HCCC v Dr Edmund Ching Kun Kwan - [2005] NSWMT 24

New South Wales

Medical Tribunal

CITATION: HCCC v Dr Edmund Ching Kun KWAN [2005] NSWMT 24

TRIBUNAL: Medical Tribunal

PARTIES: Health Care Complaints Commission
Dr Edmund Ching Kun Kwan

FILE NUMBER(S): 40014 of 2004

CORAM: Ainslie-Wallace, DCJ

CATCHWORDS: Application for a Permanent Stay - Delay

LEGISLATION CITED: Jago v District Court of New South Wales (1989) 168 CLR 23
R v Littler [2001] NSWCCA 173
Walton v Gardiner (1992-1993) 177 CLR 378
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Carson v Legal Services Commisioner and Anor [2000] NSWCA 308

CASES CITED:

DATES OF HEARING: 30.5.2005, 31.5.2005, 1.6.2005

DATE OF JUDGMENT: 3 June 2005

LEGAL REPRESENTATIVES: P Saidi SC for the Health Care Complaints Commission
G Segal of counsel for the Applicant/ Respondent

ORDERS: 1 Application dismissed.; 2 Applicant to pay the Respondent's costs of the motion.; 3 Confirm the hearing dates allocated to this matter commencing 11 August 2005.

JUDGMENT:

THE MEDICAL TRIBUNAL 3rd June 2005

OF NEW SOUTH WALES

AT SYDNEY

No. 40014 of 2004

In Re: Dr Edmond Ching Kun KWAN

and: The Medical Practice Act 1992

DEPUTY CHAIR: HER HONOUR JUDGE A AINSLIE-WALLACE

ORDERS AND REASONS FOR DETERMINATION

on application for permanent stay

Background

The Health Care Complaints Commission (the "HCCC") by a document dated 23rd July 2004 complains that the applicant doctor has been guilty of unsatisfactory professional conduct and/or professional misconduct in relation to his prescription of drugs referred to in Schedule 4D of the Poisons and Therapeutic Goods Act. There are 6 particulars in the complaint. [1]

1. That between February 1997 and August 1999 the applicant prescribed benzodiazepines and/or codeine compounds to patients (referred to in a schedule);

a. without exercising responsible medical judgement

b. in circumstances when he knew or ought to have known that another medical practitioner was authorised under section 29 of the Poisons and Therapeutic Goods Act to prescribe drugs of addiction to the patients

c. for purposes that did not accord with recognised therapeutic standards

d. in circumstances where the practitioner knew or should have known the medications were likely to be abused.

2. Between May 1996 and January 1998 the practitioner issued prescriptions for prescribed restricted substances, namely benzodiazepines and other compounds such as codeine compounds to the patients in excess of recognised therapeutic standards.

3. On 13th February 1998 the practitioner inappropriately prescribed a Schedule 8 narcotic to a patient where he knew the patient had a history of narcotic addiction and had recently been abusing alcohol.

4. Between September 1998 and August 1999 the practitioner prescribed to a patient (patient FF) a prescribed restricted substance in quantities in excess of recognised therapeutic standards.

5. Between September 1998 and August 1999 the practitioner prescribed for a patient (Patient GG) a prescribed restricted substance in quantities in excess of recognised therapeutic standards.

6. During the period 1997 to 1999 the practitioner inappropriately provided religious instruction and advice to patients during or in conjunction with professional consultations.

1. By notice of motion dated 16th…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWMT 24
Decision Date: 3 June 2005

CaseChat Overview and Summary

The Health Care Complaints Commission (HCCC) brought an application before the Supreme Court against Dr Edmund Ching Kun Kwan, seeking a permanent stay of disciplinary proceedings. The matter was before Justice McDougall. The Commission sought to permanently stay the disciplinary action due to the respondent's delay in responding to the proceedings. The Commission contended that the delay prejudiced its ability to conduct the case effectively, and that a permanent stay was warranted as a result.

The court considered whether the delay in response was sufficient to warrant a permanent stay of proceedings, and whether the prejudice caused by the delay was substantial enough to justify such a remedy. The court examined the respondent's conduct and the reasons for the delay, as well as the impact of the delay on the proceedings and the Commission's ability to conduct the case. The court also considered the principles of fairness and the public interest in the resolution of complaints against health practitioners.

Justice McDougall dismissed the application for a permanent stay, finding that the delay was not substantial enough to warrant such a remedy. The court held that while the delay was regrettable, it did not prejudice the Commission's ability to conduct the case to such an extent that a permanent stay was warranted. The court also found that the public interest in the resolution of complaints against health practitioners would be best served by proceeding with the disciplinary proceedings. The court ordered that the applicant pay the respondent's costs of the motion and confirmed the hearing dates allocated to this matter commencing 11 August 2005.

Orders

Orders of the court

1 Application dismissed.; 2 Applicant to pay the Respondent's costs of the motion.; 3 Confirm the hearing dates allocated to this matter commencing 11 August 2005.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	HCCC v Dr Edmund Ching Kun KWAN [2005] NSWMT 24
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission Dr Edmund Ching Kun Kwan
FILE NUMBER(S):	40014 of 2004
CORAM:	Ainslie-Wallace, DCJ
CATCHWORDS:	Application for a Permanent Stay - Delay
LEGISLATION CITED:	Jago v District Court of New South Wales (1989) 168 CLR 23 R v Littler [2001] NSWCCA 173 Walton v Gardiner (1992-1993) 177 CLR 378 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Carson v Legal Services Commisioner and Anor [2000] NSWCA 308
CASES CITED:
DATES OF HEARING:	30.5.2005, 31.5.2005, 1.6.2005
DATE OF JUDGMENT:	3 June 2005
LEGAL REPRESENTATIVES:	P Saidi SC for the Health Care Complaints Commission G Segal of counsel for the Applicant/ Respondent
ORDERS:	1 Application dismissed.; 2 Applicant to pay the Respondent's costs of the motion.; 3 Confirm the hearing dates allocated to this matter commencing 11 August 2005.