Ng v Health Care Complaints Commission

The plaintiff, Dr Sow Kuan Ng (Dr Ng), filed proceedings in the Supreme Court of New South Wales appealing a disciplinary finding from the New South Wales Civil and Disciplinary Tribunal (NCAT) relating to his conduct as a registered osteopath. NCAT had found Dr Ng guilty of professional misconduct and unsatisfactory professional conduct pursuant to the relevant provisions contained in section 139 of the Health Practitioner Regulation National Law (National Law) in respect of his dealings with a patient under his care.

The NCAT Proceedings

It is alleged that on 16 August 2011, Dr Ng inappropriately placed his hand without the use of a glove, in a patient’s genital area when there was no clinical indication or justification in support of such action.

In response to the allegation, Dr Ng denied genital contact, submitted that there was no skin to skin contact in the groin region (a towel was between his hands and the patient’s skin), that the treatment was restricted to the right groin area, being the area where symptoms were experienced, and that the treatment was clinically appropriate.

Credibility was a live issue in the proceedings. Tribunal members were faced with two contrasting versions of events. NCAT accepted the patient as a credible witness and preferred her version of events.

In respect of expert evidence, the central issue before the NCAT was whether the palpation or manipulation undertaken by Dr Ng during the treatment on the patient may have caused the sensations the patient described within her genital area, or whether those sensations were the result of digital penetration. There was agreement amongst experts that some form of referred sensation could potentially felt in the genital area through the palpation or manipulation of trigger points around the genital area. Ultimately, the NCAT resolved:

‘having accepted that Patient A is a witness of credit, we do not consider that it is necessary to reach conclusions about the expert evidence. On the whole, the experts were in agreement, and we accept that Dr Ford said, this was a case of he said/she said. Our role is to determine, on the balance of probabilities, whether or not what Patient A states occurred, did occur. For the reasons set out above, we do.’

NCAT found, amongst other things, Dr Ng guilty of engaging in improper or unethical conduct relating to the practice or purported practice of osteopathy. Dr Ng’s knowledge, skill or judgment possessed, or care exercised, in the practice of osteopathy was found to be significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and that the conduct was sufficiently serious to amount to professional misconduct.

Pursuant to section 149C of the National Law, Dr Ng’s registration was cancelled and an order made that he be unable to apply for registration for a period of at least 18 months. Dr Ng was ordered to pay the costs of the applicant, the Health Care Complaints Commission (HCCC).

The Appeal Proceedings

Dr Ng filed an appeal in the Supreme Court of New South Wales alleging that NCAT erred in law by failing to properly consider and give sufficient weight to particular evidence and failing to properly assess the credibility of witnesses.

Pursuant to Clause 29(4)(b) in Part 6 of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW), in order to invoke the Supreme Court’s jurisdiction, Dr Ng’s appeal could be made ‘as of right on any question of law, or with the leave of the court, on any other grounds.’

In submissions, the HCCC argued that the grounds of appeal each raised as an issue a complaint about the weight or lack thereof given to one or more pieces of evidence by NCAT in its fact finding process. In that way, each of the grounds of appeal amounted to an attempt to re-agitate findings of fact rather than any error of law. In reply, Dr Ng submitted that a reviewable error of law includes circumstances where NCAT has made a finding in the absence of evidence or if the evidence adduced does not support an inference being made.

Findings

In finding that there was no error of law, Justice Davies referenced a number of decisions from appellant jurisdictions which described the error in law versus error in fact interplay. The authorities establish the position that there is no error of law in simply making a wrong finding of fact unless there is no evidence to support that finding. For there to be an error of law, NCAT must be shown to have had no regard to the evidence before it. On review of the NCAT decision, the conclusions reached by the members were open and available on the evidence. The five grounds for appeal were all dismissed with costs.

Application for health professionals

The factual circumstances of this case should serve as a reminder to all health practitioners as to the importance of:

• Obtaining detailed informed consent in writing from all patients, particularly in circumstances where proposed treatment surrounds private areas, prior to providing treatment.
• Providing a clear communication channel with a patient to ensure the patient is aware of the nature and extent of treatment being proposed.
• Considering the option of having a chaperone present if the consultation is likely to involve treatment to or around a patient’s sensitive or private area.
• Recording complete and comprehensive notes which detail the patient’s health complaint, proposed treatment, the actual treatment provided and any issues arising.

Ng v Health Care Complaints Commission [2017] NSWSC 53