Health Ombudsman v Liu[2022] QCAT 427

REASONS FOR DECISION

1. [1]
   In the matter of Director of Proceedings on behalf of the Health Ombudsman and Shuquan Liu, the background of the matter is there is an agreed statement of facts. The respondent is a registered health practitioner, being a Chinese medicine practitioner. 
2. [2]
   In June 2017, the respondent undertook the clinical treatment and management of a three-year-old child, the patient, who presented to him with a recent history of hospitalisation and a diagnosis of type 1 diabetes mellitus.
3. [3]
   The patient presented on 8 June 2017, and the treatment period lasted for five days until she was again hospitalised on 12 June 2017. On admission, the patient was alert, with normal cognitive state and appeared well-hydrated. Her heart rate was lower than expected, blood pressure was stable. She had a normal blood glucose reading and elevated blood ketone level. Her weight was 11.2 kilograms and below the first percentile for her age, which would not support the suggestion that she should be on a restricted diet.
4. [4]
   She was treated with intravenous fluids of normal saline and dextrose for blood glucose, ketone monitoring and insulin therapy. By the next morning, her condition had improved and she was recovering well. These observations have been gleaned from statements from Dr Tony Prim, Dr Mustafa and Dr Papademos. They are set out in the applicant’s submissions and not demurred to by the respondent.
5. [5]
   On 20 June 2017, a complaint was made by the patient’s paediatric endocrinologist to the Office of the Health Ombudsman. On 5 July 2017, the Health Ombudsman imposed conditions on the respondent’s registration and conditions on his treatment of diabetic patients; these have since been removed. 
6. [6]
   On 31 January 2018, conditions were imposed restricting treatment of patients with diabetes, and dietary advice for patients under 18; and providing what is called Wellbeing 101 program, which will be referred to later.
7. [7]
   There was a significant delay in the referral of the matter, which occurred on 30 June 2021. The delay has been explained by the occurrence of a backlog in the work.

Diabetes mellitus

8. [8]
   Type 1 diabetes mellitus is a life-threatening condition where the body fails to produce insulin, resulting in high blood glucose levels. Insulin injections lower blood glucose levels and are essential to sustain life. Expert evidence has opined that maintaining a proper diet with adequate insulin doses is important for balancing the glucose levels. Ketones will become present in the body if it is not getting enough insulin and/or carbohydrates. High ketone levels will lead to sudden acidosis and multi-organ failure which, if untreated, will lead to a coma and then death.

Treatment by the respondent

9. [9]
   After examination, the respondent diagnosed Q1 and a blood deficiency, and devised a treatment plan which included verbal dietary advice of, low sugar, less food, for three days and an herbal formula for up to 14 days. The herbal formula seems to be attached to the program referred to earlier. The patient’s parents were also given the Wellbeing 101 brochure. 
10. [10]
    The patient then attended the clinic twice per day. Notes of the patient feeling tired and hungry were reported. At no time before or during the treatment did the respondent seek to contact her treating medical practitioners or seek access to her medical records. During the treatment, the parents seized her insulin. It is not suggested by the applicant that respondent advised the parents to do this.

The particulars alleged

11. [11]
    The applicant submits that in the context of the patient’s age, her diabetes and her low body weight:

1. (a)
   the respondent provided inappropriate advice and inappropriate management plan;

1. (b)
   devised the plan without any inquiry or contact with her treating medical practitioner or accessing her medical records; and 

1. (c)
   failed to maintain adequate clinical records. 

The applicant says that each of these amounts to unprofessional conduct and, accumulated, amount to professional misconduct.

12. [12]
    We are then provided with expert testimony which, in summary, says:

3. It was not appropriate to advise less food for an underweight child of three. It would be considered mandatory to advise her current practitioners before suggesting modifications to her current diet regime. The complaints of hunger and tiredness, and the observation of her weight loss and the observation of dropping energy should have alerted the respondent that the treatment was not working.

13. [13]
    Dr Jack has sworn:

3. The diet regime was highly inappropriate. The patient needed to consume regular amounts of carbohydrates and have an appropriate fluid intake. The patient’s drowsiness and her reported refusal to drink the herbal formula indicate her level of consciousness was probably affected by low blood glucose levels.

14. [14]
    Dr Prichard said:

3. There should have been more description of how the diagnosis of Q1 and blood deficiency was reached. There should have been details relating to the patient’s diabetic condition, including ongoing blood analysis and amounts of insulin applied. The purpose of measuring the patient’s weight is not stated in the notes. The detail of less food is vague and should have been elaborated. A record of the patient’s glucose and ketone levels should have been obtained from the parents and kept in clinical notes.

15. [15]
    The applicant submits that the conduct constitutes a breach of conduct statements in the Chinese Medical Board of Australia, which are set out in the submissions.
16. [16]
    We have considered the comparable cases of CMBA v Lim,^[1] Dental Board of Australia v Dr Fun (Review and Regulation),^[2] Dental Board of Australia v Abdullah ,^[3] Medical Board v Davis^[4] and Medical Board of Australia v Pin.^[5]
17. [17]
    In the last case that I have mentioned, the Tribunal found that the practitioner’s professional misconduct was a serious example of a failure to adhere to professional standards. It found the delay in the proceedings, and the resolution of the proceedings, had potential to cause unnecessary stress. That submission has not been made to us, but there has been a delay. Most importantly, what Pin says is that a reprimand is not a trivial penalty and has the potential for serious adverse implications for a professional person, as does remaining on the National Register until such time as the National Board determines that it is appropriate that the reprimand be no longer so recorded.
18. [18]
    It is clear that the respondent here failed in providing appropriate care to a vulnerable and at-risk patient. The behaviour involves instances of unprofessional conduct and professional misconduct. There should have been more notes as to the details of her diabetic condition. The respondent’s clinical failings and the risk posed to the patient were serious.

Prior history

19. [19]
    Shortly before commencing treatment, the respondent had been alerted to the need to maintain appropriate records in a Tribunal decision delivered in 2018. 

Insight and remorse

20. [20]
    Insight and remorse are factors to be taken into account in assessing the sanction. The respondent has cooperated in these proceedings and has accepted the characterisation and sanction as sought by the applicant. During the suspension of his registration, he has taken significant rehabilitative steps: 

    1. (a)
       he has engaged in professional development of more than 100 hours of training under mentorship;
    2. (b)
       he undertook a review and training with respect to Chinese medicine practice;
    3. (c)
       he undertook a close study of the code;
    4. (d)
       he has undertaken further training in respect to record keeping;
    5. (e)
       he continues to be subject to orders;
    6. (f)
       he is prevented from treating patients with underlying health conditions without a letter of consent from the treating medical practitioners; and 
    7. (g)
       he is subject to supervision.

Principles of sanction

21. [21]
    Disciplinary proceedings are protected, not punitive in nature. The appropriate sanction is to be considered at the time of the determination. Despite the agreed position, it is for the Tribunal to determine the characterisation of the conduct and the appropriate sanction, although the Tribunal would not interfere in the proposed sanction unless there were good reason.
22. [22]
    All the cases I have mentioned have been considered.
23. [23]
    In summary, the conduct and the risk to the patient is serious and requires specific and general deterrence. It amounts to professional misconduct.
24. [24]
    The Tribunal makes the following orders:

2. 1.The respondent’s conduct constitutes professional misconduct.

2. 2.The respondent is reprimanded.

2. 3.No order as to costs.

2. 4.The applicant’s decision to impose restrictions on the respondent’s registration by way of a section 58 immediate registration action, be set aside.