medical tribunal of nsw deputy chairperson: judge a. …
TRANSCRIPT
MEDICAL TRIBUNAL OF NSW
Deputy Chairperson: Judge A. Balla
Members Dr Melanie WrothDr Donald ChildMs Jennifer Hoiien
Matter no: 40027of2009
Applicant: Health Care Complaints Commission
Respondent: Dr Thoa-Van Le (Tom)
Counsel for theApplicant: Ms P McDonald
Counsel for theRespondent: MrPGriffn
Judgment Date: 26 March 20 i 0
Tiq~~
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INDEX
Dr Tom Le - Background ................................................................................................................2Issue 1 - Dr Tom Le and Patient A .................................................................................................4
29 April 2007 ............ ....... .... ........................ ........... ............. ...... .............. ....... .......... ............. ......4Evidence of Patient A... ..................... ................................................. ................... ... ................4Evidence of Dr Tom La . .... ................. .................... ................. ........................... .......... _...........4
8 May 2007.... ........ ............................................ ...... ................................. ...................................4Evidence of Patient A....................... ....................... ...... ........ ....................... ....................... .....5Evidence of Dr Tom Le ........................................... ............................ ......... .......... ..................5
11 May 2007......... ..... ...... ............................. ......................................................... ...................... 6Evidence of Patient A......................................... ............ ......................... .... ........ ............... ......6Evidence of Dr Tom Le . ..................... ..... ............... .............................. ......... ...........................6
Progress between attendances on Dr Tom Le...........................................................................619 May 2007......... ........... ........................................... .............................. .............. ....... ..............7
Evidence of Patient A................................................................................... ............................7Evidence of Dr Tom Le . ..................... ... ......................... ........ ....................................... ...........8
Resolving conflict in the evidence........ ...................... ................ ..................................................8Issue 1 - Finding........................................................................................................................11
Issue 2 - what does "providing medical care" mean?m.............................................................. 11Issue 2 - Finding................................... ...................... ................ ............. ................... c.............. 11
Issue 3- Was Dr Tom Le's conduct a breach of the condÎlon on his registraÜon? ......................12All consultations. ............... ...................................... ................. ......................... ......................... 128 May 2007................................................................ ........ ..................................... ................... 1211 May 2007......... ..................................................................................................................... 1319 May 2007.............................................................. ................ ............. ....... ........... ................ 13Issue 3 - Finding .............. ...................................... .................. .......... ............................ n......... 14
Issue 4 - whether Dr Tom Le's conduct was improper or unethicaL....................................... 14Issue 4 - Finding............................................................. ............. ........... .................. ................. 15
Issue 5 - Unsatisfactory Professional Conduct and/or Professional Misconduct .......................16Issue 6 - The appropriate disciplinary Orders .......................................................................... 16Costs ......... ............. ...... ... ........ .................. ............. ................. ..... .......... ........ ........... ........... ....... 18Orders........ ......... ............. .... ........ ............... .... ......... ...... ........ ............ ......... ........................... ....... 18
Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992§ the Tribunal has made
a non publication order In respect of the name of any patient or any material which may
identify a patient.
Dr Thoa Van Le (referred to as Dr Tom Le in these proceedings) became registered as a medical
practitioner in NSW on 22 May 2006. .His registration was subject to a condition precluding him
from undertaking any medical work other than in a supervised position approved by the Board. At
the relevant time the approved pOSition was at Hornsby HospitaL.
The Health Care Complaints Commission says that Dr Tom Le breached that condition by
providing medical care and/or advice to Patient A at BHC Medical Centre at Lakemba on:
1. 29 April 2007;
2. 8 May 2007;
3. 11 May 2007; and/or
4. 19 May 2007.
Dr Tom Le admits that he was working at that Medical Centre at those times and saw Patient A but
says that he did not breach the condition because he was not undertaking medical work. He says
that he was working under the supervision of another doctor, Dr Andrew Le (whose full name is Dr
Tuan-Anh Le and who is not related to Dr Tom Le).
The issues to be determined by the Tribunal are the following:
1. precisely what occurred between Dr Tom Le and Patient A on those dates.
2. what does "providing medical care" mean?
3. did Dr Tom Le breach the condition on his registration?
4. was Dr Tom Le's conduct improper or unethical?
5. if the answer to 3 or 4 is yes, is Dr Tom Le guilty of unsatisfactory professional conduct
and/or professional misconduct?
6. if the complaint is established, the appropriate disciplinary Orders.
