Daskalopoulos v Health Care Complaints Commission

[2002] NSWCA 200

CITATION:	Daskalopoulos v. Health Care Complaints Commission [2002] NSWCA 200
FILE NUMBER(S):	CA 40702/01
HEARING DATE(S):	18 June 2002
JUDGMENT DATE:	2 July 2002
PARTIES :	George Daskalopoulos - appellant Health Care Complaints Commission - respondent
JUDGMENT OF:	Meagher JA at 1; Stein JA at 2; Hodgson JA at 3

LOWER COURT JURISDICTION :	Medical Tribunal of NSW
LOWER COURT FILE NUMBER(S) :	40026/99
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

COUNSEL:	Mr. P. Deakin QC with Mr. E. Pike for appellant Mr. P. Johnson SC for respondent
SOLICITORS:	David Ian Brown, Sydney for appellant Solicitor for Health Care Complaints Commission, Surry Hills for respondent
CATCHWORDS:	MEDICAL PRACTITIONERS - Medical Tribunal - Appeal - Finding of unsatisfactory professional conduct - Whether error of law - Whether appellant afforded procedural fairness - Whether error of judgment constituted unsatisfactory professional conduct.
LEGISLATION CITED:	Medical Practice Act 1992 ss.36, 37, 43, 90
CASES CITED:	Elliott v. Bickerstaff (2000) 48 NSWLR 214 Gad v. Health Care Complaints Commission [2002] NSWCA 111 Sabag v. Health Care Complaints Commission [2001] NSWCA 411
DECISION:	1. Appeal upheld. 2. Findings of the Tribunal set aside, and in lieu thereof complaint dismissed. 3. Respondent to pay appellant's costs of the hearing and of the appeal, and to have a suitors' fund certificate if otherwise entitled, unless the respondent seeks a different order as to costs by written submissions provided within 7 days, in which case the appellant may respond by written submissions within a further 7 days.

CA 40702/01
40026/99 (Medical Tribunal of NSW)

MEAGHER JA
STEIN JA
HODGSON JA

Tuesday 2 July 2002

DASKALOPOULOS v. HEALTH CARE COMPLAINTS COMMISSION

Judgment

1 MEAGHER JA: I agree with the reasons of Hodgson JA set out below.

2 STEIN JA: I also agree with Hodgson JA.

3 HODGSON JA: Between 2 July and 16 July 2001, the Medical Tribunal of New South Wales (the Tribunal) enquired into the following complaint made under the Medical Practice Act 1992 (the Act) against the appellant George Daskalopoulos by the respondent Health Care Complaints Commission (HCCC):

That the appellant, being a medical practitioner registered under the Act, has been guilty of professional misconduct and/or unsatisfactory professional misconduct within the meaning of ss.36 and 37 of the Act in that he has demonstrated a lack of adequate knowledge, skill, judgment and/or care in the practice of medicine.

4 The complaint contained the following particulars:

1. Between about the 1 February 1999 and 7 June 1999, the practitioner failed to ensure that an appropriate order was made for contrast medium to be used during endoscopic retrograde cholangiopancreatography (ERCP) procedures at Canterbury District Hospital.

2. Between about 1 February 1999 and 7 June 1999, the practitioner failed to check that the contrast medium being used was appropriate for ERCP procedures performed by him on a number of patients at Canterbury District Hospital.

3. Between about April 1999 and 7 June 1999 the practitioner failed to take appropriate preventative action concerning adverse outcomes of ERCP procedures performed by him at Canterbury District Hospital in circumstances when he knew or ought to have known of patients suffering a higher incidence of complications following ERCP procedure performed by him.

5 On 15 August 2001, the Tribunal made the following orders:

1. The Tribunal finds the practitioner guilty of unsatisfactory professional conduct.

2. The Tribunal orders that the practitioner be reprimanded.

6 The appellant appeals to this Court from these orders.

STATUTORY PROVISIONS

7 Part 4 of the Act deals with complaints about medical practitioners. Section 36 gives the meaning of “unsatisfactory professional conduct”. Section 36(1) provides that “for the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:”, and there follow thirteen paragraphs. Paragraph (a), headed “Lack of Skill Etc” specifies the following:

Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care, by the practitioner in the practice of medicine.

8 “Conduct” is defined in the Dictionary of the Act to mean “any act or omission”.

9 Section 37 gives the meaning of “professional misconduct”, and is in the following terms:

37. For the purposes of this Act, "professional misconduct" of a registered medical practitioner means unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register

10 Section 43 provides that (with exceptions not here relevant) a complaint “must be in writing and contain particulars of the allegations on which it is founded”; and that complaints must not be referred under Division 3 (which includes reference to the Tribunal) until this requirement is complied with.

11 Section 60 provides that the Tribunal may exercise powers under Division 4 if it finds the subject matter of a complaint to have been proved; and s.61 sets out some of those powers, including a power to caution or reprimand. Later sections within Division 4 deal with the power to find, suspend or de-register, in certain circumstances.

12 Division 2 of Part 6 of the Act deals with appeals against actions of the Tribunal. Section 90(1) provides for an appeal to the Supreme Court against “a decision of the Tribunal with respect to a point of law”. Section 91 deals with the power of the Court on appeal, in the following terms:

91(1) In determining the appeal, the Supreme Court may:
(a) dismiss the appeal, or
(b) make such order as it thinks proper having regard to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under this Act.
(2) If the Court dismisses an appeal against an order of the Tribunal, the Court may by order direct that the Tribunal's order is to be taken to include provision that an application for its review under Division 3 may not be made until after a specified time.

CIRCUMSTANCES

13 The appellant is a registered and legally qualified medical practitioner specialising in gastroenterology. He was aged 51 at the time of the Tribunal hearing. Since 1980, he has carried out about 1600 ERCP procedures. At the time of the incident the subject of the complaint, he held the position of Visiting Medical Officer, Gastroenterology, Canterbury District Hospital (the Hospital). The complaint arises out of the use, in ERCP procedures carried out by the appellant at the Hospital, of Phenol 10% in Conray 280 as a contrast medium. The Tribunal said this about this substance and about Conray 280:

2. There is no dispute that Phenol 10% in 60% Conray 230 was:
2.1 inappropriate for use as a contrast medium:
2.2 toxic;
2.3 a therapeutic substance, classified under the Poisons and Therapeutic Goods Regulation 1994;
2.4 a substance that required the prescription of a medical practitioner before it could be supplied; and
2.5 supplied for the purposes of the practitioner's ERCP procedures by reason of error and gross departure from protocol on the part of the Pharmacy of the Hospital.

