Medical Board of Australia v Bethania Surgery
[2015] QCAT 550
•20 October 2015
| CITATION: | Medical Board of Australia v Bethania Surgery [2015] QCAT 550 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Dr Sylvia Yu t/as Bethania Surgery (Respondent) |
| APPLICATION NUMBER: | OCR040-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 16 October 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | His Honour Judge Horneman-Wren SC, Deputy President Assisted by: Dr Harpreat Moudgill Dr Glenda Powell Dr Wayne Sanderson |
| DELIVERED ON: | 20 October 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Dr Sylvia Yu has behaved in a way that constitutes unsatisfactory professional conduct. 2. Dr Sylvia Yu will be reprimanded, to be recorded on the Medical Board of Australia’s register for a period of 6 months. 3. There be no order as to costs. |
| CATCHWORDS: | PROFESSIONS AND TRADES –HEALTH CARE PROFESSIONALS –MEDICAL PRACTITIONERS –DISCIPLINARY PROCEEDINGS –whether registrant inappropriately permitted or allowed an unregistered person perform two surgical proceedings on her patients –whether registrant inappropriately permitted or allowed patients to claim benefits from Medicare Australia for surgical proceedings performed by an unregistered person –whether registrant inappropriately provided false and misleading information to the Medical Board of Australia’s investigator –where registrant admitted one surgical proceedings performed by unregistered person and the other not found –where registrant refunded Medicare Australia for inappropriate claim –where registrant found to have behaved in a way that constitutes unsatisfactory professional conduct Health Insurance Act 1973 (Cth), s 128B Re: Dr Cynthia Weinstein |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr M Black of counsel instructed by DLA Piper Lawyers |
| RESPONDENT: | Mr P K O’Higgins instructed by Bartley Cohen Lawyers |
REASONS FOR DECISION
The Proceedings
The Medical Board of Australia commenced disciplinary proceeding under the Health Practitioners (Professional Standards) Act 1999[1] against Dr Sylvia Yu on 8 February 2012. The disciplinary ground alleged was that Dr Yu had behaved in a way that constituted unsatisfactory professional conduct.[2] It alleged that she had engaged in professional conduct that was of a lesser standard than that which might reasonably be expected of her by the public and her professional peers, and that she had engaged in fraudulent or dishonest behaviour in the practise of her profession.[3]
[1]Subsequently renamed the Health Practitioners (Disciplinary Proceedings) Act 1999
[2]S 124(1)(a) Health Practitioners (Disciplinary Proceedings) Act 1999.
[3]See paragraphs (a) and (h) of the definition of Unsatisfactory Professional conduct in the Disciplinary Proceedings Act.
The conduct giving rise to the disciplinary action related to the treatment of 2 patients at the Bethania Surgery operated by Dr Yu and her husband Mr Gung Yu. It was alleged that on 9 August 2008 Dr Yu inappropriately permitted or allowed Mr Yu to perform a skin biopsy on the patient, RS. The Board further alleged that on 22 July 2008 Dr Yu inappropriately permitted or allowed Mr Yu to perform cryotherapy on the patient SK. Mr Yu was a medical practitioner in his native China, but was not registered as a medical practitioner in Australia.
It was further alleged that Dr Yu inappropriately permitted or allowed the patients RS and SK to claim benefits from Medicare Australia for the surgical procedures performed by Mr Yu, and that she, in breach of s 128B of the Health Insurance Act 1973 (Cth), allowed, permitted or authorised the issuing of invoices to the patients RS and SK describing that the surgical procedures performed on them were performed by Dr Yu when they were, in fact, performed by Mr Yu.
The Board further alleged that in October 2008, during the course of the Board’s investigation, Dr Yu inappropriately provided false and misleading information to the Board’s investigator. That false and misleading information was alleged to be that:
“(a) Dr Yu informed the investigator that Mr Yu had experience assisting specialists at the Wesley Hospital and the Sunnybank Private Hospital;
(b) Dr Yu informed the investigator that Mr Yu assisted her with surgical procedures and never performed procedures by himself;
(c) Dr Yu informed the investigator that Mr Yu had “at most” done wound dressings by himself at the surgery;”
In respect of the statement concerning Mr Yu’s experience assisting specialists at the Wesley Hospital and the Sunnybank Private Hospital, the Board alleged that Mr Yu had never been employed at either hospital.
