Health Care Complaints Commission v Halder
[2011] NSWMT 8
•26 August 2011
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Halder [2011] NSWMT 8 Hearing dates: 23 & 24 June 2011 Decision date: 26 August 2011 Before: Marks J, Dr L Boshell, Ms J Houen, Dr R Ford Decision: 1) The respondent, Dr Malay Kanti Halder, is cautioned pursuant to s 61(1)(a) of the Medical Practice Act 1992.
2) No order as to costs.
Catchwords: UNSATISFACTORY PROFESSIONAL CONDUCT - failure to keep proper records - performed procedure on particular patient in breach of prior undertaking - alleged failure to fully inform a particular patient of nature and consequences of an operation - surrounding hospital circumstances taken into account - practitioner cautioned - no order as to costs Legislation Cited: Medical Practice Act 1992 - s 36
Medical Practice Regulation 2003 - clause 5Category: Principal judgment Parties: Health Care Complaints Commission (Complainant)
Malay Kanti Halder (Respondent)Representation: Mr P Griffin of counsel (Complainant)
Mr M Lynch of counsel (Respondent)
Health Care Complaints Commission (Complainant)
TressCox Lawyers (Respondent)
File Number(s): MT 40012 of 2010
decision
Introduction
The complainant, the Health Care Complaints Commission, has instituted complaint proceedings against the respondent, Dr Malay Kanti Halder, alleging unsatisfactory professional conduct within the meaning of s 36 of the Medical Practice Act 1992. That Act has now been repealed, but these proceedings are to be dealt with pursuant to its provisions.
The proceedings are constituted by an amended notice of complaint, which is in the following terms:
AMENDED NOTICE OF COMPLAINT
TAKE NOTICE THAT the Medical Tribunal has received a complaint from the Health Care Complaints Commission following consultation with the New South Wales Medical Board in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 51(1) of the Medical Practice Act, 1992 (the "Act") THAT Dr Malay Kanti Halder of 5 Hall Road, Hornsby, NSW, ("the practitioner"), being a medical practitioner registered within the meaning of section 40 of the Act.
COMPLAINT ONE
Has been guilty of unsatisfactory professional conduct within the meaning of section 36 of the Act (deleted), in that:
(i) he has demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/ or
(ii) he has engaged in improper or unethical conduct relating to the practice of medicine.
PARTICULARS
At all relevant times the practitioner was a registered obstetrician and gynaecologist. Between 7 August 2007 and 13 January 2008 he worked as a specialist at Wagga Wagga Base Hospital and from 14 January 2008 until January 2009 he worked as a specialist at Gosford Hospital.
Patient A
1. On 23 October 2007 the practitioner performed a tension vaginal tape, ("TVT"), procedure on Patient A at Wagga Wagga Base Hospital and:
1.1 (deleted)
1.2 (deleted)
1.3 the practitioner failed to keep proper records of his consultation with Patient A, prior to surgery, on 23 October 2007 contrary to Clause 5 of the Medical Practice Regulation 2003.
Patient B
2. On 16 November 2007 the practitioner gave Professor Gregory Papworth, the Director of Medical Services, and Dr Sue Morey, a consultant, at Wagga Wagga Base Hospital an undertaking not to perform any further TVT procedures.
3. On 11 December 2007 the practitioner performed a TVT procedure on Patient B Wagga Wagga Base Hospital and:
3.1 (deleted)
3.2 the practitioner performed the TVT procedure on Patient B in breach of the undertaking he had given; and/or
3.3 (deleted)
3.4 the practitioner failed to keep proper records of his consultation with Patient B, prior to surgery, on 11 December 2007 contrary to Clause 5 of the Medical Practice Regulation 2003.
Patient C
4. On 13 February 2008 at Gosford Hospital the practitioner performed a vaginal hysterectomy, pelvic floor repair and labioplasty procedures on Patient C and:
4.1 the practitioner performed the labioplasty without informing Patient C fully of both the nature of the operation and its consequences; and/or
4.2 the practitioner failed to keep proper records of his consultation with Patient C, prior to surgery, on 13 February 2008 contrary to Clause 5 of the Medical Practice Regulation 2003.
Patient D
5. On 26 February 2008 the practitioner performed a hysterectomy on Patient D at Gosford Hospital and:
5.1 (deleted)
5.2 the practitioner failed to keep proper records of his consultation with Patient D, prior to surgery, on 26 February 2008 contrary to Clause 5 of the Medical Practice Regulation 2003.
6. (Deleted)
Patient E
7. On 18 December 2007 the practitioner performed a vaginal hysterectomy and anterior and posterior vaginal wall repair on Patient E Wagga Wagga Base Hospital and:
7.1 the practitioner failed to keep proper records of his consultation with Patient E, prior to surgery, on 18 December 2007 contrary to Clause 5 of the Medical Practice Regulation 2003.
Patient F
8. On 19 October 2007 the practitioner performed a total abdominal hysterectomy on Patient F at Gosford Hospital and:
8.1 (deleted)
8.2 the practitioner failed to keep proper records of his consultation with Patient F in the anaesthetic room prior to surgery, on 15 January 2008 contrary to Clause 5 of the Medical Practice Regulation 2003.
Patient G
9. (Deleted)
9.1 (deleted)
9.2 (deleted)
Other
10. (Deleted)
11. (Deleted)
12. (Deleted)
13. (Deleted)
By notice dated 20 June 2011, the respondent admitted the subject matter of the amended complaint, being particulars 1) to 8) contained therein.
The Tribunal has directed that the names of each of the patients referred to above be suppressed.
Factual background
A statement of agreed facts was tendered into evidence. It is in the following terms (however, the names of each of the patients had been omitted).
Professional Background.
1. Dr Malay Kanti Halder, (the practitioner) was born on 30 November 1962. He is married with two children.
2. The practitioner obtained Bachelor of Medicine and Bachelor of Surgery from Calcutta University in 1988.
3. He was admitted as a member of the Royal College of Gynaecology (MRCOG) in 1997 and the FRCSED in 2000.
4. In 2006 he completed the one year practical and theoretical program of the Special Skill Training Module in Fetal Medicine conducted by the MRCOG and the British Maternal and Fetal Medicine Society.