3. The issues in this inquiry go to the practitioner's conduct in the process of ordering or checking contrast medium or in taking preventative action after his patients suffered higher than usual rates of complications following ERCP procedures in which Phenol 10% in 60% Conray 280 was used as a contrast medium.

4. In paragraph 7 of his statement the practitioner describes the ERCP procedure in the following terms:
It is a procedure in which dye is put into the bile and/or pancreatic ducts, after which an x-ray is taken to visualise the blockage in the bile duct. The procedure is normally done in hospital.

A more detailed description of the procedure is set out in the report of CSAHS Internal Review of October 1999 which adds the following information:
The entry point into the duodenum of the common bile duct is cannulated so that contrast medium can be injected and therapeutic manoeuvres, such as removal of a gall stone in the common bile duct, carried out. Once the contrast medium has been injected, x-rays are taken using an image intensifier. This allows immediate viewing of the x-rays and immediate decisions about any therapeutic manoeuvres that are required.

5. The contrast medium used by the practitioner prior to the events which are the subject of this inquiry was Conray 280. It is described in the Review:
Conray 280 is an iodine containing radiographic contrast medium used to assist in the visualisation of vasculature and organs during radiographic procedures. While it is still used in the health system, it has been replaced to a large extent in recent years by 'non-ionic' contrast media. Its main uses were in angiography and urography, the latter because it is rapidly excreted by the kidneys after intravenous injection.

Phenol was described:
Phenol is an antiseptic and disinfectant chemical, also known as carbolic acid. ...It acts by denaturing protein and has antiseptic effects against a wide range of micro-organisms at concentrations of 1-2%. At concentrations of 5% and above, it is irritant to tissues and for this reason is used for disinfection of inanimate objects and surfaces. It is caustic and corrosive and should be used with due regard to occupational health and safety.
…
When used as intended, solutions containing higher concentrations of phenol cause sclerosis of the injected area. The specialists involved in the ongoing care of the affected patients were unable to identify any descriptions in the medical literature of the effects of phenol when injected into the bile and/or the pancreatic ducts.

Phenol 10% in 60% Conray 280 was described:

Phenol 10% in 60% Conray 280 is a specialised product produced by the firm Ophthalmic Laboratories in its manufacturing facility in Sydney. It is not a registered pharmaceutical product, but it is produced under approval from the Therapeutic Goods Administration (TGA) for specific therapeutic purposes.
…
The only use for Phenol 10% in 60% Conray 280 is the chemical ablation of nerves in persons with chronic pain of vascular conditions. The therapeutic agent in the product is the phenol, the Conray 280 simply being added to allow accurate localisation of the injection.

Phenol 10% in 60% Conray 280 has been used in hospitals in CSAHS for several years for it is recommended purpose. It had never been supplied to Canterbury Hospital until January 1999.

The vial containing Phenol 10% in 60% Conray 280 is different from that of plain Conray 280. The vial size is 5mls rather than 20mls, the colour is opaque brown rather than clear and the writing is a different colour. The vial is clearly labelled 'Phenol 10% in 60% Conray 280' and 'Use Under Strict Medical Supervision - Caustic Substance'. ... Each box contains 10 vials. Because it is manufactured for a specific purpose, no product literature is provided with the product.

14 The Tribunal gave this account of the factual background leading up to the use of the inappropriate contrast medium:

1. The practitioner performed ERCP procedures on a regular basis at the Hospital between 1991 and 1999. Some patients came from wards within the Hospital, others were treated through the Day Procedure Unit on the basis that they were to be discharged on the same day. However, if they suffered complications they were admitted to the Hospital.

2. Until 1996 ERCP procedures were carried out in the X-ray Department at the Hospital. The X-ray Department supplied the contrast medium.

In the course of redevelopment work at the Hospital the practitioner and his unit were transferred to Concord Hospital Radiology Department. On transfer back to the Hospital in July 1998, the ERCP procedures were undertaken in the operating theatre suite. The evidence suggests that this was done because it was considered that there were better facilities in the operating theatre suite for recovery of patients after a procedure. The practitioner stated that he objected to this change because he preferred the better quality images available from the equipment in the X-ray Department.

3. At the same time responsibility for the supply of contrast medium was transferred from the X-ray Department to the Pharmacy at the Hospital. The practitioner stated that he was not informed of this system change and that he remained unaware of it until 7 June 1999.

4. The contrast medium initially used was Urografin. This was changed to Conray 280 in 1996, again, according to the practitioner, without reference to him and without his knowledge until some months later.

5. There is evidence of a protocol for the ERCP procedure dated April 1992. On the evidence this protocol has never been updated. It contains reference to the X-ray Department of the Hospital and under the heading Drugs, there is reference to Urografin. The practitioner denied any knowledge of or responsibility for this document, except that he was aware that such a protocol must have existed because the Hospital had been and in 1999 remained accredited.

6. There is evidence of a surgeon's preference sheet which is undated. This document bears the name of the practitioner as the surgeon and refers to Conray, with no reference to type or bottle size. The statement of Ms Jones indicated that this document is surgeon specific and is updated by the theatre nurses annually. The practitioner denied any knowledge of or responsibility for this document, stating that it was prepared by theatre nurses for their own use.

7. In late 1998 there was a change in Pharmacy staff at the hospital. A new Pharmacy clerk, Ms Toubia, was employed in November 1998. She was given some training by the retiring clerk. Her responsibilities included ordering stock on receipt of requisitions placed by theatre staff.

According to Ms Toubia, she received an order for Conray for which she could find no catalogue number. She therefore searched in the Hospital computer under its Oracle system. Ms Toubia had no password with which to access this computer system. She was permitted to use the password issued to Mr Fung, the Hospital's chief pharmacist. The only reference which Ms Toubia could find to Conray in the Oracle system was to Phenol 10% in 60% meglumine iothalamate. She placed an order for this substance.

Ms Toubia proceeded with other orders. When the computer screen was full with orders she asked the pharmacist to approve the order. This was done by entering a password.

