In re Dr Suman Sood
[2006] NSWMT 1
•20 October 2006
New South Wales
Medical Tribunal
CITATION: In Re Dr Suman SOOD [2006] NSWMT 1 TRIBUNAL: Medical Tribunal PARTIES: Health Care Complaints Commission
Dr Suman SoodFILE NUMBER(S): 774 of 2005 CORAM: Walmsley, SC DCJ - Houen, Ms J - Sutton, Dr V - Quilter, Dr J CATCHWORDS: Professional Misconduct - Character - Dishonesty - Lack of Competence - Doctor engaged in pregnancy terminations LEGISLATION CITED: Crimes Act 1900 s 83
Evidence Act 1995 s 128
Health Care Complaints Act 1993 Schedule 2 Part 4 Clause 11
Health Registration Legislation Amendment Act 2004
Medical Practice Act 1992 (NSW) Ss 36, 37, 66(1), 105, 122
Medical Practice Regulation 1998 Cls 13, and 14 Schedule 2
NSW Barristers' Rules
Pharmacy Act 1964, s 28CASES CITED: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750;
Basser v Medical Board of Victoria [1981] VR 53;
Bowen-James v Walton and Ors (NSW Court of Appeal, 5/8/91, unreported);
Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 at 362;
Briginshaw v Briginshaw (1938) 60 CLR 336;
CES v Superclinics (Aust) Pty Ltd (1995) 38 NSWLR 47;
Davis (2 December 1994);
Ex parte Evatt; Re New South Wales Bar Association (1969) 71 SR (NSW) 153;WN (Pt 2)(NSW) 50;
Furey (23 December 2002);
Gianoutsos v Glykis [2006] NSWCCA 137;
HCCC v Litchfield (1997) 41 NSWLR 630;
Law Society of NSW v Foreman (1994) 34 NSWLR 408;
McBride v Walton (NSWCA 15 July 1994, BC 9402907);
Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215;
New South Wales Bar Association v Seymour (Court of Appeal, 14 April 1982, unreported);
New South Wales Bar Association v Cummins (2002) 52 NSWLR 279;
Pillai v Messiter (No. 2) (1989) 16 NSWLR 197 ;
Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470;
Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987, unreported);
R v Suman Sood (04/11/1102);
R v Wald [1971]3 NSWDCR 25;
Richter v Walton (NSW Court of Appeal, 15/9/93, unreported);
Rogers v Whitaker (1992) 175 CLR 279;
Zaidi v HCCC (1998) 44 NSWLR 82DATES OF HEARING: 11 - 15 September 2006, 19 September 2006 DATE OF JUDGMENT: 20 October 2006 LEGAL REPRESENTATIVES: Ms Anna Katzmann SC, Dr K. Sant (Applicant)
Mr P Boulton SC, Mr M Fordham (Respondent - 11th and 20th September 2006)ORDERS: FINDINGS 1. The respondent is guilty of (a) unsatisfactory professional conduct (b) professional misconduct 2. The respondent is not of good character ORDERS 1. The respondent is deregistered 2. The practitioner is not to apply for re-registration as a medical practitioner for 10 years
JUDGMENT:
DEPUTY CHAIRPERSON:
1 The name of the former medical practitioner (the respondent), at her request, was removed from the register of names kept under the Medical PracticeAct (The Act) on 31st August 2006. The questions for the Tribunal are what findings should be made and whether the Tribunal should order she be deregistered. The effect of ordering the deregistration of someone whose name is no longer on the Register, is that he or she cannot apply for registration. Instead, he or she must, in order to be re-registered, seek a review of the deregistration order, under Division 3 of Part 6 of the Act. This Tribunal may, if persuaded that it is appropriate, order that no such application be made before a certain period of time has elapsed. The power to make such orders is in section 64 of the Act, whose terms are as follows:
"64 Tribunal can suspend or deregister in certain cases
The Tribunal may by order suspend a person from practising medicine for a specified period or direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person):
(a) that the person is not competent to practise medicine, or
(b) that the person is guilty of professional misconduct, or
(c) that the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales, and the circumstances of the offence render the person unfit in the public interest to practise medicine, or
(d) that the person is not of good character.
