practitioner relies on seven references from eminent professionals who attest to the practitioner's high reputation, his achievements both in medicine and the arts, and his philanthropy. His referees including Professor Anthony Kelleher. Professor Kelleher has known the practitioner for over 30 years. He attests to the practitioner's involvement with him in clinical trials he conducts at St Vincent's Hospital or the Kirby Institute involving patients with HIV infection. He notes he has also provided specialist opinions for a number of the practitioner's patients. He says: In my interactions with Dr Quan as a physician, he has always been motivated, reliable, knowledgeable, up to date, highly thoughtful and caring. His ethos regarding any decisions around research protocols is that the interest and welfare of the patient should have primacy. His care plans for the patients he refers for specialist care are appropriate and consistent with current practice standards. 1. Professor Kelleher also refers to the respect in which the practitioner is held by his colleagues. He explains he had spoken to the practitioner who was truly contrite and highly concerned for the patient [the patient admitted to St Vincent's]. 2. Professor Kelleher concludes his letter as follows: I believe Dr Quan is a reliable, highly competent general practitioner who has learnt from this incident and will do his very best to make sure that similar incidents do not occur in the future. 1. Dr Ryan Smith, a colleague who has known the practitioner for 12 years in a professional capacity expresses similar opinions to those of Professor Kelleher. 2. The practitioner's fellow director at Holdsworth House, Conjoint A/Professor Mark Bloch, also expresses confidence in the practitioner. He notes the practitioner's many achievements and says that circumstances of the complaint reflect an isolated incident. 3. The practitioner also relies on a reference from Professor Mark Boyd, Chair of Medicine, Lyell McEwin Hospital, University of Adelaide. Professor Boyd worked with the practitioner at Holdsworth House in the period 2014-2016. He refers to Holdsworth House being a site for cutting edge research. He talks about the practitioner keeping up to date by attendances at relevant local and international conferences, and refers to his leadership role in mentoring young doctors. Professor Boyd corroborates the evidence of Dr Lilienthal about the practice holding of a stock of medicine, particularly in the case HIV medicine, where many items are required urgently. 4. Professor Boyd concludes his letter addressed to the Tribunal saying: I believe this matter and complain reflects an isolated instance which arose from a well-meaning but misguided attempt on the part of Dr. Quan to provide care to a group of patients. It would in my view be completely out of character for Dr. Quan to have deliberately set out to harm a patient or knowingly contravene the law. It would be a great shame if Dr. Quan's long standing record of devotion to patient care and the improvement of medical knowledge were blemished by this unfortunate incident. 1. Similar statements about the practitioner are made by Dr Jan Peter Siefken, Integrative Psychiatrist and Dr Clinton Ng, Gastroenterologist and Physician. 2. Mr Nick Mitzvich attests to the practitioner's significant contribution to the arts, particularly modern art, and his philanthropy. In his oral evidence before us the practitioner explained how Holdsworth House, at his instigation, had provided significant assistance to a Kenyan village by supplying, at the practice's expense, a large number mosquito nets to combat the spread of malaria. Our assessment of the practitioner 1. As recorded above, we found the practitioner to be an impressive witness who has been deeply affected by these proceedings. His remorse and distress about his actions was evident. He is a man with many outstanding qualities who has done much for many patients, and the Australian and international community in the field of the arts and philanthropy. 2. These proceedings have required the practitioner to disclose his wrongful conduct to the PSU, the HCCC, senior members of the profession, members of the community and this Tribunal. We find these disclosures have been painful to the practitioner and caused him embarrassment and shame. He shows insight, has personally taken remedial education steps, and applied his knowledge and insights in the practices and procedures adopted at Holdsworth House. 3. If disciplinary proceedings were designed to punish a practitioner, we are satisfied that the embarrassment and shame associated with the disclosures referred to above, and the practitioner's distress about the illness suffered by the patient of the clinic, have already acted as salutary sanctions. But that is not the role of the Tribunal. 4. We considered the range of orders open to us under s 149A and s 149B of the National Law including issuing a reprimand to the practitioner or imposing a fine on him. On careful reflection, having regard to our assessment of the practitioner, the isolated nature of the conduct, and the fact we are confident the practitioner will not present a risk to patients in the future by like conduct, we conclude the appropriate order is that the practitioner be cautioned rather than reprimanded or fined. 5. That caution, the fact the practitioner was subject of these disciplinary proceedings and our reasons, which will be publicly available on NSW Caselaw, will serve as a deterrent to like conduct and uphold the standards of the profession. Costs Power to award costs 1. The power of the Tribunal to award costs is found in Cl 13 of Schedule 5D of the National Law. Applicable principles 1. The principles relevant to the award of costs are explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307. At [51] his Honour with apparent approval said: In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. Noting that the mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule", the Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful, referring to Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]- [52]. Lucire dealt with a provision in the Medical Practice Act 1992 (NSW), Sch 2, cl 13, which also conferred an open power.[footnotes omitted] Discussion and conclusions 1. While these proceedings had their genesis in the practitioner's conduct, we find there are circumstances why it is appropriate in this case to depart from "the general rule". The practitioner made early admissions of his conduct. Further the HCCC has not been successful in establishing to the requisite standard the complaint of professional misconduct. In these circumstances we find a fair and proportionate response is to order that the practitioner pay 50 per cent of the HCCC's costs as agreed and failing agreement as assessed. Order 1. Dr Dick Cheong Quan (the practitioner) is cautioned. 2. The practitioner is to pay 50 per cent of the Health Care Complaints Commission's costs of and incidental to the proceedings 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 Amendments 13 July 2018 - Health Practitioner Regulation National Law added to Cover sheet 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: 13 July 2018