The materials ordered were delivered next day and placed on the Pharmacy shelves.

8. According to Ms Nicholls, she first used this contrast medium on the 22 March 1999. She stated that she was told of the change by Ms Naicker.

Ms Naicker had since November 1998 held the position of Acting Floor Manager (Nursing Unit Manager, level 2) of the operating theatre at the Hospital.

Ms Naicker's statement contained no reference to her giving any advice to Ms Nicholls concerning a change in contrast medium. She was not called to give evidence before the Tribunal.

9. Ms Nicholls also stated that she questioned the size of the bottle in which the contrast medium was provided because of the difficulty she encountered in drawing the material into the syringe. The evidence of Ms Naicker and of the Pharmacy staff confirmed that such an inquiry was made. The response to the inquiry was that this was the only size in which the medium was supplied.

10. Ms Nicholls worked with the practitioner as his instrument nurse for a period of four years. She said that during that period the practitioner did not ask to check the bottles from which the contrast medium was drawn. She said the bottles were always in the view of the practitioner.

15 In its decision, the Tribunal referred to patients suffering higher than usual rates of complications following ERCP procedures in which the incorrect contrast medium was used. However, the Tribunal did accept that complication rates of up to 20-25% were not unusual in ERCP procedures carried out correctly.

16 The complication rates shown by the evidence, as accepted by the Tribunal, appear to be as follows. In the period 1 February 1999 to 15 March 1999, before the incorrect medium was used, there were seven procedures, in two of which there were complications (29%). In the period from 22 March 1999 to 19 April 1999, when the incorrect medium was used, there were eight procedures, in one of which there were complications (12.5%). On 3 May 1999, there were four procedures, in all of which there were complications. On 10 May 1999, there were three procedures in none of which there were complications. On 24 May 1999 there were two procedures in both of which there were complications. On 31 May 1999, there were two procedures, in one of which there were complications. On 4 June 1999, there was one procedure, in which there were complications. Accordingly, the overall complication rate during the time in which the incorrect medium was used was nine out of twenty (45%).

17 The Tribunal was critical of the appellant’s evidence concerning his knowledge of the contrast medium as a potential source of the problem. However, it appears to have accepted his evidence that in 1999, until a communication with the X-ray Department which I will refer to later, he believed that the contrast medium being used was Conray 280, and that he had given a verbal order to Ms. Nicholls for its use.

18 The Tribunal accepted evidence that, during the procedures on 19 April 1999, Ms. Nicholls said to the appellant words to the effect that the “new contrast” was harder to draw up as the new vials were smaller, that the appellant enquired about the change, and that Ms. Nicholls commented that she had checked and this was what they had to use now. However, the Tribunal did not reject the appellant’s evidence that this happened in the course of a difficult and complex ERCP procedure when his attention was focussed elsewhere; and it accepted that, in that event, its significance may not have registered with the appellant as a potential cause of the higher than usual complication rates later experienced.

19 The appellant became aware of the high complications rate in early May 1999. From the figures I have given, this must be through the events of 3 May 1999, because there was no high complications rate before then, and there were in fact no further complications after 3 May 1999 until 24 May 1999.

20 Between 3 May 1999 and 14 May 1999, when the appellant went to the USA to attend a medical conference, the appellant (according to his evidence, apparently accepted by the Tribunal) took a number of steps with a view to identifying the cause of the high complications rate on 3 May. In particular, he reviewed procedures and complications by reference to text books; he reviewed causes of pancreatitis (the most significant complication) by means of a Mediline search, specifically in relation to ERCP; he researched the incidence of pancreatitis in relation to the use of ionic and non-ionic contrast agents; and he checked the cleaning of the scope, noting that a culture sample, part of a regular quality control program, was clear.

21 Also, on or about 10 May 1999, he contacted the X-ray Department of the Hospital, speaking to the Chief Radiology Technician concerning problems that they may have experienced with contrast agents in that department. He was told there had been none. He was also told that the contrast medium they were using was Ultravist. The appellant was unaware at that time that the X-ray Department was not supplying the contrast medium for ERCP procedures; and his evidence was that, following that conversation, he believed that Ultravist and not Conray 280 was being provided for his operations.

22 While the appellant was in the USA, he attended the Update Meeting of the American Society for Gastrointenstinal Endoscopy, as well as the Learning Centre, viewing a large number of videos, displays and other presentations; and he checked all abstracts concerning the aetiology of pancreatitis. On return to the hospital in late May and early June, he took action in the performance of ERCP procedures to minimise the number of cannulations performed and the amount of contrast injected; he attempted to avoid the pancreatic duct altogether; and on 7 June he took a sample of bile for culture to check if infection was being transmitted in an unexplained fashion.

23 Dr. Makarie, a doctor at the Hospital, gave evidence that between about 17 May 1999 and 7 June 1999, she had a conversation with the appellant in which the appellant “mentioned that there had been a change in dye and he wondered if the new dye had been noted in the literature to cause different complications or an increase in the risk of complications” and he told her “he would use less dye, or a more dilute form of dye and try to avoid the pancreatic duct”. This evidence, including the approximate dates, was accepted by the Tribunal.

24 There was uncontradicted evidence, apparently accepted by the Tribunal, that Urografin, Conray 280 and Ultravist were all safe and appropriate contrast media.

25 A further procedure was carried out by the appellant on 7 June 1999, and on the occasion of this procedure a scout nurse insisted on the appellant looking at the contrast medium bottle; and the appellant then immediately appreciated that the substance being used was inappropriate and dangerous. The use of the inappropriate substance then ceased.

26 Three medical experts were called, one (Dr. McNamara) by the respondent and two (Dr. Byrnes and Dr. Speer) by the appellant. All agreed that the investigative steps taken by the appellant were reasonable, and that the contrast medium was a most unlikely cause of the complications. However, all were to some extent critical of the appellant’s failure, between 10 May 1999 and 7 June 1999, to ascertain what contrast medium was actually being used in the ERCP procedures.

27 Dr. McNamara’s opinion was that the appellant should have checked what the contrast medium was after his conversation with Ms. Nicholls on 17 April, and particularly after 3 May when all four patients experienced complications, and the appellant expressed concern to Dr. Makarie about the contrast medium.