Dr Tom Le - Backaround
Dr Tom Le was born in Vietnam and is 48 years of age. He graduated as a doctor of medicine from
Hanoi University in 1987. He worked in Vietnam for 2 years as an intern/RMO, one year as a
surgical trainee and two years as a surgeon. He migrated to Australia in 1993.
2
Between 1993 and 2006 Dr Tom Le worked as a process worker in a bakery and delivered pizzas.
At the same time he attended courses to learn English.
In 2001 and 2002 Dr Tom Le completed two courses - "Orientation for Overseas Health
ProfessionalsN at North Sydney T AFE and "OET Preparation Course for Overseas Trained Health
Professionals" at the University of NSW.
In October 2003 Dr Tom Le passed Part 1 of the Australian Medical Council examinations.
In 2004 Dr Tom Le completed the Bridging Program for Overseas Trained Medical Practitioners
conducted by the Faculty of Medicine at the University of NSW.
In March 2006 Dr Tom Le passed Part 2 of the Australian Medical Council examinations and was
certified as having satisfied the requirements of the CounciL. This led to his name being entered on
the Register of NSW Medical Practitioners on 22 May 2006 subject to conditions. These changed
over time so that as at April/May 2007 they were:
1. To participate in the Australian Medical Council pre-employment training program
conducted by IMET from 22 May 2006 to 9 June 2006 at Hornsby Ku-ring-ai Hospital;
2. To undertake Australian Medical Council supervised training from 19 June 2006 to 30 June
2007 at Hornsby Ku-ring-ai Hospital and secondment network;
3. May not undertake any medical work (including locum positions) other than the supervised
position as approved by the Board.
Dr Tom Le says that in around July 2005 Dr Andrew Le, who is also from Vietnam, agreed to help
him prepare for the clinical examination he was to undertake in March 2006. He was to attend at Dr
Andrew Le's practice at BHC Medical Centre, where they would discuss scenarios and undertake
role playing exercises. He started in September 2005. He was a clinical assistant. He said that he
worked under the direction of Dr Andrew Le who allocated him various tasks. He had informed Dr
Andrew Le of the conditions of his registration.
Dr Tom Le said he did not tell the NSW Medical Board or Hornsby Hospital that he was working at
Dr Andrew Le's practice because he was not practising medicine.
3
--.;":' ~
Issue 1 - Dr Tom Le and Patient A
As set out above, the Health Care Complaints Commission relies on four separate attendances by
Patient A at the BHC Medical Centre.
Patient A had decided to undergo a breast augmentation to be performed by Dr Andrew Le. At the
first attendance on 29 April 2007 she underwent the procedure. The later attendances relate to her
progress after that operation.
Both Dr Tom Le and Patient A gave evidence before the Tribunal as to what occurred on those
four occasions. They had also prepared statements which were tendered in evidence. There is
some inconsistency in the various versions.
29 April 2007
Evidence of Patient A
p'atient A said that immediately before the procedure she saw a number of people in the operating
room. Dr Tom Le introduced himself as "the other Dr Le". She understood that Dr Tom Le was a
doctor or surgeon and it occurred to her that the two doctors might be related.
Patient A underwent the procedure and went home later on the same day. She had been given a
post operative information sheet which said she should contact Dr Andrew Le or Or Tom Le in the
event that she had any problems.
i n her evidence Patient A did not suggest that she believed that Dr Tom Le had performed the
augmentation - but rather that she perceived that he was part of Dr Andrew Le's team.
Evidence of Dr Tom Le
Dr Le recalled meeting Patient A but did not recall the specific details of Patient A's procedure. He
said he may have introduced himself as the doctor's assistant. He would h~ave handed instruments
to Dr Andrew Le during the procedure and then cleaned and/or fetched instruments as required.
8 May 2007
The BHC Medical Centre patient notes record:
4
"Dr Andrew Tuan An Le
Post operation check up
Patient feels well afebrile, no pain.
Mild swelfen both breasts. Right side's slightiy double bubble.
Sutures removed with no complications. Scars were healed well.
Keep breast bandaged for another week.
Next appointment on Monday.
Evidence of Patient A
Patient A said that she was worried she had developed a capsular contraction so she sent SM3
messages to Dr Andrew Le and Dr Tom Le on 7 May 2007. Dr Andrew Le, who was not in Sydney,
rang to reassure her. Later on Dr Tom Le also called and asked her to come in the next day so that
he could remove the stitches and check her breasts.
Patient A went to SHC Medical Centre on 8 May 2007 and was seen by Dr Tom Le and a nurse.
Patient A said she told Dr Tom Le that she was concerned about a sharp groove under her breasts
and the shape of her breasts. Dr Tom Le was very reassuring and told her the groove was part of
the healing process.