Dr Yu filed a response to the referral on 5 March 2012 in which she admitted that she had inappropriately permitted or allowed Mr Yu to perform cryotherapy on the patient SK; that SK had claimed a benefit from Medicare Australia for the performance of the procedure on the basis that it had been performed by Dr Yu; and that Medicare Australia had paid a benefit to Dr Yu for the procedure.
Dr Yu denied that she had allowed or permitted Mr Yu to perform the skin biopsy on the patient RS and asserted that she had performed that procedure assisted by Mr Yu.
In respect of the allegation that she allowed, permitted or authorised the issuing of invoices to patients describing surgical procedures had been performed by her when they had in fact been performed by Mr Yu, she admitted that allegation in respect of the patient SK, but denied it in respect of the patient RS.
Similarly, in respect of the allegation that she provided false and misleading information to the Board’s investigator, she admitted that her statement that Mr Yu never performed procedures by himself and that, at most, he had done wound dressings by himself, was false and misleading in that Mr Yu had performed the cryotherapy procedure on the patient SK. However, she otherwise denied the allegation.
On the basis of those admissions which she had made concerning the treatment of the patient SK by Mr Yu, the invoice issued in respect of that patient, and that the statements she had made to the Board’s investigator concerning Mr Yu’s limited involvement in procedures were false and misleading given the treatment by Mr Yu of the patient SK, she admitted that she had engaged in unsatisfactory professional conduct.
An amended referral was filed on 25 May 2012. Materially, the referral was amended to particularise that the provision of false and misleading information, as pleaded in the original referral, had been provided by Dr Yu in a letter dated 10 October 2009 in response to a letter from the former Medical Board of Queensland dated 18 September 2008 informing her of complaints made against her. In so far as it had previously been alleged that Mr Yu had never been employed at either the Wesley Hospital or the Sunnybank Private Hospital, the particulars were amended to allege that there was no record of Mr Yu ever having worked at either of those hospitals.
By further amendments, it was alleged that in a separate letter dated 2 September 2009 Dr Yu had inappropriately provided false and misleading information to the Board’s investigator in response to a letter from the investigator dated 11 August 2009, in that she had said: that Mr Yu never consulted with patients alone in any room in her medical practice at any time; that Mr Yu had not performed any procedure on any patient at her medical practice; and that Mr Yu “met a specialist at the Mater Hospital who later introduced him to a known Sunnybank Private Hospital specialist. In January 1989 Mr Yu was employed there as a theatre assistant where he assisted specialists”.
At the commencement of the hearing, counsel for the Board indicated that the Board would be offering no evidence in respect of the allegation that in her letter of 10 October 2009 Dr Yu had informed the investigator that Mr Yu had experience assisting specialists at the Wesley Hospital and the Sunnybank Private Hospital, and the allegation that there was no record of Mr Yu ever having worked at either of those hospitals.
Counsel also indicated that no evidence would be offered in respect of the allegation that in the letter of 2 September 2009 Dr Yu had informed the investigator about matters concerning Mr Yu having met a specialist at the Mater Hospital who later introduced him to another specialist at the Sunnybank Private Hospital and that in January 1989 Mr Yu had been employed there as a theatre assistant where he had assisted specialists.
Treatment of RS
Because of the admissions made by Dr Yu concerning the patient SK, the area of contention between the parties on the hearing was in respect of the allegation concerning Mr Yu, not Dr Yu, having performed the procedure on the patient RS.
Exhibit 3 is a transcript of the interview conducted by the Board’s investigator with RS on 11 May 2010. It is apparent from that transcript that when initially asked to explain the procedure which had been performed upon him at the Bethania Surgery, RS initially thought that a biopsy had been taken from either his shoulder or from behind his ear. RS had had four such procedures performed on him, although he stated that only one of those had been performed at Bethania. He was “pretty sure” that it was the one behind his ear but said that he would check with his wife as she may know which one it was. Upon checking with his wife he said that she mentioned to him that it was one on his hand. Having been reminded, he said that he did recall that. As to the procedure itself he described it as follows:
“Once I sat down I think he wiped if over with some sort of solution and gave me an injection, um, and then proceeded with a little scalpel to just cut out the affected area.”[4]
[4]Exhibit 3, page 4, lines 3 to 4.