5. His name was entered on the General Medical Council Specialist Register on 17 May 2006.
6. He was admitted as a Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists in May 2007. On 21 May 2007 he was registered in New South Wales as a Conditional Specialist, to work in obstetrics and gynaecology.
7. Between 7 August 2007 and 13 January 2008 he worked as a specialist at Wagga Wagga Base Hospital (WWBH).
8. From 14 January 2008 until January 2009 the practitioner worked for the Northern Sydney Central Coast Area Health Service ( NSCCAHS) as a Staff Specialist in Obstetrics and Gynaecology at Gosford Hospital (GH).
9. On 29 February 2008 Ken Cahill, General Manager NSCCAHS, withdrew the practitioner's clinical privileges.
10. On 17 March 2008 NSCCAHS made a formal complaint about the practitioner to the Health Care Complaints Commission (HCCC).
11. On 11 April 2008 Dr Michael Nicoll completed an internal investigation for NSCCAHS in relation to the practitioner's performance. Dr Nicoll made several recommendations to NSCCAHS.
12. On 16 April 2008 the practitioner was advised by NSCCAHS of the conditions to be imposed upon him upon his return to work. This included supervision by Dr Peter Caska, Senior Specialist Obstetrician and Gynaecologist.
13. On 19 June 2008 Dr Morey completed a report for Greater Sydney Area Health Service (GSAHS) in relation to the practitioner's performance. Dr Morey advised that no further follow-up was required, as the practitioner had resigned from WWBH in December 2007.
14. In June 2008 the practitioner completed the Cognitive Institute's Communication Skills Masters Class in Brisbane.
15 In December 2008 the practitioner returned to live in the United Kingdom and in February 2009 the practitioner returned to the practice of medicine in the UK. From February 2009 to 30 September 2009 he was employed at Royal London and St Bartholomew's Hospital NHS Trust, London as a Locum Consultant in Obstetrics and Gynaecology.
16. On 21 September 2009 he commenced a six month contract at James Paget University Hospital NHS Foundation Trust, Great Yarmouth as a Locum Consultant in Obstetrics and Gynaecology.
17. From February 2010 to 31 August 2010 he was employed at Barking, Havering and Redbridge University Hospitals NHS Trust as a Locum Consultant in Obstetrics and Gynaecology.
18. From 18 October 2010 to January 2011 he was employed as a Trust Specialist Registrar. This was a combined Obstetrics and Gynaecology position.
19. The practitioner is currently employed as a Locum Consultant in Obstetrics and Gynaecology at Thameside General Hospital NHS Foundation Trust until 6 February 2012.
Section 66 Inquiry.
20. On 24 July 2008 the NSW Medical Board (NSWMB) held a section 66 Inquiry. The Board imposed the following conditions on the practitioner's registration to protect the health and safety of the public.
Practice Conditions.
1. Dr Halder is to advise the NSW Medical Board prior to any change in the nature or place of his practice.
2. Dr Halder is to maintain a logbook of all procedures and cases undertaken by him and must provide a copy to the NSW Medical Board on a monthly basis.
3. Dr Halder's clinical supervisor as at the date of this Decision is to be approved by the NSW Medical Board to act as supervisor in accordance with the NSW Medical Board's Supervision Policy (PCH 7.2). He is to provide the NSW Medical Board with contact details of his current clinical supervisor within 14 days of the date of receipt of this Decision. The parameters of the supervision are to be as follows:
(a) Except for the circumstance specified in Condition 4 below, the supervision is to be in accordance with Level 3 as contained in the NSW Medical Board's Policy PCH 7.2. The supervisor is to be provided with a copy of the NSW Medical Board's Policy PCH 7.2 and a copy of this Decision.
(b) Dr Halder is to meet with the supervisor for at least one hour on a fortnightly basis, the first meeting to occur within one fortnight of being advised by the NSW Medical Board that the supervisor has been approved.
(c) Each meeting is to address case reviews, planned procedures, clinical outcomes, medical records, patient follow-up and patient management issues.
(d) At each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the NSW Medical Board.
(e) The supervisor forwards to the NSW Medical Board, initially on a monthly basis, the Meeting Records and a Supervision Report in a format prescribed or approved by the NSW Medical Board.
(f) The supervisor is authorised to inform the NSW Medical Board immediately if there is any concern in relation to Dr Halder's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance, or if the supervisor relationship ceases.
(g) In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the NSW Medical Board within 21 days of the cessation of the original supervisory relationship.
(h) Dr Halder is responsible for all costs associated with the supervision arrangement.
4. (a) Dr Halder may perform the following procedures only under the direct observation of his Board-approved supervisor:
(i) Laparoscopic Hysterectomy;
(ii) Endometrial Ablation;
(iii) Transvaginal Tape and Monarch Sling procedures.
(b) Dr Halder is to authorise the supervisor to notify the NSW Medical Board when he is of the view that Dr Halder is proficient in the above procedures.
5. The NSW Medical Board may notify his current and future employer/s of any issues arising in relation to compliance with these Conditions.
6. Dr Halder consents to the exchange of any information between the NSW Medical Board and Medicare Australia where such exchange is necessary to facilitate the monitoring of compliance with these Conditions.
7. Dr Halder authorises the NSW Medical Board to notify any prospective employer of these Practice Conditions.
21. The Board resolved to refer the matter to the HCCC for investigation.
22. On 14 November 2008 Paul Curtis, Director of Clinical Governance GSAHS, advised the HCCC that GSAHS did not have any residual concerns relating to the practitioner's competence or conduct.
23. Following an application by the practitioner, on 9 December 2008 the Conduct Committee of the Board lifted all the conditions outlined in paragraph 20 above.
