ACT MEDICAL BOARD of the MEDICAL BOARD of AUSTRALIA & NEWCOMBE (Occupational Discipline)
[2012] ACAT 43
•28 June 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ACT MEDICAL BOARD of the MEDICAL BOARD OF AUSTRALIA & NEWCOMBE (Occupational Discipline) [2012] ACAT 43
HP 06/436
Catchwords: OCCUPATIONAL DISCIPLINE – Health Professional –jurisdiction under the transitional provisions of Health Practitioner Regulation National Law (ACT) Act 2010 – failure to appear in proceedings - whether actions contravened required standards of practice – exercise of professional judgment, knowledge and skill - failure to keep adequate and accurate clinical records – failure to disclose adverse event - standards expected of a neurosurgeon – failure in relation to post-operative care of patients
Legislation:ACT Civil and Administrative Tribunal Act 2008, ss. 8, 26, 39, 44, 57 and 65
Health Professional Act 2004, ss.13, 26, 41, 42 and 44
List of cases: Briginshaw v Briginshaw (1938) CLR 336
Council of the Law Society of the ACT v The Legal Practitioner [2010] ACAT 2
Craig v Medical Board of South Australia [2001] SASC 169
Health Care Complaints Commission v Harris (40005/2008, decision of 18 December 2008)
Law Society of NSW v Foreman (1994) 34 NSWLR 408
Medical Practitioner v Medical Board of Australia
[2011] ACTSC 191
Medical Board of Australia v Veness
[2012] ACAT 36.NSW Bar Association v Evatt (1968) 117 CLR 177
Rogers v Whitaker (1992) 175 CLR 479,
Srna v Medical Board of Western Australia
[2004] WASCA 198Yeaman v ACT Medical Board [2010] ACAT 27
Tribunal: Ms L. Crebbin, General President
Professor D. Hardman, Senior Member
Dr G. Klempfner, Senior Member
Date of Orders: 28 June 2012
Date of Reasons: 2 October 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: HP 06/436
RE:ACT MEDICAL BOARD of the MEDICAL BOARD OF AUSTRALIA
Applicant
AND:RAYMOND NEWCOMBE
Respondent
Tribunal :Ms L. Crebbin, General President
Professor D. Hardman, Senior Member
Dr G. Klempfner, Senior Member
Date :28 June 2012
The Tribunal declares:
(i)if the respondent had been registered to practice, the Tribunal would have found that the respondent contravened required standards of practice in the exercise of his professional judgment, knowledge, skill and conduct in relation to patients S and O;
(ii)if the respondent had been registered to practice, the Tribunal would have found that the respondent contravened required standards of practice in the exercise of his professional judgment, knowledge, skill and conduct in relation to patient L and that he did not satisfy the suitability to practise requirements.
………………………………..
Ms L. Crebbin, General President
Reasons for Decision
Introduction
These reasons explain why on 28 June 2012, the ACT Civil and Administrative Tribunal (the Tribunal) declared that if Raymond Newcombe (the respondent) had been registered to practise as a health professional, the Tribunal would have found that he had contravened required standards of practice in the exercise of his professional judgment, knowledge, skill and conduct in relation to three of his patients and, that in respect of one of those patients, his contravention was such that he did not satisfy the requirements for suitability to practise as a medical practitioner.
The Tribunal’s declarations were made in response to an application for occupational discipline brought against the respondent in circumstances that are set out in greater detail below.
The respondent was first registered as a medical practitioner in the ACT in 1975. This application concerns his treatment and care of four patients who are identified as patients S, O, L and J. On 8 September 2009 the Tribunal made an order under section 39(2) of the ACT Civil and Administrative Tribunal Act 2008 prohibiting the publication of the names of, or of any identifying details of, any of the respondent’s patients including the four whose treatment was the subject of the application. That order was made as a final order and continues in effect.
When the respondent treated patients S, O and L, he was practising as a neurosurgeon. He ceased performing surgery in about March 2002, but continued to practise as a consultant. The respondent did not pay the annual registration fee to renew his registration as a medical practitioner in December 2004. His registration ceased at that point. He continued a medico-legal practice on a part time basis (which did not require him to be registered) until his retirement in late 2005. He has not undertaken any medical work on any basis since that time.
The application was lodged by the applicant Board with the ACT Health Professions Tribunal in October 2006. There were interlocutory proceedings in that Tribunal and in the Supreme Court during 2007, 2008 and early 2009. When this Tribunal commenced operation in February 2009, directions were made for the filing of material to progress the substantive application to hearing. A hearing took place over 5 days in September 2009.
The Tribunal acknowledges the lengthy delay in the finalisation of its decision and reasons in this matter. The delay is attributable to the workload of the presiding member. The responsibility for the delay is solely hers.
There have been several significant changes to relevant laws since the application was filed in 2006. The original Tribunal was replaced with this Tribunal in 2009. The Health Practitioner Regulation National Law (ACT) Act 2010 (the National Law) commenced operation in July 2010, replacing the Health Professionals Act 2004 (the HP Act). Despite these changes, the Tribunal is satisfied that transitional provisions relating to the Tribunal and to the National Law first gave, and then preserved, the power of this Tribunal to determine the application under the provisions of the HP Act. The name of the applicant was amended on 6 May 2011 from ‘ACT Medical Board’ to ‘ACT Medical Board of the Medical Board of Australia’ as a result of the introduction of the National Law.
RELEVANT PRINCIPLES OF LAW
The Authorising Law and Tribunal’s Powers
Division 6.2 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) deals with the Tribunal’s powers in relation to applications for occupational discipline brought under an authorising law. The HP Act was an authorising law because it provided that an application for occupational discipline could be made to the Tribunal.
The powers in Division 6.2 of the ACAT Act are not exhaustive. Section 57 of the ACAT Act makes it clear that authorising laws themselves may set out the powers of the Tribunal and the decisions that it can make. In this case, the legislative provisions relevant to the application are found in both the HP Act and the ACAT Act.
The application was brought under section 42 of the HP Act. The section allowed the applicant to apply to the Tribunal for an ‘occupational discipline order’ if the applicant believed on reasonable grounds that a ground for occupational discipline existed.