(3) An order may also provide that an application for review of the order under Division 3 of Part 6 may not be made until after a specified time."(2) An order that a person be deregistered is an order that the person's name be removed from the Register or (if the person has already ceased to be registered) that the person not be re-registered.
2 The foundation for this application, by the Health Care Complaints Commission (HCCC), is the Amended Complaint filed by leave on 11th September 2006, the first day of the hearing. It was an amended version of a complaint first filed on 18th January 2005. Omitting formal parts, the HCCC complains as follows:
"that Dr Suman Sood, Medical Practitioner, of PO Box 150A of South Strathfield NSW 2136 in the State of New South Wales ("the practitioner") being a medical practitioner registered under the Act:
Complaint 1
Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that on 7 November 1998 the practitioner demonstrated a lack of adequate knowledge, skill, judgement and/or care in the management and/or treatment of LK ("the patient").(a) She performed the termination of the patient's pregnancy in the said clinic when doing so exposed her to an unnecessary risk of injury;Particulars of Complaint 1
The practitioner was working as a general practitioner at premises known as the Australian Women's Health Clinic situated at 41 Court Road Fairfield. There she undertook a termination of a twin pregnancy on the patient. Her management and/or treatment of the patient demonstrated a lack of adequate knowledge, skill, judgement and/or care and/or contravened provisions of the Medical Practice Regulation 1998 in the following respects:
(b) She undertook the termination when she had insufficient skill and/or experience to do so;
(c) The clinic lacked the appropriate facilities and/or equipment to safely conduct the procedure;
(d) She failed to warn the patient adequately or at all that there was a risk that her uterus would be perforated and of the potential consequences of having a perforated uterus;
(d) She failed to take adequate precautions to minimise the risk of uterine perforation;
(e) She directed the use of an inappropriate dilating agent, viz. Misoprostol, thereby unnecessarily increasing the risk of trauma to the patient's cervix and uterus, including perforating the uterus;
(f) She used the drug Misoprostol in an inappropriate manner in that she did not allow sufficient time for it to take effect before commencing the procedure;
(g) She failed to document the administration of the drug Misoprostol pre-operatively;
(h) She continued the surgical procedure inappropriately when she was aware or should have been aware that the uterus had been perforated;
(i) She failed to appreciate in a timely manner that she had perforated the patient's uterus;
(j) She failed to provide appropriate post-operative care in that she:
iv) failed to call an ambulance as soon as she was aware that she had damaged blood vessels;
v) did not accompany the patient to hospital or arrange for another doctor to do so despite the fact that she had recently been given anaesthetic agents, had a perforated uterus and was in a semi-conscious state;
(k) She failed to ensure that there was proper infection control throughout the period in which the patient was present at the clinic;
(l) She failed to pay due respect to the patient's right to privacy;
(m) She referred the patient to Westmead Hospital and directed the ambulance officer to take her there although it was not the nearest hospital with suitable operating facilities, thereby unnecessarily endangering the patient's welfare;
(n) She failed to make a proper and/or contemporaneous record of the particulars of treatment she provided in the form and containing the details required by Clause 13 and Schedule 2 of the Medical Practice Regulation 1998.