Later he said:
“They put it in a sample jar and, um, sent it off to be analysed.”[5]
[5]Exhibit 3, page 4, line 10.
In a statement sworn on 30 August 2012,[6] RS refers to having asked Dr Yu during a consultation to perform a skin check of a mole on his hand. He could not recall whether it was on his left or right hand. He states that he was advised by Dr Yu that the mole needed to be removed. At the time of swearing his affidavit, RS was uncertain at the date of the consultation but referred to having been shown a Medicare record which stated that he attended on 9 August 2008 and he agreed that the record was accurate. He states that Mr Yu was in that other room. He had previously observed Mr Yu on earlier visits to the surgery and had formed the impression that he was a medical practitioner. He described the procedure as follows:
“Dr Yu left the room leaving with Mr Yu. Mr Yu swabbed the affected area of my hand with a liquid and inserted a needle that numbed my hand. He then used a scalpel to cut the mole from my hand. The wound resembled a “T-Section”. Mr Yu stitched the wound with approximately 4 stitches and applied a dressing. Mr Yu told me that my hand might look a bit “lumpy” until it healed. I estimate that the procedure lasted 10 minutes.”[7]
[6]RS refers to having asked
[7]Exhibit 2 paragraph 6.
At the hearing, RS gave evidence by telephone. He said that the procedure was performed on his right hand. When questioned about that, he said that he was actually looking at it as he gave evidence and he could still see the scar which he described as “two lines like a T-piece”.[8] When questioned by counsel for Dr Yu about his earlier inability to recall whether it was on his left or right hand at the time at which he was interviewed, RS said that because he worked out in the sun his hands were pretty sun beaten but that he hadn’t been out in the sun for some time and he could “sort of see it now”.[9]
[8]Transcript page 39, lines 40 to 45.
[9]Transcript page 39, line 45 to page 40, line 2.
RS was asked about a handwritten amendment he had made to a draft of the affidavit where he changed the number of procedures which had been performed on him from four to one. He explained that that was done because he had only had one done at Bethania.[10]
[10]Transcript page 40, line 26.
The following exchange then took place between counsel for Dr Yu and RS concerning the number of procedures which were performed upon him on 9 August 2008:
“Now, in fact, your medical records show that there were 2 excisions done on that day; do you recall that? --- What, on me?
Yeah. On your hand? --- No. There wasn’t. Why would I get 2 done in one day?”[11]
[11]Transcript page 40, lines 37 to 42.
RS was unable to recall whether Mr Yu got medical supplies out and ready for the procedure. He did not know who got the jar for the sample to be placed in. He was unsure whether he saw Mr Yu open any sterile packets or anything of that kind. When asked whether he saw Mr Yu get the needle ready for the injection of local anaesthetic he said:
“I don’t know. It may have been Sylvia because she was the – until he started the procedure and she went out of the room then. I’m not actually sure who gave me the injection, whether it was – it was the guy or Dr Sylvia Yu.”[12]
[12]Transcript page 41, lines 34 to 38.
When asked whether he saw Mr Yu getting swabs out, RS said:
“Gee, I don’t know, mate. I don’t know. I just remember him doing the procedure himself. I don’t know who prepared everything because I’m pretty sure she was still there then. So whether she had actually got that out and done that or whether he had, I – I can’t be sure.”[13]
[13]Transcript page 41, lines 39 to 43.
When asked if he saw who got the scalpel ready RS said:
“I can’t remember who got it ready, but I just remember him – him having it in his hands, so he may, I’d say he would have had it ready, I would think. I just can’t – can’t picture it, mate, it’s too long ago. It’s sort of not – not something you’re looking at who’s getting things ready when you’re having something like that, to get your hand cut open, to see – you just remember who did the job.”[14]
[14]Transcript page 41, line 45 to page 42, line 4.
As to whether it was hard to remember details, RS said:
“Other than initial details of getting stuff ready it’s not something I recall, but I only recall when the knife was cutting me. And that was something you sort of concentrate on a bit more than who’s getting swabs and – and – and injections ready.”[15]
[15]Transcript page 42, lines 8 to 10.
When it was put to him by counsel that it was possible that he may have been mistaken about Mr Yu who was swabbing the area and that it was in fact Dr Yu who did the procedure, RS said:
“No, because she went out of the room when he started to – to take it out. She didn’t come back until she – he had finished yet and was putting it in a little jar. Because I remember him holding it with a pair to tweezers and putting it into the jar. It’s like – I don’t know, something – whatever. I don’t know what they are. They must be something sterile, I suppose.”[16]
[16]Transcript page 42, lines 14 to 18.