Dr Tom Le removed the stitches. The nurse took photographs.
Dr Tom Le saw the lump which had developed under her arm and said to her 'We wil lance that if
it doesn't go away". He told her to do some arm raising exercises and apply ointment to the cut. He
told her to call if she developed a fever, but told her that she had nothing to worry about.
Evidence of Dr Tom Le
In his statements Dr Tom Le said he recalled Patient A sending the text message around 7 May
2007 but not the details of the message.
Dr Tom Le agreed that he saw Patient A on the following day, 8 May 2007. He removed the
stitches. He noticed that the wounds appeared to be healing and mentioned it to Patient A. He
denied that she had complained about a lump, that he had suggested the lump would need to be
lanced or that he said Patient A should call him if she developed a fever.
5
When he was cross examined in these proceedings about the entry uno pain" in Patient A's
medical records, Dr Tom Le said he had asked "How are you feeling today?" as just part of the
conversation and she had answered that she was not in any pain. He had taken her temperature
and observed mild swellng of both breasts and a double bubble on the right side. He had told
Patient A to keep the breast bandaged for another week in accordance with the instructions he had
received from Dr Andrew Le. He could not recall a conversation about a groove. He had not told
Patient A to call him if she developed a fever, he said to call either Dr Andrew Le or the practice
manager but if she could not contact anyone, she should call him.
11 May 2007
There is no entry in the medical records for 11 May 2007 which was a telephone conversation
between Patient A and Dr Tom Le.
Evidence of Patient A
Patient A said that by 11 May 2007 she had become concerned because she noticed she was
lethargic and her left breast was swollen and red. She called Dr Tom Le who told her that she
needed to go to the surgery for a prescription of Amoxil first thing in the morning and to take
PanadoL. She did go to the Medical Centre the next morning and obtained the prescription from Dr
Chowdhury.
Evidence of Dr Tom Le
Dr Tom Le agreed he had spoken to Patient A on 11 May 2007 by telephone and that she had
described symptoms consistent with an infection. He told her she may have an infection and
should attend the practice to see one of the doctors who could prescribe an antibiotic. In his later
statement he denied that he told Patient A she must attend the practice to obtain Amoxil capsules.
He was not at the BHC Medical Centre on 12 May 2007 when Patient A saw Dr Chowdhury and
obtained a prescription for Amoxil.
Progress between attendances on Dr Tom Le
On 14 May 2007 Patient A saw Dr Andrew Le twice. Dr Andrew Le gave Patient A advice about
her issues at that time - the lump under her arm, the asymmetry of her breasts, the evident groove
under her left breast and the loss of nipple sensitivity. He changed the antibiotic to Keflex.
6
On 17 May 2007 Patient A developed a rash over her breasts and sides. The lump was sore. She
left two messages for Dr Andrew Le which he did not return.
On 18 May 2007 Patient A sent SMS messages to both Dr Andrew Le and Dr Tom Le. Patient A
then attended her usual general practitioner Dr Krishna. That doctor advised her to stop taking the
antibiotic as it could be causing the rash and gave her an ointment. Dr Krishna made an urgent
appointment for Patient A to see a plastic surgeon at Strathfield Private HospitaL.
19 May 2007
The SHC Me9ical Centre patient notes record:
"Dr Andrew Tuan An Le
Reason for visit:
Rash + lump on left axillae
Macular rash over the chest, trunk and groins: macular, no blister, possible allergic reaction.
Lump on left axilae 1.5 x 2cm: non~redness, non tender, not warm on touch.
Both breasts looks better, no visible double bubble but stil had oedema left more than right.
Keep bandage on left side over the top of breast to pressure down.
Phenergan 10 mg tds 25 mg nocte
Evidence of Patient A
On 18 and 19 May 2007 Patient A was contacted by Dr Tom Le and Dr Andrew Le. She described
the calls as incessant. Dr Tom Le wanted her to come to the surgery as soon as possible because
it was important that he see the lump under her arm. She felt under pressure. She finally arranged
to meet him at BHC Medical Centre at 1.30 pm on 19 May 2007.
Dr Tom Le examined her and saw the rash. He told her she needed to get an antihistamine. It
could make her dizz. She asked about the breast shape. He said that the shape was not the best
but they would fix it. When she said she would not undergo surgery again, he told her to just keep
strapping the breast down and hopefully it would settle. He said there might be some ongoing
asymmetry. He told her the nipple sensitivity in the left breast was caused by internal bruising and
would resolve in 6-12 months.
