Chinese Medicine Board of Australia v Tang [2024] QCAT 202

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chinese Medicine Board of Australia v Tang [2024] QCAT 202 PARTIES: CHINESE MEDICINE BOARD OF AUSTRALIA (applicant) v SHUJUN TANG (respondent) APPLICATION NO/S: OCR298-22 MATTER TYPE: Occupational regulation matters DELIVERED ON: 4 June 2024 (amended pursuant to s 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on 8 November 2024) HEARING DATE: 12 February 2024 HEARD AT: Brisbane DECISION OF: Judicial Member Robertson Assisted by: Dr L Cali, Health Practitioner Panel Member Ms M MacDonald, Health Practitioner Panel Member Mr M Halliday, Public Panel Member ORDERS: 1. Pursuant to s 196(1)(b) of the Health Practitioner Regulation National Law (Queensland), (‘National Law’), the respondent has behaved in a way that constitutes professional misconduct. 2. Pursuant to s 196(2)(e) of the National Law, the respondent’s registration is cancelled. 3. Pursuant to s 196(4)(a) of the National Law, the respondent is disqualified from applying for registration as a registered health practitioner for a period of 12 months from the date of these orders. 4. Liberty to apply within 14 days of publication of these orders to the parties. 5. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded. CATCHWORDS: PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — OTHER HEALTH CARE PROFESSIONALS — where the respondent was a registered Chinese medicine practitioner — where the Board referred disciplinary proceedings to the Tribunal — where the conduct was of a sexual nature — where -- 1 of 20 -- 2 criminal charges were discontinued — where the respondent does not show necessary insight and remorse — cancellation and disqualification ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — disciplinary referral under Health Practitioner Regulation National Law (Queensland) Health Ombudsman Act 2013 (Qld) Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Craig v Medical Board of South Australia (2001) 79 SASR 545 Health Ombudsman v Baumann [2021] QCAT 68 Health Ombudsman v Harirchian [2022] QCAT 143 Health Ombudsman v Pin [2021] QCAT 242 Health Ombudsman v Sudusinghe [2022] QCAT 99 Health Ombudsman v Veltmeyer [2021] QCAT 77 Morsingh v Health Care Complaints Commission [2022] NSWCA 106 APPEARANCES & REPRESENTATION: Applicant: S Robb KC instructed by Piper Alderman Respondent: C McGee, solicitor of Gilshenan & Luton REASONS FOR DECISION [1] These disciplinary proceedings arise from a referral to the Tribunal by the Board on the 8th December 2022. The annexure to the original referral was amended on 2nd June 2023, and the factual allegations in that amended annexure were admitted in the respondent’s response filed on the 19th June. The conduct the subject of the amended annexure relates in part to a notification received by the Office of Health Ombudsman (‘OHO’) on 19th October 2015 to the effect that the respondent, a registered health practitioner with the Board, had, on the 24th September 2015, been charged with 6 counts of a sexual nature in relation to a female patient PL. [2] The charges proceeded through the Magistrates Court and the respondent was committed to stand trial in the District Court on the 16th November 2016, after PL had been cross- examined by a barrister on behalf of the respondent. [3] Ultimately, after an indictment was presented in the District Court, the Office of the Director of Public Prosecutions (‘ODPP’) referred the matter to justice mediation which ultimately lead to the charges being discontinued on 1st December 2017. [4] In the agreed bundle of documents in the Hearing Brief (‘HB’) is a letter arising out of the mediation dated 14th November 2017 which is signed by the respondent. As a general rule, the process of a justice mediation, which is a form of restorative justice, is inadmissible, but the parties agree that in these disciplinary proceedings, such documents are admissible, and -- 2 of 20 -- 3 each party has made submissions about a live issue in the case, and that is the extent and genuineness of the respondent’s expressed remorse for and/or his insight into the effect of his now admitted conduct, which in turn, is relevant to the issue of sanction, and in particular, general deterrence. [5] In July 2019, the OHO referred the respondent’s conduct to Ahpra and, on 26th November 2019 a delegate of the Board decided to investigate the respondent’s conduct in relation to PL. [6] On the 27th October 2015 the OHO took immediate action and suspended the respondent’s registration. The suspension was revoked on the 21st December 2015, and instead conditions were imposed on his registration specifically, he was prohibited from having contact with female patients over the age of 18 years and he was required to undertake education programmes and obtain endorsement of competency skills. [7] On 26th February 2018, the OHO removed the immediate action and revoked the interim prohibition order. It followed that the respondent was then able to practice as an acupuncturist which continued until the Board (having decided on the 26th October 2020 that he posed a serious risk to persons, decided to take immediate action which it did, on the 11th November, by imposing conditions including that he must not practice as a Chinese Medical Practitioner until a practice location is approved by the Board, and he must not have contact with female patients. [8] In February 2021, the Board refused to approve a nominated place of practice, Tang’s Wellbeing Life as it was owned and operated by the respondent and his wife. He has not submitted any further practice locations for approval, and, since April 2021 he has practiced as a remedial massage therapist. His solicitor told me at the hearing that he has worked in that capacity since the Board took action in November 2020. [9] It is common ground that from when the OHO revoked the interim protection order in 2018 until the Board took immediate action in November 2020, the respondent practiced as a Chinese Medicine Practitioner without restrictions. It is common ground that no other patient apart from PL has ever complained to a regulator about his conduct. [10] The respondent has been represented throughout by lawyers with expertise in this area of law. He and the Board have reached agreement about all factual matters and agree that the conduct particularized in the amended annexure