Section 65 of the ACAT Act provides that when the Tribunal is considering an application for an occupational discipline order, it may make an order in relation to a person if it is satisfied that a ground for occupational discipline exists. This is a discretionary power. The Tribunal may decide not to make an order even if satisfied that a ground exists.
Section 41(1) of the HP Act identified three grounds for occupational discipline; namely,
(a)the health professional has contravened, or is contravening, a standard of practice that applies to a health professional;
(b)the health professional has put, or is putting, public safety at risk;
(c)the health professional does not satisfy the suitability to practise requirements.
Section 41(2) of the HP Act said that these grounds would apply to a health professional who was no longer registered, if the ground applied to the health professional while they were registered.
The applicant relied on sections 41(1)(a) and 41(1)(c), contending that the Tribunal should make an occupational discipline order in relation to the respondent because the respondent had contravened standards of practice that applied in relation to him and because he did not satisfy the suitability to practise requirements. The applicant said that these grounds for occupational discipline had existed in relation to the respondent while he was registered and by virtue of section 41(2), the grounds still applied even though he had not been registered for approximately two years when the proceedings were brought against him.
The applicant did not contend that the respondent’s actions had put public safety at risk or that there was a ground for occupational discipline in relation to him under section 41(1)(b) of the HP Act.
Section 44 of the HP Act set out some of the orders that the Tribunal could make if satisfied that a ground existed. Section 66 of the ACAT Act sets out other occupational discipline orders that the Tribunal can make. While the orders that can be made include monetary penalties, most of the orders are only relevant if the person the subject of the order is, or is likely to seek to be, registered to practise. It was accepted from the outset that the respondent was unlikely to apply to be registered to practise again and that most of the disciplinary orders that the Tribunal could make if the case was made out, were irrelevant.
The applicant asked the Tribunal to make an occupational discipline order against the respondent under section 44(2)(f) of the HP Act. That provided as follows:-
(f) if the person is not registered – declare that, if the person had been registered, the ACAT would have found that the person had contravened the required standard of practice or did not satisfy the suitability to practise requirements.
Section 65(3) of the ACAT Act sets out the things that the Tribunal must consider once it is satisfied that there is a ground for an order and that an order should be made. It says:
(3) In considering what occupational discipline to use against the subject person, the Tribunal must consider the following:
(a) whether the person took reasonable steps to avoid the action (the contravention) that is the ground for occupational discipline;
(b) whether occupational discipline has previously been used against the person for a similar act;
(c) whether the person has taken steps to mitigate the effect of the contravention;
(d) the impact of the contravention on any other person;
(e) the likelihood that the person will act in a way that is a ground for occupational discipline in the future;
(f) whether the entity bringing the application has applied for particular occupational discipline to be used and, if so, the kind of occupational discipline applied for.
Section 65(4) of the ACAT Act provides that the Tribunal may also consider any other relevant matter. Two such relevant matters are the purpose of the relevant authorising law and the purpose of disciplinary proceedings generally. In this case, those purposes merge.
The main purpose of the HP Act related to matters of public safety and public interest. Section 13(1) of the HP Act relevantly provided:
The main object of this Act is to protect the public from risk of harm by ensuring that people who provide health services are competent to provide health services and to help health professionals in professions regulated by this Act to achieve and maintain the required standard of practice.
Section 26 of the HP Act reinforced that purpose by setting functions for the applicant Board which are focussed on the public’s interest in the setting and maintenance of proper standards of practice for medical professionals.
It is well established that the primary purpose of statutory disciplinary schemes is protection of the public rather than punishment of the person who is the subject of the disciplinary action.[1]
[1] See for example Craig v Medical Board of South Australia [2001] SASC 169; NSW Bar Association v Evatt (1968) 117 CLR 177; Law Society of NSW v Foreman (1994) 34 NSWLR 408; Medical Practitioner v Medical Board of Australia [2011] ACTSC 191 at 19 and other authorities cited in those decisions
In considering whether it should make an order and if so, the type of order that should be made; it is relevant for the Tribunal to consider whether, in addition to protecting the public by virtue of any specific deterrent effect that an order may have on the subject professional, an order may promote protection of the public by educating other members of the medical profession and acting as a general deterrent to similar conduct. The Tribunal should also consider the public interest in the transparent setting and maintenance of standards of practice.
Onus and Burden of Proof
The applicant bears the onus of satisfying the Tribunal that there is a ground for occupational discipline and that an order should be made. The standard of proof is the civil standard. Because of the gravity of the consequences of disciplinary orders, the formulation of the standard of proof set out in Briginshaw v Brigingshaw[2] is relevant.[3]
[2] (1938) CLR 336
[3] Yeaman v ACT Medical Board [2010] ACAT 27 and the cases cited therein; Medical Board of Australia v Veness [2012] ACAT 36.
The standard has been helpfully described by this Tribunal in other proceedings[4] as follows:
Rich J’s test of “comfortable satisfaction” provides a succinct description of the standard to be applied in such cases. Proof beyond reasonable doubt is not required; but the standard requires more than a mere balancing of the scales. The evidence must be weighed, according to the gravity of the facts to be proved, to the extent that a conclusion is reached about those facts with a feeling of comfortable satisfaction that it is just and correct.
Evidence
[4] Council of the Law Society of the ACT v The Legal Practitioner [2010] ACAT 2
The rules of evidence do not apply to this application by virtue of section 8 of the ACAT Act. The Tribunal is able to inform itself in any way that it considers appropriate in the circumstances of the case.[5] It is not bound to only accept evidence that could be admissible under the provisions of the Evidence Act or evidence that is tested and subject to cross-examination. Nevertheless, given the serious nature of the proceedings, it is appropriate that the Tribunal carefully scrutinise the information provided to it and ensure that only information that has probative value is taken into account.
Relevance of the Respondent’s Failure to Appear
[5] section 26, ACAT Act
The respondent decided not to appear or to be represented at the hearing. His reasons for doing so were set out in a letter dated 27 November 2008, addressed to a Deputy President of the former Health Professionals Tribunal. The reasons were reiterated by a legal representative who appeared at the commencement of the proceedings before this Tribunal. In summary, the respondent said that the continuation of disciplinary proceedings against him served no useful public purpose because he had not practised medicine for some time and had no intention to seek registration in the future because of his age and his poor health. He repeated an undertaking given to the ACT Supreme Court in earlier interlocutory proceedings to never apply for registration as a medical practitioner again. He said that his participation in these disciplinary proceedings would have adverse impacts on his health and that of family members and would serve no useful purpose as far as the future of neurosurgery in the ACT was concerned.