Complaint 2
Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that on 6 April 2001 the practitioner demonstrated a lack of adequate knowledge, skill, judgement and/or care in the management and/or treatment of LH ("the patient").Particulars of Complaint 2
The practitioner was working as a general practitioner at premises known as the Australian Women's Health Clinic at Fairfield. There she performed the termination of pregnancy on the patient. Her management and/or treatment of the patient demonstrated a lack of adequate knowledge, skill, judgement and/or care and/or improper or unethical conduct in the following respects:(a) The patient was left unattended in recovery after the procedure;
(b) The patient was attended by staff who were not adequately qualified for the job;
(c) She did not provide for or arrange for adequate follow-up care;
(d) She provided the patient with a discharge letter which stated that the procedure was "complete and uneventful". This was misleading, inaccurate and/or inadequate;
(e) She breached conditions imposed on her registration by the NSW Medical Board in that she did not have a registered nurse in the same room as the patient post-operatively for a period of at least one hour, although intravenous sedation had been used.Complaint 3
Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that on 14 December 2001 and 18 December 2001 the practitioner demonstrated a lack of adequate knowledge, skill, judgement and/or care in the management and/or treatment of ND ("the patient") and/or contravened provisions of the Medical Practice Regulation 1998.Particulars of Complaint 3
The practitioner was working as a general practitioner at premises known as the Australian Women's Health Clinic at Fairfield. She saw the patient on 14 December 2001 and 18 December 2001. On 18 December 2001, she performed a termination of pregnancy on the patient. Her management and/or treatment of the patient demonstrated a lack of adequate knowledge, skill, judgement and/or care in the following respects:14 December 2001
(a) She sought and obtained consent from the patient to terminate the pregnancy before confirming the gestational age by ultrasound (or otherwise);
18 December 2001
(b) She failed to document the administration of a drug to prepare the cervix for the procedure;
(c) She did not have in-house ultrasound available although she was performing a termination of pregnancy beyond the first trimester;
(d) She failed to ensure that the patient had adequate intravenous access in situ to enable fluids to be given before the patient was transferred to ultrasound facilities and/or to hospital;
(e) She transported the patient to hospital by car;
(f) She unreasonably delayed transferring the patient to hospital;14 December 2001 and 18 December 2001
(g) She failed to make a proper and/or contemporaneous record of the particulars of treatment she provided in the form and containing the details required by Clause 13 and Schedule 2 of the Medical Practice Regulation 1998Complaint 4
Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in May 2002 in that the practitioner demonstrated a lack of adequate knowledge, skill, judgement and/or care and/or contravened provisions of the Medical Practice Regulation 1998 in her management and treatment of LT ("the patient").Particulars of Complaint 4
The practitioner was working as a general practitioner at premises known as the Australian Women's Health Clinic at Fairfield. There she performed a termination of pregnancy on the patient. Her management and/or treatment of the patient demonstrated a lack of adequate knowledge, skill, judgement and/or care in the following respects:1. On or about 18 May 2002 she consulted with the patient and:
(a) She agreed to perform a termination of pregnancy for the patient when the foetus was more than 20 weeks gestation andi) She was insufficiently experienced in the performance of late second trimester terminations;
ii) The Clinic lacked the appropriate facilities, staffing and equipment to safely conduct late second trimester terminations;
iii) She failed to adequately assess the risks involved in proceeding with the termination;
iv) The proposed method of termination was unsafe;
v) She did not obtain informed consent.
(b) She failed to make a proper and/or contemporaneous record of the particulars of treatment she provided in the form and containing the details required by Clause 13 and Schedule 2 of the Medical Practice Regulation 1998
(c) She failed to provide adequate or appropriate counselling to the patient in relation to the termination of the pregnancy.2. On or about 20 May 2002 she administered a drug, viz. Misoprostol, to the patient to prepare the cervix for termination or to induce labour and
i) She permitted her to leave the clinic after the drug had been administered;
ii) She did not monitor or make any arrangements to monitor the patient after the drug had been administered;
iii) She failed to provide the patient with adequate advice and information about the nature of the medication including its effects and side effects and, in particular, she failed to warn her of the possibility that she might go into labour.
iv) She failed to adequately assess, advise and manage the patient when informed that she was experiencing abdominal pains after taking the drug.Complaint 5
Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that on 20 May 2002 she engaged in improper and unethical conduct in that she charged a patient, LT, a fee for the medication she dispensed to her that was greatly in excess of the likely cost to the patient had she purchased the medication from a retail pharmacy and/or in excess of its cost to the practitioner, contrary to the provisions of s 28 of the Pharmacy Act 1964.Complaint 6
Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that she engaged in improper and unethical conduct in connection with an inquiry into the practitioner's conduct undertaken by delegates of the NSW Medical Board on 12 June 2002 ("the s 66 inquiry").Particulars of Complaint 6
(a) The practitioner provided the s 66 inquiry with an account of her care and treatment of LT ("the patient") that was deliberately false and/or misleading.
(b) The practitioner constructed a note of her consultation with the patient that was deliberately false and/or misleading and sought to rely upon that note at the s 66 inquiry.Complaint 7
Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that the practitioner has demonstrated a lack of adequate knowledge, skill, judgement and/or care in the practice of medicine and/or engaged in improper and unethical conduct in her management and treatment of TJ ("the patient").Particulars of Complaint 7
In June 2002 the practitioner was working as a general practitioner at premises known as the Australian Women's Health Clinic ("the Clinic") at Fairfield where the patient consulted her.(a) She provided medical services to the patient when the Medical Board had made a decision suspending her from practice, when she knew or should have known that it was improper or unethical for her to do so.