28 Dr. Byrnes was critical of the appellant for not checking what contrast medium was being used when Ms. Nicholls had said to him that the “new contrast” was harder to draw up. He considered there may have been an obligation to check with his instrument nurse that she was using Ultravist after his conversation with the X-ray Department; and that by 24 May, there was an obligation to check everything, including the vial in which the contrast medium was delivered.

29 Dr. Speer was mildly critical of the appellant for failing to check the protocol in use by the nurses, when he thought there may have been a change in the contrast medium (after his conversation with the X-ray Department), for reasons of good management.

30 The appellant said he had not seen the ERCP protocol in use at the hospital, and he denied any responsibility for it.

FINDINGS OF TRIBUNAL

31 The Tribunal set out its conclusions in the following paragraphs:

1. There is one common element in the criticisms of the medical experts. This criticism goes to the practitioner's failure to check the identity of the contrast medium actually in use in his operating theatre. There were three possible avenues of inquiry:
1.1 Ms Nicholls: according to her evidence the bottles or vials were always available for viewing in the operating theatre;
1.2 the X-Ray Department: the practitioner did not inquire whether the Ultravist it was using was in fact being supplied for ERCP procedures; and
1.3 Hospital administration: the practitioner did not inquire whether the protocol had been altered to reflect what he believed to have been a change in contrast medium.

Any one of such inquiries would have provided the answer to the riddle surrounding increased complication rates which the practitioner was attempting to solve.

2. The Tribunal acknowledges the evidence of the practitioner and all medical experts that contrast medium was a most unlikely cause of pancreatitis. The existence of a situation which has reached crisis proportions does not in the Tribunal's view excuse a departure from standard processes which are essential to good management and the delivery of safe health care.

3. The following aspects of the practitioner's evidence are of concern to the Tribunal:
3.1 that he had not seen the ERCP protocol;
3.2 that he appeared to take no interest in the protocol, although it was regarded by the medical experts as significant in ensuring the safe delivery of ERCP procedures; and
3.2 the apparent denial by the practitioner of responsibility for involvement in the protocol when:
(a) he was the only proceduralist at the Hospital performing ERCP; and
(b) he asserted a heavy reliance on a team approach in the operating theatre with little evidence on his part of an appreciation of his role as a member of that team.


4. For the practitioner an attempt was made to draw an analogy with the Court of Appeal's decision in Elliott v Bickerstaff It was claimed, quite properly, that this decision is authority for the proposition that, where there is a team involved in a operating theatre, each team member is responsible for the performance of his or her duties. Further each team member is entitled to rely on each other member of the team to perform his or her duties.

There is a distinction in this case. The Tribunal is not inquiring whether the practitioner should be held responsible for the failure of others, that is the Pharmacy, Hospital administration, or nursing staff, to discharge their duties. Rather the Tribunal's attention is directed at the professional conduct of the practitioner to determine whether he performed his direct responsibilities in the circumstances of this case.

5. In respect of the particulars of the Complaint therefore the Tribunal finds as follows:
Particular 1
Between about the 1 February 1999 and 7 June 1999, the Practitioner failed to ensure that an appropriate order was made for contrast medium to be used during endoscopic retrograde cholangiopancreatography (ERCP) procedures at Canterbury District Hospital.
The evidence is that the surgeon's preference sheet, although the practitioner was ignorant as to its content, in fact reflected an appropriate contrast medium in stating Conray. Dr McNamara agreed that nothing further was to be gained by specifying Conray 280.

There is also evidence that after becoming aware of the change from Urografin to Conray, the practitioner gave a verbal order to Ms Nicholls for the use of Conray.

To that point, therefore, there was an appropriate standing order for contrast medium. The evidence established that the practitioner was alerted to the fact that a new medium was in use on 19 April 1999 and that by 10 May 1999 he believed he knew the identity of the medium then in use. Accepting that the information provided on 19 April 1999 came by way of a comment in the course of the ERCP procedure and thus may have been overlooked by the practitioner, at least by 10 May 1999 he had information which ought to have prompted him to advise Ms Nicholls of a change in the standing order.

The Tribunal finds that this particular of the Complaint has been established.

Particular 2
Between about 1 February 1999 and 7 June 1999, the practitioner failed to check that the contrast medium being used was appropriate for ERCP procedures performed by him on a number of patients at the Hospital.

The practitioner was alerted to Ms Nicholls' belief that she was using a new medium on 19 April 1999 and by 10 May 1999 certainly believed that Ultravist was that new medium. In those circumstances, the practitioner was obliged to cheek the contrast medium in fact in use for ERCP procedures performed by him at the Hospital. At the very latest this check should have been made by the practitioner by 10 May 1999.

The Tribunal finds that this particular of the Complaint has been established.

Particular 3
Between about April 1999 and 7 June 1999 the practitioner failed to take appropriate preventative action concerning adverse outcomes of ERCP procedures performed by him at the Hospital in circumstances when he knew or ought to have known of patients suffering a higher incidence of complications following ERCP procedure performed by him.

Appropriate preventative action would have involved the practitioner in checking the identity of the contrast medium in use in the operating theatre at least by 10 May 1999.

In addition, as already made clear, the Tribunal finds that it was inconsistent with current approaches to quality control in the delivery of health care that the practitioner was ignorant of the protocols which governed ERCP procedures at the Hospital and, by denying that it was his responsibility, failed to communicate with nursing staff or Hospital administration to ensure that a change in contrast medium, apparently made without consultation with him, was reflected in a change in the appropriate protocol.

The Tribunal finds that this particular of the Complaint has been established.

6. Had the practitioner taken any of the steps referred to in these particulars, the mismatch between Conray 280 and Phenol 10% in 60% Conray 280 would most probably have become apparent at the latest by 10 May 1999.

7. The Tribunal is not persuaded that the Complaint of professional misconduct has been made out, nor is there peer review evidence to support such a finding.

8. The Tribunal does find evidence of:
8.1 inadequate knowledge of the need for, purpose of and the practitioner's role in the creation and maintenance of protocols to be followed by all members of the operating theatre team to ensure as best as possible the delivery of safe health care in the performance of ERCP procedures;
8.2 poor judgment on the part of the practitioner in failing to inquire further from Ms Nicholls as to the contrast medium in use following the comments which she made on 19 April 1999 when it appeared that a new medium had been introduced without prior consultation or communication with him;
8.3 poor judgment on the part of the practitioner in failing, as a matter of good management, to deal appropriately with the information supplied by the X-ray Department concerning Ultravist so that he could identify the contrast medium which was being supplied and used in ERCP procedures which he performed between 10 May 1999 and 7 June 1999.