to the referral satisfies the definitions of “professional misconduct” as defined in section 5(a) and (c) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). [11] The parties have also reached agreement that as part of the sanction the respondent should be reprimanded. They agree that he should have a further period out of practice (as a Chinese Medicine Practitioner), of around 18 months but the Board submits that his registration should be cancelled and he be prohibited from re-applying for that period, whereas he submits that his registration should be suspended for a period of 18 months. Introduction [12] At all material times, the respondent was registered as a Chinese Medicine Practitioner Acupuncturist with the Board, holding registration number CMR0001732465.1 1 Statement of Agreed Facts filed 7 July 2023 (‘SOAF’), [21]. -- 3 of 20 -- 4 [13] The Board developed and approved a Code of Conduct for Registered Health Practitioners (March 2014) (‘Code of Conduct’)2 pursuant to section 39 of the National Law. The Code of Conduct sets out the legal requirements, professional behaviour, and conduct expectations for Chinese medicine practitioners in Australia. [14] In addition to this, the Board developed and approved the ‘Infection prevention and control guidelines for acupuncture practice’ (‘Infection Control Guidelines’) pursuant to section 39 of the National Law which adopted the National Health and Medical Research Council (‘NHMRC’) Australian Guidelines for the Prevention and Control of Infection in Healthcare (2010) (‘NHMRC Guidelines’),3 to inform acupuncturists on infection prevention and control.4 [15] At all material times, the respondent was personally responsible for complying with the National Law and meeting the Board’s professional standards as set out in the Code of Conduct and the Infection Control Guidelines. These instruments are admissible in proceedings of this nature as evidence of what constitutes appropriate professional conduct or practice for the health profession pursuant to section 41 of the National Law. The allegations [16] The notice of allegations advances eight key allegations, in summary: (a) Allegation 1: on 16 December 2014, 26 January 2015 and 30 January 2015, the respondent treated a female patient (‘PL’) for conditions where proper diagnosis and treatment required pathology testing and were outside the scope of Chinese medicine practice, and failed to refer PL to a general practitioner for diagnosis or treatment, in breach of parts 1.2, 2.2(a), 3.3(e) and 8.11(b) of the Code of Conduct; (b) Allegation 2: on 30 January 2015, the respondent performed inadequate or inappropriate treatment on the PL at Chi Link Massage & Acupuncture Centre in Brisbane (‘Chi Link’) in that he used a ‘CV/Ren 1’ point in circumstances that were not clinically justified or appropriate, in breach of part 2.2(b), 2.2(n) and 2.4(d) of the Code of Conduct; (c) Allegation 3: during appointments with PL 6 January 2015 and 30 January 2015, the respondent did not obtain informed consent from PL in circumstances where he performed a vaginal examination, in breach of parts 2.2(g), 3.2(a), 3.2(f), 3.3(d), 3.5(a), 3.5(b) and 3.5(f); (d) Allegation 4: during appointments with PL on 26 January 2015 and 30 January 2015, the respondent failed to wear gloves in breach of the Infection Control Guidelines, the NHMRC Guidelines and part 2.2(b) of the Code of Conduct; (e) Allegation 5: during appointments with PL on 26 January 2015 and 30 January 2015, the respondent used inappropriate and unprofessional language in breach of part 3.3 of the Code of Conduct; (f) Allegation 6: during appointments with PL on 16 December 2014, 26 January 2015 and 30 January 2015, the respondent committed boundary violations in breach of parts 2.2(f), 2.2(n), 2.4(a), 3.2(a), 3.2(c), 3.5, 3.14 and 8.2 of the Code of Conduct; 2 Ibid, [19]. 3 Ibid, [20]. 4 Ibid. -- 4 of 20 -- 5 (g) Allegation 7: the respondent failed to give notice of a relevant event to the Board in breach of section 130(1) of the National Law; and (h) Allegation 8: the respondent had inadequate record keeping in breach of part 3.5(f) and 8.4 of the Code of Conduct; (collectively, ‘Allegations 1 to 8’).5 [17] The respondent has admitted the allegations contained in the referral, and the statement of agreed facts and bundle of documents have both been agreed. The respondent accepts that the conduct which gives rise to Allegations 1 to 8 constitutes professional misconduct within section 5 of the National Law.6 The conduct [18] The conduct is set out in detail in the Statement of Agreed Facts and therefore need not be repeated in detail here. However, in summary, with respect to Allegation 1: (a) PL attended appointments with the respondent at Chi Link on the following dates: (i) 16 December 2014 (ii) 26 January 2015; and (iii) 30 January 2015.7 (b) at each of these appointments, the respondent diagnosed and treated PL for urethritis and gynaecological inflammation in circumstances where: (i) proper diagnosis of those conditions required pathology testing for definitive results; and (ii) diagnosis and treatment of those conditions was outside the scope of Chinese medicine practice.8 (c) on 23 January 2015, PL's general practitioner referred her for testing of her urine samples. Test results reported on 27 January 2015 confirmed there was no urinary tract infection present.9 (d) on 9 February 2015, PL's general practitioner referred her for a pelvic ultrasound which identified the following: (i) a 3.9 cm intramural fibroid at the anterior uterine wall; and (ii) a 3.6 cm cyst on the right ovary. (e) at no stage during any of their appointments did the respondent refer PL to a general practitioner for diagnosis or treatment of these conditions using western medicine techniques. (f) the respondent accepts that his conduct was in breach of the Code of Conduct, in particular, part 1.2, 2.2(a), 3.3(e) and 8.11(b), and that his conduct constitutes professional misconduct within the meaning of section 5 of the National Law.10 5 Application or referral — disciplinary proceedings filed 8 November 2022 (‘Referral’), [1]–[8]. 6 SOAF, [63]. 7 Ibid, [22]. 8 Ibid, [23]. 