24. On 12 December 2008 Dr Philip Hoyle, Director of Clinical Governance NSCCAHS, advised the HCCC that NSCCAHS only advised the NSWMB as a mere formality and did not seek intervention by the NSWMB. He advised that the practitioner is a valued member of GH.
25. On 8 January 2009 Dr Peter Caska advised the HCCC that the practitioner presented no danger to any patient. He provided an additional letter on 28 January 2009 in support of the practitioner .
26. In December 2008 the practitioner relocated to the United Kingdom.
Amended Complaint.
27. On 23 October 2007 the practitioner performed a tension vaginal tape, ("TVT"), procedure on Patient A (name suppressed) at WWBH. He failed to keep proper records of his consultation with her, prior to surgery, on 23 October 2007, contrary to Clause 5 of the Medical Practice Regulation 2003. (Complaint One Particular 1.3).
This amounts to unsatisfactory professional conduct.
28. On 16 November 2007 the practitioner gave Professor Gregory Papworth, the Director of Medical Services, and Dr Sue Morey, a consultant, at WWBH an undertaking not to perform any further TVT procedures. (Complaint One Particular 2).
29. On 11 December 2007 the practitioner performed a TVT procedure on Patient B (name suppressed) at WWBH in breach of the undertaking he had given. (Complaint One Particular 3.2). He failed to keep proper records of his consultation with her, prior to surgery, on 11 December 2007 contrary to Clause 5 of the Medical Practice Regulation 2003. (Complaint One Particular 3.4).
This amounts to unsatisfactory professional conduct.
30. On 13 February 2008 at GH the practitioner performed a vaginal hysterectomy, pelvic floor repair and labioplasty procedures on Patient C (name suppressed). He performed the labioplasty without informing her fully of both the nature of the operation and its consequences. (Complaint One Particular 4.1). He failed to keep proper records of his consultation with Patient C, prior to surgery, on 13 February 2008 contrary to Clause 5 of the Medical Practice Regulation 2003. (Complaint One Particular 4.2).
This amounts to unsatisfactory professional conduct.
31. On 26 February 2008 the practitioner performed a hysterectomy on Patient D (name suppressed) at GH and failed to keep proper records of his consultation with her prior to surgery, on 26 February 2008 contrary to Clause 5 of the Medical Practice Regulation 2003. (Complaint One Particular 5.2).
This amounts to unsatisfactory professional conduct.
32. On 18 December 2007 the practitioner performed a vaginal hysterectomy and anterior and posterior vaginal wall repair on Patient E (name suppressed) at WWBH and he failed to keep proper records of his consultation with her prior to surgery, on 18 December 2007 contrary to Clause 5 of the Medical Practice Regulation 2003. (Complaint One Particular 7.1).
This amounts to unsatisfactory professional conduct.
33. On 15 January 2008 the practitioner performed a vaginal hysterectomy on Patient F (name suppressed) at GH and he failed to keep proper records of his consultation with her in the anaesthetic room prior to surgery, on 15 January 2008 contrary to Clause 5 of the Medical Practice Regulation 2003. (Complaint One Particular 8.2).
This amounts to unsatisfactory professional conduct.
There is certain additional factual material that was admitted into evidence in the proceedings and to which it is necessary to refer so that all of the relevant circumstances may be considered when determining the extent of culpability of the respondent.
The respondent commenced work at Wagga Wagga Base Hospital on 7 August 2007. There is in evidence a transcript of an interview conducted with him by a medical board to which the complaint about him was referred under s 66 of the Medical Practice Act . (See [20] of the statement of agreed facts.) The Medical Board comprised Drs D Grimes and I Symington and Professor B Bennett. In an interview on 24 July 2008, the respondent explained the circumstances in which he commenced work at Wagga Wagga Base Hospital. He was appointed as a staff specialist at that hospital, having applied when he was practicing in the United Kingdom. On his arrival, he found that he was the only staff specialist specialising in his area with support from one named doctor who was away on holidays at the time that he arrived. He said that he was not clear in his role and received no direction as to the work that he was to perform and the circumstances in which that work was to be carried out. There were a number of specialist obstetricians and gynaecologists in Wagga Wagga who performed private work only and did not treat any patients at the public hospital. He had the assistance of three unaccredited registrars and an on-duty resident. He was assisted from time to time by locum staff specialists who might come from within New South Wales or interstate. They would assist on on-call rosters. The respondent worked long hours and was subject to being on-call at other times.
The respondent said that the circumstances in which he was required to operate on patients were unsatisfactory in that the patients would be seen by another doctor, a locum, who would obtain a consent to the operation but who would then leave the hospital because he or she was a locum. The only time that he would be able to see patients himself before the operation was shortly before the operation was scheduled.
The respondent said that in December of that year a Dr Hodgson came to the hospital for a week as a locum staff specialist.
Whilst the respondent was working at Wagga Wagga Base Hospital, his young daughter became seriously ill requiring surgical treatment. This occurred on 21 September 2007. She also required continuing treatment after the surgery. For that reason, the respondent decided that he would leave Wagga Wagga to secure a job closer to Sydney, where his daughter was being treated.
In November 2007, concerns were raised by a theatre manager at Wagga Wagga Base Hospital about a particular patient. These were notified to Professor Greg Papworth, who was the Director of Medical Services at the hospital. At the time, Dr Sue Morey, a consultant for the Greater Southern Area Health Service, under whose jurisdiction Wagga Wagga Base Hospital falls, was present at the hospital as a consultant for the purpose of examining and making recommendations designed to strengthen clinical governance systems. Professor Papworth and Dr Morey met with the respondent in the first week of November 2007 and had a discussion about a particular operation which the respondent had performed. During the performance of this operation, involving a TVT procedure, the respondent had perforated the bladder of the patient. We should state that this is not considered an unusual complication of this procedure. During the course of the discussion about it, neither Professor Papworth nor Dr Morey asked the respondent how he had performed the procedure, nor did the respondent offer any explanation of how he performed it. Professor Papworth said:
During this meeting it was apparent Dr Halder was stressed due to his daughter's illness. It was agreed that Dr Halder would not perform any more TVT procedures. Dr Halder also requested that he be withdrawn from administrative responsibilities, which was agreed. It was an informal agreement that he would not perform any more TVT procedures.