7
Dr Tom Le strapped down the right breast and told her the shortness of breath had been caused
by the strapping. She told him she was going to the breast clinic at Strathfield and he told her that
the clinic was for cancer checks.
In her first letter to the NSW Medical Board Patient A also said that Dr Tom Le told her that the
lump under her left arm might need to be lanced under an anaesthetic in 2 - 3 weeks.
Evidence of Dr Tom Le
Dr Tom Le recalled receiving an 8MS message from Patient A on 18 May 2007. He said he had
been asked by Dr Andrew Le to call Patient A to ask her to attend for a review of her lump.
Dr Le said that when she arrived he removed the bandage in accordance with instructions he had
received from Dr Andrew Le. He checked her wound and saw a rash. He advised her that she
required antihistamine medication. He may have commented on the shape of her breast but would
have added that she would need to see Dr Andrew Le to have it fixed. He would have told her that
when nerves are cut, it can take 6 to 12 months for the sensation to return. He denied tellng her
that internal bruising causes numbness.
Dr Tom Le denied the conversation concerning 8trathfield HospitaL. He did not recall Patient A
stating she was short of breath or said it was caused by strapping.
i n his first letter to the N8W Medical Board Dr Tom Le said that when he saw the rash he had
asked Patient A to see Dr Chowdhury to have it treated. She said she was in a hurry and could not
wait so he spoke briefly to Dr Chowdhury who said Patient A should get Phenergan from the
chemist.
Dr Tom Le agreed that he haçj told Patient A that she could get dizz from the antihistamine
medication, that the sensation may take 6-12 months to return and that the lump may need lancing
in a couple of wèeks if it did not settle. He recalled she had made complaints about the outcome of
the surgery but he had told her to see Dr Andrew Le when he returned from overseas.
Resolving conflict in the evidence
The Tribunal has no hesitation in preferring the evidence of Patient A to the evidence of Dr Tom Le
where they conflict.
8
Patient A was an impressive witness. She appropriately conceded that her memory as to dates
was not completely reliable. However she did remember the conversations during her attendances
on Dr Tom Le. She had made notes on her computer at around the time of the attendances. Her
evidence was broadly consistent with the information in the BHC Medical Centre medical records.
There is no suggestion that Patient A has a grievance against Dr Tom Le - the complaint only
emerged when the Board was examining the complaint made against Dr Andrew Le and noticed
that Dr Tom Le may have breached the condition on his registration.
The Tribunal did not consider the evidence of Dr Tom Le to be reliable where it was not supported
by contemporaneous documentary evidence which in this case are the medical records. The
Tribunal accepts that the inconsistencies could be due, in part, to Dr Tom Le's limited command of
the English language. This is an issue which has been noted by some of his supervisors at work,
conceded by his counsel and obvious from his evidence. In addition Dr Tom Le conceded he could
not recall some of the events because they had occurred too long ago. Further there were
significant inconsistencies between his two written explanations and his oral evidence, which, the
Tribunal finds, casts doubt on the reliability of the whole of his evidence.
For example, there is the issue of whether Dr Tom Le advised Patient A that the lump would need
to be lanced. In her first statement Patient A said that on 19 May 2007 Dr Tom Le had told her it
might need to be lanced under an anaesthetic in 2 to 3 weeks. In her second statement she related
a conversation about lancing to the earlier consultation on 8 May 2007.
In one of his statements Dr Tom Le said, in relation to the consultation on 19 May 2007, that he
had said to Patient A that the lump in the armpit might need lancing in a couple of weeks ff it did
not settle. While there now seems to be an issue as to whether this conversation occurred on 8 or
19 May 2007, Dr Tom Le did not deny in that statement that there had been a conversation about
lancing the lump. In his second statement he only denied there had been a conversation about
lancing on 8 May 2007.
On cross examination in these proceedings Dr Tom Le denied that he had told Patient A the lump
might need to be lanced. He said he did not use the word "lance" and does not truly understand the
meaning of the word. He only said to Patient A that Dr Andrew Le would fix it.
The Tribunal is of the view that this evidence is unreliable in circumstances where it has not been
mentioned in his earlier explanations and contradicts his first statement.
9
Next, Dr Tom Le has always maintained in his correspondence that he did not breach the condition
on his registration because he was working under Dr Andrew Le's supervision and in accordance
with Dr Andrew Le's instructions from September 2005 to November 2007. Dr Tom Le provided
lengthy lists of the types of duties he said he performed.
