Health Care Complaints Commission v Dr Il-Song Lee
[2011] NSWMT 12
•06 October 2011
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Dr Il-Song Lee [2011] NSWMT 12 Hearing dates: 18-20/07/11, 27/09/11 Decision date: 06 October 2011 Jurisdiction: Civil Before: Elkaim SC DCJ
Dr J Kendrick
Dr S Toh
Mr R KellyDecision: See paragraph 83
Legislation Cited: Health Care Liability Act 2001
Health Practitioner Regulation National Law (NSW)
Medical Practice Act 1992
Medical Practice Regulation 2003Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Murphy v Farmer (1988) 165 CLR 19
HCCC v Richard Allen Matter No 40016 of 2009, 2 July 2010
HCCC v Dr Chan Matter No 40003 of 2011, 9 September 2011Category: Principal judgment Parties: Health Care Complaints Commission (Complainant)
Dr Il-Song Lee (Respondent)Representation: P Griffin (Complainant)
S Barnes (Respondent)
Health Care Complaints Commission (Complainant)
Unsworth Legal (Respondent)
File Number(s): 40004/2011 and 40011/2010 Publication restriction: Suppression of identities of patients A, B and C
Judgment
The Tribunal has heard two complaints brought by the Health Care Complaints Commission ("HCCC") against Dr Il-Song Lee ("Dr Lee").
In broad terms, the first complaint ("Complaint 1") stems from Dr Lee practising as a General Practitioner between 2002 and 2007 without Professional Indemnity Insurance. The second complaint ("Complaint 2") arises from the doctor's treatment of three patients both in regard to his clinical actions and his completion of the patients' notes and referrals for pathology tests.
Dr Lee has conceded that he was not insured but he denies that this was deliberate or that he intentionally misrepresented that he was insured. In essence, he says that the lack of insurance was an administrative oversight.
In relation to the treatment of the three patients, Dr Lee agreed that some of his note taking was inadequate. He denied that his clinical treatment had any failings.
It is important to point out at this stage that in respect of both complaints there is no allegation that any patient suffered any harm or loss as a result of Dr Lee's actions. It is also noted that the three patients referred to in the second complaint did not provide any statements to the HCCC nor were they called to give oral evidence.
Some background
Dr Lee was born on XX XXX 1963 in South Korea. He came to Australia in 1976.
He graduated with the degree of MB BS in 1985. He then worked as an intern in various hospitals and also as a Resident Medical Officer. He was a Senior Resident Medical Officer at St Josephs Hospital, Auburn.
He began working as a general practitioner on a part-time basis in 1986. He then joined the Medical Defence Union ("the MDU"), and received medical indemnity cover from this organisation.
Although Dr Lee states in paragraph 7 of his statement (Exhibit 1, Tab 1) that he paid his membership fees "annually by direct debit using my credit card" , it appears from the documents produced by the insurer (Exhibit A, Tab 23) that credit card deductions were only made during 1998 and were made quarterly.
In 1990 Dr Lee returned to South Korea for two years where he worked as a Medical Director in a clinical research organisation. He pursued a similar role when he returned to New South Wales.
In 1994 Dr Lee commenced general practice in Eastwood as a sole practitioner. He continued in this manner until he sold the practice in March 2006. Most of his patients were Korean and he was very busy.
The practice operated with the assistance of two receptionists; however, Dr Lee appears to have handled all administrative actions himself. In particular he did not delegate payment of insurance premiums or other like activities to his employees. A service company operated the practice. Dr Lee did, however, provide material to an accountant for preparation of tax returns. He gave this evidence:
" Q. From 1993 did you claim a deduction for your professional indemnity insurance?