Dr Morey's statement concerning this meeting is to the same effect.
It was regarded by all of them that this outcome would take the form of an informal agreement. An incident report to this effect was prepared. On 6 November 2007, Dr Morey met with Dr McGirr, Director of Clinical Operations at Greater Southern Area Health Service, and informed him that the respondent would no longer be performing the TVT procedure.
In a statement, which became evidence in the proceedings, the respondent explained that on 11 December 2007, he performed a TVT procedure on a patient in breach of the undertaking that he had given to Professor Papworth and Dr Morey. He said he was telephoned by the theatre Nursing Unit Manager on that day with a request that he perform a TVT procedure. The patient had attended the hospital on a number of occasions in the few weeks previously and Dr David Hodgson, the surgeon on duty, had refused to perform the procedure. When the respondent first received the telephone call, the patient had already been admitted to hospital and was waiting in the Anaesthetic Room. He was told that if her operation were cancelled again, she would make a complaint. He said:
Her main case note was missing. I was unable to speak to Dr Hodgson as I did not have his contact details. I was given instructions by the theatre NUM's as to what cases should be operated or not. For these reasons, I reluctantly performed the TVT procedure on [Patient B].
The respondent admitted that in performing the procedure in breach of the undertaking that he had given, he had engaged in unsatisfactory professional conduct in all the circumstances. He said:
I was confused and pressured at the time of the procedure and did not discuss the case with Professor Papworth. I deeply regret performing the procedure.
Following the conducting of this procedure, the respondent again met with Professor Papworth and Dr Morey, on 12 December 2007. He apologised to them for his breach of the undertaking and explained that he had been put under pressure to do so.
The respondent acknowledged that he should have declined to have performed the procedure, albeit that it may have incurred the displeasure of the patient.
We observe that these circumstances point to a breach of cl 3.2 of the particulars, referrable to Patient B. They are indicative of a failure to demonstrate a judgment that should have been exercised in the conduct of the respondent's practice and are indicative that he engaged in improper and unethical conduct in connection with this matter.
However, these observations need to be understood in the context of the circumstances that prevailed at the time. Firstly, Dr Morey had clearly indicated to a responsible officer within the Area Health Service that the respondent was not to be given any procedures involving the use of a TVT. Despite this, he was presented a short time later with such a case. Furthermore, he was presented with a patient who had previously sought the procedure and had been declined, who was obviously anxious to have it done and who threatened a formal complaint if it were not carried out. This was a patient who had been prepared for the operative procedure and was awaiting the administration of an anaesthetic. It must be borne in mind that any patient who attends a hospital for a surgical procedure will have certain expectations that it will be carried out and it is reasonable to suppose that the scheduling of an operation will have had an impact upon the patient's family and upon arrangements that need to be made to accommodate the circumstances of such an operative procedure. Clearly, the respondent should have made contact with Professor Papworth before undertaking the procedure and his failure to do so constituted an error of judgment which, however, has to be evaluated in the context of the other factual matters to which we have referred.
The respondent also agreed that, whilst at Wagga Wagga Base Hospital, he failed to keep proper records of his consultation with Patient B prior to performing the TVT procedure on 11 December 2007. Clause 5 of the Medical Practice Regulation 2003 provides that a registered medical practitioner engaged in the provision of medical services must "make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner ...".
Again, this needs to be seen in the context of a consultation with a patient who is presented to the respondent in circumstances when, seen for the first time, she has been prepared for the operative procedure and is awaiting the administration of an anaesthetic. Nevertheless, the acknowledgment by the respondent of this failure constitutes an admission of a breach as contained in particular 3.4, concerning Patient B.
The respondent made the same admission with respect to Patient A as is contained within particular 1.3. In connection with this particular, the respondent said in a statement:
My discussion with [Patient A] about long terms morbidities was documented during my brief pre-operative consultation with her. The risk of bladder perforation was not documented although it was discussed with the patient. I admit that this amounts to unsatisfactory professional conduct.
We assume, for the purpose of these proceedings, that this patient was first seen by the respondent, by reasons of the procedures adopted by Wagga Wagga Base Hospital, shortly before the actual surgical procedure was performed.
The difficulties encountered by the respondent are illustrated by the circumstances that apply in the case of Patient E. The complaint is that the respondent failed to keep proper records. The complainant had sought an expert opinion about the clinical and other work of the respondent from Dr Ian Barrowclough, who reviewed a number of records of the respondent's patients. The reports of Dr Barrowclough concerning Patient E indicate that she was seen at a gynaecology clinic, presumably conducted within the Wagga Wagga Base Hospital in August 2007. She signed a consent form for correction of a Rectocoele and repair of an Enterocoele. Dr Barrowclough noted that the medical officer's signature on this consent form was illegible. Obviously, the respondent was not present at that clinical consultation. Dr Barrowclough noted "There are no notes of this consultation so I do not know what the gynaecological situation was at that time." We comment that, prima facie, there has been a serious failure within the Wagga Wagga Base Hospital to document what occurred at this initial consultation on 6 August 2007.
Dr Barrowclough went on to note that the patient was seen on 7 December 2007 at a pre-admission clinic. There are some brief notes of that consultation referred to by Dr Barrowclough, but none that is indicative of any internal examination.
Dr Barrowclough detailed the events that followed in the following terms:
[Patient E] was admitted to Wagga Wagga Base Hospital on December 18 and went to theatre the same day. I understand that she met Dr Halder when she was admitted. There is a consent form dated 18 December 2007 signed by [Patient E] and Dr Halder. This form notes the proposed procedure-treatment as
"vaginal hysterectomy + anterior & posterior vaginal wall repair - may need laparotomy."