In a written statement filed on 8 October 2012, Dr Yu says that it was in the course of an earlier consultation, on 4 August 2008, in relation to another, unrelated condition of RS that she noticed lesions on his right hand. She says that she made a further appointment for him to have them removed and that that appointment was for Saturday, 9 August 2008. She says that RS was scheduled as the last appointment to give her sufficient time to perform the procedures without the pressure of a full waiting room.[17]
[17]Exhibit 4, paragraph 15.
As to the procedures themselves, she said:
“I took RS to the treatment room and removed the 2 moles on his right hand. My husband assisted me. He did not carry out the procedure. RS was not left alone in the treatment room with my husband.”[18]
[18]Exhibit 4, paragraph 19.
She says that the procedure took about 10 minutes.
Exhibited to Dr Yu’s statement are the clinical notes the patient RS for both 4 August 2008 and 9 August 2008. In respect of 4 August the notes record Dr Yu having consulted with RS in respect of a condition of gout which had settled. The notes record that Dr Yu noticed a “SCC like legion on R hand”. The notes for Saturday, 9 August 2008 record “2 SCC like legions on dorsum of R hand”. The reason for contact is said to be “biopsy – skin”.
A printout of the surgery’s appointment diary for Saturday, 9 August 2008 is also exhibited to Dr Yu’s statement. It supports Dr Yu’s evidence that RS was booked as the last patient to be seen at the surgery on that day. It records that the appointment was for “procedure”.
Dr Yu also annexes the pathology report in relation to the biopsies taken from RS on 9 August 2008. It is clear from that report that two biopsies were taken: one from the left side of the right hand and one from the right side of the right hand.
Dr Yu also referred in her statement to having discussed with RS during the course of the procedure that he had quite a lot of sun damage to his hands. She says that RS told her that his job was, or had been, erecting sail cloths outdoors and that was why he had so much sun damage.
In her oral evidence in chief, Dr Yu referred to having taken RS to the treatment room and then stepping out to go to the toilet, returning, and starting the procedure with Mr Yu assisting her. She referred to the discussion which she had with RS concerning his occupation. At the conclusion of the procedure she said that she left her husband to do the dressing and went to her room to type up a referral.[19]
[19]Transcript page 56, lines 2 to 12.
Dr Yu describes the assistance which she received from her husband as including opening packs containing materials, positioning the patient, preparing sutures of the kind which he knows that Dr Yu likes, opening packets containing anaesthetic solution, cutting off sutures stitched by Dr Yu and dabbing the sutured area to control bleeding.
When asked by the Tribunal about her evidence that she must have left the treatment room to go to the toilet, Dr Yu said that she always liked to have an empty bladder when she does a procedure and that she thought that it was a nervous thing. When asked to reconcile that evidence with paragraph 19 of her statement where she said that RS was not left alone in the treatment room with Mr Yu, she said that it was because the toilet was just another door in the treatment room.
Whilst I have some reservations about the inconsistency between her denial in her statement that RS was not left alone in the treatment room with Mr Yu and her evidence that she routinely went to the toilet to empty her bladder prior to performing procedures, I nonetheless prefer the evidence of Dr Yu concerning the procedure that was performed on the patient RS on 9 August 2008.
I could not be satisfied to the requisite standard, on the evidence of RS, that Mr Yu performed the procedure. The clinical notes are supportive of Dr Yu’s version that the lesions were identified on 4 August 2008 and an appointment scheduled as the last appointment on Saturday, 9 August 2008 for the purpose of performing the procedure. Dr Yu’s explanation that she booked such procedures as the last appointment of the day seems plausible. It also is consistent with an intention that it be she who performed the procedure.
It seems clear, understandably, after the passage of the substantial period of time RS’s recollection, is imprecise as to what occurred on 9 August 2008. Although he deposed in his affidavit to Mr Yu swabbing his hand and injecting the anaesthetic, he was uncertain of those matters when giving evidence orally. Whilst he said that he was concentrating on the cutting of his hand, it would have been the same area as that which was being swabbed. If, as it must be on the evidence which RS gave before the Tribunal, that it may well have been Dr Yu who swabbed the hand and injected the anaesthetic, then, in my view, it cannot be discounted that she too performed the incision with Mr Yu assisting in the way that she described.