However Dr Tom Le did not, until he gave evidence in these proceedings, suggest there had been
a change in his working relationship with Dr Andrew Le after March or May 2006 ie before he saw
Patient A. In his evidence he said that after that date he only occasionally went to the practice
when he was required by Dr Andrew Le. He went very rarely, maybe once a month or once every
two months. He said that the change occurred because he had started working in a hospital as an
intern under supervision so he was not allowed to work anywhere else. There was no formal
arrangement, he went there as a friend.
Again, the Tribunal is of the view that this evidence is unreliable in circumstances where it is highly
relevant to a crucial factual issue in these proceedings and was not mentioned in his earlier
explanations.
Lastly Dr Tom Le gave inconsistent and contradictory evidence as to the instructions he received
from Dr Andrew Le before he saw Patient A on 19 May 2007.
In cross examination he said that he had changed the bandage in accordance with telephone
instructions he had received from Dr Andrew Le while Dr Andrew Le was overseas. Dr Andrew Le
had instructed him to reapply the bandage if it had become loose.
However in his first explanation to the NSW Medical Board Dr Tom Le had said that Dr Andrew Le
";nstructed me to remove the sutures and the bandages" and if he had any concerns he should
contact him by telephone. In his later statement Dr Tom Le said that "I was contacted by Dr
Andrew Le who requested that 1 see PaUent A and remove the strches from her wounds". Neither
of these statements are consistent with Dr Tom Le's oral evidence. Only one version refers to the
bandages and that instruction was to remove, not reapply, the bandage.
Again, the Tribunal is of the view that this evidence is unreliable. Again it relates to an important
issue in the proceedings - the scope of the instructions Dr Tom Le says he received from Dr
Andrew Le so that it is reasonable to expect that a full and accurate account would be contained in
the earlier statements.
10
Issue 1 - Finding
The Tribunal accepts the evidence of Patient A as to what occurred at the consultations on 29 April
2007,8, 11 and 19 May 2007.
Issue 2 ~ what does "providina medical care" mean?
The effect of the condition on Dr Tom Le's registration was that he could not undertake medical
work at SHe Medical Centre.
It is common ground that the expressions "medical work" and "practice of medicine" are not defined
in the Medical Practice Act 1992.
There was uncontested expert evidence from Dr Jammal which the Tribunal accepts as explaining
the issues which define when medical work is being performed. It is important to acknowledge that
aspects of medical work are routinely undertaken by persons other than doctors. Practice nurses
or other staff perform traditional "clinical tasks" such as EEG, taking blood, routine post-operative
care and changing of dressings. They are trained and have set boundaries and limitations on the
care and advice that they are allowed to give.
"Medical work" is defined by looking at the whole process and the environment in which it occurs.
Dr Jammal relevantly said:
In my opinion ft is the process of taking a history, examination of a patient, coming to a
provisional diagnosis, initiating a management plan and advice and arranging foffow-up that
constitutes the practice of medicine. Patient. perception of the individual giving such advice is
also very important in judging what constitutes the "practice of medicine':
Issue 2 - Finding
The Tribunal accepts the evidence of Dr Jammal and finds that to determine whether "medical
work" has been performed involves taking into account the whole of the interactions between the
patient and the doctor, the environment in which it occurred and whether the doctor undertook
most if not all of the usual requirements of medical practice - the taking of a history, the
performance of an examination, arriving at a diagnosis, initiating a treatment plan and giving
advice.
11
Issue 3 _ Was Dr Tom Le's conduct a breach of the condition on his reaistration?
Applying this definition, the Tribunal is satisfied that the consultations on 8,11 and 19 May 2007
were "medical work".
All consultations
Dr Tom Le had been present at the operation on 29 April 2007. He had introduced himself to
Patient A as a doctor. He was aware that his telephone number was given to patients as a person
to contact after surgical procedures. He did not tell Patient A at any time that there were conditions
on his registration or that he was only permitted to work as a doctor under supervision at Hornsby
HospitaL.
Dr Tom Le said that when he saw Patient A on 8 and 19 May 2007 he had made notes on a piece
of paper and then given the notes to the medical manager. They were entered onto the computer
system by a staff member: Dr Tom Le did not suggest the substance of the notes was inaccurate.
The entries on 8 and 19 May 2007 show the attending doctor as Dr Andrew Le (who was then
overseas) and not Dr Tom Le.
8 May 2007
Before the consultation Patient A had informed Dr Tom Le that she was worried she had
developed a capsular contraction and he had arranged to see her the next day at SHe Medical
Centre.
During the consultation Dr Tom Le was assisted by a nurse which would have contributed to the
perception that Patient A was attending a medical consultation. Dr Tom Le took a history including
the information Patient A had provided over the telephone the previous day and her advice that
she felt welL. Dr Tom Le examined Patient A by taking her temperature and looking at her breasts.
