Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Chen (No.2) [2018] NSWCATOD 130 Hearing dates: 24 July 2018 Date of orders: 13 August 2018 Decision date: 13 August 2018 Jurisdiction: Occupational Division Before: D A Cowdroy ADCJ, Principal Member Dr K Arnold, Professional Member Dr M Higgins, Professional Member M Kelly, General Member Decision: (1) The Tribunal, pursuant to section 149C(1)(a) and section 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) orders that the respondent's registration as a medical practitioner be cancelled, and that the respondent not apply for reregistration for a period of two years from the date of this decision. (2) The Tribunal orders that the respondent pay the costs of this application. Catchwords: PROFESSIONS AND TRADES – Medical practitioner – prescribing drugs for depression where no authorisation existed for the use of such drugs for depression – practitioner failing to adequately investigate medical history of patients – practitioner prescribing only such drug without regard to alternative-treatments – practitioner claiming to act as prescribe of such drug and not acting as medical practitioner – prescribing drug for home use without regard to vulnerability of patients – disciplinary sanction Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) No 86a Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Chen [2018] NSWCATOD 73 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield [1997] NSWCA 264 Prakash v HCCC [2006] NSWCA 153 Category: Consequential orders (other than Costs) Parties: Health Care Complaints Commission (Applicant) Dr Lei Min Chen (Respondent) Representation: Counsel: A Petrie (Applicant) P Griffin (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2017/173264 Publication restriction: An order is made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of the name of the patients set out in the Schedule to the complaint. Reasons for decision 1. On 17 May 2018 the Tribunal delivered its decision in respect of Stage 1 of this hearing: see Health Care Complaints Commission v Chen [2018] NSWCATOD 73 ("Chen No.1"). By such decision, the Tribunal found that the respondent was guilty of unsatisfactory professional conduct constituting professional misconduct. It was such conduct and concerns about its potential impact on the health and safety of the public which led the Tribunal to impose an immediate suspension of the respondent's registration as a medical practitioner. 2. The current hearing is confined to the question of what disciplinary orders ought to be made arising out of the Tribunal's finding. The Tribunal has heard evidence from the respondent in relation to the disciplinary findings and also has heard submissions from each party. 3. The applicant seeks an order that the respondent have his registration as a medical practitioner cancelled, and that he be ineligible to apply for reregistration for a period of 2 to 3 years. The application is opposed by the respondent, who seeks orders that he be allowed to continue to practise under supervision or alternatively that his registration be suspended for a period of approximately 12 months. Principles 1. The jurisdiction of the Tribunal is protective of the health and safety of the public, which is the paramount consideration: See s 3A of the Health Practitioner Regulation National Law (NSW) ("the National Law"). The exercise of such jurisdiction has been confirmed in numerous authorities: see for example Health Care Complaints Commission v Do [2014] NSWCA 307; Chen v Health Care Complaints Commission [2017] NSWCA 186; Prakash v HCCC [2006] NSWCA 153 at [91]. 2. The Tribunal must determine whether the practitioner is to be considered as a fit and proper person to practise medicine. Such term has been considered in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at [56]. This consideration requires an assessment of the risk that the conduct complained of might be repeated: see Health Care Complaints Commission v Litchfield [1997] NSWCA 264 at [6]. Consideration 1. The Tribunal has made findings in respect of various shortcomings in the conduct of the respondent as detailed in par [119] to [122] of Chen No.1. 2. The Tribunal is most concerned that the respondent continues to demonstrate little or no insight into his conduct. 3. For example, he prevaricated when asked whether he accepted the findings of the Tribunal as set out in Chen No.1; he stated that he acknowledged unprofessional conduct because he was advised to do so; he provided statements to a journalist which were published in a medical journal ("the article") on 5 July 2018 (less than four weeks before this hearing) in which he stated that he did not realise "the risk". When asked what he meant by the risk, he stated that he did not realise that his conduct could bring him before a tribunal and that he could be subjected to disciplinary sanctions. He did not refer to any risk to his patients which may have resulted from the conduct which has led to these proceedings. 