The evidence of RS that he was concentrating on his hand must also be assessed in light of the fact that when these matters were first raised with him he thought that the procedure which Mr Yu had performed was either on his shoulder or behind his ear.
In my view, it is also of particular significance in assessing the reliability of the recollection of RS of the procedure performed is that he was somewhat incredulous at the suggestion that two lesions may have been excised, whereas the independent evidence establishes that that was clearly the case.
For these reasons, I am not satisfied that the Board has established any grounds for disciplinary action against Dr Yu concerning her treatment of the patient RS.
The allegations concerning Dr Yu allowing or permitted a false claim to be made against Medicare in relation to the treatment of RS, and of her making false and misleading statements to the Board’s investigator concerning that treatment must also fail.
Treatment of SK
Having admitted that it was Mr Yu who performed the cryotherapy treatment on patient SK and that this, together with the associated Medicare claim and false and misleading statement to investigators, constitutes unsatisfactory professional conduct, a disciplinary sanction ought be imposed upon Dr Yu in respect of that conduct.
SK consulted with Dr Yu on 22 July 2008. She asked Dr Yu to remove some sun spots from her face and arms or hands. Dr Yu checked the spots and marked those which were to be removed. She asked Mr Yu to prepare the liquid nitrogen canister for performance of the cryotherapy, which he did. Dr Yu took SK to the treatment room. She describes it as being late in the afternoon and the waiting room being full of patients. She describes feeling under pressure to attend to the patients and her asking her husband to perform the cryotherapy. She accepts that she should not have done so and is very regretful of permitting Mr Yu to perform the cryotherapy.
In respect of the billing for the treatment, she says that she did not think about that at all and that SK was bulk billed as if Dr Yu had performed the cryotherapy herself. She did not give any further thought to that procedure until after the Board’s investigation commenced when it was raised with her. She then took steps to refund to Medicare the amount of $30.40 which had been bulk billed for the procedure.
Changes have now been made within the practice which would prevent the circumstances under which Dr Yu asked her husband to perform the cryotherapy upon SK to occur in the future. Dr Yu now has a staff of 11 including herself, she is one of two fulltime general practitioners with another who works part-time on Saturdays. Mr Yu’s involvement is limited to being the practice manager. He has no involvement in, or any responsibility for, the provision of any medical care to patients, the carrying on of nursing duties or assisting with procedures, or the allocation of Medicare item numbers.
As to false and misleading statements made to the investigator, Dr Yu accepts that the letters which she wrote were not correct because her husband had performed the cryotherapy on SK. However, when she wrote the letters she did not intend to mislead the Board as she did not have the procedure performed on SK in mind at the time. She states that she had forgotten that he had performed the procedure until it was put to her in the course of the investigation. Dr Yu should be accepted as to the circumstances in which she made the admittedly false and misleading statements and her contrition in that regard.
Dr Howse’s Evidence
In reaching these conclusions, I have also considered the evidence of Dr David Howse, a medical practitioner formerly employed at the surgery. Dr Howse was employed at the surgery for a period of between late February 2008 and 5 May 2008. In an affidavit sworn on 9 July 2013, Dr Howse deposed to having seen Mr Yu take patients into the rear procedure room at the surgery on at least a dozen occasions. He said that Dr Yu did not accompany Mr Yu during his attendance with those patients. He said that Dr Yu locked the door to the rear procedure room when he was attending upon patients and that he estimated he was locked out of the rear procedure room 20 to 30 times during his employment at the surgery.
When cross-examined about the difference between the dozen or so occasions when he saw Mr Yu take patients into the rear procedure room and the 20 to 30 times when he was locked out, Dr Howse said that there were many other reasons for Mr Yu being in the treatment room, including being in the room to tidy it. He also said that Mr Yu would enter the room for stock control, stock replenishment and putting the rubbish out.
Importantly, Dr Howse conceded that the patients entering the treatment room with Mr Yu were not necessarily operative patients and that they could have simply been there for the application of a dressing. He also conceded that he had no way of knowing what was going on behind the door. He agreed that he did not know the number of occasions on which he observed Mr Yu go into the treatment room and that, in respect of whatever number of occasions that was, it could have been for any reason.[20]
[20]See generally the evidence of Dr Howse, transcript page 31, line 5 to page 32 line 42.