The letter said that the respondent did not admit many of the factual assertions made in the material filed by the applicant in support of its case and that he disputed that his conduct justified any finding that he had contravened a relevant standard of practice. He asked the Tribunal to consider material set out in written submissions in lieu of oral evidence, a sworn statement or oral submissions from him. The consequences of his failure to appear included that oral evidence given by witnesses for the applicant was not tested by cross-examination, nor could the assertions contained in the respondent’s written statements be tested.
Section 44 of the ACAT sets out the Tribunal’s powers to deal with an application when a party fails to appear at the time set for the hearing of the application. Paragraph 44(2)(d) of the ACAT Act permits the Tribunal to proceed in the absence of the party. If the Tribunal decides to proceed, questions arise about whether the evidence and submissions of the party who appears should be accepted without critique because it is not contested and about what attention, if any, should be paid to any written material provided by the party who refuses or fails to appear.
The applicant referred the Tribunal to the consideration of a similar situation by the Medical Tribunal of NSW in the matter of Health Care Complaints Commission v Harris (40005/2008, decision of 18 December 2008). That Tribunal relevantly said:
That there is no evidence by the respondent on matters raised by the applicant does not dictate that they should necessarily be accepted without further analysis, nor should the position for which the applicant contends...necessarily be accepted. It falls to the Tribunal to consider all of the evidence including such of the respondent’s material as exists and determine the complaints based on that. It should not be thought that because the respondent does not challenge the allegations that the Tribunal will, without more, find them proved. However, where the respondent could have given an account of events or have given evidence to throw light on or put into context the matters of which the applicant complains but fails to do so, the Tribunal may more comfortably draw the conclusions for which the applicant contends.
We accept that it is appropriate for the Tribunal to adopt the same approach for this matter.
The applicant also referred the Tribunal to comments made by the Court of Appeal of the Supreme Court of Western Australia in disciplinary proceedings when considering the approach to take to uncontradicted evidence. In Srna v Medical Board of Western Australia[6] the Court said:
Generally speaking, evidence which is uncontradicted should be accepted by the court or tribunal unless the evidence is of a character which makes it inherently incredible, improbable or unbelievable.
[6] [2004] WASCA 198 at para 64
We accept that this is also an appropriate approach to adopt, but note that the Tribunal still needs to be comfortably satisfied that the grounds alleged are made out on the basis of the evidence it is considering. The ‘Briginshaw test” should still be met.
The Tribunal considered that rather than ignore the respondent’s material altogether, it was appropriate to look at the respondent’s written material, notwithstanding that he did not give evidence and that his statements could not be tested in cross-examination.
The evidence and submissions presented on behalf of the applicant, the written submission filed by the respondent with his letter of 27 November 2008 and written comments made by the respondent to the applicant during the course of an investigation of the subject cases, have been considered by the Tribunal consistently with these principles.
GROUNDS FOR AN OCCUPATIONAL DISCIPLINE ORDER
Patient S
S was admitted to hospital on 1 December 1992 with severe aortic stenosis and mild aortic regurgitation. He was 82 years old and said to be profoundly deaf, confused and presenting with cognitive deficits.
The evidence indicated that because of his age and cardiac condition, surgery under a general anaesthetic was a risk for S.[7] On 16 December 1992, he underwent surgery for the insertion of a ventriculo-peritoneal shunt.
[7] Patient Progress Notes for 15/12/92 A3- 486-7 and 493-2 and 493-3
A post–operative chest x-ray was performed on 18 December 1992 but does not seem to have been reviewed until 20 December 1992. The application alleges that on that day, a neurosurgical registrar, Dr Katherine Drummond became aware that a device used to assist with the insertion of the shunt, known as a tunnelling rod, had been left inside S. It should have been removed once the shunt was inserted.
At approximately 11.00pm on 20 December 1992, S had further surgery. The tunnelling rod and shunt were removed under local anaesthetic. It was found that the shunt was not working properly. S was then given a general anaesthetic so that a new shunt could be inserted.
There is no mention of the presence of the tunnelling rod in S’s patient progress notes or of its removal in the report of the second operation. The documents only referred to the shunt. It was alleged that neither S nor any of his family were told that the tunnelling rod had been left behind and that S had to have further surgery to remove it. Family members were under the impression that the second operation was required only because the shunt was not working.
The fact that the tunnelling rod had been left behind became known many years later in 2004 when the applicant undertook an inquiry into the work of the respondent as a result of other matters the subject of this application.
In his submission, the respondent said that he could not recall the case. There was therefore nothing he could say about it. The evidence available to the Tribunal about the allegation included: (i) a statement made by Dr Drummond on 21 May 2006, an affidavit affirmed by her on 21 August 2009 and oral evidence given at the hearing; (ii) the X ray image of S’s chest taken on 18 December 1992; (iii) clinical notes including operation reports relating to S’s admission and surgery; (iv) an affidavit of S’ daughter, Mrs M sworn on 26 June 2009 and her oral evidence; (v) expert reports from Dr J. Roche, a radiologist, and Professor P. Teddy, a neurosurgeon, and (vi) oral evidence given Professor Teddy. The Tribunal notes that it was satisfied that Dr Roche and Professor Teddy were appropriately qualified expert witnesses.
