Health Care Complaints Commission v Dr Maendel (No 2)

[2013] NSWMT 10

Medical Tribunal

New South Wales

Medium Neutral Citation:	Health Care Complaints Commission v Dr Maendel (No 2) [2013] NSWMT 10
Hearing dates:	22/05/2013
Decision date:	22 May 2013
Before:	Elkaim SC DCJ Dr G Yeo Dr K Ilbery Ms A Collier
Decision:	See paragraph 19
Catchwords:	Treatment by practitioner of his mother, putting patient into palliative care instead of referring her for further investigation. Protective orders
Legislation Cited:	Health Practitioner Regulation National Law (NSW) 86a
Category:	Principal judgment
Parties:	Health Care Complaints Commission (Applicant) Dr Christopher Maendel (Respondent)
Representation:	P M Strickland SC (Applicant) M Lynch (Respondent) Health Care Complaints Commission (Applicant) Hicksons Lawyers (Respondent)
File Number(s):	40005/12
Publication restriction:	No

DECISION

1. An Amended Notice of Complaint brought by the Health Care Complaints Commission (the "HCCC") was heard by this Tribunal from 4 to 7 March this year. The Decision was delivered on 8 March (Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3).

1. The Tribunal reached the following conclusions:

(a)   Complaints One and Two of the Amended Notice of Complaint are found to be established.

(b)   Complaint Three is found not to have been established.

(c)   The matter is stood over for the consideration of protective orders to 22 May 2013.

(d)   The costs of the hearing to date are reserved.

1. The facts of the matter are set out in the above decision.

1. The Tribunal reconvened on 22 May 2013 to consider what protective orders should be made consequent upon the above conclusions.

1. The respondent provided some further material for this stage including a statement he made on 10 April 2013. The material is included in Exhibit 3. In his statement the respondent records that he has returned to America where he intends "to practice medicine in an established group practice setting in New York with four other doctors." He has no present intention of returning to Australia.

1. Permission was sought from the Tribunal for the respondent not to return from New York provided he made himself available to give evidence by telephone. The Tribunal granted this request. Ultimately the respondent did not give further evidence at all. The respondent had given oral evidence in March when the Tribunal had been able to observe him in the witness box under cross-examination. The Tribunal notes this observation from its earlier decision:

"The respondent was an honest witness. This was conceded by the HCCC." (Paragraph 9).

1. Although the members of the Tribunal were not unanimous in all of their ultimate conclusions they were unanimous in finding that:

"Despite a number of failings in the treatment of his mother, the Tribunal accepts that the respondent acted at all times in a manner that he perceived was in the best interests of Mrs Maendel. The HCCC also conceded this point." (Paragraph 9)

1. The Tribunal also expressed this view:

"The conduct which was wrongful was carried out in a context in which the doctor at all times acted in accordance with his perception of the best interests of his patient as the prime consideration." (Paragraph 26)

1. In his recent statement the respondent refers to his remorse in failing to have one of his colleagues in Inverell involved in his mother's care. He describes the strains that were imposed upon him by falling out with his brother, James, and by the nature of the media coverage of the case. He says, in paragraph 6:

"I now acknowledge my errors and failures. I completed an intensive Medical Ethics course through Monash University and there has not been a day in the last three years when I have not reflected on the treatment I gave my mother."

1. The new material also indicates that the relevant American authorities have been informed of the Tribunal's substantive decision and will be informed of the outcome of this hearing. The Tribunal is mindful that these authorities will be able to act in accordance within their own requirements and procedures.

1. Although the Tribunal recognises that its orders may be of little consequence if the respondent does not return to Australia, the Tribunal thinks it appropriate to deal with the matter, subject to practical considerations, as if the respondent had remained in Australia. This is because the purpose of the orders is to provide some guidance to the medical profession and also to assure the public that the failings of the respondent have received proper consideration. They also of course cater for the return of the respondent to Australia, should that occur some time in the future.

1. By definition protective orders are designed for protection, not punishment. The protection is both of the public and the medical profession.

1. The new material provided by the respondent includes a Risk assessment Report conducted on behalf of Avant, the respondent's medical indemnity insurer. The report concludes:

"Overall I found Dr Maendel to be a caring practitioner with an empathetic manner. I formed the impression that his practice was patient centred and that patients would value the care he administer because of his communication skills and his style of involving patients in their treatment."