9 Ibid, [24]. -- 5 of 20 -- 6 [19] With respect to Allegation 2: (a) during the appointment with PL on 30 January 2015 at Chi Link, the respondent treated PL using a ‘CV/Ren 1’ point. At the appointment, the respondent told PL he could use the point ‘CV/Ren 1’ to ‘stimulate chi in the body’.11 (b) the respondent’s treatment of PL with the ‘CV/Ren 1’ point was not clinically justified or appropriate in circumstances where: (i) ‘CV/Ren 1’ is used to treat genito-urinary disorders such as difficult urination, genital disease, pain and swelling of the vagina and sensation of heat in the urethra; (ii) there are other, less invasive, needle points that can be used to treat these conditions; (iii) ‘stimulating chi in the body’ is not an adequate clinical reason for the use of the point ‘CV/Ren 1’; (iv) the respondent had recorded that PL's frequent urination and burning pains had reduced and her endless urine syndrome had disappeared; and (v) there was no female chaperone present.12 (c) the respondent accepts that his conduct as described above was in breach of the Code of Conduct, in particular, part 2.2(b), 2.2(n) and 2.4(d), and that his conduct constitutes professional misconduct within the meaning of section 5 of the National Law.13 [20] With respect to Allegation 3: (a) at the appointment on 26 January 2015, the respondent: (i) removed the PL’s shorts to her thighs (exposing her underwear); and (ii) touched the PL’s labia and/or entrance to the PL’s vagina through and underneath her underwear.14 (b) during this appointment, the respondent did not: (i) communicate to PL why there was a clinical need for him to remove her shorts or touch her vagina in the manner described; (ii) seek the PL’s consent to remove her shorts or touch her labia and/or entrance to her vagina; and (iii) record if and how any consent was obtained from PL to remove her clothing or examine her in this manner.15 (c) at the appointment on 30 January 2015, the respondent: (i) removed the PL’s pants, exposing her underwear; 10 Ibid, [27], [63]. 11 Ibid, [28]. 12 Ibid, [29]. 13 Ibid, [30], [63]. 14 Ibid, [31]. 15 Ibid, [32]. -- 6 of 20 -- 7 (ii) visually examined the PL’s vagina; (iii) touched the PL’s labia and/or entrance to her vagina through and/or underneath her underwear; (iv) slipped his finger in between the PL’s labia, without penetrating the PL’s vagina; and (v) performed acupuncture in CV/Ren 1.16 (d) at this appointment, the respondent did not: (i) communicate to PL why there was a clinical need for him to treat her in the manner described; (ii) did not seek PL’s consent; and (iii) did not record if and how any consent was obtained from PL to remove her clothing, examine or treat her in this manner.17 (e) the respondent accepts that his conduct as described above was in breach of the Code of Conduct, in particular, parts 2.2(g), 3.2(a), 3.2(f), 3.3(d), 3.5(a), 3.5(b) and 3.5(f), and that his conduct constitutes professional misconduct within the meaning of section 5 of the National Law.18 [21] With respect to Allegation 4: (a) the respondent did not wear gloves when he: (i) touched the PL’s vagina and labia at the appointments on 26 January 2015 and 30 January 2015; and (ii) used point ‘CV/Ren 1’ at the appointment on 30 January 2015.19 (b) Part B1.2.5 of the NHMRC Guideline sets out when gloves should be worn to protect patients and healthcare workers.20 (c) Table B1.7 of the NHMRC Guidelines states that non-sterile gloves should be used for vaginal examination.21 (d) the respondent accepts that his conduct as described above is in breach of the Infection Control Guideline, the NHMRC Guideline and 2.2(b) of the Code of Conduct, and that his conduct constitutes professional misconduct within the meaning of section 5 of the National Law.22 [22] With respect to Allegation 5: (a) during the appointment with PL on 26 January 2015, the respondent: (i) informed PL that her vagina was ‘inflamed’, ‘hot’ and ‘warm’; 16 Ibid, [33]. 17 Ibid, [34]. 18 Ibid, [35], [63]. 19 Ibid, [36]. 20 Ibid, [37]. 21 Ibid, [38]. 22 Ibid, [39], [63]. -- 7 of 20 -- 8 (ii) advised PL that her symptoms were caused by having sex and recommended that she abstain from sexual activity with her partner; (iii) told her to shave her pubic hair so as to avoid a bacterial infection; and (iv) said words to the effect that she should not wear underwear at home and ‘keep her legs parted’ to air the area.23 (b) during the appointment with PL on 30 January 2015, the respondent again informed PL that her vagina was ‘inflamed’, ‘hot’ and ‘warm’.24 (c) the respondent’s comments were inappropriate, unwarranted and/or unprofessional in circumstances where: (i) there was no clinical indication for the respondent to touch, or physically examine, PL’s vagina; (ii) diagnosis of urethritis and gynaecological inflammation was outside the scope of his practice and required further pathology testing and referral for western medicine treatment; (iii) advising PL to shave her pubic hair was not clinically indicated or appropriate; (iv) advising PL to keep her legs parted was not clinically appropriate language; and (v) the respondent's comments were focused on PL’s lifestyle choices rather than ensuring PL was fully informed about her condition and treatment options.25 (d) the respondent accepts that his conduct as described above was in breach of Part 3.3 of the Code of Conduct, and that his conduct constitutes professional misconduct within the meaning of section 5 of the National Law.26 [23] With respect to Allegation 6: (a) the respondent did not provide PL with appropriate or adequate privacy whilst she was undressing nor did he provide any or any adequate draping when she was undressed at the appointments on 16 December 2014, 26 January 2015 and 30 January 2015.27 (b) at the appointment on 26 January 2015, the respondent: (i) removed the PL’s clothing and/or her underwear without her consent and without any clinical justification; and (ii) touched the PL’s vagina through and/or underneath her underwear without her consent and without clinical justification.28 (c) at the appointment on 30 January, the respondent: (i) removed PL’s clothing and/or her underwear without her consent and without any clinical justification; 23 Ibid, [40]. 24 Ibid, [41]. 25 Ibid, [42]. 26 Ibid, [43], [63]. 27 Ibid, [44]. 