4. When asked if he had any regrets, he stated that he regretted that the clinic which employed him at the time of the conduct complained of shut suddenly and he had considerable regrets in regard to his career. When prompted in regard to patient care, he said that the clinic closing suddenly had been a "big blow to patient care". He emphasised his assertion that he had always taken care of his patients properly and that the treatment provided had helped them. He repeated his assertion that the treatment had been "safe and beneficial". He also repeated his assertion that he had experience in psychiatry, while acknowledging that the only specific training in Australia had been the compulsory psychiatry term as a part of his medical degree more than 13 years ago. 5. The respondent stated that it had been a mistake to accept work in the clinic prescribing ketamine. However, the respondent did not accept any blame. Instead, he testified that he relied upon Dr Barrett for instruction, and that he should not have done so. In the article, he stated that he received provider numbers from Medicare which he says gave him reassurance that he could carry out the treatment which he provided to his patients. He said he did not do a background check on Aura, his employer, because the local agency which arranged for his employment had presumably carried out any necessary background investigation. He said, "I wasn't told by the local agency anything about the company." He said he only realised subsequently that the company had "a history of media exposure". At the Stage 1 hearing, Dr Chen attributed blame for his situation and his actions to a wide range of people and organisations as detailed in par [96] of Chen No. 1. 6. The respondent acknowledged that he should have spoken to the patient's general practitioners and psychiatrists. However as claimed at the first hearing, and again before us on the present hearing, he maintained that he was engaged in a clinical trial of ketamine under the direction of Professor Graham Barrett and hoped to write an academic paper upon its effects. Findings 1. The Tribunal was satisfied that the respondent deferred to authority but did not accept authority. 2. The Tribunal noted that the practitioner stated that he accepted "most of the findings" made by the Tribunal following the Stage 1 hearing. However he then made statements that clearly indicated that he took little responsibility for his actions. The Tribunal gained the impression that, generally, the respondent disagreed with the Tribunal's findings: the respondent said that he accepted the Tribunal's power to make such decisions but did not concede that the findings were justified. 3. The respondent's evidence was contradictory and confusing, and at times defiant and defensive. He raised matters concerning his practice which he had never previously referred to, such as providing injections using the arm, whereas the evidence previously given established that injections were administered in the abdomen of his patients. Further, in the article, he referred to some patients experiencing adverse reaction from the injections such as dissociation, and local skin reactions. No such mention was made of these factors during the first hearing. 4. The respondent did not provide any evidence that following the delivery of the decision of the Tribunal on 18 May 2018, he has undertaken courses or other instruction which may assist him to gain an insight into his conduct or to address the deficits in his knowledge referred to in the Tribunal's decision. Such courses would include instruction relating to the appropriate assessment and management of patients with complex psychiatric histories. The Tribunal was concerned by the lack of evidence of Dr Chen having undertaken any critical reflection about his conduct or its remediation. When asked what he had been doing since May 2018, he stated that he had been bushwalking and exercising. The respondent stated that he felt his rights "had been violated" by the Tribunal, and stated that doctors "should not be treated in this way". He added "it should be fair". 5. The respondent made certain concessions concerning aspects of his practice which he acknowledged were poor, such as his lack of liaison with general practitioners of his patients and psychiatrists. The respondent claimed that he never let his patients down, rather "I helped them", and stated "I looked after them properly". In the article the respondent acknowledged that he saw too many patients and did not have sufficient time to follow up and review the patients. However he asserted that all the patients were competent to give self-injections and that he contacted them by phone every week. Such statement reveals a lack of insight, namely that to provide medication to a patient to self-inject is fraught with danger, especially in a highly vulnerable patient population with complex medical and psychiatric histories. 6. There was virtually no liaison with the patient's regular treating medical practitioner. The respondent appeared to have no insight into the risk that to provide large doses to a patient for home administration incurred the risk of overdose or other misadventure, or even the on sale of such drugs to other members of the public. The respondent drew an analogy between providing the home dosage with a home dosage of insulin, or anticoagulants, thereby displaying a disregard for the nature of ketamine. 7. The respondent's counsel indicated in submissions that the conduct of the respondent may have been due in part to the respondent's personality and cultural background. Irrespective, the respondent has lived, studied and worked as a doctor in Australia since June 1992 and accordingly the Tribunal gives little weight to such a consideration. In this period the respondent retrained as a medical practitioner in Australia and accordingly was not solely reliant upon his qualification from the Wannan Medical College (China). 