I have not found the evidence of Dr Howse to be of any assistance in resolving the issues between the parties.
Sanction
Section 244(1)(a) requires the Tribunal to have regard to the purposes of disciplinary action mentioned in s 123 of the Act. Those purposes are to protect the public; to uphold standards of practice within the health professions; and to maintain public confidence in the health professions. The Board submits that an appropriate sanction in this matter is that Dr Yu be reprimanded and that her registration be suspended for a period of 3 months.
The Board also seeks that Dr Yu be required to provide the Tribunal with an undertaking that she will not permit Mr Yu to be present in any consultations with the patients or to conduct any consultations with patients unless he is granted registration as a medical practitioner in Australia, and that she will inform all employees and staff members of the surgery of that restraint.
The Board seeks that the reprimand, suspension and undertaking be publicly recorded on the Board’s register for a period of 2 years and that for a period of 2 years, Dr Yu must authorise the Board to access, inspect and copy any patient or practice records and appointment diaries, at Dr Yu’s expense, at such times as determined by the Board for the purpose of monitoring compliance with her undertakings. The Board also seeks an order that for a period of 2 years Dr Yu must authorise Medicare Australia and any health insurance funds to release to the Board any information relating to her practice of medicine, again at her expense, and again at such times as determined by the Board.
For her part, Dr Yu accepts that, given her admissions, some form of sanction is appropriate in order to give effect to the object of maintaining proper professional standards and public confidence in the profession. She submits that an appropriate sanction would be a reprimand and the provision of an undertaking regarding Mr Yu’s involvement in the practice in terms similar to that proposed by the Board. She proposes that the reprimand and undertaking be recorded for a period of 6 months. She also does not oppose an order permitting access to the Board for inspections of Medicare and health insurer records for a period of 6 months.
In support of its submissions as to a suspension being an appropriate sanction, the Board refers to the decision of the Medical Practitioner’s Board of Victoria in Re: Dr Cynthia Weinstein. Whilst acknowledging that the conduct in Weinstein can be categorised as a pattern of conduct, the Board submits that Dr Yu’s conduct, in allowing an unauthorised person to perform procedures and making claims to Medicare for those procedures, is analogous with the conduct of Dr Weinstein and that the Tribunal may thus be guided by the type of conduct and the sanction imposed.
In my view, the conduct for which Dr Weinstein was disciplined was of an entirely different order to that in which Dr Yu has engaged, and which she has readily admitted. Weinstein is, in my view, relevant only in illustrating why it is that a suspension is not an appropriate sanction in this case.
Dr Weinstein was a medical practitioner who specialised in dermatology. In March 2004 she was convicted in the County Court of Victoria of the indictable offence of defrauding the Commonwealth under s 29D of the Crimes Act 1914 in relation to her receipt of $11,323.25 from 203 Medicare claims in respect of 15 patients. Her misconduct had occurred over a period of 132 weeks between January 1998 and August 2000. She admitted that on 167 occasions she had allowed nurses to give advice about skincare and ultrasound to the body, acne treatments, treatment of pigmentation with bleaching motions and massage machine for scarring, upon patients attending the surgery after their first consultation. She also admitted that on one or more occasions nurses were allowed to perform percutaneous drainage of a deep abscess using interventionist techniques, and that on 13 occasions nurses were allowed to perform abrasive therapy for severely disfiguring scarring resulting from trauma, burns or acne. The substance of the matter was that Dr Weinstein did not herself provide treatment to the patients on those occasions and that she submitted inaccurate claim forms regarding those procedures.
As the Board’s submissions reflect, it was notable that Dr Weinstein had previously been found by another panel to have engaged in unprofessional conduct of a serious nature including professional misconduct. That is not so of Dr Yu. The earlier panel’s finding had related to Dr Weinstein inappropriately performing cosmetic procedures on patients without their consent, in the absence of proper care and skill, providing substandard post-operative care, failure to maintain adequate clinical notes, giving inaccurate advice and providing false and misleading information to the Board. As a result of that previous conduct, that panel had suspended Dr Weinstein’s registration for a period of 6 months. Conditions were imposed following the period of suspension including counselling regarding communication skills, adequate record keeping, obtaining consent from patients to perform procedures, and the need to appropriately delegate patient care to nursing staff. Dr Weinstein was also required to submit to regular audits of her clinical practice and management.