28 Ibid, [45]. -- 8 of 20 -- 9 (ii) touched PL’s vagina through and/or underneath her underwear without her consent and without clinical justification; (iii) slipped his finger between PL’s labia, without penetrating her vagina, without her consent and without clinical justification; and (iv) performed acupuncture point ‘CV/Ren 1’ without PL’s consent and without clinical justification.29 (d) the respondent accepts that his conduct as described above is in breach of the Code of Conduct, in particular, 2.2(f), 2.2(n), 2.4(a), 3.2(a), 3.2(c), 3.5, 3.14 and 8.2 of the Code of Conduct, and that his conduct constitutes professional misconduct within the meaning of section 5 of the National Law.30 [24] With respect to Allegation 7: (a) pursuant to section 130(1) of the National Law, a registered health practitioner must, within 7 days of becoming aware of a ‘relevant event’ having occurred, give the Board written notice of that relevant event.31 (b) pursuant to section 130(3)(a) a ‘relevant event’ includes the practitioner being charged with an offence punishable by 12 months imprisonment or more (s 130(3)(a)(ii)).32 (c) on 24 September 2015, the respondent was charged with the following offences: (i) 4 count sexual assault pursuant to section 352(1)(A) of the Criminal Code 1899 (Qld) (‘Criminal Code’); (ii) 1 count of rape pursuant to section 349(1) of the Criminal Code; and (iii) 1 count of assault occasioning bodily harm pursuant to section 339 of the Criminal Code.33 (d) an offence pursuant to section 352(1)(A) of the Criminal Code is a crime which is punishable by up to 10 years imprisonment.34 (e) an offence pursuant to section 349(1) of the Criminal Code is a crime which has a maximum penalty of life imprisonment.35 (f) an offence pursuant to section 339 of the Criminal Code is a crime which is punishable by up to 7 years imprisonment.36 (g) at no time on or before 1 October 2015 did the respondent notify the Board and/or Ahpra of the criminal charges.37 (h) the respondent did notify the Board and/or Ahpra of the charges on 23 October 2015, after he had obtained legal advice. The respondent previously informed Ahpra that he was unaware of his precise reporting requirements.38 29 Ibid, [46]. 30 Ibid, [47], [63]. 31 Ibid, [48]. 32 Ibid, [49]. 33 Ibid, [50]. 34 Ibid, [51]. 35 Ibid, [52]. 36 Ibid, [53]. 37 Ibid. [54]. -- 9 of 20 -- 10 (i) the respondent accepts that his conduct was in breach of section 130(1) of the National Law, and that his conduct constitutes professional misconduct within the meaning of section 5 of the National Law.39 [25] With respect to Allegation 8: (a) the respondent’s record of PL’s appointment on 16 December 2014 is brief and does not contain: (i) any patient intake information including relevant clinical history; and (ii) any record relating to assessment, treatment or examination with respect to headaches which was one of the PL’s presenting complaints at that appointment.40 (b) the respondent’s records for the appointments on 26 January 2015 and 30 January 2015 did not contain any record of informed consent being obtained from PL prior to physical examination of her vagina.41 (c) the respondent did not record his use of the heat lamp to treat PL at each of the appointments.42 (d) the respondent did not record the advice or information he gave to PL at the appointment on 26 January 2015 as particularised above.43 (e) the respondent accepts that his conduct as described above is in breach of the Code of Conduct, in particular part 3.5(f) and 8.4, and that his conduct constitutes professional misconduct within the meaning of section 5 of the National Law.44 Characterisation [26] As noted above, the parties agree that the admitted conduct constitutes “professional misconduct” as defined in both sections 5(a) and (c) of the National Law. That agreement is well justified. [27] The parties have agreed that two cases from this Tribunal are of assistance in determining the contested aspect of the sanctions to be imposed.45 [28] The relevant factual context will be discussed later in these reasons. Both respondents were general practitioners who engaged in non-consensual touching in the genital area of female patients with no clinical justification. Both were convicted of sexual offending and there is a divergence of argument as to how the Tribunal should treat the facts in this case for that reason which I will come to later. [29] Conduct of this nature by a health practitioner towards a patient in a vulnerable position, that is in a situation in which there is a significant power imbalance, involves not only an egregious breach of PL’s trust, but also is apt to bring the profession into disrepute. The 38 Ibid, [55]. 39 Ibid, [56], [63]. 40 Ibid, [57]. 41 Ibid, [58]. 42 Ibid, [59]. 43 Ibid, [60]. 44 Ibid, [61], [63]. 45 Health Ombudsman v Sudusinghe [2022] QCAT 99 (‘Sudusinghe’); Health Ombudsman v Harirchian [2022] QCAT 143 (‘Harirchian’). -- 10 of 20 -- 11 Judge in Sudusinghe described his conduct in this way and the description is apt to characterise the respondent’s admitted conduct in this case. [30] The Tribunal is comfortably satisfied to the relevant standard that the admitted and proved conduct set out above satisfies both the applicable definitions of “professional misconduct” in section 5. Sanction [31] The guiding principle in the administration of the National Law is that the health and safety of the public is paramount. The disciplinary jurisdiction is ultimately for a protective rather than punitive purpose, although issues of deterrence are of course relevant to protecting the public.46 [32] As Ms Robb KC notes in her submission in reply dated 26 October 2023, as a result of amendments to the National Law after 2021, protection of the public and public confidence in the safety of services provided by registered health practitioners are now regarded as “paramount” in section 3A(1)(a) and (b) of the National Law. Clearly, protection of the public is primary consideration for this Tribunal in imposing sanctions for professional misconduct, but it is not the only consideration. [33] The public is protected by the Tribunal making orders as referred to in Craig which will prevent persons who are unfit to practise from practising, which will secure the maintenance of proper professional standards; and/or which will assure the public that appropriate standards are being maintained. [34] The imposition of a sanction may serve the following purposes:47 (a) preventing practitioners who are unfit to practise from practising; (b) securing maintenance of professional standards; (c) assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated; (d) bringing home to the practitioner the seriousness of their conduct; (e) deterring the practitioner from any future departures from professional standards; (f) deterring other members of the profession who might act in a similar way; and (g) imposing restrictions on the practitioner’s right to practise serves to ensure that the public is protected. [35] When determining sanction, the Tribunal may take into account the facts of each case and may consider factors including (in the following relevant respects): (a) the nature and seriousness of the practitioner’s conduct; (b) insight and remorse shown by the practitioner; (c) the need for specific or general deterrence; (d) in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner; 46 Craig v Medical Board of South Australia (2001) 79 SASR 545 (‘Craig’), 553–555; Health Ombudsman v Baumann [2021] QCAT 68 (‘Baumann’), [15]. 