8. A reference was provided by Dr Sam Heard dated 10 July 2018. Dr Heard is the Medical Director of the Central Australian Aboriginal Congress. The reference expressed confidence in the respondent's abilities and spoke in very positive terms concerning the respondent's abilities. Dr Heard was the supervisor of the respondent from July 2017 to January 2018 in accordance with conditions imposed upon the respondent's practice pursuant to s 150 of the National Law from November 2015. 9. The reference refers to the fact that it was "very difficult to believe that Dr Chen was capable of making such a litany of errors and shortcomings having worked with him closely over a six month period." Dr Heard believed the respondent's shortcomings were due to "naivete in the context of Australian practice" and due to being at the time a "junior" doctor who was inexperienced. The Tribunal however notes that the respondent has Australian medical qualifications which he obtained more than 17 years ago, since which time he has been in almost continual employment as a doctor in numerous medical appointments in Australia, and thus cannot be considered junior or inexperienced in the broad clinical skills outlined below in par [19]. 10. In view of the above the Tribunal is satisfied that the public needs protection, and that disciplinary orders should be made similar to those sought by the applicant. Such measures are necessary in view of the shortcomings identified in the failure of the respondent to adopt a comprehensive approach to the clinical care of his patients, to demonstrate insight into the nature of these deficits, and to provide evidence of attempts to remediate such deficits. In the absence of such insight and such evidence, it is clear that neither conditions on the respondent's registration nor suspension of his registration would be adequate to ensure the health and safety of the public. It is in the public interest that both medical practitioners and members of the public are aware of the practices required for acceptable standards of care. 11. As outlined in detail in the decision in respect of Stage 1 of this hearing, the respondent's history taking of his patients, physical examination, mental state assessment, assessment of comorbid conditions such as drug and alcohol abuse, provisional diagnosis, differential diagnosis, investigation and management plan were inadequate. Further, the liaison between the respondent and the patients' general practitioner and/or psychiatrist was lacking in most cases. Whilst the respondent asserted that he followed up each patient, there are no records available to verify such assertions. The respondent's record-keeping was wholly inadequate. The prescribing was stereotypical for all patients. 12. The Tribunal notes that the respondent's practise, as outlined above, demonstrated poor clinical decision making and poor judgement over a considerable period of time and for many patients, and were not confined to an isolated case. The Tribunal was most concerned that even after three to four years since the practitioner's conduct came to notice, and even following suspension of his registration after Stage 1 of these proceedings, the respondent demonstrated ongoing poor insight into his conduct. For these reasons the Tribunal finds that the protective orders below are necessary. 13. The cancellation to be imposed is necessary to enable the respondent to retrain for any future application for reregistration as a medical practitioner. It would be expected that the practitioner would undertake courses at least in relation to record keeping, a comprehensive approach to patient care and similar courses. The evidence before the Tribunal has disclosed that the primary focus of the practitioner appears to have been the prescription of one drug without regard to any other treatment that might have been more suitable for the practitioner's patients. They received only treatment based upon the practitioner's desire to prescribe ketamine at $3000 per treatment albeit that there is no evidence that the respondent himself benefitted from the money charged. The practitioner misunderstands his professional responsibilities when he states that his function was simply to prescribe ketamine to his patients, as stipulated by another practitioner interstate. 14. The Tribunal was concerned that the respondent's rigidity of thinking, defensiveness and unwillingness to acknowledge the deficits of his past conduct appeared to have increased, rather than decreased, in the months since the Stage 1 proceedings, which further argues against less restrictive orders. The Tribunal is satisfied that the practitioner should have his registration cancelled and that he not be able to reapply for registration until two years from the date of publication of this decision. Orders 1. The Tribunal, pursuant to section 149C(1)(a) and section 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) orders that the respondent's registration as a medical practitioner be cancelled, and that the respondent not apply for reregistration for a period of two years from the date of this decision. 2. The Tribunal orders that the respondent pay the costs of this application. ********** 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: 13 August 2018