Dr Barrowclough commented that there was nothing in the notes that indicated how long the respondent had discussed this proposed surgery with Patient E or where she was when he did discuss this.
The patient recovered uneventfully.
Dr Barrowclough was of the opinion that the respondent should have documented his discussions with Patient E and that this represented a departure from the standard that was significantly below the proper standards of medical practice. He said that he was "critical but not strongly critical" of the respondent. Dr Barrowclough made this comment:
An administrative problem exists in that patients are seen at an outpatients' clinic some considerable time prior to their admission. As noted here, the surgeon who is to perform the operation has never seen the patient prior to her admission and that is only on the day of the surgery. It would probably be better for the surgeon who sees the patient at the gynae. clinic to be the one who performs the surgery. In other words, for each surgeon to have his own waiting list.
The respondent conceded that he had failed to keep proper records of his consultation with Patient E prior to surgery, contrary to the relevant regulation.
We should add for completeness that by letter dated 19 November 2008, addressed to the complainant, Dr Paul Curtis, Director of Clinical Governance of the Greater Southern Area Health Service stated that, based on evidence currently available, that Service
does not have any residual concerns regarding Dr Halder's competence or conduct. Furthermore, the Health Service is not aware of any new complaints regarding his care.
The remaining matters arise out of the work performed by the respondent as a specialist at Gosford Hospital where he commenced on 14 January 2008 and remained until he retired in January 2009.
The particulars of the complaint referrable to the respondent's tenure at Gosford Hospital fall into two categories. In connection with Patients C (operation 13 February 2008), D (operation 26 February 2008) and F (operation 15 January 2008), the respondent conceded that he failed to keep proper records of his consultation prior to surgery. In the case of Patient F, the consultation was said to have occurred in the Anaesthetic Room prior to surgery that day.
In the case of Patient C, there was a further particular that asserted that the respondent performed a surgical procedure without informing the patient "fully of both the nature of the operation and its consequences." During the course of the hearing, that particular was modified so that it was confined to an assertion that the respondent did not fully inform the patient of the extent of the pain that she might suffer after the operation and particularly during intercourse. The respondent conceded this failure. [30] of the statement of agreed facts now needs to be read in the light of the modified particular. We note that the complainant proceeded on the basis of an expert opinion obtained from a gynaecologist concerning the formulation of the charge originally brought against the respondent with respect to Patient C. Drs Boshell and Ford wish to point out that if the expert retained by the HCCC had conducted a proper investigation of the operative procedure undertaken by the respondent, any reasonable person would have realised that this was an issue of terminology. It would have been obvious that a separate labioplasty procedure was not being performed. If this had been appreciated by those responsible within Gosford Hospital, any concerns would likely have been dealt with utilising the peer review system which, on the evidence, functioned at that hospital.
There was evidence from the respondent and from two other medical practitioners concerning the circumstances in which he worked at Gosford Hospital.
The respondent said that he was trained in the United Kingdom and was used to working under a "strict 'Job Plan'". When he was interviewed for appointment at Gosford Hospital in December 2007, he asked for a Job Plan and was assured that it would be made available to him. As we understand the evidence, a Job Plan would specify the nature of the work to be carried out by the respondent and, in general terms, when he would be required to perform that work. However, no Job Plan was ever produced and the then Clinical Director of Obstetrics and Gynaecology, Dr John Palmer, commenced leave prior to retirement shortly after the respondent commenced work. The respondent said that he was "required to work in several areas of the hospital including clinics, theatre, the labour ward and ward rounds at the same time." He was told that he would be required to perform all of this work on his own but that support was available from two doctors who were situated at Wyong Hospital, where their primary responsibility resided. He was also told that he should not expect assistance from visiting medical officers in the labour ward or on ward rounds. He was told by Dr Palmer that what he was required to do "was not conducive to optimal patient care."
The respondent was asked to tend to the waiting lists of patients booked for surgery under Dr Palmer's care. He requested that arrangements be made for him to meet each of the patients in an outpatients setting for a pre-operative consultation, but this was never attended to. He was directed by Dr Palmer before he went on leave to operate on each of the patients because they had been booked for surgery. He was also told by other staff, including two nurses whom he named, "that preoperative consultations would cause expensive delays and unacceptable lengthening of waiting lists."
The respondent said that on the days in which he conducted surgery, namely Tuesdays, he was required to perform the following duties concurrently:
- 8am to 1pm: theatre session;
- 1.30pm to 4pm: gynaecology clinic, often without the assistance of a registrar;
- 8am to 4pm: Birthing suite supervision at which he had to attend from time to time;
- 8am to 4pm: Obstetric and gynaecology inpatient ward rounds;
- Ad hoc emergency assessment and caesarean sections.
The respondent said that the surgeries that he undertook within the first few weeks of his employment at Gosford Hospital occurred against this general background and in circumstances where he would generally meet the patient for the first time just prior to the surgery.
The respondent complained about his circumstances at a Hospital Divisional meeting on 4 February 2008. He was instructed by the then Clinical Director, Obstetrics and Gynaecology, to continue working until a further consultant could be appointed. It was said that the New South Wales Department of Health had rejected a proposal for additional consultant posts at Gosford Hospital because of lack of funding and that any new consultant would need to be funded from the local Area Health Service to be achieved from specific costs savings or additional revenue.
It appears that there had been discussions concerning the closure of Wyong Hospital and transferring the two consultants at that Hospital to Gosford Hospital, but this did not occur.
Some evidence concerning the respondent's experience at Gosford Hospital was given by Dr Phillip Hoyle, the Director of Clinical Governance, Northern Sydney Central Coast Area Health Service when appearing before the inquiry before Drs Grimes and Symington and Professor Bennett, previously referred to. When speaking of the recruitment from the United Kingdom of staff specialists for regional institutions in New South Wales and the different systems which prevail in the United Kingdom and Australia, Dr Hoyle said:
Having myself translocated in the other direction in a senior role, and found - you know, the old joke about America and Britain being two countries divided by a common language was so true. There are immense subtleties that really take some time to get used to, so absolutely, we have much more robust and careful orientation and support for people than we did, and I think we certainly did let Dr Halder down in that as a system, and I think when he came to Central Coast, we should have given him more support than we did. We will certainly be doing that for future people.