47 Baumann, [15]. -- 11 of 20 -- 12 (e) whether or not the conduct was isolated; and (f) the practitioner's disciplinary history. [36] In addition to this, an assessment of the ongoing risk posed by the practitioner as well as any suspension or conditions already imposed may also be a relevant feature when considering sanction. [37] The Tribunal accepts the Board’s primary submission as to the seriousness of the conduct about the conduct:48 (a) the admitted conduct is serious; the respondent was indicted, but not ultimately convicted, on five charges of sexual assault in relation to the conduct which occurred in the context of a therapeutic relationship. (b) PL elected to have the matter proceed to justice mediation rather than face a trial process, so the respondent was never the subject of any final determination of the criminal charges. (c) the conduct was serious because the respondent failed to refer PL to a general practitioner for diagnosis of treatment of conditions using western medicine techniques, in circumstances where PL was subsequently diagnosed with uterine fibroid and ovarian cyst; (d) the respondent has not applied for approval to practice in any location by Ahpra since November 2020, after the Board refused to approve his nominated place of practice, Tang's Wellbeing Life, because it is (or at least was) operated by the respondent and his wife. This means that the respondent has not been able to practise Chinese medicine since then. However, since in or around April 2021, the respondent has been practising as a remedial massage therapist and administering dry needling; (e) the respondent has not been the subject of any prior or post criminal charge or complaint concerning inappropriate behaviour towards patients; and (f) similarly, in relation to rehabilitation, the respondent has undergone education with respect to professional conduct and work ethics in massage and heath assessments and record keeping, but has not engaged in any rehabilitation with respect to inappropriate sexual behaviour. [38] At another point in its primary submission (of which Ms Robb KC was not the author) the Board submits that “in light of the admitted conduct there was a basis for serious adverse findings to be made against the respondent had the trial proceeded.” It is not surprising in the unusual circumstances of this case that parties may tend to equate criminal proceeding outcomes with issues of characterisation in disciplinary proceedings. As noted, the “evidence” or information disclosed by either the respondent or PL at the mediation conference is not admissible. Not surprisingly, Ms McGee, solicitor for the respondent objected to this submission. As I said to her in the hearing, I will not be making such a finding. The focus in proceedings of this nature is on the nature of the admitted conduct. As Ms Robb KC notes, the respondent has never explained his now admitted conduct. He admits that it was clinically inappropriate, as it obviously was, but he has never explained why he engaged in it over three separate treatments. I will refer to this again later in the reasons. 48 Board’s Submissions filed 29 August 2023 (‘Board’s Submissions’), [33]. -- 12 of 20 -- 13 [39] Ms McGee submits that the conduct was “aberrant”, as it certainly was, but that does not explain why he engaged in it at the time. [40] I agree with her that the ‘failure to notify’ allegation is not a serious example of such conduct as it did not involve any intentional dishonesty or intent to mislead a regulator. The parties have approached their agreement as to characterization on the basis that the Tribunal consider the conduct as a whole and not as a series of acts. Insight and remorse [41] The respondent's insight and remorse are relevant considerations for the Tribunal when considering the appropriate orders. [42] ‘Insight’ might be reflected in a variety of ways, such as:49 (a) an understanding of the nature of the conduct; (b) an acceptance that the conduct was wrong; (c) an appreciation of why the practitioner engaged in that conduct; and/or (d) a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions. [43] The issue of insight and remorse, even so long after the events the subject of the referral, is the matter that most concerns the Tribunal, as was made clear at the hearing. The respondent sent to PL, a letter of apology dated 14 November 2017, following the justice mediation session held on the prior day;50 however, that letter: (a) was requested by PL during the mediation and was not provided by way of the respondent's own volition; and (b) did not include any admissions as to the respondent's behaviour or demonstrate any insight, to the contrary, the respondent stated, “I acknowledge you’ve [PL] said I conducted myself inappropriately”. He did admit that he did not “follow the protocol” by failing to ask PL to sign a consent form. [44] Whilst the respondent has now admitted all allegations against him as contained in the referral, and in doing so has accepted that his conduct amounts to professional misconduct, those admissions were late. He should be given benefit for co-operating in these proceedings once the referral was filed. [45] The respondent denied the conduct during the course of the investigations conducted by OHO and Ahpra,51 resulting in almost eight years passing before the respondent made concessions in respect to the inappropriateness of his behaviour. 49 Sudusinghe, [39]. 50 Hearing Brief (‘HB’), 41. 