The Tribunal finds this evidence sufficient to satisfy it comfortably that the Complaint of unsatisfactory professional conduct is made out.

GROUNDS OF APPEAL

32 The appellant relied on the following grounds of appeal:

The Medical Tribunal was in error in that it:
1. Denied the Appellant procedural fairness in permitting the expansion of the Respondent's case beyond the particulars of the complaint.

2. Denied the Appellant procedural fairness in reaching conclusions on matters of significance beyond the particulars of the complaint, and regarding which no or insufficient notice was given to the Appellant.

3. Denied the Appellant procedural fairness in that it reached conclusions on matters not the subject of expert or other evidence, presumably on the basis of its own expertise, without advising the Appellant of its intention to do so, thereby depriving the Appellant the opportunity of leading evidence as to those conclusions.

4. Misapplied, or alternatively failed to give adequate reasons explaining the application of, the statutory definition of unsatisfactory professional conduct to the conduct of the Appellant.

5. Failed to apply, or properly apply, the principles enunciated in Elliott v Bickerstaff [1999] 48 NSWLR 214.

6. Misapplied the dicta of Priestley JA in Richter v Walton (NSW Court of Appeal, unreported, 15.7.93)

SUBMISSIONS

33 Mr. Deakin QC made three principal submissions.

34 First, he submitted that there was procedural unfairness in relation to the Tribunal’s findings as to Particular 1 and the second part of its findings on Particular 3. It was no part of the conduct particularised that the appellant was at fault in not ensuring that the protocol for nurses coincided with the substance actually being supplied by the Hospital for the procedures: Gad v. Health Care Complaints Commission [2002] NSWCA 111 at [41]-[48].

35 Second, Mr. Deakin submitted that the Tribunal had failed to apply the principle in Elliott v. Bickerstaff (2000) 48 NSWLR 214, to the effect that a medical practitioner is entitled to rely that other people in a team will do their job correctly. The Tribunal simply “put to side the enormity of the errors on the part of the Hospital and its staff” (Red 21); and took this matter into account only in setting the penalty.

36 Third, Mr. Deakin submitted that the Tribunal erred in law in not giving reasons linking its findings to the finding of unsatisfactory professional misconduct. In paragraphs 8.1, 8.2 and 8.3 (quoted above), the Tribunal merely found “evidence of” certain matters, and then concluded that this evidence was sufficient to satisfy the Tribunal that the complaint of unsatisfactory professional conduct had been made out: the Tribunal did not say to what extent and in what respects it accepted the evidence to which it referred. Furthermore, paragraph 8.1 did not identify the conduct in question, find that it demonstrated lack of adequate knowledge, as required by s.36(1) of the Act, or state how it demonstrated it; paragraph 8.2 did not state that “failing to enquire” demonstrated lack of judgment or explain how it did so; and paragraph 8.3 did not state that “failing to deal appropriately” demonstrated lack of judgment, or explain how it did so.

37 Mr. Deakin did also make a number of submissions with a view to challenging the Tribunal’s finding in relation to Particular 2. However, in my opinion, these submissions did not identify any relevant error of law.

38 Mr. Johnson SC for the respondent submitted that the challenged findings were within the particulars. “Order” meant requirement, written or oral, as to what contrast medium was to be supplied at the procedures; and “appropriate” meant that such requirement should be both for an appropriate contrast medium and also for the contrast medium actually being supplied. In any event, the issue as found by the Tribunal emerged at the hearing and was litigated: see Sabag v. Health Care Complaints Commission [2001] NSWCA 411 at [20]-[24], [116].

39 As regards the second submission, Mr. Johnson submitted that Elliott v. Bickerstaff does not mean that a doctor who injects a substance into patients and who is put on enquiry as to whether this is the correct substance, can refrain from making enquiries and taking appropriate steps because it is the primary responsibility of others to supply the correct substance.

40 On the third matter, Mr. Johnson submitted that the Tribunal’s reasons were substantial, containing satisfactory explanations of its findings and making it clear what was found to be unsatisfactory professional conduct.

DECISION

41 In order to decide whether there was a denial of procedural fairness, it is necessary to say a little more about what happened before and at the hearing.

42 On 13 September 2000, the appellant made the following request for further particulars of Particular 1:

In respect to Particular No.1 of the Complaint, to whom, will it be alleged, that an appropriate order should have been made for contrast medium to be used during ERCP procedures?

On 19 October 2000, the respondent gave the following response:
The Complainant will allege that an appropriate order for contrast medium to be used during ERCP procedures should have been made to that part of Canterbury District Hospital which was supplying contrast medium, for this purpose between February and June 1999.

43 It was submitted for the appellant at the close of the complainant’s case that the complainant’s evidence could not support Particular 1. That submission was dealt with in this way by the Tribunal:

The Tribunal would therefore consider dismissing the various parts of the complaint only if it is clear that the evidence for the complainant raises no issue to which a response is required. In respect of the particulars of the complaint, turning to the first particular, namely that between 1 February 1999 and 7 June 1999 the practitioner failed to ensure that an appropriate order was made for contrast medium to be used in ERCP procedures at Canterbury District Hospital.

There is evidence that it was not necessary for the respondent to issue a prescription in order to order the contrast medium necessary for the ERCP procedures which he undertook. Thus once his requirements were made known, he could delegate the function of ordering contrast medium to others and he did so. It has been submitted on his behalf by Mr Deakin that he did so by way of the protocol dated 1992 which is exhibit 39(c) and the Surgeon's Preference, which is undated but which refers to Conray 280 and thus must postdate the change to that substance in 1996. That document is exhibit 39(d).

The respondent's supplementary statement, which has been admitted into evidence before us, indicates that by mid-May 1992, he understood that the contrast medium that he was using was Ultravist. This raises an issue as to whether the respondent ought to have changed - ought to have issued a further order or changed the order which then stood, and in those circumstances the Tribunal would like to hear from him in respect of particular 1.
…
DEPUTY CHAIRPERSON: I've ruled on this. I've ruled that what you're being asked to deal with falls within the current complaint and I want you to deal with it please. Can we proceed?
LEGAL ARGUMENT AS TO THE NATURE OF THE COMPLAINT AGAINST THE RESPONDENT
DEPUTY CHAIRPERSON: I don't accept that it's a new complaint, Mr Deakin, and I'll ask you to deal with the complaint as it stands.