Dr Hoyle spoke of new procedures which had been strongly influenced by what had been experienced by the respondent.
In making a determination under s 66 of the Medical Practice Act , Drs Grimes and Symington and Professor Bennett said, in part:
The Delegates were of the view that Dr Halder has been placed in a very difficult position due to the staff shortages at Gosford Hospital at the time he commenced work there. Those shortages have now been addressed by the Area Health Service with a return to full staffing in obstetrics and gynaecology. The Delegates noted that the Area Health Service has now taken steps to implement an orientation program for new staff. It was suggested to Dr Hoyle that the Area Health Service invite Dr Halder to participate in that orientation program.
The difficulties in which Dr Halder found himself also arose because Dr Halder was given theatre lists which included patients he had not previously seen and who had been consented for their procedures by other doctors. This situation, and the unavailability of consent forms in the surgical bay area, led to the concerns about "altered consent" when Dr Halder reconsented patients and different decisions were notated on the original consent form which was then resigned by the patient. The Delegates were satisfied that Dr Halder had discussed the proposed procedures with each of his patients and that the procedures were performed with consent, except of the labioplasty procedures performed on Patient 3.
There is also in evidence letters from two Nursing Unit Managers with whom the respondent worked at Gosford Hospital. Both of these letters confirm that he had requested that arrangements be made for him to review patients prior to their surgery dates. The Hospital was unable to accommodate this request for all patients due to the large number of patients on the surgical waiting list and due to the inability to contact some patients or their unavailability for attendance.
Some corroboration of the respondent's experience was provided by Dr Toni Uptin, an obstetrician and gynaecologist who furnished a letter to the Medical Director of Gosford Hospital on 9 July 2007 in anticipation of the retirement of Dr Palmer. Dr Uptin had worked as a locum staff specialist from May to July 2007. Dr Uptin commented that it "would not be attractive for one person" to replace Dr Palmer and thought that there was a need for two fulltime staff specialists at least to be present daily at the Hospital. She noted that "most of the clinical care is provided by training registrars" who were in their second year of training, competent to perform straightforward procedures but with limited overall clinical experience. There is further detail contained in the letter which it is not necessary to set out. However, Dr Uptin reiterated the need for the appointment of more than one staff specialist and said that she feared a disaster if the number of senior medical staff employed during the working week was not increased. She described her work on many days as consisting of "chaos control. I was repeatedly required to be available in three places at once."
The respondent said that if he had been made aware of this letter and the conditions that were portrayed in it, he would not have accepted the appointment at Gosford Hospital.
In early March 2008, as a result of some concerns about the respondent's performance, the Northern Sydney Central Coast Area Health Service initiated a review of his work. A decision was taken to stand the respondent down from Gosford Hospital. This prompted a letter to the Clinical Director of the Hospital from Dr Peter Caska, the Senior Consultant Obstetrician-Gynaecologist VMO on the central coast. He expressed concern that in the absence of the work performed by the respondent obstetric and gynaecological services in the area would further deteriorate.
Dr Caska said that the respondent's circumstances could be dealt with by counselling, discussion "and, if needed, appropriate supervision." He described the respondent as being "put in a position, which is now acknowledged as requiring three fulltime staff specialists." He was therefore offered "the poisoned chalice ... ."
There is reference in [20] and following of the statement of agreed facts to the respondent's further involvement at Gosford Hospital. There is nothing that arises out of any of the factual matters referred to there that calls for any particular attention from this Tribunal given the nature of the complaints with which we are dealing. However, we note that one of the practice conditions required the appointment of a clinical supervisor and Dr Caska was appointed to this role.
In a report dated 28 January 2009, Dr Caska commented upon a number of the matters that were the subject of an investigation by the complainant. Having commented on each of these matters, Dr Caska then addressed some general comments concerning the respondent's experience at Gosford Hospital. He noted that he had been appointed to replace Dr Palmer, who had been at the Hospital for approximately 10 years and was also the Head of the Department. He noted that Dr Palmer had requested extra consultant appointments but these had not been provided because of budgetary constraints. Dr Caska commented:
Under these circumstances, any consultant would have difficulty in fulfilling their duties. Indeed, since Dr Halder's appointment this was acknowledged and an independent review concluded that there was a requirement for three consultants. ... Unfortunately, the patients under discussion arose during Dr Halder's first few weeks and were not referred to the usual peer group for review.
Dr Caska concluded, in part:
As far as I am aware, there has never been an issue in regard to his competence as an obstetrician and gynaecologist. Much of what happened was to do with his lack of familiarity with the system, compounded by the intense work pressure arising from a single consultant doing a job that later was acknowledged as requiring three consultants. All of the patients were clustered in the few weeks at the commencement of a one year post. These issues have been addressed by Dr Halder and he continued to work with our team of consultants, including me. He worked independently and took on the same level of responsibility as his peers and an equal share of the after hours roster. As the senior consultant obstetrician and gynaecologist at Gosford District Hospital, I had the most contact with Dr Halder and was in a position to best assess the quality of his work and overall competence. I have no hesitation in recommending him for GMC registration.
The nature and extent of the misconduct
We repeat that the respondent has admitted the conduct contained within the amended complaint, as modified during the course of the hearing. The complainant submitted that the conduct complained of falls into three categories, namely:
1) A breach of the undertaking given to Professor Papworth and Dr Morey.
2) A failure to fully inform a patient of the extent of the pain that she might be likely to suffer after the operation and that she would suffer pain during sexual intercourse (presumably for some limited period).
3) Six instances of failing to keep proper records.