51 An example of this is in an email to the OHO investigator on 14 February 2018 (HB pp 68–69), which is under the hand of the respondent and his wife who was involved she states because of “his incompetence in English”. That email not only contains a number of denials of any misconduct e.g. paragraph 9 “I ShuJun Tang declare that all of my conduct during my treatments to [PL] was legit and no harmful misconduct to her or any other public consumers”; it seeks to blame PL for delaying the mediation process and their alleged financial woes and health issues. -- 13 of 20 -- 14 [46] The respondent has not yet provided any explanation for his conduct, or the motivation behind it, and has failed to acknowledge how his actions may have affected PL’s emotional and psychological wellbeing. [47] Ms McGee submits that the willingness of the respondent to take part in restorative justice processes is evidence of both insight and remorse. I agree with her that there are benefits to both parties in resolving a criminal allegation in this way, however his so-called letter of apology and his continued denial of any unprofessional conduct subsequent to the justice mediation, strongly mitigates against her submission that his participation is evidence of remorse and shows insight into his professional failings. [48] The Tribunal accepts the Board’s submission that although the respondent has demonstrated some insight by making admissions in the Tribunal proceedings, such insight was significantly delayed such that it undermines any argument advanced by the respondent that he has demonstrated a sufficient level of genuine insight. [49] In the exercise of protective jurisdiction, it is appropriate for the Tribunal to consider the maintenance of professional standards and general deterrence. This in turn, assists in upholding public trust and confidence in the profession. [50] In Morsingh v Health Care Complaints Commission,52 a case which involved a practitioner who, inter alia, conducted an unnecessary and inappropriate breast examination, was subject to findings of engaging in unsatisfactory professional conduct and professional misconduct, and had his registration as a medical practitioner cancelled with no review allowed for a period of two years, the Court of Appeal stated at [14]:53 The objective of protecting the health and safety of the public is not confined to protecting PLs or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. [51] I agree with the parties that the need for specific deterrence is not the primary principle in these proceedings, in view of the following: (a) the respondent was indicted on a number of serious criminal charges relating to sexual offences;54 (b) the respondent was the subject of an Interim Prohibition Order;55 (c) the respondent was required to undertake education programs and obtain endorsement of competency skills;56 (d) the Board imposed conditions which included: 52 [2022] NSWCA 106 (‘Morsingh’). 53 Morsingh, quoting Health Care Complaints Commission v Do [2014] NSWCA 305 (‘Do’), [35]. 54 HB, Tab 13. 55 SOAF, [10]. 56 Ibid, [10]. -- 14 of 20 -- 15 (i) the respondent not practicing as a Chinese Medicine Practitioner until a practice location had been approved by the Board; and (ii) the respondent is not to have any contact with female patients;57 and (e) no practice location has been approved by the Board; however for reasons set out below, there remains some need for specific deterrence in relation to this respondent.58 [52] In the Board’s submission, this is a case in which the need for general deterrence, the maintenance of professional standards and public confidence in the profession and system of regulation is a paramount consideration in any ultimate sanction. The Tribunal accepts that submission. Delay [53] The respondent submits that delay in bringing the matter before the Tribunal is a relevant mitigating factor in relation to sanction. There has been a period of 7 years and 10 months between the notification and the referral (January 2015 to November 2022), and a period of 4 years and 11 months (December 2017 to November 2022) between the conclusion of the criminal proceedings and the referral. He submits that the delay is not fault of the respondent and there has been no explanation provided for the delay. That cannot be accepted for the reasons set out above in the discussion about insight and remorse. [54] The significance of undue delay in an investigation and the referral of a proceeding to the Tribunal in the determination of sanction has consistently been noted. [55] In Health Ombudsman v Pin,59 there was a delay of nearly six years between the notification and the referral to the Tribunal. The Tribunal noted that: The inexcusable and inordinate delay in the investigation and prosecution of the matter by the Office of the Health Ombudsman means that the respondent has had the matter hanging over his head for more than eight years since the time of the conduct. Such delay in resolution of proceedings does, as the applicant frankly acknowledges, have the potential to cause unnecessary stress and disadvantage to health practitioners affected by such delay, and is a significant mitigating factor in determining sanction.60 [56] The principles referred to above from Pin are from Health Ombudsman v Veltmeyer,61 which was the first case in which the then Deputy President of this Tribunal, his Honour Judge Allen KC made that comment in relation to admitted delay in the office of the OHO due to under-resourcing which was admitted before the Tribunal. Pin involved a complaint about a procedure and did not involve any criminal proceedings. The delay occurred once the Medical Board of Australia referred the matter back to the OHO. The Tribunal (also constituted by Judge Allen KC) had before it a letter from an OHO officer apologising for the delay and explaining the reasons for it, which were similar to the concessions given on the record on behalf of the regulator in Veltmeyer. On the discrete issue of delay as a mitigating factor, these features are sufficient to demonstrate that this is a completely different case. 57 Ibid, [13]. 58 Board’s Submissions, [43]. 59 [2021] QCAT 242 (‘Pin’). 60 Pin, [53]. 