44 The written submissions of the complainant before the Tribunal in relation to this matter were as follows:

This paragraph relates to the role of the respondent in the ordering of contrast medium for ERCP procedures between February and June 1999.

Each of the peer review witnesses states that the medical practitioner has responsibility with respect to the selection of contrast medium (Dr Byrnes Exhibit 4(e), page 3, T317-318, Dr Macnamara - Exhibit F, Tab 40(e), pages 3-4, T96-97; Dr Speer, Exhibit 3(b), pages 6.5, 6.9, 7.3, 7.9).

It is common ground between the peer review witnesses that the protocol or preference list with respect to contrast medium may be established and that, thereafter, it is sufficient for two nurses to examine the contrast medium being used and to determine that it complies with the protocol or preference list. It is not a necessary step that the instrument or scout nurse inform the medical practitioner of the identity of the contrast medium being used before each ERCP procedure nor that the vial of contrast medium be presented to the medical practitioner for inspection.

The evidence reveals the existence of a protocol document prepared in 1992 and intended to be revised in 1995, which referred to Urografin as the contrast medium to be used.

The evidence reveals the existence of a preference sheet for the Respondent which identified "Conray" with out reference to quantity of the solution to be used.

If the nurses involved in ERCP procedures believed that the contrast medium they were utilising complied with the preference sheet (that is, Conray), then it was not necessary for the medical practitioner to be informed of the contrast medium being used or that he be shown the vial.

The Respondent's statement of 8 May 2000 (paragraph 17) asserted that he believed that either Urografin or Conray 280 was used as a contrast medium at Canterbury Hospital between February and June 1999. In the same statement, the Respondent states that he believed that there had been a change in the size of contrast containers from mid-April 1999 but that, inferentially, he believed that Conray 280 was still being used (paragraph 32). The Respondent also said that, if there had been a change in contrast and not just container size, he thought that it could have been a change to a newer non-ionic agent such as Isovue (paragraph 36(b)). The Respondent states that in early May 1999 he noticed his patients were experiencing a higher than usual rate of post-procedure pancreatitis (paragraph 36(c)).

In his supplementary statement of 2 July 2001 (Exhibit 1(b)), the Respondent asserts that he spoke to someone in the X-Ray Department in May 1999 who indicated that the X-Ray Department was using Ultravist (paragraph 3).

Accordingly, the preference sheet referred to Conray and the nurses appear to have thought, mistakenly, that Phenol was the contrast medium Conray. However, the Respondent asserts that he thought from mid-May 1999 that a contrast medium other than Conray was being used. He did not speak to Nurse Nicholls to enquire as to whether the preference sheet had been altered. He allowed a state of affairs to continue where he was performing several ERCP procedures in the balance of May 1999 and up to 7 June 1999 where his asserted belief as to the contrast medium being used did not accord with the preference sheet.

To proceed in this way from mid-May 1999 involved the Respondent breaching appropriate procedures which required him to identify the contrast medium which he wished to use. At the very least, if he believed that there had been a change in the contrast medium from that being used previously, he had an obligation to ensure that the preference sheet accurately recorded his current preference as to contrast medium.

On the Respondent's present version, he was obliged to ascertain from Ms Nicholls that the contrast medium he believed was being ordered and supplied was that which the nurses were checking against a protocol document and using. The Respondent's failure to do this attracted the criticism of Dr Byrnes (T314-318). If the Respondent wished to rely upon the system of two nurses checking without consultation with him, there was an obligation on him, in the first instance, to ensure that what the nurses are going to check was his choice of contrast medium (T318.1).

The Respondent's failure with respect to the ordering of contrast medium attracted the severe disapproval of Dr Macnamara which she would expect her colleagues to share (Exhibit F, Tab 40(e), page 4).

The Complainant submits that the first particular is established if the Tribunal accepted the Respondent's version or if the Tribunal found that he was merely unsure as to which contrast medium was being used.

The evidence supports a finding adverse to the Respondent with respect to the first particular in the complaint.

45 The written submissions of the appellant before the Tribunal in relation to this matter were as follows:

The starting point for the consideration of this particular is the fundamental distinction between ordering a scheduled medication as against ordering a non-scheduled substance.

Phenol with Conray 280 is a medication controlled by Schedule 4 of the Poisons Act. It may not be used without there first being a prescription written by a registered medical practitioner for the particular patient for whom the medication is intended. It must be stored in a secure medications storage area. It is a dangerous poison.

All contrast media (including Conray 280) do not require a prescription to be validly and lawfully supplied. They are innocuous substances (T114.16). They are subject to no more restriction in their supply than is saline solution. They are not required to be stored in secure areas. Simply put, they present no danger of any significance - for this reason, Parliament has not determined that they be regulated either under the Poisons Act or any other regulatory control,

Never in recorded history had a poison (which acted, it should be noted, as a contrast medium) been substituted for a contrast medium (Dr Byrnes at T319.40).

In February 1999, through an unimaginable series of appalling errors in Canterbury Hospital, the poison Phenol with Conray was in fact substituted for the contrast medium Conray 280. In doing so no fewer than ten checkpoints were sidestepped (Exhibit 2 Annexure F page 23-24). See also the enumerated criticisms contained within the HCCC investigation of Canterbury Hospital dated 3 September 1999 (Exhibit 10). No valid "order" of any nature was made for that medication.

While there was no order for Phenol with Conray, there was at all times in operation at Canterbury Hospital a valid order for contrast media to be used in ERCP procedures (T119.15).

In the context of ERCP procedures, the "order" of contrast is not by way of a medical practitioner's prescription, as would be the case when ordering medications, but rather having in place a protocol or other written guideline which identifies the contrast to be used (Exhibit F Tab 40(e), pp.2-3).

During the period in question there were two documents in force at Canterbury Hospital which could be described as constituting an "order" for contrast. The first such document is that entitled ERCP Protocol, dated July 1992 (Exhibit F, tab 39(c)). That document specifies Urograffin as the contrast medium to be used during ERCP procedures.