On considering the evidence the Tribunal is comfortably satisfied that:
·a tunnelling rod was left inside S following surgery on 16 December 1992 (the adverse event);
·the respondent was told about the adverse event by Dr Drummond on 20 December 1992;
·a second procedure had to be performed to correct the adverse event;
·the respondent was the senior neurosurgeon responsible for the second procedure;
·the respondent told Dr Drummond not to speak to S’s family about the adverse event, not to arrange theatre and not to do anything further in relation to S and the second procedure;
·the respondent discouraged Dr Drummond from talking about, reporting or recording the adverse event;
·the respondent did not ensure that the patient or any family member was told about the adverse event and the need for further surgery to correct it, and as a consequence, the respondent did not ensure that S, or anyone else with lawful authority, gave informed consent for the second procedure;
·the respondent’s actions had the effect of concealing the adverse event;
·the tunnelling rod was removed in a second procedure conducted on 20 December 1992;
·the respondent conducted the second procedure with the assistance, inter alia, of Dr Drummond;
·when the tunnelling rod was removed, the first shunt was also removed and replaced;
·Dr Drummond’s clinical records relating to the second procedure were not accurate or adequate in that they contained no reference to the adverse event or the removal of the tunnelling rod;
·The respondent, as the senior neurosurgeon, was responsible for ensuring that adequate and accurate clinical records, including records of the adverse event, were maintained.
The evidence is not sufficient to enable the Tribunal to be comfortably satisfied that the respondent either conducted, or was present at, the first procedure. The respondent’s submission is that he does not recall the case at all. The applicant’s representative urged the Tribunal to reject this submission on the basis that the adverse event was so extraordinary that it was unlikely that the respondent could have forgotten it. Further, it was submitted that the Tribunal could infer, on the basis of evidence about the time taken to perform the first procedure and a reference to the respondent in a handwritten report prepared by Dr Drummond after the first procedure; that he must have been present.
Dr Drummond’s evidence was that she also did not recall who performed the first procedure, notwithstanding the unusual circumstances of the matter. She believed that the respondent was present and had performed the first procedure because she recorded his name in the handwritten operating report that she prepared. She also thought that the respondent was present because the risks associated with the surgery were significant and because the way in which the surgery was apparently performed, suggested that it had been performed by a senior neurosurgeon. She had no independent recollection of his presence, or of any specific detail of the first procedure.
Dr Drummond’s handwritten operating notes in relation to the first procedure were incomplete and inaccurate. Her handwritten notes about the first procedure were inconsistent with the typed notes relating to the procedure. Dr Roche’s evidence was that it is not an unusual practice for a supervising surgeon’s name to appear on an operating record, even if that person was not present and had not performed the surgery.
There is no direct evidence that the respondent participated in the first procedure. The evidence that is available is speculative. It is not sufficient for the Tribunal to comfortably make any finding about who performed the first procedure.
Dr Drummond’s evidence about the second procedure and the reason that it was necessary is however, clear and direct. Her evidence and the chest X-ray taken on 18 December 1992, establish that an adverse event did occur and that the tunnelling rod was left behind in the first procedure; that Dr Drummond told the respondent about that on 20 December 1992 and that the respondent took immediate steps to correct the problem, while making no disclosure about the problem, discouraging Dr Drummond from making any disclosure and failing to ensure that adequate or accurate clinical records were made to record what had happened.
The Tribunal is satisfied that at the relevant time, the standards of practice required of the respondent as a senior neurosurgeon with responsibility for junior staff, required him to ensure that adequate and accurate clinical records were maintained of the adverse event. That standard was required of him whether he prepared the records, or the records were prepared by those for him he was responsible. Adequate and accurate records are, and were at the relevant time, essential for ensuring appropriate and safe care of patients.
Further, the Tribunal is satisfied that by acting in a way that concealed the adverse event and discouraging Dr Drummond from disclosing or recording the event, the respondent’s conduct fell significantly below the standard of behaviour and conduct that would have been reasonably expected of a medical practitioner with equivalent experience and seniority at the time. As a senior practitioner, the respondent should have openly and honestly acknowledged the adverse event, taken immediate steps in an open and frank way to record what had occurred, to remedy the event as far as he was reasonably able to do so and to record the actions taken to remedy the event.
His professional judgment about what was reasonably required of him and of the staff for whom he was responsible, fell short of an acceptable standard. His conduct set a poor example for those he was supervising and ran the risk of encouraging similar poor judgment.
The respondent’s submissions about how the Tribunal should deal with this ground include that the events occurred so long before disciplinary action was taken that it is not appropriate to consider the case; that standards have developed and changed since 1992 such that, consistently with the focus on protection rather than punishment, there is no public utility in considering it now; standards of practice relating to informed consent developed after 1992 and did not apply at the time of the incident; the second procedure was necessary to remove and correct the dysfunctional first shunt regardless of whether the tunnelling rod had been left behind, so that S was always going to need further surgery; and that S came to no harm as a result of what occurred and there is therefore no justification for any disciplinary action.
None of these submissions alter the view that the Tribunal has formed about the respondent’s actions in relation to S. Disciplinary action could not have been taken in relation to the events until 2004 when they became known. It cannot be the case that a health professional, who acts in a way that conceals an adverse event, can avoid scrutiny because it takes some time for the adverse event to become known.
The fact that S did not come to any specific harm, or that the first shunt was not functioning correctly and had to be removed, are not mitigating factors. The need to ensure that records are adequately and accurately maintained and that adverse events are disclosed exists regardless of whether any harm is done or whether there is some intervening factor that draws attention away from the adverse event. The respondent’s submissions on these issues suggest a lack of understanding of these fundamental requirements.
The Tribunal does not accept that standards of practice applicable in 1992 did not require disclosure of the adverse event or the keeping of accurate clinical records. The respondent’s submissions did not explain why he thought that it wasn’t necessary to disclose adverse events at the relevant time. The Tribunal accepts the applicant’s view that, if the respondent’s submission relates to the High Court decision of Rogers v Whitaker (1992) 175 CLR 479, the submission is mis-conceived. That decision dealt with events that occurred before 1992.
In summary, in relation to S, the Tribunal is satisfied that the respondent contravened required standards of practice that applied to him at the relevant time, by failing to exercise his professional judgment and by failing to conduct himself in a way that maintained public protection and safety; in particular by:
(i)failing to ensure that accurate and complete clinical records were made about the procedures performed in relation to patient S in December 1992, and;
(ii)failing to disclose an adverse event to the patient or to his carers and family members and acting in a way that had the effect of concealing the adverse event.
Patient ‘O’
O underwent surgery on 6 December 2000. He was to have a discectomy and spinal fusion at the C5/6 level of his cervical spine. As part of the fusion procedure, a needle was inserted into the cervical spine to identify the correct level for surgery. It is accepted that the needle was inserted at the incorrect level and as a result, the fusion procedure was mistakenly conducted at the C4/5 level.