A. I hope so. I believe--
Q. You do understand that these are deductible now, don't you?
A. It is. It is, yes. I hope that I - my accountant did that, yes. I think he did.
Q. Was it your usual practice to provide to your accountant financial records so that he could prepare your return?
A. Yes.
Q. What records would you provide to your accountant in relation to your professional indemnity insurance payment?
A. Well, I would provide him everything that I have, all the expenses, all the receipts, all the invoices; and I presume that my car [sic] details will be there, my statement will be there. See it's not just the single document that I give to accountant, but my accountant is with all, all other issues or practice management and so on." (T 125.38)
A little later Dr Lee said this:
" So trying to, you know, to manage the financial issues, state the financial issues. I mean, you know, it's not possible to do that. I cannot look at bills every day and just cross off two for the benefit of the accountant. I give it to the accountant to sort it out - sort them out - for him to do it. That's why I pay the accountant for. I have a responsibility to look after the patients and manage the patient. I always had that as my priority and always had that in activity. So if you ask me whether I look at individual expenses or individual item numbers in my credit card or bank balance, whatever, no, I could not do that because I was just too flat out." (T 126.23)
The question of whether Dr Lee had claimed annual premiums as a deduction assumed some importance in the hearing and led, at least in part, to the matter being adjourned to allow Dr Lee time to clarify the issue.
On the resumption of the hearing no further evidence was tendered. No tax returns were produced and no reason was given for their unavailability. Neither Dr Lee nor his accountant offered an explanation.
The Health Care Liability Act 2001 took effect in 2002. Section 19(1) of this Act required medical practitioners to take out professional indemnity insurance (unless exempted by the relevant regulations). Section 19(3) states:
" (3) Practising as a medical practitioner in NSW without being covered by approved professional indemnity insurance is, for the purposes of the Health Practitioner Regulation National Law (NSW), unsatisfactory professional conduct."
Standard registration renewal forms required the applicant to complete a " Professional Indemnity Insurance Declaration ". (See for example Tab 22 in Exhibit A).
Following the sale of the practice in Eastwood, Dr Lee began working at the Chatswood Medical Centre. This appears to have occurred in March 2006. The change of practice brought with it an interest, on Dr Lee's part, in cosmetic surgery including the treatment of skin cancers.
The extension of his practice into the cosmetic arena caused Dr Lee, on 26 April 2006, to ring UMP to check that his insurance cover was appropriate. He was informed that he had not, in fact, been covered since 31 December 1999.
Over the following year Dr Lee endeavoured to obtain both current and retroactive insurance but his efforts were hampered by various omissions and oversights on his part. He finally obtained appropriate cover (both current and retroactive) on 2 March 2007.
In October 2009 Dr Lee suffered a stroke. Although he said he had made a "full recovery" he attributes some lack of memory to this event.
In April 2010 Dr Lee left the Chatswood Medical Centre and now works, principally, at the Kildare Road Medical Centre in Blacktown.
Complaint 1
This complaint can be found behind Tab 1 in Exhibit A. There are six particulars given of the complaint.
Particular 1 is admitted. It is the simple allegation that from 1 January 2002 until 1 March 2007 Dr Lee practised without approved Professional Indemnity Insurance in contravention of Section 19(1) of the Healthcare Liability Act 2001.
The consequent effect of Section 19(3), quoted above, is that Dr Lee has engaged in "unsatisfactory professional conduct".
Particulars 2 and 3 are admitted, but with a significant reservation. The particulars allege that Dr Lee made false declarations in annual renewal applications to the Medical Board in 2005 and 2006. These applications can be found in Exhibit A behind Tabs 20 and 22. It can be seen from these documents that Dr Lee asserts he was insured and he provides a member code. This code is AAA033. There is no dispute that the code is incorrect and should be AAA083.
The reservation just mentioned concerns the meaning of the word "false" in the complaint. The initial view of the Tribunal was that the word, in the context of the complaint, required a conscious element of deceit. The HCCC submitted that 'false' referred only to the meaning given in the Oxford English Dictionary, namely wrong or erroneous. The Tribunal was referred to the discussion of the High Court in Murphy v Farmer (1988) 165 CLR 19.
Because of the sanctions that might flow from proof of the complaint there is some basis to argue that the more stringent interpretation should be applied.
However counsel for Dr Lee accepted that the position taken by the HCCC was correct. The Tribunal does not feel it appropriate to overrule the unified position of the parties and will proceed accordingly. Ultimately there is little difference in each approach because, as submitted by Mr Barnes, the relevant factor concerning the extent of any sanction is whether or not Dr Lee knew he was not insured and continued to practise in that knowledge.