We agree with the submissions of the complainant that the breach of the undertaking was a serious matter. The respondent should have endeavoured to make contact with Professor Papworth prior to carrying out the surgical procedure. However, in so stating, we also take into account a number of background matters. Processes should have been implemented which would have avoided the respondent being presented with such a procedure in circumstances where the patient was obviously anxious to have it, and threatened a complaint if this did not occur. Secondly, we have formed the view that the circumstances under which the respondent was required to perform his work were such that he was presented with serious professional challenges and was not provided with sufficient orientation when he joined the Wagga Wagga Base Hospital. These constitute mitigating factors that, in our opinion, should be taken into account when assessing the nature and extent of any penalty.
The failure to fully inform Patient C concerning the sequelae of the operation is, as submitted by the respondent's counsel, a matter of detail and we so regard it. There is no question of the procedure having been undertaken inappropriately. Furthermore, there is no evidence that, if the patient had been so informed, she would not have had the procedure.
The instances of failing to keep proper records are a reflection of the poor working conditions afforded to the respondent at both Wagga Wagga Base Hospital and Gosford Hospital. As is made clear from the evidence to which we have referred, the respondent was not properly orientated when he joined either hospital, he was not given any proper and timely access to the patients or their records prior to being required to undertake a variety of surgical procedures and, at Gosford Hospital, he was subjected to extreme working conditions at a facility that was obviously understaffed and generally under resourced.
It is true that the failure to keep appropriate records is a clear breach of the explicit requirements contained within Schedule 2 to the Medical Practice Regulation 2003, as asserted by counsel for the complainant. When asked how a staff specialist should deal with circumstances of this kind if he or she were presented with them, the complainant submitted that in the case of non-urgent elective surgery the operation should be postponed until proper medical records were available. This is no doubt correct, but if a medical practitioner is to discharge his or her obligations under the legislation, then it is necessary that the system within which he or she practises medicine is appropriately supportive of the ability to do so. We make these observations not so much as to excuse the conduct of the respondent in these proceedings but to draw attention to the necessity for those responsible for the management and administration of the hospital systems in New South Wales to ensure that their practices are consistent with and supportive of the obligations of medical practitioners.
Relevant principles
The determination of these proceedings by this Tribunal is governed by a number of principles that have now been clearly established in a series of decisions of the New South Wales Court of Appeal, the Supreme Court of New South Wales and of the Tribunal itself. No controversy arises in these proceedings as to the principles themselves or their application and it is only necessary to state them for the purpose of demonstrating that we have followed them in reaching our decision. They were succinctly summarised by counsel for the complainant in his submissions and we gratefully reproduce them hereunder:
1.1 One of the principal functions of the Tribunal is to promote and maintain the highest standards of professional conduct and ethics in the medical profession. The ultimate role of the Tribunal is to protect the public. This requirement to protect the public may in some cases (but not in these proceedings) require that a medical practitioner be removed from the register. The Tribunal's decision should assure the public that;
(i) it will be protected from the risk of the practitioner in question repeating the misconduct,
(ii) the decision will have a deterrent effect on others that might be tempted to fall short of the high standards required of them,
(iii) the decision will have the effect of encouraging the maintenance of high standards in the medical profession, and
(iv) the decision will have the effect of maintaining the public confidence in the profession.
(v) the decision will not unnecessarily deprive the public of the services of the practitioner. This is not a consideration in these proceedings.
The complainant also directed attention to the special place occupied by medical practitioners in the practice of medicine, the trust which reposes in them by the community, and the community expectation that they will maintain very high standards, not only of professional competence but also in adhering to the practices, procedures and protocols applying to medical practitioners, particularly within hospital systems.
In addition to a consideration of the objective seriousness of the misconduct of the respondent, to which he has assented, there are a number of other matters that the Tribunal may take into account in determining the appropriate penalty to be imposed in the circumstances of these proceedings. The complainant readily conceded these matters in favour of the respondent. These include:
- There is no suggestion that the respondent is otherwise than of good character.
- There is no suggestion that the respondent was otherwise than a conscientious surgeon performing work within the New South Wales system, apart from the admitted conduct matters that are the subject of these proceedings.
- The complainant is not aware of any conduct by the respondent that is relevant to these proceedings since his return to the United Kingdom.
- The respondent readily admitted his misconduct and demonstrated insight into what needed to be done to prevent such misconduct reoccurring.
- There is no evidence that would suggest there is any appreciable risk of repetition of similar conduct.
- The respondent has expressed genuine contrition for his misconduct.
- No patient the subject of these proceedings has suffered actual harm, save for Patient C, which is limited to the lack of appreciation of pain and discomfort that she would have felt following the surgical procedure in any event.
Finally we refer to the legislative context in which these proceedings are conducted. Although it has now been repealed, the proceedings have been heard under the Medical Practice Act 1992. The allegation made against the respondent by the complainant is that he is guilty of unsatisfactory professional conduct, as that phrase is understood by reference to s 36 of that Act. It is only necessary that we set out the provisions of s 36(1)(a) and (b):
36 Meaning of "unsatisfactory professional conduct"
(1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:
(a) Conduct significantly below reasonable standard
Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
(b) Contravention of Act or regulations
Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
...
We are satisfied, for the reasons that we have set out above when considering the particular allegations made by the complainant against the respondent and the admissions of that misconduct by the respondent, that the complainant has demonstrated that the judgment of the respondent in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The judgment that we refer to is that exercised by the respondent when he proceeded to carry out the surgical procedure on Patient B in breach of the undertaking that he had given to Professor Papworth and Dr Morey. As we have earlier pointed out, the standard that is reasonably expected of a practitioner in those circumstances would have required the respondent to make contact with Professor Papworth before carrying out the procedure, even though the patient had been prepared for the procedure and threatened to complain if it were not carried out.
We also conclude that the admitted failure by the respondent to keep proper records is a breach of Regulation 5 of the Medical Practice Regulations 2003, which constitutes unsatisfactory professional conduct pursuant to s 36(1)(b) of that Act.
We should state for completeness that we do not find that the circumstances involving Patient C warrant characterisation as unsatisfactory professional conduct.