The evidence before the Tribunal in relation to O relevantly included: (i) an operation report dated 6 December 2000; (ii) a statement dated 12 April 2006, an affidavit sworn on 19 August 2009 and oral evidence from O; (iii) an affidavit affirmed by Dr Renata Abraszko on 26 August 2009; (iv) a statement made on 23 March 2006 and an affidavit affirmed by Dr Galloway on
26 June 2009, and (v) an expert report by and oral evidence from Professor Teddy.
The Tribunal also had the respondent’s submissions attached to his letter and submissions he had made to the applicant during the course of its initial investigation.
The respondent acknowledged that an error had occurred. He said that he was not present when O’s cervical spine was dissected. He said that two registrars were responsible for the preliminary stages of the operation and that he arrived to take over the main part of the operation after the dissection had occurred and the pre-operative X-ray film was returned to the X-ray department. He thought that the operation was done at the intended level because that level was also diseased.
Dr Abraszko’s evidence was that she did not specifically recall O’s surgery but did recall performing procedures such as this with the respondent. She prepared the operation record showing that the respondent was the surgeon and she his assistant. She said that if two registrars were operating, her operating record would have recorded the presence of two assistants. On the basis of her knowledge of the practice followed by the respondent in procedures such as this, she affirms that her entry on the operation record is consistent with the respondent having undertaken the dissection of the cervical spine himself and with her being present to assist him. She affirmed that the respondent “would have been present when the decision of what level to operate at was made.”
The applicant submits and the Tribunal agrees that Dr Abraszko’s evidence ought to be accepted. The respondent has chosen not to give oral evidence that would allow his recollection of the incident to be tested. Dr Abraszko’s evidence is consistent with the contemporaneous record of the operation which records the presence only of her and the respondent. The respondent referred to the operation record in a submission made to the applicant Board[8] but makes no comment about the absence of any reference to two registrars in the report. His submission is inconsistent with the record. In the absence of any evidence from the respondent that might explain the inconsistency, it is appropriate for the Tribunal to accept the evidence of Dr Abraszko that the respondent was present when the decision was made about the level at which the procedure should be performed and that the respondent was responsible for the dissection.
[8] An extract of this is at page 548 of volume 4 of the books of evidence filed by the applicant
The Tribunal is satisfied, on the basis of the knowledge of its professional members, the expert opinion expressed by Professor Teddy[9] and noting that an intraoperative x-ray is likely to have been available during the course of the operation[10], that the error could have been avoided.
[9] T318-320
[10] Affidavit of Dr Galloway at paragraphs 13 and 14a.
Spinal surgery at the wrong level is, and was in 2000, a well described problem. Steps should have been taken to confirm the correct level before surgery proceeded. Any doubt about whether the correct level for surgery had been identified, should and could have been resolved before proceeding. The Tribunal is satisfied that the respondent failed to take steps to confirm that the fusion was conducted at the correct level of O’s spine and that as a result, he engaged in a standard of practice that fell significantly short of the standard reasonably expected of a practitioner of his level of training and experience. The failure led to inaccurate and incomplete clinical records.
The Tribunal is also satisfied that the respondent’s clinical and post operative care of O contravened required standards.
A post-operative x-ray was taken on 8 December 2000. It said “A Cloward’s fusion has been performed at C4/5.” The respondent did not review the films or the report. Had he done so, the error would have been immediately apparent.
O was discharged two days later. O’s evidence was that the respondent told him that the operation had been successful. In the respondent’s submissions, he acknowledges that he was “remiss in not reviewing post-operative films done in the hospital” and says that this probably occurred because of the early discharge policy and other pressures.
O was reviewed in the respondent’s rooms on 19 January 2001 and in April 2001. O’s evidence was that he expressed concern to the respondent about his on-going symptoms and told the respondent that his physiotherapist had suggested that he have an MRI scan to assess the outcome of the surgery. The respondent was dismissive of the suggestion. The respondent’s submission does not challenge this evidence.
The error was detected in June 2001 as a result of x-rays arranged by a medico-legal expert who had been engaged by an insurer to examine O for the purposes of a workers’ compensation claim. O confronted the respondent who then reviewed the further X-rays and accepted that an error had occurred.
The respondent’s failure to review the post-operative films or report, if not before discharge, then at least before his first appointment with O on 19 January 2001 and certainly after O reported on-going symptoms in April 2001, was not just remiss, but also inadequate given the significant nature of the surgery conducted.
In answer to a question about the extent to which the response to the concerns expressed by O in April 2001 were consistent with the standards expected of a neurosurgeon Professor Teddy said:
I think if O were considered to be a sensible man ...then really if he’s reporting failure to improve following an operation of this nature, it’s really incumbent on the person looking after him to track down the reason for it...there’s a minimum to be gone through, and if there’s still doubt about it, let’s just assume that we had operated at the right level but he was still symptomatic, then you would go on to do an MRI...[11]
[11] T 326
The Tribunal accepts the applicant’s submission that the standard for good clinical care required the respondent to make an adequate assessment of O’s condition post-operatively, to provide or arrange for further assessment and appropriate investigation when O complained of on-going symptoms and to take prompt action in response to those complaints. He did none of these things and indeed, his rejection of O’s concerns could be interpreted as arrogant and dismissive.
The applicant submitted that the respondent’s dealings with O contravened a number of other standards including a failure to respect O’s right to be fully involved in his post-operative care, a failure to establish and maintain O’s trust and a failure to act immediately to put matters right. The first two standards are features of the provision of good clinical care. It does not add anything to the case to deal with them as separate issues. As to the requirement that the respondent act immediately to put matters right, the evidence available to the Tribunal suggests that when the respondent was provided with proof of the error, he made an offer to conduct further surgery to reduce O’s pain and that O declined the offer. While the respondent should and could have discovered the error earlier, we are not satisfied that his actions on becoming aware of the error, were so far short of this standard that he should be regarded as having contravened it.
