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 KwanFILE 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 308CASES 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/ RespondentORDERS: 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…
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- Case
- [2005] NSWMT 24
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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