61 [2021] QCAT 77 (‘Veltmeyer’). -- 15 of 20 -- 16 [57] The respondent submits that as a consequence of the delay, there has been the opportunity for the respondent to demonstrate that he is a fit and proper person to practise. As noted by Doyle CJ in Craig on the issue of delay: when the purpose of the order is the protection of the public, the main relevance of delay is that the absence of any complaint during the period of the delay might indicate that the public does not require protection from the practitioner.62 [58] Craig is authority for the proposition that ordinarily in cases of this nature involving public health and safety, delay is only relevant to the issue of rehabilitation in the intervening period between conduct and determination, and not relevant as a mitigating factor in relation to the appropriate sanction. [59] As a result of the respondent’s submission, I infer that the Board further considered the issue of rehabilitation and in its submission in reply (prepared by Ms Robb KC) the following submission was made: To the extent the respondent submits that he has engaged in ethical practice and not been the subject of any complaints post his offending conduct, that submission is not entirely accurate.63 [60] On 6 December 2022, the Board advised the respondent that it had formed a reasonable belief that contrary to clauses 1 and 2 of the conditions on his registration, the respondent: (a) had performed acupuncture on his patients under the characterisation of remedial massage and/or dry needling prior to obtaining approval from the Board with respect to his practice location; and (b) had performed acupuncture on female patients in contravention of the gender-based restrictions on his practice.64 [61] The Board was of a view that the respondent’s non-compliance with the restrictions on his registration was unsatisfactory professional conduct, pursuant to s 178(1)(a)(i) of the National Law. The Board decided to caution the respondent with respect to his non- compliance with the restrictions on his registration, pursuant to s 178(2)(a) of the National Law. [62] The respondent’s disregard for the restrictions that were placed on his practice is in itself serious misconduct. It is materially relevant to an assessment of whether the respondent is currently a fit and proper person to hold registration in the profession of Chinese medicine. [63] All of this is accepted as factually accurate. In her submission in reply, Ms McGee sought to provide context for her client’s breach of very relevant conditions to the subject matter of the referral. [64] At paragraph 13(b) of the respondent’s submissions dated 15 September 2023, it was submitted that: [t]he respondent has no prior discipline history and there have been no other complaints subsequent to this offending, in circumstances where the respondent continued to practise subsequent to the criminal charges being discontinued, and he did so ethically. 62 Craig, [61]. 63 Applicant’s Submissions in Reply filed 26 October 2023 (‘Reply Submissions’), [13]. 64 Letter from Ahpra to the respondent dated 6 December 2022 (to be filed by leave). -- 16 of 20 -- 17 [65] At paragraph 27 of the respondent’s submissions dated 15 September 2023, it was submitted that: [w]hen the respondent was permitted to return to practise, post the criminal charges being withdrawn, he did so ethically and without any complaints of improper conduct. [66] These submissions relate to the period between 26 February 2018 and 11 November 2020 when the respondent was not subject to any restrictions on his registration. The respondent was permitted to practice Chinese medicine without restriction for a period of 33 months and received no complaints in relation to his conduct. [67] It is accepted that on 6 December 2022, the respondent received a caution in relation to his compliance with registration conditions. [68] As the respondent notes, the caution related to a site inspection conducted on 16 November 2020 (six days after the registration conditions were imposed). At the time, the respondent was permitted to perform unregistered treatments on female patients, such as dry needling and remedial massage and he was not subject to an interim prohibition order. The contravention of gender-based restrictions related to the acupuncture only. [69] Despite the above, no patient has made a complaint about the respondent’s professional conduct since 2015. Whilst the respondent has not practised Chinese medicine since February 2021, he has provided unregistered treatments since April 2021 and in the 30 months since then, he has not received any complaints. [70] In the view of the Tribunal, along with its concern about the nature of the respondent’s insight and remorse, and accepting that there has not been a complaint of a similar nature, nevertheless to breach gender based conditions relating to acupuncture so soon after the imposition of the conditions is serious conduct in itself and very relevant to the Tribunal’s assessment of his fitness to practice at the present time. Although not relevant to the present task of the Tribunal, the respondent will have to comply with a Recency of Practice Standard last reviewed by the Board on 30th June 2019. He would have to do that, I am told by the parties, whether his registration is suspended for a period of time, or cancelled. [71] In the Board’s original submission, a large number of cases are cited. Given that the respondent’s misconduct is so multi-faceted (boundary violations, clinical error, hygiene failures, using inappropriate language and engaging in conduct that was clinically not indicated, poor record keeping and failure to notify of a relevant event), that can be understood. However, at the hearing the parties submitted that Sudusinghe and Harirchian are the most helpful. [72] In Sudusinghe, the practitioner touched a patient’s vagina over her underwear without consent in the course of examining her abdomen. Dr Sudusinghe was convicted of one count of sexual assault and sentenced to 12 months imprisonment wholly suspended. In addition to this, he was alleged to have breached conditions on his registration on six occasions which conditions required him to have no contact with female patients. Relevantly, Dr Sudusinghe deposed that it had taken him a long time to change his mindset and acknowledge his offending (he unsuccessfully appealed his conviction) and had enrolled in a sexual offenders treatment program in 2021. In cancelling Dr Sudusinghe’s registration with a two-year preclusion period, Judge Dann, Deputy President of this Tribunal found: (a) the respondent had demonstrated some remorse but it was late given 6.5 years had passed since the conduct had occurred; -- 17 of 20 -- 18 (b) there was no evidence that the respondent had