In summary, in relation to O, the Tribunal is satisfied that the respondent contravened required standards of practice that applied to him at the relevant time and that he failed to exercise his professional judgment, knowledge and skill and to conduct himself in a way that maintained public protection and safety, by failing to take steps to confirm that spinal fusion surgery was conducted at the correct level of O’s spine; failing to ensure that accurate and complete clinical records were made about the procedure performed in relation to O in December 2000; and failing to provide adequate or good post operative and clinical care for O.
Patient ‘L’
L presented to the emergency department of the hospital on 13 February 2001. She was very ill. It is agreed that she required prompt surgery to relieve intracranial pressure and if possible to deal with an abnormality that was shown by a CT scan performed on her brain shortly before her admission. The abnormality was described as a large cystic mass in the right cerebellar hemisphere. The report of the CT scan recommended that an MRI scan be obtained to allow further assessment and noted that an MRI scan could more sensitively evaluate the location of the enhancing nodule.
It was not disputed that an MRI scan was likely to clarify the nature of the abnormality and the location of its enhancing nodule. The respondent proceeded with surgery on the morning of 14 February 2001 without obtaining an MRI. During the surgery he took biopsies. L developed symptoms of brain damage post-operatively. The applicant’s case is that the respondent breached required standards of practice before, during and after the surgery.
It was alleged that before the surgery the respondent should have obtained an MRI scan given the recommendation in the CT scan report, the serious nature of the surgery required and concerns that were said to have been expressed to him about his ability to perform complex surgery. It was said that he failed to take all reasonable steps to obtain an MRI and failed to document the steps taken to obtain an MRI. Evidence in relation to this issue included: (i) a statement of Dr Galloway dated 23 March 2006; (ii) submissions made by the respondent; (iii) statements made by Dr Abraszko; and (iv) an affidavit of Dianne Lane sworn on 14 August 2009.
The Tribunal cannot be comfortably satisfied about what steps were taken, or not taken, by or on behalf of the respondent before surgery, or that an MRI was reasonably available at the time. The evidence is not sufficiently clear and direct to enable the Tribunal to make the findings requested by the applicant about these issues. The Tribunal accepts that the respondent did not make a record of the attempts to obtain an MRI, but while it might have been prudent for him to do so, the Tribunal is not satisfied that the failure constitutes a breach of any required standard of practice
It was alleged that the respondent breached required standards of practice by proceeding to perform surgery without the benefit of an MRI; losing anatomical awareness during surgery and failing to recognise that he had done so; failing to cease operating when he lost his way; using forceps that were too large for the purpose of taking biopsies; and, biopsying the floor of the fourth ventricle of L’s brain mistaking it for the wall of a cyst, causing damage to L’s brain.
There was considerable evidence available to the Tribunal about the surgery. It included: (i) the operation report and anaesthetist’s record; (ii) various statements made by the respondent about the operation; (iii) statements of Dr Abraszko about the operation; (iv) expert opinions expressed by Dr Roche, Professor Teddy, Professor Lance, Associate Professor Watson, Associate Professor Atkinson and Professor Blumbergs; and (v) a pathology report and affidavit prepared by Associate Professor Jain. The Tribunal accepts the expertise of each of those who provided opinions.
Having considered all the evidence, the members of the Tribunal are comfortably satisfied that the respondent did lose anatomical awareness, that he was confused about what he was looking at and about what the part of the brain he had entered and that he biopsied and coagulated the floor of the fourth ventricle of L’s brain in error, using instruments that were too large for what he was doing. These findings are strongly supported by a consideration of the radiology and pathology reports and by the opinions of each expert. The alternative theory proposed by the respondent is not supported by the evidence.
The Tribunal is satisfied that loss of neuro-anatomical awareness during brain surgery is and was at the relevant time, a known risk. The standard required of a competent neuro-surgeon at the relevant time was such that the respondent should have recognised that there was at least a risk that he was lost and, having dealt with the immediate urgent situation, ceased the operation without proceeding to take biopsies. A competent neurosurgeon, accepting that brain surgery is complex and risky and that it might be difficult to recognise parts of the brain during surgery when the brain may shift, would not have proceeded as the respondent did.
The Tribunal is also satisfied, based on the expert evidence of Professor Teddy and Associate Professor Watson, that a competent neurosurgeon would not have used an instrument as large as 6mm cup forceps to take biopsies in the region in which the respondent was operating. The area was so small and the instrument so large, that the risk of unintended damage was high.
It was alleged that the respondent failed to provide good post operative and clinical care for L. The respondent referred L to rehabilitation after the operation. He did not recognise that her post operative symptoms and developing disabilities were unusual, or that they should be further assessed.
The respondent’s submissions indicated that he continued to see L for about two years after the surgery and that he did not refer her to a neurologist for assessment or review of her symptoms, or take steps to have her pre and post operative scans reviewed. L’s evidence was that the respondent led her to believe that she would make a full recovery if she worked hard at therapy and rehabilitation when that was not possible because of the damage that had been done to her brain.
The Tribunal is comfortably satisfied that L has significant neurological deficits and associated physical disabilities that resulted from damage done when the respondent biopsied the floor of the fourth ventricle of her brain. This finding is strongly supported by the evidence of Professor Lance and Associate Professor Watson. Their evidence is persuasive and there is no expert evidence to the contrary.
Even accepting that the respondent was not aware of, or did not agree that he had made an error during L’s surgery, the Tribunal is satisfied that he should have been concerned about the significant disabilities L developed post operatively and arranged appropriate reviews and assessment of them. His failure to do so was inappropriate and fell well below the standard of post operative and clinical care expected of a competent neurosurgeon.
In summary, the Tribunal is satisfied that the respondent contravened required standards of practice that applied to him at the relevant time, by failing to exercise his professional judgment, knowledge and skill and by failing to conduct himself in a way that maintained public protection and safety; in particular by:
(i)failing to recognise that he was, or might be, performing a procedure in the incorrect part of L’s brain and failing to take steps to either confirm the location in which he was operating before proceeding or to immediately stop the procedure;
(ii)using instruments that were inappropriate for the procedure being conducted; and,
(iii)failing to provide adequate or good post operative and clinical care for L.
Further, the Tribunal is satisfied that the respondent’s breach of the required standards of practice in relation to L was so serious, and fell so far short of the required standards, that it demonstrated a lack of competence to practise.
