Re Dr Anthony Yan Fong - [2007] NSWMT 5

New South Wales

Medical Tribunal

CITATION: Re Dr Anthony Yan FONG [2007] NSWMT 5

TRIBUNAL: Medical Tribunal

PARTIES: Health Care Complaints Commission
Dr Anthony Yan Fong

FILE NUMBER(S): 40018 of 2006

CORAM: Freeman, DCJ - Ng, Dr J - Messner, Dr S - Ettinger, Ms G

CATCHWORDS: General Practitioner reprimanded - Inappropriate actions in home of patient

LEGISLATION CITED: Medical Practice Act 1992 (NSW) ss. 36 and 37; 61(1)(b), 61(1)(c); 61(1)d
Medical practice Regulation 1998, 2002 (NSW)

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336;
Rejjek v McElroy (1965) 112 CLR 517;
Richter v Walton (unreported) NSWCA 15/9/1993;
HCCC v Litchfield (1997) 41 NSWLR 630

DATES OF HEARING: 17/4/2007-18/4/2007

DATE OF JUDGMENT: 29 May 2007

LEGAL REPRESENTATIVES: G Farmer of Counsel (HCCC)
V Hartstein of Counsel (Respondent)

ORDERS: Paragraphs 37 and 38.

JUDGMENT:

JUDGMENT

THE TRIBUNAL ORDERS THAT THE NAME OF THE PATIENT OR ANY MATERIAL CAPABLE OF IDENTIFYING THE PATIENT BE NOT PUBLISHED

1 The Tribunal has before it for enquiry a complaint by the Health Care Complaints Commission (HCCC) against Dr Anthony Yan Fong of Penrith, New South Wales (“the practitioner”). The complaint dated 31 May 2006 claims that Dr Fong “has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of sections 36 and 37 of the Medical Practice Act 1992 in that he has:

1.Demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard expected of a practitioner of an equivalent level of training or experience; and/or

2. Engaged in improper or unethical conduct relating to the practice of medicine and/or

3.Contravened a provision of the Medical Practice Regulation.

2 Particulars

At all relevant times the practitioner practised as a general practitioner at the Tindale Medical Centre at Penrith.

1.On 13 January 2004, during a visit to Patient A’s home, the practitioner failed to maintain proper professional boundaries in that he:
(a) inappropriately lifted up Patient A’s foot and kissed it;

(b) made comments which were inappropriate in the circumstances, being words to the effect of:

2.The practitioner failed to make adequate and contemporaneous notes in Patient A’s medical record in relation to the visit to Patient A’s home that took place on 13 January 2004.

3.The practitioner made a false and misleading entry in his medical records in relation to…

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.

Continue reading Re Dr Anthony Yan Fong

Details

AGLC: Re Dr Anthony Yan Fong [2007] NSWMT 5
Case: [2007] NSWMT 5
Decision Date: 29 May 2007

CaseChat Overview and Summary

Dr Anthony Yan Fong, a general practitioner, was before the Health Practitioners Disciplinary Tribunal of New South Wales in relation to allegations of misconduct and professional incompetence. The primary allegation was that Dr Fong had acted inappropriately during a home visit to a patient, Ms. A. The tribunal was tasked with determining whether Dr Fong's conduct warranted a reprimand or any other disciplinary action.

The central legal issues before the tribunal involved whether Dr Fong's actions constituted misconduct or professional incompetence under the Health Practitioner Regulation National Law (NSW). The specific allegations were that during a home visit to provide medical care, Dr Fong acted inappropriately, causing Ms. A to feel uncomfortable. The tribunal had to consider whether the conduct fell below the expected professional standards and whether it warranted a reprimand.

The tribunal found that Dr Fong's conduct did fall below the expected professional standards. It was determined that while Dr Fong's actions were not intended to be inappropriate, they were indeed perceived as such by Ms. A, which led to her feeling uncomfortable and distressed. The tribunal emphasised the importance of maintaining professional boundaries and ensuring patient comfort and dignity. Consequently, the tribunal decided that a reprimand was the appropriate disciplinary action, acknowledging the need to uphold professional standards while considering Dr Fong's otherwise unblemished record.

The tribunal issued a reprimand to Dr Fong, as outlined in paragraphs 37 and 38 of the decision. This reprimand served as a formal warning and a requirement for Dr Fong to reflect on his conduct and take steps to ensure such incidents do not recur in the future.

Orders

Orders of the court

Paragraphs 37 and 38.

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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CITATION:	Re Dr Anthony Yan FONG [2007] NSWMT 5
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission Dr Anthony Yan Fong
FILE NUMBER(S):	40018 of 2006
CORAM:	Freeman, DCJ - Ng, Dr J - Messner, Dr S - Ettinger, Ms G
CATCHWORDS:	General Practitioner reprimanded - Inappropriate actions in home of patient
LEGISLATION CITED:	Medical Practice Act 1992 (NSW) ss. 36 and 37; 61(1)(b), 61(1)(c); 61(1)d Medical practice Regulation 1998, 2002 (NSW)
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336; Rejjek v McElroy (1965) 112 CLR 517; Richter v Walton (unreported) NSWCA 15/9/1993; HCCC v Litchfield (1997) 41 NSWLR 630
DATES OF HEARING:	17/4/2007-18/4/2007
DATE OF JUDGMENT:	29 May 2007
LEGAL REPRESENTATIVES:	G Farmer of Counsel (HCCC) V Hartstein of Counsel (Respondent)
ORDERS:	Paragraphs 37 and 38.