Thus, on the basis of the approach taken to 'false' Particulars 2 and 3 of Complaint 1 were admitted. The more important question of knowledge turns on whether or not, when Dr Lee executed the documents, he was aware that he was not insured.
The question just stated raises the fundamental question of the acceptability of Dr Lee's assertion that he honestly believed he was insured.
Dr Lee said that he believed his premiums were being paid by automatic deduction through his credit card and it was of considerable surprise to him when he discovered that he was not, in fact, insured. He rejected the notion that he knew he was not insured, stating emphatically that he believed he was insured. Dr Lee's response was compelling, but it must be weighed against the following factors:
(a) The number of years for which Dr Lee was not insured and apparently made no check of his insurance status.
(b) His evidence that he expected his accountant to claim the premiums as a deduction and he provided all relevant documents to the accountant.
(c) The absence of any evidence from Dr Lee's accountant in relation to any documents he received.
(d) The absence from evidence of the tax returns and any explanation for their absence.
(e) The credit card which was provided to the insurer in 1998 expired in October of that year and no attempt was made to provide details of a replacement card (Exhibit A, Tab 23, page 2).
(f) Dr Lee's completion of the renewal forms in 2005 and 2006 without any apparent confirmation of his cover.
(g) Dr Lee's admitted failure to respond to the letter from the NSW Medical Board dated 12 May 2005, which called for evidence of his current insurance. There are other requests and notices to the same effect but the absence of a response is complicated by Dr Lee changing address but apparently not re-directing his mail.
Reference has been made above to Dr Lee's rejection of dishonesty. We think it worth quoting the following passage from his oral evidence:
"Q. Which is it? Do you agree? Do you disagree? Or--
A. I strongly disagree. I mean, what - what advantage would I get not having insurance? I mean, I explained to you yesterday that my income level at the time, compared to the amount of the insurance cover, is such a small amount. Number 2, I had experience with the tribunal, which actually - which actually makes me realise how much the cost of the legal system is. And number 3, what kind of benefit would I get from those kind of things? I mean, that's just such an absurd statement. I strongly object to that statement.
DEPUTY CHAIRPERSON: All right. We'll take it that he rejects your submission.
GRIFFIN: Yes. Thank you.
Q. I put to you, doctor, that subsequently when the Medical Board requested documentation about insurance, your reason for not responding to them immediately was because you were trying to fob them off in the hope that you would get retroactive cover and the issue would disappear. What do you say about that?
A. Look, I apologise for shouting at you. But that was a very emotive issue for me. To answer your questions, no, that's not true. As I said, I had such a strong belief and such unbelief, disbelief that such things had happened, that I think I was in a denial for such a long time and trying to do my utmost to disprove this issue of not having coverage. Because, I mean, it's just such an absurd and such a stupid and such a - I can only describe it as such a high stupidity of not me not having an insurance.
Q. But one benefit you would have obtained is you saved on the premiums.
A. Come on. Premium of $2,000 versus the income of, say, $200,000 and I paid more premiums having a retroactive cover than actually cover for those five years." (T 168.21)
The Tribunal also noticed a sense of blame avoidance on Dr Lee's part when he often referred to the responsibility that other entities had for ensuring that he was insured. The following passages of evidence highlight this attitude:
"Q. Did you ever check that he did it?
A. No, I didn't because I - I mean, when you do it, take annual tax returns out, I would trust my accountant to do proper things and I would sign it off and give it back to him." (T 126.47)
"Q. From where?
A. From the insurance company, if - as I say, the Medical Board has much more power than individual as a body which assists the doctors. I would assume that, if they needed something, they will go straight to the source and request for it and the other issue is that when I knew about what - insurance lapse in 2006, I was so shocked and I could not believe myself that those things happened." (T 152.32)
"Q. And do you remember that doctors received a call - I don't mean a telephone call, but were asked to put money up?
A. No. My impression of that instance was that I was so stupefied - you know, what's - I did not realise what it - that it's all about, because, you know, you pay your insurance due, and you expect the insurance company to cover you. So what's the big deal about that? I mean, it was my sort of impression that, you know, what's the big deal about it? I mean, I pay my insurance dues, it's their responsibility to cover, and therefore it's none of my interest as long as I pay my-" (T 157.26)
The Tribunal finds it difficult to accept that Dr Lee remained unaware that he was not insured over so many years. The Tribunal is also acutely aware of the gravity of a finding of dishonest conduct. Although the Tribunal accepts that the standard of proof is on the balance of probabilities, it recognises that the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 should be applied in resolving the allegations made against Dr Lee.