The second document is the Surgeons Preference List (Exhibit F, tab 39(d)). That document specifies Conray as the contrast medium.

No other "order" was in place for contrast media for use in ERCP procedures.

In none of her reports does Dr McNamara criticize Dr Daskalopoulos for having failed to ensure that an appropriate order for contrast was in place.

Dr McNamara's oral evidence was to the effect that both media referred to in the two documents mentioned above were appropriate for use in ERCP (T117-119). Insofar as the former document did not reflect the change to Conray 280, the responsibility of altering the protocol to reflect that change rested with the author of the protocol, not Dr Daskalopoulos (Dr McNamara T121-122; Dr Byrnes, T304.25-305).

It is apposite here to note that for ERCP purposes, ALL contrast media are appropriate for use. They are not chosen by one individual but as a result of a process of consultation with groups contributing their own expertise (Dr Speer T 344.35).

When Dr Daskalopoulos started performing ERCP procedures at Canterbury Hospital, he was consulted by the radiology staff and agreed with the use of Urograffin as contrast in ERCP's (T279-280). That verbal "order" was no more than an acknowledgement of what Dr Speer has said is the usual situation, namely that the contrast medium used in ERCP's is the contrast then being supplied by radiology (Exhibit 3(a) page 3.7). He described what occurred as "appropriate" (T345. 1).

In 1992 pursuant to the process of consultation which had occurred the hospital circulated a document entitled "ERCP Protocol", which stipulated Urograffin as the medium to be used. That document was apparently intended to be revised in 1995, but from the evidence before the Tribunal was never in fact revised.

That document was of course consistent with Dr Daskalopoulos' previous "order".

In 1998, when ERCP procedures returned to the hospital and were scheduled to be performed in the operating theatres, a new document known as the Surgeon's Preference Sheet was created (Exhibit F Tab 39(d)). That document referred to Conray as the contrast medium to be used in ERCP's.

Dr Daskalopoulos never saw that document prior to 9 June 1999, which was in any event a nurses' document, not one for the use of medical practitioners (T201).

In May 1999 upon enquiry Dr Daskalopoulos was told by radiology staff that they were now using Ultravist (Exhibit 1(b)). That conversation had the same characteristics as the previous order, being a statement by radiology of the identity of the contrast medium being provided and an acknowledgement by the doctor that the medium was appropriate.

Both orders were effectively "verbal" orders. As Dr McNamara, agreed, such orders may be given verbally (Exhibit F Tab 40(g) page 2 paragraph 4(c)).

The hospital protocols should have been amended by their authors to reflect the changes to contrast medium. That was not the responsibility of Dr Daskalopoulos (Dr McNamara T121-122; Dr Byrnes, T304.25-305, Dr Speer T346.10).

There being a valid order for contrast medium in place, it constituted the applicable protocol to be followed by hospital staff (T118.45). Particularly when working with competent nursing staff with whom one has worked for years, a practitioner would be entitled to place trust in them to duly follow the protocol (Dr Byrnes T320.40). Dr Speer [7.346.10].

It is submitted that there was no failure by the Respondent to ensure that an appropriate order for contrast medium was used.

46 What was alleged against the appellant was “failing to ensure there was an appropriate order”. The evidence showed that the only two documents in existence which could be said relevantly to be an order were both appropriate, in the sense of specifying an appropriate contrast medium. The problem was that the Hospital did not conform to what was shown on this documentation. It could be said that “appropriate order” in Particular 1 required that the order both be for an appropriate substance, and also be appropriate in the sense of coinciding with what the Hospital was actually doing. But that is a strained construction of the phrase; and in any event, on that construction, the appellant could not have ensured that there be an appropriate order, because that would have required him to procure that the Hospital change what it was doing and, as the circumstances of this case show, the appellant did not control what the Hospital actually did. The discrepancy arose because the Hospital did not follow the existing order for an appropriate substance.

47 What the Tribunal appears to have found was that, when the appellant had reason to believe that the contrast medium being supplied by the Hospital for his procedures may not have corresponded with the medium shown on the Hospital documentation of requirements for such procedures, he should have taken steps with a view to bringing about the result that the documentation be altered to correctly reflect the actual practice. In my opinion, this is different from what was alleged in Particular 1.

48 In those circumstances, did the Tribunal’s findings amount to a denial of procedural fairness?

49 Relevant authorities are conveniently set out in the following paragraphs from the judgment of Davies AJA in Sabag at [20]-[22]:

However, if a substantive allegation has been proved at a trial, the decision may follow the finding notwithstanding that particulars of the precise allegation were not given. In Mummery v Irvings Pty Ltd (1956) 96 CLR 99, Dixon CJ, Webb, Fullagar and Taylor JJ said, at p 110:-
In an action conveniently described as a negligence action the particular duty, a breach of which is relied upon to establish negligence on the part of the defendant, may be alleged to have been transgressed in a variety of ways and if the plaintiff particularises the transgression or transgressions relied upon the defendant may, subject to the discretion of the court, hold him to the issue or issues of fact so raised. But the action is still for a breach of the duty specified and the defendant will not defeat the plaintiff's claim either by establishing that the plaintiff's injuries resulted from or were consistent with some other breach of the same duty. If the facts, as proved in the case, lead to the conclusion that the injuries resulted either from one or the other the plaintiff will succeed.

Later, in Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292, Jacobs J said, at p 294, in a passage which has frequently been cited, after referring to the judgment in Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666:-
But the situation which arose in that case was quite different. There the plaintiff at the trial sought to have submitted to the jury a case factually different from that alleged in the pleadings and particulars. This Court stated that if in that different case there was evidence of negligence which, if accepted, established the cause of action the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence and the issue thus raised left to the jury. A failure to apply for the amendment was not fatal. But all this presupposes that the new issue or new way of particularising the existing issue has emerged at the trial and been litigated, that the plaintiff sought to have a case on the new particulars submitted to the jury. All it means is that a defendant cannot lie by as the evidence supporting the case emerged and then at the end of the trial submit that the issues of fact raised by that case should not be submitted to the jury or even wait for an appeal and then claim that the case which emerged should not have been left to the jury. It is entirely different from saying either that a judge of his own motion is bound to look out a case not only different from the facts pleaded but also different from that which the plaintiff seeks to have submitted to the jury or that a court on appeal may as of course be prepared to seek out from the evidence a case different from that which the plaintiff relied on at the trial.