The second panel found that Dr Weinstein’s conduct was very serious as it involved a sustained defrauding of Medicare by nurses undertaking the provision of clinical services that should have been provided by her. The second panel’s focus, understandably, was the risk Dr Weinstein’s behaviour posed to the public, being the provision of a variety of forms of medical practice by persons who are unqualified to undertake it.
This panel categorised that as unacceptable patient care. It noted that Dr Weinstein’s conduct was dishonest, a breach of trust and grossly professionally negligent. It had been submitted on Dr Weinstein’s behalf that the only explanation for her conduct was that hers was a hectic busy practice which was chaotic and that things were being delegated, she being the only medical practitioner in the practice and that she was taking on too much and neglecting her duties. The panel was unable to conclude whether the criminal offending had taken place because of the administrative disorganisation that appeared to have characterised Dr Weinstein’s practice. It did observe, however, that it had taken place in a context of administrative dysfunctionality for which Dr Weinstein was responsible.
In considering the question of risk which Dr Weinstein continued to pose to the public the Tribunal accepted evidence that since returning to practice after her earlier suspension she had taken proper responsibility for the administration of her practice. She had employed new personnel and ensured that billing arrangements were functioning efficiently and as they should. Nurses had ceased undertaking work beyond their proper scope of practice, and two other doctors had been employed part-time at the practice. The panel observed that last measure presumably took some of the pressure off Dr Weinstein and enabled her to attend to her clinical responsibilities.
The panel recorded that it had given “earnest consideration to whether it should once again suspend Dr Weinstein for conduct that has constituted an unacceptable risk to members of the community”. However, the panel ultimately decided against that course and opted to reprimand her, fine her $2,000, and to impose conditions on her registration directed toward enabling the public to have confidence in the ongoing quality of her practice. The panel was of the view that the combination of those measures would bring Dr Weinstein to understand the impropriety of her behaviour as a professional, would deter her from its repetition, and would encourage her to ensure that the standards of her practice were kept to suitable standards over the years to follow.
I have recited those facts, circumstances and findings at length because they demonstrate the distinction between this matter and the matter of Weinstein.
By contrast, Dr Yu has engaged in 1 episode of delegating a procedure to Mr Yu. That resulted in an improper claim against Medicare in the sum of $30.40; which has been refunded. That one off contravention was not against the background of considerable prior offending, including professional misconduct, for which the practitioner had been previously suspended for a period of 6 months.
In my view, particularly given the alterations which have been made by Dr Yu to her practice, the public is adequately protected without the imposition of a suspension of Dr Yu’s registration. In my view, the standards of practice within the medical profession will be upheld and the public’s confidence in it maintained if Dr Yu is reprimanded.
Although Dr Yu did not oppose the Tribunal requiring an undertaking and did not oppose conditions in respect of the audit of Medicare and insurance claims concerning the practice, given the extremely limited nature of the conduct the Tribunal does not consider that either of those measures are necessary or appropriate as sanctions.
Dr Yu will be reprimanded. The reprimand is to be recorded on the Board’s register for a period of 6 months.
Costs
Section 255(1) of the Disciplinary Proceedings Act provides the Tribunal with a broad discretion as to costs. It provides that the Tribunal may make any order about costs it considers appropriate for the disciplinary proceedings.
In my view, it is not appropriate to order costs in this matter.
The only allegations in respect of which the Board has been successful in establishing disciplinary grounds against Dr Yu are those which she admitted in her response filed a matter of weeks after the initial referral to the Tribunal. Much of the evidence which was sought to be tendered by the Board was ruled inadmissible. Certain allegations, including some made upon amendment, have not been pursued. Given Dr Yu’s admission to the only conduct which has been established, the conduct of the proceedings on each side of the record has been, respectively, directed, in large part, to proving and resisting the allegations upon which the Board has failed to establish its case and to advocate for and resisting a sanction which the Tribunal has determined was inappropriate.
In those circumstances, the Tribunal considers that it is appropriate that there be no order as to costs. In reaching this conclusion I am mindful that even though the Board has succeeded to the extent of the admitted conduct, no costs order is being made in favour of Dr Yu in respect of the issues upon which she has succeeded.
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