The Tribunal has had regard to Dr Lee's emotional reaction to the suggestion of dishonesty as well as the logic in his assertion that the relatively low cost of his premiums was not worth saving at the risk of a financially productive practice.
With some reservation, the Tribunal's conclusion is that Dr Lee remained uninsured as a result of a combination of his poor administration, his casual attitude to his assumption that he was covered without the need for regular confirmation as well as a degree of arrogance and expectation that responsibility for ensuring his cover continued lay as much with authorities like the Medical Board and the insurance company as with himself. The Tribunal, in essence, finds that Dr Lee was reckless in his attitude to his insurance but was not overtly dishonest.
Accordingly although Particulars 2 and 3 in Complaint 1 are proven the Tribunal has not been persuaded that Dr Lee dishonestly completed the declarations.
Particulars 4 and 5 allege that Dr Lee failed to comply with requests from the Medical Board for provision of details of his insurance. The allegations are denied. The requests are dated 29 March 2007 and 31 May 2007. They can be found in Exhibit A behind Tabs 4 and 5.
Dr Lee's response to these complaints is in paragraph 40 of his statement (Exhibit 1, Tab 1). Dr Lee's attitude is consistent with the observations made above concerning the manner in which he approached his insurance cover. It displays a degree of arrogance and willingness to shift blame away from himself.
A more technical response to the allegations was made in final submissions. The Tribunal accepts this response.
Dr Lee submitted that the wording of the two Notices was important. The relevant passage is as follows:
"Pursuant to section 127C of the Medical Practice Act 1992 the Board requests that you provide the following information:
Details of your Professional Indemnity from 1 January 2002 to 31 December 2006. Details must include the name of the insurer, policy number, period of insurance cover, field of practice/risk category covered and any endorsements."
The request is for details of the insurance. The second sentence of the request, in the view of the Tribunal, confines the scope of the request. It is common ground that there were no documents available that would meet the description of the documents requested. This, naturally, was because the doctor did not have the insurance cover.
If the documents sought did not exist, Dr Lee submitted, then there was nothing to produce. Consequently there was no breach of the notice.
The HCCC suggested that the wording of the notice should be given a broader interpretation so as to include, for example, a statement that no insurance existed. In addition it was submitted that there was a duty of candour that required the recipient of the notice to respond with a statement of the true position. The following passage was relied upon in the matter of HCCC v Richard Allen (Matter No 40016 of 2009, 2 July 2010). At paragraph 64 the Tribunal in that matter observed:
"Dr Allen had an obligation to ensure that information provided to the Board was accurate. This Tribunal expects that any medical practitioner appearing before it or the Board or when called upon to make a statement that is to be relied upon before the Board will be honest and frank in his/her dealings with the Board. Any limits or uncertainty in their knowledge should be made clear."
Reference was also made to paragraph 80 in the Allen matter.
A notice under Section 127C of the Medical Practice Act 1992 carries with it, if breached, specific sanctions. A notice must be interpreted strictly. While there is unquestionably an obligation on a doctor to be honest with the Medical Board that is not the point at issue here. The point is whether there has been compliance with the Notice. Had the complaint been a challenge of Dr Lee's explanation to the Board on 29 March 2007, as described in the file note (Exhibit A, Tab 6), the position may have been different.
In the opinion of this Tribunal there could be no breach of the Notice as it is framed, if the details requested did not exist.
Counsel for the HCCC requested that if the Tribunal reached the conclusion that has been reached, then it would be appropriate to provide an example of wording that would not be technically flawed.
The Tribunal does not think it appropriate to advise the HCCC. However, bearing in mind that the Medical Council is a statutory body exercising a protective function, the Tribunal suggests that the following wording could have been used:
"Information of your professional indemnity from 1 January 2002 to 31 December 2006. This information includes whether or not insurance was actually held. If it was in place then the details provided should include the name of the insurer, policy number, period of insurance cover, field of practice/risk, category covered and any endorsements."