In Water Board v Moustakas (1988) 180 CLR 491, Mason CJ, Wilson, Brennan and Dawson JJ summed the matter up in these terms, at p 497:-
In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged (See Dare v Pulham (1982) 148 CLR 658). In Leotta v Public Transport Commission (NSW) ((1976) 50 ALJR 666, at p 668; 9 ALR 437, at p 446), a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v Commissioner for Railways (NSW) ((1978) 52 ALJR 291, at p 294; 18 ALR 147, at pp 151-152), Jacobs J, with whom the other members of the Court agreed, pointed out that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularising the existing issue had emerged at the trial and had been litigated.

50 In applying those authorities in matters such as this, the Court should take into account the requirement of clarity in allegations made against persons charged with professional misconduct and/or unsatisfactory professional conduct; and this is confirmed by the requirement of s.43 of the Act that complaints must not be referred to the Tribunal unless and until the complaint contains “particulars of the allegations on which it is founded”.

51 It is clear that minds can reasonably differ when it is suggested that issues outside particulars have adequately been raised and contested at a hearing. In Sabag itself, Davies AJA took one view at [23]-[24]:

The Particulars given were particulars, inter alia, of the allegations that Dr Sabag had demonstrated a lack of adequate skill, knowledge, experience, judgment and care in the practice of medicine and had been guilty of improper and unethical conduct. The complaint was that Dr Sabag was not competent to practise medicine and was guilty of professional misconduct.

As a result of the matters stated to the Tribunal by Mr Davidson, the manner in which the case before the Tribunal developed was that there was an examination as to whether Dr Sabag had been competent to perform the services which he actually performed, rather than an examination as to whether he had been competent to perform the procedures described by Items 18290, 18252, 18286 and 18276.

52 Sperling J, with whom Beazley JA agreed, took a different view at [116]:

The authorities cited by Davies AJA establish that, where an issue has emerged at the trial and has been litigated, it is no objection that the issue was not notified before trial. Davies AJA takes the view that the issue of competence to perform procedures in fact carried out was litigated, I take the view that it was not. That appears to be the point which has led us to different conclusions on this aspect of the appeal.

53 In my opinion, in this case, having regard to the extent of the difference between the particular and the finding, and the lack of any clear formulation during the hearing of any amended particular or allegation in relation to that particular, this case does fall on the wrong side of the line. I do not think the allegation that the appellant should, in the circumstances, have taken steps with a view to bringing about the result that the documentation be altered to correctly reflect the actual practice, was appropriately raised and litigated. I think this is confirmed by the lack of clarity in the Tribunals findings. In relation to Particular 1, it stated that the appellant should have advised Ms. Nicholls of a change in the standing order; yet this was in circumstances where there had in fact been no such change, only a failure by the Hospital to comply with the existing standing order. In relation to Particular 3, the finding of failure to communicate with nursing staff or Hospital administration to ensure that the change in the medium was reflected in a change in the protocol, was a clearer finding; yet it was coupled with findings of ignorance of the protocols and denial of responsibility for them, matters which were never alleged against the appellant.

54 Accordingly, in my opinion there was a denial of procedural fairness and accordingly an error of law by the Tribunal in that respect.

55 In relation to the second submission, I do not think the Tribunal failed to apply Elliott v. Bickerstaff. In my opinion, it was open to the Tribunal to find in effect that the appellant was put on enquiry as to whether the correct contrast medium was being used, and that is what it found. Once a medical practitioner is put on enquiry as to whether other persons are fulfilling their responsibilities, the medical practitioner cannot then simply rely on the circumstance that such matters are the primary responsibility of others.

56 Turning to the third submission, the wording of the Tribunal’s reasons is somewhat unsatisfactory, on the basis submitted by Mr. Deakin. However, if there were no other error in the reasons, I would read paragraphs 8.1, 8.2 and 8.3 as not merely indicating that there was evidence of the matters referred to in those paragraphs, but that the Tribunal found those matters to be established. That is suggested by the sentence following those paragraphs although not clearly stated in it. On the basis that those findings were made, I would not find any inadequacy in proceeding from those findings to a finding of unsatisfactory professional conduct.

57 However, in circumstances where some of the adverse findings must fall away because of the denial of procedural fairness, the Tribunal’s reasons do not indicate that the finding of unsatisfactory professional conduct was made out to the Tribunal’s comfortable satisfaction on the remaining findings. This means that the Court must either send the matter back to the Tribunal, or reach its own view on the matter. Both parties requested the latter.

58 In my opinion, despite Mr. Deakin’s factual submissions, it was open to the Tribunal to find that the appellant should, by about 10 May 1999 at the latest, have ascertained what medium he was injecting into patients. This was supported by Ms. Nicholls’ reference to a “new medium” on 19 April (making due allowance for the appellant’s being engrossed in the procedure), the extraordinary occurrence of complications on 3 May 1999, and the information from the X-ray Department giving rise to a belief that a new contrast medium was being used. It was open to the Tribunal to find that he should have done this either by looking at the bottles brought to the operation, or asking Ms. Nicholls, or pursuing his enquiry with the X-ray Department. His failure to do so falls within Particular 2 and also Particular 3. I do not think reconsideration of this finding is justified, and I would adopt it.

59 The question then for this Court is whether this amounted to “conduct that demonstrates a lack of adequate knowledge, skill, judgment or care”. I think the conduct could be characterised fairly as an error of judgment; but that does not necessarily mean that it “demonstrates” either “a lack of adequate … judgment” or any of the other alternatives I have mentioned. Persons who do not lack “adequate judgment” do from time to time make errors of judgment. On the whole, I am not comfortably satisfied that the appellant’s error of judgment in this case demonstrated a lack of adequate knowledge, skill, judgment or care; and I would not make a finding that the appellant has been guilty of unsatisfactory professional conduct.

60 For those reasons, in my opinion the following orders should be made:

1. Appeal upheld.
2. Findings of the Tribunal set aside, and in lieu thereof complaint dismissed.
3. Respondent to pay appellant’s costs of the hearing and of the appeal, and to have a suitors’ fund certificate if otherwise entitled, unless the respondent seeks a different order as to costs by written submissions provided within 7 days, in which case the appellant may respond by written submissions within a further 7 days.
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