Patient ‘D’
The respondent stopped performing surgery in about March 2002. He commenced work as a consultant. D attended his rooms on 19 June 2003 seeking a second opinion about whether she needed to have surgery on her cervical spine.
On 10 June 2003, D had an MRI scan. A neurosurgeon, Dr Chandran, and a neurologist, Dr Danta, examined her. They diagnosed that D had a serious condition - cervical myelopathy – and that she required prompt surgery. Surgery was scheduled for 25 June 2003.
In her statement, D said that she was concerned about the diagnosis and frightened by the prospect of surgery[12]. She therefore sought a second opinion as to whether surgery was necessary. She approached the respondent on this basis. After examination, he advised D that while he thought that she would need surgery eventually, it was not as urgent as she had been told. He told her that the MRI was unclear and inconclusive. He advised her that rather than have surgery immediately, another option was for her to consult him on a weekly basis so that he could monitor her condition and advise her when surgery was necessary.
[12] T 615
D was confused and upset by this different opinion. The Tribunal accepts (although this was not apparent at first from D’s evidence) that the respondent arranged for D to see a third surgeon, Dr Pik, on the following day. The third surgeon confirmed the initial diagnosis and the need for surgery. D said that Dr Pik told her that he could not operate, but could give her a third opinion. D said that Dr Pik referred her back to the original surgeon for the surgery to proceed.
Dr Pik wrote to the respondent about his examination of D in a letter dated 27 June 2003[13] in slightly different terms. He wrote:
It is my impression that [D] has signs and symptoms consistent with progressive cervical myelopathy...I have recommended to her that she undergo an anterior C4/5 decompression and fusion procedure to protect her spinal cord...I have left it up to her to contact me if she would like to consider a surgical solution to her problem.
[13] T 713
D said that she was so distressed by the respondent’s advice that she took disprin when she got home after seeing him on 19 June 2003.[14] This was contrary to pre-surgery instructions and compromised the surgery scheduled for 25 June to such an extent that it had to be delayed and did not occur until about 4 July 2003.[15]
[14] T 616
[15] T 616 and 617
The applicant submits that the advice and recommendations given by the respondent were not supported by the MRI or by D’s presentation and should not have been given. The risk to D of delaying surgery included serious and irremediable deterioration.
In his written material, the respondent said that D told him that she had improved in the week before she saw him and that her signs of myelopathy were mild. She was distressed by the prospect of surgery. She did not want surgery. He recognised that surgery would be necessary but thought that in all the circumstances, it was reasonable to balance the risks associated with immediate surgery with the risk of waiting, obtaining further scans and observing the course of the disease before progressing to surgery. He was of the opinion that the MRI was technically imperfect. He was aware of new surgical techniques that might have been appropriate for D. Having explained this to D, he arranged to refer her urgently to the third surgeon when she expressed confusion and distress at his different opinion. He said that he knew the third surgeon to be fully trained in the new techniques.
In his written statement, Professor Teddy noted that he had reviewed the MRI scans. He wrote:
Although the images (particularly the axial views) are not the highest quality, I would concur with the views expressed in the report of 10th of June 2003...[16]; and
The scans are not of the highest quality but certainly sufficient to make an accurate diagnosis and obviate the need for further scanning.[17]
In his oral evidence, Professor Teddy said that he thought that the MRI in question was “sufficiently good” for the purposes and that the original plan, for D to have surgery in a week or two’s time, was reasonable. He said that he could not see the sense or rationale for the respondent’s advice about monitoring D on a weekly basis before proceeding with surgery. He said:
... if she had come in with just a bit of loss of feeling in the fingers ...and a bit of vague heaviness in the legs, that might be reasonable enough. But she apparently had spasticity of her legs...and was beginning to totter on her feet, and that’s really – you know, you’re teetering on a knife edge.
[16] T 623
[17] T 625
Professor Teddy was asked to give an opinion as to whether there was a need to delay surgery due to D taking disprin after seeing the respondent, a week before her scheduled surgery. On the basis of the material available to him he said that he could not see any reason for deferring the surgery.[18]
[18] T 625
Professor Teddy concluded his peer review of D’s matter by saying:
On the grounds of his clinical history and examination, Dr Newcombe may have decided that D’s myelopathy was not as severe as presented...However, the views of Dr Chandran, Dr Pik and Dr Danta were fairly clear...The imaging was sufficiently good to support the diagnosis of C4/5 compression and the plan put forward by Dr Chandran to the patient was reasonable under the circumstances. There were insufficient grounds for recommending a somewhat indefinite change to this plan. However, Dr Newcombe was entirely correct in putting forward alternative views with regard to the use of synthetic materials while the timing of surgery, need not, in my view, have been delayed on the grounds of aspirin ingestion...The final outcome of surgery was unlikely to have been substantially affected by a delay of one week.
The applicant submitted that the respondent’s actions failed to meet the required standard of practice because:
·he recommended deferral of surgery when there were no significant medical grounds for that;
·he did not have a definitive management plan if surgery was to be delayed;
·his interpretation of the quality of the MRI was wrong;
·he failed to advise D as to the potential dangerous consequences of delaying surgery;
·he failed to work with colleagues in ways that best served D’s interests;
·he failed to conduct an adequate assessment of D’s condition; and
·he failed to provide or arrange appropriate investigations or treatment.
The Tribunal is not comfortably satisfied that the respondent’s dealings with D were so flawed that his actions should be regarded as contravening required standards of practice that applied to him at the relevant time. Patients are entitled to seek independent second opinions and medical practitioners entitled to give them. Medical practitioners will not always agree with others and will draw different conclusions based on their clinical observations and the history given to them by patients.
The respondent provided an explanation of the clinical basis for his advice to D that was not in our view, completely unreasonable. Most importantly, he responded appropriately to her request by arranging her referral, without delay, to someone else. He had a plan, albeit not definitive, for D’s management but because he arranged an immediate review by another practitioner, it was not unreasonable for him to not develop the plan further. While acknowledging that D’s distress and confusion would have been significant, there is insufficient evidence that the respondent’s actions caused delay to her surgery or that he failed to take action to address her concerns by providing an appropriate further referral.