The Tribunal is thus of the view that Particulars 4 and 5 have not been proved.
The position is different in relation to Particular 6. This particular concerns a failure to comply with a request for information dated 17 July 2009 (Exhibit A, Tab 26). The allegation is denied.
Dr Lee says that he had nothing to give to the HCCC. On this occasion he refers to his explanation contained in his facsimile to the HCCC dated 21 September 2009 (Exhibit A, Tab 24). The Tribunal notes the following matters about this document:
(a) The Notice from the HCCC required compliance by 31 July 2009. Dr Lee's response is almost two months late.
(b) The explanation given in paragraph 4 of the facsimile was, by 2009, known by Dr Lee to not be correct. The insurance documents (Exhibit A, Tab 23) suggest that automatic credit card deductions had only commenced in 1998.
(c) Paragraphs 5 and 6 of the facsimile again demonstrate Dr Lee's attitude of shifting blame to others for his own administrative failings.
The wording of this Notice is slightly different, but importantly, to the earlier Notices. The distinction is the use of the word "information" in Clause 1 of the Notice. This word provides a wider scope than the earlier Notices and would include notification of an absence of cover. This was not provided within the designated time so that the Tribunal is satisfied that Particular 6 has been proved.
In summary, Complaint 1 has been made out to the extent that Particulars 1, 2, 3 and 6 have been proved. The establishment of Complaint 1 is a finding of unsatisfactory professional conduct under the Medical Practice Act 1992.
The Tribunal is of the view that the unsatisfactory professional conduct is of such a serious nature as to constitute professional misconduct within Section 37 of the Medical Practice Act 1992 so as to justify suspension of the practitioner from practising medicine for a period of time.
Complaint 2
As stated above the second complaint concerns the treatment provided to three patients (A, B and C). The bulk of the particulars in respect of each patient concern a failure to adequately record relevant matters. There are however also allegations of a failure to offer specialist referral and also to implement "a documented recall system" .
On the third day of hearing the HCCC sought leave, which was not opposed, to file an Amended Complaint. The new document simply removes some detail from the particulars of complaint. Although the clinical particulars of complaint were not withdrawn it is notable that cross-examination in relation to Complaint 2 (from transcript page 169) is restricted to the area of record keeping. Even if the Tribunal was of the view that there were some clinical failings it would be extremely reluctant to act upon that view in the absence of the failings being put to Dr Lee in cross-examination. It follows that Particular 12 cannot be established.
In relation to the absence of a recall system, Dr Lee's evidence is that he did follow up the patients and also gave them appropriate instructions, although he did not record those instructions. The Tribunal is not in a position to disbelieve Dr Lee, in particular as there is no contradictory evidence from the patients, so that the failing is essentially one of record keeping in not detailing the instructions given to the patients. Dr Lee said he had now instituted a 'double check' recall system. Although a documented system would have been ideal, on the basis of the expert evidence, it cannot be said that Dr Lee's conduct fell significantly below a standard reasonably expected of a practitioner as required by Section 139B of the National Law.
Accordingly Particulars 5, 13 and 20 have not been established.
The difficulty with the failure to provide the option of specialist referral is that it is conceded that in each of the three cases, that specialist referral was not ultimately required. Even if the option should have been provided as a precautionary basis the failure to do so was of no consequence.
Particulars 4, 11 and 19 have accordingly not been established.
Dr Lee conceded that his conduct in respect of Particulars 3 and 10 fell "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience" (Section 139B(1)(a) of the National Law).
Particulars 2, 9 and 16: Dr Lee conceded that he had been guilty of "unsatisfactory professional conduct" in that he had contravened the Medical Practice Regulation 2003, but only to the extent that the Regulation required the recording of the anaesthetic used and the number and type of sutures inserted. The concession did not extend to recording the size of the lesion. To the extent of the admission the Tribunal finds that Particulars 2, 9 and 16 have been established. This in turn is a finding of unsatisfactory professional conduct under Section 139B(1)(b).
