Health Care Complaints Commission v Tan [2024] NSWCATOD 31
In the recent decision of Health Care Complaints Commission v Tan [2024] NSWCATOD 31, the New South Wales Civil and Administrative Tribunal (NCAT) made a finding of unsatisfactory professional misconduct and unsatisfactory recordkeeping against a doctor, Dr Kui Vui Tan (Practitioner) for his treatment of Patient A which was found to be significantly below the standard expected of a practitioner of an equivalent level of training and experience, and that, pursuant to s 139B(1)(b) of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), the Practitioner’s record keeping was also unsatisfactory.
The Practitioner took no active role in the hearing, and it continued undefended.
Background
Patient A was 71 years old at the time of the events and had a complex medical history consisting of gastro-oesophageal reflux disease and cardiovascular disease. Patient A had five consultations with Dr Kui Vui Tan (Practitioner) between 18 January 2021 and 1 March 2021. During these consultations, Patient A presented with dyspnoea tachycardia, bilateral ankle oedema, shortness of breath, burning throat, persistent abdominal liver function tests, and persistently elevated white blood cell count.
On 2 March 2021, Patient A presented to the emergency department at Lithgow Hospital and was subsequently transferred to the Nepean Hospital via air ambulance where she was admitted to the intensive care unit. Her condition deteriorated in the intensive care unit, and she passed away on 8 March 2021. The cause of her death was found to be as a result of sepsis, multi-organ failure, Escherichia coli infection, acute myocardial infarction, acute renal failure and likely liver metastases.
The Health Care Complaints Commission (HCCC) prosecuted a complaint against the Practitioner in NCAT, alleging that between 18 January 2021 and 1 March 2021, the Practitioner:
- treated a patient in a manner significantly below the standard expected of a practitioner of an equivalent level of training and experience.
- kept unsatisfactory records.
Decision
The Practitioner was found to have engaged in unsatisfactory professional misconduct that fell significantly below reasonable standards and was found to have contravened regulations in relation to medical record keeping. The Practitioner’s conduct was deemed sufficiently serious in nature to justify suspension or cancellation of the Practitioner’s registration and constituted professional misconduct.
The Tribunal, which proceeded in the absence of the Practitioner, held that Patient A’s test results were alarming and required urgent and complete assessment and at a minimum meant taking an appropriate history, performing relevant examinations, consideration of a range of diagnoses, and formulating a management plan with safety netting. Further, it was held that the Practitioner’s level of knowledge was so poor that he did not recognise the significance of the tests and lacked the skill to perform the required assessment which would have led the Practitioner to urgently investigate Patient A’s presentation further.
The judgment contains an extensive list of the Practitioner’s shortcomings during the five consultations, which included inadequate note taking, exams, tests, and diagnoses. It was found there was a failure to follow pathologists’ advice and to consider other potential diagnoses as well as a lack of thorough cardiovascular, respiratory, or abdominal examinations. The Practitioner was also found to have ignored the pathologists’ advice and failed to investigate the abnormal liver function results and neglected necessary specialist referrals.
At the s150 hearing in 2021, the Practitioner attempted to explain his lack of further action by stating that Patient A was asymptomatic, or had symptoms that had resolved. As a result of this response, along with his overall management of Patient A, the Tribunal cancelled the Practitioner’s registration on the basis that the Practitioner demonstrated global deficiencies and a lack of insight. In exercising its discretion to cancel, which requires the Tribunal to be satisfied that there is no other appropriate alternative, the Tribunal took into consideration that the conduct occurred at a time when the practitioner was subject to level C supervision. The supervision was ineffective in avoiding the events.
Further, it was decided by the Tribunal that the Practitioner is to be disqualified from being registered in the health profession for a period of two years and that this be recorded on the National Board.
The protective order in this case was therefore not for specific deterrence but to ensure public safety by deterring other practitioners engaging in similar conduct.
The Practitioner was ordered to pay HCCC costs as agreed or assessed.
Key takeaways
Whilst this decision arose from a demonstrably poor level of care of a practitioner, the contravention of regulations in relation to medical record keeping contributed to the finding of unsatisfactory professional misconduct. This decision serves as a reminder of a Practitioner’s obligations under Regulation 6 of the Health Practitioner Regulation (New South Wales) Regulation 2016 which provides that a medical practitioner must, in accordance with that part of the regulation and schedule 4, make and keep a record, or ensure that a record is made and kept, for each patient of a medical practitioner. A failure to do so can result in findings of unsatisfactory professional misconduct.
It is also a timely reminder that even where a doctor is no longer practicing and has indicated that he does not intend to practice in Australia, and does not engage in the Tribunal process, that findings and orders will be made in their absence.
This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.
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