(b) She informed the patient she had cancer when the patient did not and when the histopathology report provided no support for such a diagnosis.
(c) She provided the patient with a discharge letter that stated that she had undergone a termination of pregnancy when she had not.
(d) She submitted or authorised or permitted staff employed in the Clinic to submit a claim for payment of Medicare benefits to the Health Insurance Commission for performance of a termination of pregnancy on TJ on 15 June 2002 when no such service had been provided.
(e) She permitted the patient to leave the clinic unaccompanied in a taxi after undergoing a dilatation and curettage under sedation on 15 June 2002.Complaint 8
Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that between 12 June and 3 July 2002 the practitioner engaged in improper or unethical conduct by practising or, alternatively, holding herself out as a medical practitioner when she was not entitled to do so in contravention of s 105 of the Medical Practice Act 1992 or, alternatively, when she knew that the Medical Board had made a decision to suspend her from practice and when that decision had neither been stayed nor set asideParticulars of Complaint 8
(a) The Medical Board made a decision suspending the practitioner from practice following the s 66 inquiry on 12 June 2002.
(b) That decision was stayed on 3 July 2002.
(c) Between 12 June 2002 and 3 July 2002 she practiced, or alternatively held herself out, as a medical practitioner when she was not entitled to do so, or alternatively when she knew or should have known that it was improper or unethical for her to do so.Complaint 9
Is not of good character.Particulars of Complaint 9
(a) The practitioner constructed a note of her consultation with patient LT on 20 May 2002 that, to her knowledge, was false and/or misleading;
(b) She deliberately misled the Medical Board by providing to the s 66 inquiry on 12 June 2002 an account of her care and treatment of the patient LT that, to her knowledge, was false and/or misleading;
(c) Between 12 June and 3 July 2002 she practised as a medical practitioner despite an order of the Medical Board suspending her from practice and in contravention of s 105 of the Act;
(d) Between 12 June and 3 July 2002 she held herself out as a medical practitioner contrary to s 105 of the Act;
(e) She made notes for patient LH that contained false and/or misleading information.
(f) She provided patient LH with a discharge letter that contained false and/or misleading information about the procedure she had conducted;
(g) She misled the District Court about her character, reputation and professional standing in the matter of R v Suman Sood (04/11/1102);
(h) She breached undertakings she gave to the Federal Magistrate's Court in bankruptcy proceedings;
(i) The practitioner is a dishonest person.Complaint 11Complaint 10
On 23 August 2006 the practitioner was convicted of the charge that on 20 May 2002 at Fairfield in the State of New South Wales she did unlawfully administer to a woman a drug with intent to procure her miscarriage.
On 23 August 2006 the practitioner was convicted of the charge that on 20 May 2002 at Fairfield in the State of New South Wales she did unlawfully cause to be taken by a woman a drug with intent to procure her miscarriage."
3 In support of the complaint the HCCC tendered 6 volumes of material, including a large part of the transcripts of criminal proceedings recently concluded, in which the respondent was convicted of two counts, contrary to the provisions of section 83 Crimes Act 1900. In short, those offences were 'unlawfully' administering a drug to a woman with intent to procure her miscarriage, and 'unlawfully' causing a drug to be taken by a woman with intent to procure her miscarriage. The HCCC tendered some additional material during the course of the hearing.
4 On the first day of the hearing, the respondent was represented by solicitors, and by both senior and junior counsel. However, once senior counsel for the HCCC had opened the case, and argument had concluded about some summonses the HCCC had served, her legal representatives withdrew from further participation in the hearing. Mr Boulton SC, who appeared with Mr M Fordham for the respondent, told the Tribunal his client only now wanted to be heard on questions of costs. So for the remainder of the hearing, only the HCCC was represented before the Tribunal. The Tribunal is satisfied however that the respondent's representatives were provided with copies of documents as they were tendered, if they had not previously been served.