Particulars 1, 7 and 14: Dr Lee conceded that he had failed to provide the measurement and orientation of the lesion but he said he had given details of the site. No criticism can be levied at the doctor in respect of the site. The question is whether his failure to include the measurement and orientation of the lesion was conduct below the expected standard.
In respect of Particular 1 neither Dr Young nor Dr Jammal said the failure to record the orientation of the lesion was conduct that was significantly below the expected standard. The same applies to the failure to provide measurements of the lesion. The Tribunal agrees. Accordingly Particular 1 has not been established.
As for Particulars 7 and 14 the evidence of Drs Young and Jammal is effectively the same as for Particular 1. Again the Tribunal agrees. Particulars 7 and 14 have not been established.
Particular 6: The standard of Dr Lee's conduct is not agreed upon by the experts (Dr Young at T 56.9, Dr Jammal at T 88.37). The Tribunal prefers the evidence of Dr Young. Bowens Disease has the potential to become malignant and the possibility should be evident for the future treatment of the patient especially by a different doctor. The Tribunal therefore accepts that Particular 6 has been established.
Particular 8: Dr Young was not critical of Dr Lee's entry (T 56.41). Nor was Dr Jammal (T 89.8). The Tribunal agrees. This Particular has not been established.
Particular 15: Dr Young said the failure was significantly below the expected standard (T 58.40). Dr Jammal disagreed. He thought the pathology report was what counted (T 90.30). The Tribunal in this instance prefers the evidence of Dr Jammal. While a potential diagnosis may be helpful the very reason for the pathology request is to obtain an accurate diagnosis. Accordingly Particular 15 has not been established.
Particular 17: Dr Young said the conduct was below, but not significantly below, the expected standard (T 59.15). Dr Jammal's evidence is the same (T 91.35). The Tribunal has some reservations about the experts' opinions. The absence of a reference to the earlier report resulted in some uncertainty in the pathologist's report ( "... changes are suggestive of recent trauma ..." ). Notably the second report was prepared by a different pathologist.
Ultimately the Tribunal does not think it appropriate to disagree with both experts. Accordingly Particular 17 is not established.
Particular 18: This particular was conceded to the extent that Dr Lee did not document any options for management besides "wait and see: return if worsen" . However, Dr Lee submitted that this was appropriate, in particular as the results of the pathology tests were not inconclusive, as alleged in the Particular. Rather there was a conclusive finding of an absence of cancer. The Tribunal accepts Dr Lee's interpretation of the pathology report and that in that circumstance there was no need for further action by Dr Lee. Accordingly Particular 18 has not been established.
In summary, Dr Lee's conduct has been found to be unsatisfactory professional conduct under Section 139B of the National Law in respect of Particulars 2, 3, 6, 9, 10 and 16.
Protective Orders
The HCCC submitted that a finding of guilt in respect of Complaint 1 should result in the deregistration of Dr Lee. Alternatively it was submitted that he should be suspended. Both parties relied on the finding of the Medical Tribunal in the matter of Dr Peng Chan (Matter No 40003 of 2011, 9 September 2011). Dr Chan's matter is similar to the extent that it concerned a doctor practising without professional indemnity insurance for a long period. The doctor admitted the allegations but went somewhat further than in the present case in that he conceded that he had deliberately misled the NSW Medical Board when he applied for his annual renewal of registration. This concession, having regard to the findings concerning deliberate conduct, make Dr Chan's conduct more serious than that of Dr Lee.
The HCCC pointed out that Dr Chan had made a full confession. Dr Lee did not. However, Dr Lee's resistance has to some degree been successful so that the absence of a 'guilty plea' should not be held against him.
The Tribunal is of the view that, having regard to the result in Dr Chan's case, it would not be appropriate to de-register Dr Lee. This would be to impose on him a far more severe sanction than was received by Dr Chan. The Tribunal is of the view that, once again, a suspension is appropriate. However because there has not been a finding of deliberately misleading the Board, the Tribunal thinks the suspension should be for a shorter period, although not by much, than was received by Dr Chan.
The Tribunal is acutely aware of the seriousness of practising without professional indemnity insurance for such an extended period. Although Dr Lee has not been found to have deliberately misled the Board he nevertheless acted, as stated above, in a somewhat reckless and perhaps arrogant manner. It is also arguable that Dr Lee has displayed no contrition, even for his admitted acts of wrongdoing. The view of the Tribunal is that a suspension of 10 weeks should be imposed. In order for the doctor to arrange his affairs for the benefit of his patients, the suspension should not take effect for a period of four weeks.