1. This conclusion is consistent with the impression the Tribunal formed of the respondent. The Tribunal is also satisfied that the errors made by the respondent are unlikely to be repeated. Firstly the circumstances were unique in that they involved the treatment of his mother in an isolated community. Secondly the Tribunal is satisfied that the respondent has 'learned his lesson' from the events in March 2010. The Tribunal notes this passage from the respondent's statement:

"I have not treated any family member since the initiation of the HCCC complaint. I do not plan to do so except in emergencies until another provider is available. I will continue to abide by the NSW Medical Council's policy regarding treating family members." (Paragraph 7)

1. Notwithstanding the subjective matters set out above the Tribunal is also mindful of the severity of the conduct displayed by the respondent. After stabilising his mother's condition he continued to treat her in circumstances where he should have arranged a CT Scan, he should have obtained specialist opinion, he should have involved a local general practitioner, he should have kept more detailed clinical notes. In addition he should not have been the prime medical adviser to his father and he should not have signed the death certificate.

1. The HCCC submitted draft practice conditions for the Tribunal's consideration. The respondent indicated, by his counsel, that the conditions were appropriate.

1. The draft submissions, with slight amendment, accord with the view of the Tribunal. In reaching this view the matters set out above have been taken into account together with the various observations and findings made by the Tribunal on 8 March 2013.

1. The Tribunal does however think that in addition to imposing practice conditions the respondent should be reprimanded. No opposition was submitted against this course. The respondent also accepted that he should pay the costs of the proceedings.

1. The Tribunal makes the following orders:

(1)   The respondent is reprimanded.

(2)   If the respondent returns to practise in Australia he is to be subject to the conditions set out in the Annexure to these reasons for a period of one year from the commencement of such practise.

(3)   Pursuant to Section 163(1)(a) of the National Law the Medical Council of NSW is the appropriate review body of the conditions set out in the Annexure.

(4)   If the practitioner resides in Australia but in a State other than New South Wales Sections 125 to 127 of the National Law are to apply, so that a review of the conditions in the Annexure may be conducted by the Medical Board of Australia.

(5)   The respondent is to pay the HCCC's costs of these proceedings.

ANNEXURE

Dr Maendel - Medical Tribunal of New South Wales

Practice Conditions (to be imposed for a period of 1 year after the practitioner returns to practise in Australia)

1. Upon returning to medical practice in Australia the practitioner is to practise only in a Medical Council of New South Wales approved group practice (group practice is defined as at least three medical practitioners), with one other medical practitioner always on site or available to consult by way of telephone.

1. The practitioner is to obtain Medical Council of New South Wales approval prior to changing the nature or place of his practice.

1. Mentor

Within 28 days of the date of resuming clinical practice in Australia he is to provide for approval by the Medical Council of New South Wales, the name and professional address of a registered medical practitioner who has agreed to act as his professional mentor. The nature and frequency of contact with the mentor is to be determined by the mentor in accordance with the Council's Guidelines for Mentors. The mentor is to be provided with a copy of the guidelines and a copy of this Tribunal's decisions dated 8 March 2013 and 22 May 2013.

(a)   He is to authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, or personal wellbeing.

(b)   He is to authorise the mentor to notify the Council of any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate.

(c)   He will meet with the mentor for a period of 12 months after resuming clinical practice in Australia.

(d)   In the event that the approved mentor is no longer willing or able to continue as mentor, he is to nominate another mentor for approval by the Council within 28 days of the cessation of the original mentor relationship.

(e)   He is to be responsible for any costs associated with the mentoring process.

(f)   The meetings should include discussion of his personal and professional development as a registered medical practitioner and issues highlighted in this Tribunal's Decisions dated 8 March 2013 and 22 May 2013, and any personal and/or medical practice issues that may arise.

1. The practitioner is to submit to an audit at his premises 6 months following resumption of practise in Australia, of a random selection of his medical records by a person or persons nominated by the Medical Council of New South Wales ("the Council") to assess his compliance with the relevant provisions of the Health Practitioner Regulation (New South Wales) Regulation 2010 (Part 4 and Schedule 2) and the RACGP's Standards for General Practices (4th edition), in particular Standard 1.7 'Content of Patient Health Records' with particular attention to his assessment of patients, and treatment plans, or such conditions as exist at the time of the practitioner's return to Australia.

1. The audit is to occur 6 (six) months after resumption of practise in Australia or as required by the Council. The practitioner is to authorise the Auditor/s to provide the Council with a report on their findings. The practitioner is to meet all costs associated with the audit/s and any subsequent reports.

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Decision last updated: 22 May 2013