used the intervening period to work on deep or long-lasting rehabilitation and this factor assumes significance in considering issues of public protection; (c) his failure to comply with the conditions on his registration did not do him credit; (d) there was a significant measure of specific deterrence by virtue of the criminal and disciplinary processes; (e) there had been no disciplinary complaints since the sexual assault other than the non- compliance issues with the conditions; (f) delay was an important feature to consider given the sexual assault had occurred six and a half years ago and since that time there had been no sexual offending; and (g) despite this, the breaches of conditions and failure to demonstrate rehabilitation in this period render this a mitigating factor of little weight. [73] In considering whether the respondent was a fit and proper person to hold registration, whilst accepting the conduct was an isolated incident, the fact the respondent had never explained his conduct, the delay in making admissions and the breaches of conditions made it difficult for the Tribunal to be satisfied that the original assault was an error of judgment rather than a defect in character of the respondent. [74] In Harirchian, the respondent was referred for disciplinary proceedings in relation to the three allegations: (a) The first allegation related to Dr Harirchian being found guilty of sexual assault. The factual basis for the conviction was that the respondent touched a patient’s labia or clitoris during a consultation while discussing symptoms of diarrhoea and feeling unwell. (b) The respondent was sentenced to imprisonment for eight months, suspended for an operational period of two years after he had served a period of three months. (c) The second allegation related to Dr Harirchian pleading guilty to 18 charges of fraud; two charges of attempted fraud; and one charge of possessing dangerous drugs. Dr Harirchian was fined $6,000 in the Magistrates Court and no conviction was recorded. (d) Those charges related to Dr Harirchian accessing electronic patient records to print prescriptions in patients’ names (which he filled for his own personal use) and being found in possession of dangerous drugs for which he had no valid prescription. (e) The third allegation related to Dr Harirchian making a false declaration on his renewal of registration form. [75] The Tribunal concluded that the appropriate sanction was cancellation of registration and disqualification from applying for registration for a period of two years. [76] The respondent seeks to distinguish both these cases on the basis that each of the respondent doctors were convicted of sexual offending and one served actual time. As I have explained earlier, the focus in disciplinary proceedings is on the conduct itself. [77] In her submission in reply on 26 October 2023, Ms Robb KC responded to that contention as follows. The nature of the most serious of the respondent’s admitted conduct is touching by a health practitioner of a patient’s vulva and labia absent consent and clinical indication, and by extension absent informed consent, on three separate occasions. -- 18 of 20 -- 19 The respondent’s admitted conduct is conduct that is criminalised. It is objectively serious, likely to concern the community, and to raise questions regarding his fitness and properness to practice. The respondent’s admitted conduct is not conduct in relation to which the respondent has been convicted, because the matter was diverted through justice mediation. The fact that the respondent was not convicted in relation to his admitted conduct does not diminish the seriousness of it. While the lack of a criminal conviction distinguishes the matter from others in which a practitioner had been convicted of a crime in a literal sense, the admitted conduct here is not somehow less serious because the respondent was not convicted in relation to it.65 [78] I accept that submission. Each of the above cases can be factually distinguished however both give relevant guidance to the Tribunal in this case. It is important that there be consistency in Tribunal decision making as a factor relevant to maintaining public confidence in the National Scheme and the role of the Tribunal in that Scheme. [79] Ultimately, after giving the matter anxious thought I have concluded that the respondent’s registration should be cancelled. In summary: (a) the respondent’s conduct occurred in a clinical context, more than once, and remains largely unexplained and it is serious misconduct; (b) there remains a need for specific deterrence; even if the passage of time without further reported incident of sexual assault could be said to imply that the risk of sexual assault posed by the respondent is reduced, the respondent’s non-compliance with the conditions on his registration after his offending conduct demonstrates a preparedness to operate outside the registration regime that regulates the practice of Chinese medicine, even when subject to practice restrictions and disciplinary proceedings. While delay may present a respondent with the opportunity to engage in rehabilitation, to demonstrate a change in character or attitude, to demonstrate fitness to practice (as submitted by the respondent at [33]), the respondent has not availed himself of that opportunity in this matter. The respondent could not be said to remorseful or to have gained insight or to be remediated; (c) there is a need to deter the respondent’s conduct generally; and (d) it is necessary to protect and encourage public confidence in the safety of services provided by Chinese Medicine Practitioners and in the robustness of the registration regime under the National Law. Orders 1. Pursuant to s 196(1)(b) of the Health Practitioner Regulation National Law (Queensland), (‘National Law’), the respondent has behaved in a way that constitutes professional misconduct. 2. Pursuant to s 196(2)(e) of the National Law, the respondent’s registration is cancelled. 3. Pursuant to s 196(4)(a) of the National Law, the respondent is disqualified from applying for registration as a registered health practitioner for a period of 12 months from the date of these orders. 65 Reply Submissions, [7]–[10]. -- 19 of 20 -- 20 4. Liberty to apply within 14 days of publication of these orders to the parties. 5. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded. -- 20 of 20 --