5 On 8th September 2006 the respondent's solicitors had written to the registrar of the Tribunal saying among other things:
"As you know, on 30 August 2006 my client requested that her name be removed from the Register of Medical Practitioners effective from 31 August. The NSW Medical Board has confirmed that my client's name has now been removed. My client has also informed the Medical Board that she will not apply for registration in New South Wales in the future.
After careful consideration, my client will consent to Orders that she is guilty of unsatisfactory professional conduct and professional misconduct within the meaning of section 36 and section 37 of the Medical Practice Act 1992. My client has signed at the foot of this letter.The decision not to contest the hearing and to consent to these Orders reflects my client's concern for her former patients. In addition, my client has accepted counsel's advice that it is inappropriate for her to comment on the particulars in the Complaint whilst the criminal proceedings are continuing. This is particularly so given that Section 128 of the Evidence Act does not apply to the Medical Tribunal proceedings and the limited protection afforded to my client by Section 122 of the Medical Practice Act .
* Consents to Orders being made that she is guilty of unsatisfactory professional conduct and professional misconduct within the meaning of section 36 and section 37 of the Medical Practice Act 1992;In these circumstances it is important that the Tribunal proceedings be conducted in a pragmatic and focused manner. Thus, I advise that my client:
* Does not require any witnesses to attend for cross examination;
* Will not object to any of the material which you seek to tender; and
* Respectfully suggests that in the interests of the patients that the determination be made on the papers."
6 Ms A. Katzmann SC, who with Ms K. Sant appeared for the HCCC, referred the Tribunal to New South Wales Bar Association v Cummins (2002) 52 NSWLR 279 at [24] and [25] where Spigelman CJ said:
"24 In a case such as the present, where there is no substantive contest as to the ultimate operative order which the Court should make, it is of particular significance that the Court should record its findings. As Kirby P said in Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987, unreported) at 4:
"For the ordinary case, the Court has adopted the principle that, normally, it will state its findings on the totality of the matters put forward as constituting professional misconduct, so that these will be available to be dealt with, should they ever become relevant to any future application by the former solicitor for readmission to practise."
25 Kirby P went on to say in Prothonotary v Ritchard (at 4-5):
His Honour referred to Law Society of New South Wales v Seymour (Court of Appeal, 14 April 1982, unreported) and Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 at 362.
"... Although the opinion must be reached that the offences warrant at the time of order permanent removal, the removal of a solicitor from the Roll is not necessarily intended to be permanent in fact. See Ex parte Evatt; Re New South Wales Bar Association (1969) 71 SR (NSW) 153 at 157; 90 WN (Pt 2) (NSW) 50 at 32. People can redeem themselves and demonstrate it by later conduct as a number of cases in this State, both of solicitors and barristers, show. Because that opinion may give encouragement, in due course of time, to an application to be readmitted, it is all the more important that the unfortunate saga of the opponent's misdeeds should be collected and found by the Court." "
7 Thus, although the respondent does not contest the matters in the amended complaint, the Tribunal must in making its findings consider, and set out in some detail, the factual background. Ultimately the Tribunal took Mr Boulton SC to agree this was the approach the Tribunal should take.
Respondent's Background
8 Ms Sood was born in India on 23rd September 1949, and is aged 57. In 1971 she graduated with the degrees of MB and BS from Punjab University in New Delhi. In 1973 she obtained a Diploma of Gynaecology and Obstetrics from that university. She came to Australia in 1991, first settling in Adelaide. On arrival in Adelaide she obtained work as Senior RMO, Queen Victoria Hospital, Adelaide. She was then Senior RMO in the Department of Paediatrics at Modbury Hospital, Adelaide, from December 1991 to January 1992. From February 1992 to August 1992 she had a position as Registrar in Obstetrics and Gynaecology, Maryborough Base Hospital, Maryborough in Queensland, although worked there only for two weeks. She began general practice in Australia at Argyle St Camden NSW in November 1992. Between that time and 2004 she also practised in Rosemeadow, Eagle Vale, Fairfield and Liverpool.
9 A doctor who qualifies in medicine in India before practising in Australia usually must pass an examination set and marked by the Australian Medical Council. The respondent sat for and passed that examination on her first attempt, in 1992. She was, shortly after, registered to practice in NSW. From shortly after the time she commenced her practice at Camden, until 2004, she practised extensively in the area of women's health with a particular emphasis on terminations of pregnancy.