He observed du~ing his examination that she had mild swellng of both breasts with the right side
slightly double bubble. He formed the opinion based on his experience and knowledge, that the
scars had healed well and that the breasts needed to be bandaged for another week.
Dr Tom Le treated Patient A by removing her sutures. He gave her advice when he reassured her,
told her to keep her breast bandaged for another week, said that the groove under her breasts was
part of the healing process, gave her exercises and told her to apply ointment. He provided a
management plan by informing Patient A that the lump would be lanced if it did not resolve. He
provided advice about follow-up when he told her to call if she developed a fever.
12
In the opinion of the Tribunal this is medical work.
11 May 2007
The consultation on 11 May 2007 was by telephone. In that conversation Dr Tom Le took a history
- Patient A's lethargy and the swelling and redness of her left breast. He was already aware of her
past history. He obviously could not examine Patient A. He arrived at a provisional diagnosis - an
infection. He informed Patient A of that diagnosis. Dr Tom Le implemented a treatment plan -
Patient A was to take Panadol that evening and attend at the surgery to obtain a prescription for
Amoxil first thing in the morning.
In the opinion of the Tribunal this is medical work.
19 May 2007
Dr Tom Le had asked Patient A to come to the surgery so that he eould check the lump under her
arm. He examined her - noting a lump on the left axilla measuring 1.5 x 2cm which was not red, a
macular rash over the chest, trunk and groins with no blistering and no visible double bubble but
oedema on the left more than right. He compared the breasts to the previous examination and
commented that they looked better. He touched the lump and concluded that it was not tender and
not warm.
Dr Tom Le arrived at a provisional diagnosis of a possible allergic reaction rather than an infection
which he mentioned in the medical records.
Dr Tom Le gave Patient A advice - to keep the bandage on the left side over the top of the breast.
The antihistamine could make her dizz. He told her the breast shape was not the best but they
would fix it. He advised her to just keep strapping the breast down and hopefully it would settle
although there might be some ongoing asymmetry. The nipple sensitivity would resolve in 6-12
months. The shortness of breath had been caused by the strapping. He may have mentioned the
possibilty of lancing the lump.
Dr Tom Le instituted a management plan - he told Patient A to use Phenergan, an antihistamine.
Dr Tom Le treated Patient A - he strapped down the right breast.
13
In the opinion of the Tribunal this is medical work. Further, the Tribunal is satisfied it is medical
work even if Dr Tom Le briefly consulted Dr Chowdhury as that doctor did not see Patient A and
simply confirmed Dr Tom Le's proposed treatment for the rash.
Issue 3 - Finding
For these reasons the Tribunal finds that Dr Tom Le breached the condition on his registration on
8,11 and 19 May 2007.
Issue 4 _ whether Dr Tom Le's conduct was improDer or unethical
The second ground in the complaint is that Dr Tom Le engaged in improper or unethical conduct
related to the practice of medicine.
The Tribunal was invited to find that Dr Tom Le's breach of the condition on his registration was
either deliberate or alternatively he acted in reckless disregard of that condition. Accordingly, it was
submitted, his conduct was improper and/or unethical.
Counsel for Dr Tom Le submitted that the additional ground was otiose. Once a breach of the
condition had been established it was irrelevant whether it was deliberate or reckless.
The Tribunal is satisfied that Dr Tom Le's conduct was either deliberate or done with reckless
disregard of the condition on his registration. Dr Tom Le said he did not consider himself to have
been doing medical work at the SHC Medical Centre because he was being supervised by and
acting in accordance with instructions he received from Dr Andrew Le. The Tribunal does not
accept this for the following reasons:
1. Dr Tom Le understood he was only to work as a medical practitioner under supervision at
Hornsby HospitaL.
2. The Tribunal is satisfied that Dr Tom Le understood at all relevant times the meaning of the
term "medical workn. In his statement he said "In my mind, I associated medical care wíth
the practice of medicine whereby a doctor examined a patient, ordered investigations,
made a diagnosis, provided treatment and prescribed medication as required". The
evidence establishes that he was undertking most of these duties on those threeoccasions at SHC Medical Centre although he was not able to prescribe medication.
14
3. Even if Dr Tom Le's explanation is assumed to be valid, the Tribunal does not accept that
Dr Tom Le could have reasonably believed he was acting under Dr Andrew Le's
supervision and instructions on those occasions.