The powers of the Tribunal, upon a finding of unsatisfactory professional conduct under s 36 of the Act, are contained within s 61. Section 61 (1)(a) allows the Tribunal to caution or reprimand the medical practitioner. There are other powers, but it is not necessary to deal with them. The complainant submitted that the respondent should be reprimanded or, in the alternative, cautioned. The respondent submitted that the Tribunal should not impose any penalty of any kind or, in the alternative, should caution the respondent.
We do not regard the misconduct of the respondent, in all the circumstances as we have described them, as warranting a reprimand. Nor, however, are we prepared to deal with the proceedings on the basis that no penalty of any kind be imposed. This is because we are of the opinion that the breach of the undertaking given by the respondent to Professor Papworth and Dr Morey is a significant matter and one that cannot be condoned. If it were not for that matter, we may have been more sympathetic to the primary submission of the respondent.
The assessment of an appropriate penalty involves the exercise of a value judgment to be undertaken by reference to the legislative framework and the relevant principles, to which we have referred, in the context of all of the factual circumstances surrounding these proceedings. The admitted misconduct of the respondent has to be seen in the light of the serious deficiencies both at Wagga Wagga Base Hospital and at Gosford Hospital, which we have identified. Having regard also to the other subjective matters to which we have referred, we are of the opinion that an appropriate penalty is the issue of a caution to the respondent, and we determine accordingly.
Costs of the proceedings
This Tribunal has the power to order the payment of costs in any proceedings conducted before it. It is uncontroversial that in determining whether to order costs, the Tribunal follows in general terms the principles established by the Courts for the awarding of costs. The usual rule is that the successful party has a reasonable expectation of being awarded costs against the unsuccessful party. In appropriate circumstances, the Tribunal may vary this rule.
The respondent in these proceedings seeks an order that his costs be paid by the complainant because of what it is claimed are unusual circumstances. The respondent says that when the complaint in its original form was made against him, it was in much wider terms than the amended complaint with which the Tribunal has dealt. There were allegations in the original complaint of professional misconduct and the particulars of the allegations were substantially amended, in that they were abandoned by the complainant. This resulted from a series of discussions between representatives of the parties extending over a period of almost one year.
The respondent, in essence, sought that two-thirds of his costs for that period be paid by the complainant to him because of the withdrawal of a number of allegations and particulars and because what was left should have been brought before a Professional Standards Committee rather than this Tribunal.
The situation, therefore, is that the complainant has ultimately succeeded with respect to certain particulars of conduct brought against the respondent, he having agreed that they occurred, and the complainant has not pursued other matters.
The complainant has submitted that it should have a costs order in its favour against the respondent, at least for the work undertaken in respect of the particulars of the amended complaint which were conceded by the respondent. In the alternative, the complainant submitted that each party should bear his and its own costs of the proceedings.
The apportionment of costs is a matter that has always created difficulties. It is necessary to endeavour to identify discrete issues that are the subject of success or failure and to be able to comfortably apportion the proportion of costs that may apply to these issues. Many of the cases enable a court to comfortably apportion costs because the question of partial success and partial failure arises solely within the context of the litigation. Some issues may take longer to litigate than others. A trial judge who has ruled on a number of issues will be more comfortable in apportioning costs because all of the issues will have been dealt with in the course of the proceedings. Such is not the case in the context of these proceedings. The apportionment that we are asked to make arises solely from the evolutionary and progressive nature of discussions and negotiations between representatives of the parties over a long period of time. The respondent, in asserting that he should be awarded two-thirds of his costs for the period of almost one year during which the discussions and negotiations took place, estimated those costs at $65,000. We have no way of verifying whether this is an appropriate amount to be awarded, and presumably they would represent the costs actually incurred by the respondent to his legal representatives which arguably would be at a level higher than that which might normally be awarded as party-party costs. We are conscious also that the ascertainment of any particular costs that might be found to relate to those matters that were progressively removed from the complaint would be a difficult and time-consuming process.
In the course of submissions, the respondent submitted that in all the circumstances this was not an appropriate matter to have been brought before the Medical Tribunal. There were other procedures that were available to the complainant involving a Professional Standards Committee. Perhaps, having regard to the findings that we have made and the comments in particular concerning the unfortunate and inappropriate circumstances under which the respondent was asked to work, in retrospect the proceedings should more properly have been brought before that committee. Notwithstanding this, we are unable to conclude that it was inappropriate for these proceedings to be commenced before this Tribunal and that in some way they constitute an abuse of process.
In all the circumstances, we are of the opinion that the most appropriate way to reflect what has occurred in these proceedings by way of a costs order is to adopt the alternative submission of the complainant, namely that there be no order as to costs, so that each party will bear its and his own costs. We so order.
Comment
We have had cause to comment during the course of this decision about what we have described as the unfortunate and inappropriate circumstances in which the respondent was asked to perform work at both Wagga Wagga Base Hospital and Gosford Hospital. At least at the time that the respondent worked there, there were serious deficiencies in the protocols and procedures employed at both hospitals as they impacted upon the ability of the respondent to be furnished with appropriate records dealing with each patient and his ability to consult fully with and conduct an examination on each patient prior to the surgery being carried out. Furthermore, the circumstances in which work was allocated to the respondent at each hospital and against which he was required to perform a multitude of duties left much to be desired. We make these comments in the hope that the complainant will refer them to the appropriate authority or authorities with the hope that in doing so those charged with the management and administration of hospital facilities will assist in encouraging the maintenance of high standards in the medical profession, and in maintaining the public confidence in the medical profession, which is an integral part of the role played by this Tribunal.
For completeness, we note that the Tribunal has issued a suppression order prohibiting the publication of the details of each of the patients referred to in the proceedings.
Formal orders of the Tribunal
We make the following orders:
1) The respondent, Dr Malay Kanti Halder, is cautioned pursuant to s 61(1)(a) of the Medical Practice Act 1992.
2) No order as to costs.
Decision last updated: 26 August 2011
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