WHAT OCCUPATIONAL DISCIPLINE ORDER SHOULD BE MADE
The Tribunal is satisfied that there are grounds for occupational discipline of the respondent as a result of his dealings with patients S, O and L. The Tribunal may therefore make an order for occupational discipline in relation to him. While the power to make an order is discretionary, section 65(3) of the ACAT Act has a list of factors that must be considered before deciding what order should be made. The provisions of section 65(3) are set out at paragraph 18 above.
Whether the respondent took reasonable steps to avoid the contraventions
There is no evidence that the respondent took steps to avoid the contraventions about which the Tribunal has made findings in relation to patient S. Indeed, the Tribunal has accepted that the respondent acted in a way that concealed the contraventions.
In relation to patient O, the Tribunal has found that reasonable steps could have been taken to avoid the surgical error that occurred and that the respondent failed to take those steps.[19]
[19] See para 63 and 64 above
In relation to patient L, the Tribunal has found that the respondent should have taken steps to confirm the location in which he was operating before proceeding, or immediately stop the procedure. We are satisfied that these steps were reasonably open to him. Further, we are satisfied that he could (and should) have used smaller biopsy instruments more suited to the procedure he was conducting.
Whether occupational discipline has been used against the respondent for similar acts.
There have been no previous actions for occupational discipline in relation to the respondent although we note that his registration was suspended temporarily in 2004, shortly after the applicant commenced an inquiry into the respondent’s work.
Whether the respondent has taken steps to mitigate the effects of the contraventions
The Tribunal is satisfied that the respondent took no steps to mitigate the effects of the contraventions it has found occurred in relation to patients S, O and L. In relation to both patients O and L, the respondent failed to take appropriate steps to arrange further investigations, assessment or review of the patients when they complained to him about conditions they were suffering post-operatively. As a result, the patients were unaware for some time of the reason for their on-going difficulties. When he become aware of the reasons for their problems, he failed to accept responsibility for the contraventions that occurred during surgery or for failing to appropriately respond to their concerns post-operatively.
The impact of the contraventions on any other person
We do not know what impact if any, there was on S as a result of the failure to ensure that the records about what had happened to him were accurate and complete. Evidence given by family members indicated that they were shocked on learning that the full reason for the second procedure was not disclosed.
O gave evidence that he was so concerned about the risks of further surgery that he had not had the further surgery required to address his original problem. He experiences pain and limitations in his daily activities as a result. The Tribunal accepts that the error in his treatment complicated a workers’ compensation claim he was making and caused considerable stress to him. He described himself as cranky and irritated. His wife agreed.
Both O and his wife gave evidence that the respondent’s dismissive treatment of O post-operatively was affronting and offensive.
The contraventions relating to L have had a profound impact on her both and her family. The Tribunal is satisfied that she has significant neurological deficits and physical disabilities as a result of the contraventions. She and her husband gave evidence indicating that the family has experienced significant distress, financial strain and upset as a result of the disabilities. Further, the Tribunal accepts that L was shocked, confused and distressed on learning that rehabilitation therapy was not going to make a difference and that she was not going to fully recover from her disabilities. She described how guilty she felt when told by the respondent that she needed to work harder at rehabilitation. She thought that it was her fault that she was not recovering her full functioning. She described her anger and distress on later discovering that her efforts were largely futile.
The likelihood that the respondent will act in a way that is a ground for occupational discipline in the future.
The likelihood that the respondent will act in a way that is a ground for occupational discipline in the future is very low - he has not been registered since 2004 and has given an undertaking to never apply for registration again.
Whether the applicant has applied for particular occupational discipline to be used
The applicant has asked the Tribunal to make declarations under section 44(2)(f) of the HP Act. That is, declarations that if the respondent had been registered, the Tribunal would have found that he had contravened the required standards of practice and that he did not satisfy the suitability to practise requirements.
Such declarations have never been made by the Tribunal or its predecessor bodies before. The applicant was unable to point to similar declarations in other jurisdictions, although there are many cases in which orders have been made prohibiting health professionals who are no longer registered from being re-registered.
Apart from a financial penalty, a declaration is the only occupational discipline order that is relevant given the respondent’s circumstances.
Any Other Relevant Matter – The Purpose of the Proceedings
The respondent’s position is that these proceedings serve no useful purpose and that no orders should be made against him. In its closing submission, the applicant described its primary position in this way: ‘the utility and purpose of the proceedings is not an issue to which the Tribunal should have regard’.[20] We do not accept this proposition in the broad way in which it is stated and indeed, it is contrary to the several pages of the applicant’s closing submission devoted to references to the purpose of the proceedings.
[20] Applicant’s Closing Submission para 201
We accept that the purpose of the proceedings is a relevant matter and repeat the analysis set out at paragraphs 19 to 23 above. The respondent’s position appears to primarily focus on the utility of any order that the Tribunal may make as far as he is concerned. The Tribunal accepts that an order should not be imposed on him for the sole purpose of punishment and that he needs no order to act as a specific deterrent in terms of his own future behaviour. The Tribunal’s consideration however, is not limited to the utility of orders from the respondent’s personal perspective.
Conclusion
After considering the matters set out in section 65 of the ACAT Act, the Tribunal is satisfied that it should make orders even though the respondent is no longer registered to practise. The keeping of accurate and complete records, the disclosure of adverse events, recognition and acknowledgment of problems and open and prompt responses to problems, are essential to the maintenance of reasonable standards of practice by competent health professionals. It is essential that health professionals are aware of the potential consequences of a failure to meet those standards. The failure of the respondent to meet the standards in relation to his dealings with S, O and L was significant and serious. In the case of L, the contraventions are so significant as to satisfy the Tribunal that the respondent failed to meet the requirements for suitability to practise. It would not be appropriate for the Tribunal to signal that there are no consequences for such significant contraventions by making no order.
An order imposing a financial penalty on the respondent would serve no useful purpose and merely act to punish him. The Tribunal is satisfied that declarations under section 44(2)(f) of the HP Act appropriately respond to the public interest in maintaining standards and serve to educate and act as a general deterrent to other medical practitioners.
………………………………..
Ms L. Crebbin – General President
For and on behalf of the Tribunal
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