While Dr Tom Le may have had short telephone conversations with Dr Andrew Le before
the consultations on 8 and 19 May 2007, the Tribunal does not accept that they can
properly be described as Dr Andrew Le instructing or supervising Dr Tom Le. For example,
according to Dr Tom Le, in the conversation before the consultation on 19 May 2007 Dr
Andrew Le told him to have a look at the wound and any rash and to let him know if he
observed any abnormality. In the opinion of the Tribunal whether a patient has presented
with an abnormality is clearly a decision involving the exercise of medical judgment. The
making of such a decision is not just the implementation of an instruction such as the
removal of stitches.
In addition on both 8 and 19 May 2007 Dr Andrew Le was overseas making it even less
likely that Dr Tom Le could reasonably have believed he was being supervised or instructed
by Dr Andrew Le.
4. The Tribunal does not in any event accept the proposition that it was reasonable for Dr Tom
Le to take the view that he was not performing medical work if he considered himself to be
working under the "instruction" of Dr Andrew Le who at the time of two of the three
consultations was overseas. In each case whether Dr Tom Le could be described as doing
medical work wil obviously depend on the nature of the instructions he had been given, the
extent and type of supervision he was under (if any), what actually occurred during the
consultation and the environment in which the consultation took place as explained by Dr
Jamaal.
Further, the Tribunal is satisfied that it is open to the Health Care Complaints Commission to assert
a second ground in the Complaint.
Issue 4 - Finding
The Tribunal is satisfied that Dr Tom Le either knew or should have known he was breaching the
condition on his registration. The Tribunal finds Dr Tom Le engaged in improper or unethical
conduct related to the practice of medicine.
15
Issue 5 _ Unsatisfactorv Professional Conduct and/or Professional Misconduct
The Tribunal has found the two grounds of the complaint have been established. Accordingly the
Tribunal finds Dr Tom Le guilty of unsatisfactory professional conduct pursuant to s 36 (1) (c) and
(m) of the Medical Practice Act 1992.
A practitioner wil be guilty of professional misconduct for "unsatisfactory professional conduct of a
suficiently serious nature to justff suspension of the practitioner from practising medicine or the
removal of the practitioner's name from the Registet' (s 37 of the Medical Practice Act 1992).
Taking into account the number of attendances on Patient A and the finding that Dr Tom Le either
deliberately or recklessly breached the condition on his registration, the Tribunal finds that Dr Tom
Le is also guilty of professional misconduct pursuant to Section 37 of the Medical Practice Act.
Issue 6 - The 30propriate disciolinary Orders
The fact that Dr Tom Le's conduct was sufficiently serious to justify suspension or removal from the
Register does not mean that his name must be removed. This Order was not sought by the Health
Care Complaints Commission.
The legislation makes it clear that the full range of disciplinary powers is available to this Tribunal
on. a finding of professional misconduct. The discretion of the Tribunal is at large and wil depend
upon the circumstances of the individual case.
The purpose of disciplinary proceedings is to maintain proper ethical and professional standards in
protection of the community and also to protect the good standing and reputation of the profession.
The object of protecting the public includes deterring the practitioner from repeating his misconduct
and deterring others who might be tempted to behave in a similar way. Deregistration may be
necessary to protect the public tfom the risk of recurrence of further professional misconduct, deter
the practitioner .from repeating the misconc;uct, deter others, maintain the standards of the
profession and maintain public confidence in the profession. Even in cases of serious misconduct
deregistration does not necessarily follow if at the time of the hearing present unfitness has not
been demonstrated. Present fitness to practice is a relevant consideration.
In assessing the appropriate Orders the Tribunal has taken a number of matters into account.
16
1. As observed in Health Care Complaints Commission v McHue NSW Medical Tribunal 14
December 2007, "Repeated wilful breaches of conditions are treated by the Medical
Tribunal as a most serious finding against a practitioner containing as it does a grave
criticism of the standard of the practitioner's conduct" (at paragraph 29).
2. The conduct continued over three consultations. The Tribunal has found that Dr Tom Le
either acted deliberately in breaching the condition on his registration or acted recklessly.
3. Dr Tom Le has not unequivocally admitted that he breached the condition on hisregistration. He has only said that he appreciates that others may perceive that he did
medical work on 19 May 2007.
4. There is no evidence of any adverse outcome to Patient A as a consequence of the breach
of the condition.
5. Dr Tom Le has continued to work as a doctor other than for a short period from 27 August
2007 to 23 September 2007. He subsequently completed the requirements of the NSW
Medical Board. Since 20 November 2008 he has had general registration in NSW without
any conditions.
6. The reports of his performance, while he was a trainee up until November 2008, were
generally satisfactory.
7. He is now working as a Senior Medical Officer at Gosford Hospital and is doing a surgical
term at Wyong HospitaL.