In addition, the Tribunal is of the view that the same condition as that imposed on Dr Chan should be imposed on Dr Lee.
The HCCC did not make any submissions concerning protective orders for breach of Complaint 2. Dr Lee submitted that as the allegations were restricted to record taking the only protective order that should be made is a reprimand. It was pointed out that Dr Lee has already corrected many of his failings and this should be taken into account. The Tribunal agrees that Dr Lee's subsequent conduct is important and relevant and also agrees that a reprimand is appropriate. The Tribunal, however, thinks that a further protective order is necessary which should take effect upon Dr Lee's return from the period of suspension. This order is designed to ensure Dr Lee's records continue to conform to the requisite standard. The Tribunal thinks the following orders are appropriate:
In accordance with section 149A (1) (b) of the National Law, the Tribunal imposes the following conditions on Dr Lee's registration:
(a) Dr Lee is to submit to an audit, at the premises where he practises, of a random selection of his medical records by a person or persons nominated by the Medical Council of New South Wales, to assess his compliance with relevant provisions of the Health Practitioner Regulation (New South Wales) Regulation 2010.
(b) The audit is to occur within 6 months from the date of this Decision and further audits are to occur as required by the Medical Council of New South Wales. The practitioner is to authorise the Auditor/s to provide the Medical Council of New South Wales with a report on his/her/their findings. The practitioner is to meet all costs associated with the audit/s and any subsequent reports.
(c) This condition may be varied, amended or removed at the discretion of the Medical Council of New South Wales.
(d) The Medical Council of New South Wales is the appropriate review body for the purpose of any review of this condition.
(e) The Medical Council is to provide the Auditor/s with a copy of this decision.
Costs
The parties agreed that there should be a costs order in favour of the HCCC. Dr Lee submitted however that he should not be liable for the full amount of the HCCC's costs because of the degree of success that he has had in resisting the totality of the allegations against him. The Tribunal is of the view that Dr Lee has successfully resisted some of the allegations but the more significant have been proven, in particular the allegations that have lead to his suspension.
The question of costs is discretionary and a decision should be made to reflect a just result. The Tribunal thinks such a result would be achieved by Dr Lee paying 85% of the HCCC's costs.
Orders made
The Tribunal makes the following orders:
(a) To suspend Dr Lee's registration for a period of 10 weeks to commence four weeks from the date of these orders pursuant to Section 149C(1) of the Health Practitioner Regulation National Law (NSW).
(b) As part of any Application pursuant to Part 7 Division 9 of the National Law, Dr Lee is to provide a current certificate of professional indemnity insurance to both the National Board and the Medical Council of New South Wales within 14 days of lodging his registration with the Australian Health Practitioner Regulation Agency (AHPRA) on an ongoing annual basis. This condition applies until such time as it is reviewed or revoked by the Medical Council of New South Wales.
(a) Dr Lee is reprimanded.
(b) In accordance with section 149A (1) (b) of the National Law, the Tribunal imposes the following conditions on Dr Lee's registration:
(i) Dr Lee is to submit to an audit, at the premises where he practises, of a random selection of his medical records by a person or persons nominated by the Medical Council of New South Wales, to assess his compliance with relevant provisions of the Health Practitioner Regulation (New South Wales) Regulation 2010.
(ii) The audit is to occur within 6 months from the date of this Decision and further audits are to occur as required by the Medical Council of New South Wales. The practitioner is to authorise the Auditor/s to provide the Medical Council of New South Wales with a report on his/her/their findings. The practitioner is to meet all costs associated with the audit/s and any subsequent reports.
(iii) This condition may be varied, amended or removed at the discretion of the Medical Council of New South Wales.
(iv) The Medical Council of New South Wales is the appropriate review body for the purpose of any review of this condition.
(v) The Medical Council is to provide the Auditor/s with a copy of this decision.
(c) Dr Lee is to pay 85% of the costs of the HCCC.
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Decision last updated: 21 October 2011