8. There is a significant overlap between the two grounds of the complaint and the Orders
must not result in "double punishment".
Balancing the matters which this Tribunal must take into account the Tribunal has determined that
this is not a case in which it should exercise its power to deregister Or Tom Le or suspend his
registration.
The Tribunal has determined that the appropriate Orders are:
1. A reprimand pursuant to section 61 (1) (a) of the Medical Practice Act 1992. The Tribunal
has decided that a reprimand rather than a caution is appropriate in view of the gravity of
the doctor's conduct.
2. A fine pursuant to section 62 of the Medical Practice Act 1992. The Tribunal is of the view
that a reprimand and conditions are insufficient to inform Dr Tom Le and other medical
practitioners of the serious breach of medical practice involved. The measure of the fine is
to be judged against the seriousness of the conduct. The maximum fine that can be
imposed is $27,500. The Tribunal takes into account that Dr Tom Le wil pay around
$12,000 to attend courses as a consequence of the conditions to be imposed on his
17
registration by this TribunaL. While this is a relevant consideration in respect of the quantum
of the fine, the courses will also assist Dr Tom Le in fulfillng his continuing professional
development activities as part of his registration. Given this dual purpose the weight to be
placed on this as a factor in determining the quantum of costs is diminished. Capacity to
pay would be a relevant consideration in determining the quantum of costs however there is
no evidence before the Tribunal of the capacity of Dr Tom Le to pay. The Tribunal has
determined to impose a fine of $10,000.
3. The imposition of conditions to ensure the issues which have been identified in these
proceedings are addressed. In particular these are Dr Tom Le's lack of communication
skills and his disregard of the high standards to be maintained by medical practitioners.
Costs
It was conceded by counsel for Dr Tom Le that, if the substance of the breaches were established,
Dr Tom Le should pay the costs of the Health Care Complaints Commission. The Tribunal accepts
that is the appropriate Order in the circumstances.
Orders
1. The Tribunal:
1.1 marks its strong disapproval of Dr Tom Le's conduct being the breaches of the
condition on his registration; and
1.2 emphasises the importance of complying with such conditions to other doctors
by reprimanding Dr Tom Le pursuant to Section 61 of the Medical Practice Act.
2. Pursuant to section 62 (2) of the Medical Practice Act 1992 Dr Tom Le is fined $10,000 to
be paid to the NSW Medical Board by 31 May 201 O.
3. Dr Tom Le's registration is subject to the following conditions:
3.1 Medical Ethics
3.1.1 To satisfactorily complete at his own expense the course on Medical Ethics
conducted in distance mode by the Department of General Practice, Monash
University, Victoria. The course must be completed by 31 December 2010.
3.1.2 By the end of close of business 31 July 2010 the practitioner must provide
evidence to the NSW Medical Board of enrolment in the Ethics course.
3.1.3 Within two weeks of completing the Ethics course, the practitioner is to provide
documentary evidence to the NSW Medical Board that he has satisfactorily
completed the course.
3.2 Communication/Risk Management (Cognitive Institute)
18
3.2.1 To participate in and satisfactorily complete, at his own expense, all components
of the Clinical Communication Program (CCP) for General Practitioners,
conducted by the Cognitive Institute. The CCP is conducted over six months and
comprises three phases:
3.2.1.1 Preparation and Goal Setting (over a 6-week period prior to Phase 2);
3.2.1.2 Residential Workshop (3 days) in Brisbane, Queensland.
3.2.1.3 Implementation and Mentoring.
3.2.2 To satisfactorily complete the Program within 12 months of the date of this
Decision and to focus on how to better relay appropriate information to patients.
3.2.3 To supply to the NSW Medical Board:
3.2.3.1 Within 2 weeks of the date of receipt of this Decision, a copy of a letter
confirming registration with the Cognitive Institute; and
3.2.3.2 Within 1 week of receiving each from the Institute, copies of the Progress
Statements for both Phase 1 and Phase 2 of the Program; and
3.2.3.3 Within 1 week of receipt, a copy of the institute's Certificate detailng
satisfactory completion (or otherwise) of all Program components.
3.3 Variation of conditions
These conditions may be varied, amended as to timing or removed at the discretion of the
NSW Medical Board.
4. Dr Tom Le to pay the costs of these proceedings.
19
Medical Tribunal of New South WalesHCCC and Or Thoa.Van LeMatler No: 40027 of 2009
(~~Dr Melanie Wroth
Member
,/ //1/4Dr Donald Child
Member
Member
A Balla DCJ.
Deputy Chair
~A'~a