Standard of Proof
10 It is important to recognize that, unlike a criminal case, where an offence must be proved beyond reasonable doubt, in a disciplinary tribunal such as this one, there is a lesser standard of proof, namely the balance of probabilities. Though it is said that the Tribunal applies the Briginshaw test, this does not mean a higher standard than balance of probabilities. Rather, the test requires the Tribunal to have due regard to the issues so that "[T]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal" : Briginshaw v Briginshaw (1938) 60 CLR @ 362 (Dixon J). For a recent case where the balance of probabilities was considered, see Gianoutsos v Glykis [2006] NSWCCA 137 @ [47]-[51]: "[W]hat is required is that when loading the scales appropriate weight is given to the matters to which Dixon J referred" : McClellan CJ at CL (Sully, Hislop JJ agreeing).
Unanswered Allegations
11 The HCCC between 11th November 2003 and 4th November 2004 sent letters to the respondent setting out the substance of the complaints 1-8 inclusive, which the Tribunal has had to consider: see exhibits AE - AJ. She did not reply to them. Thus those allegations against her have gone unanswered both in that correspondence, and during the course of the hearing. The Tribunal's attention was drawn to Bowen-James v Walton and Ors (unreported C/A, 5/8/91) where at p. 14 the Court of Appeal (Samuels, Meagher and Handley JJA) said:
"[I]f a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts."
Unsatisfactory Professional Conduct
12 The HCCC has submitted that, quite apart from the respondent's own concession that we should find her conduct amounts to unsatisfactory professional conduct and professional misconduct, when we consider the facts proved, not only would we make those findings, but we would consider her conduct of such gravity, we would order her deregistration.
13 'Unsatisfactory professional conduct' is defined in s 36 of the Act. Its meaning altered with the amendments introduced by the Health Registration Legislation Amendment Act 2004. However, the new definition does not apply here because the complaint was referred to the Tribunal before the amendment commenced on 1 March 2005.[1]
14 'Unsatisfactory professional conduct' includes:
(a) Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care, by the practitioner in the practice of medicine.
(b) Any contravention by the practitioner (whether by act or omission) of a provision of the Act or the regulations.
(c) Any contravention by the practitioner (whether by act or omission) of a condition to which his or her registration is subject.
(m) Any improper or unethical conduct.
15 Neither "improper" nor "unethical" is defined in the Act. Black's Law Dictionary defines "improper" as "1. incorrect, unsuitable or irregular; 2. fraudulent or otherwise wrongful" and "unethical" as "not in conformity with moral norms or standards of professional conduct". This accords with the ordinary English meanings of the words. The Macquarie Dictionary defines "improper" relevantly as not in accordance with propriety of behaviour, manners etc. or abnormal or irregular, and "unethical" as "contrary to moral precept; immoral; 2. in contravention of some code of professional conduct."
16 While the Tribunal must take into account medical opinion about whether a practitioner's conduct has or has not met the required standard, it is for the Tribunal to make a decision about whether the conduct satisfies the statutory test for unsatisfactory professional conduct.
Professional Misconduct
17 "Professional misconduct" is defined in s 37 of the Act to mean "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". Thus, whether unsatisfactory professional conduct, if proved, amounts to professional misconduct, is a question of degree and will depend on the level of criticism mounted by experts of the doctor's conduct. In Pillai v Messiter (No. 2) (1989) 16 NSWLR 197 at 200-201 Kirby P said:
"Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant, could amount to such professional misconduct: ... But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner..
...
In giving meaning to the phrase 'misconduct in a professional respect' in the context within which it appears, it must be kept in mind that the consequence of an affirmative finding is drastic for the practitioner. And the purpose of providing such a drastic consequence is not punishment of the practitioner as such but protection of the public. The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed."
18 Although, strictly speaking, the statutory definition of professional misconduct makes it unnecessary to turn to common law definitions, the common law approach may give content to the statutory meaning ( cf. Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at [46].) At common law, before a doctor's name was removed from the Register, proof was needed of "conduct which would reasonably be regarded as disgraceful or dishonourable" by one's peers: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 and other authorities collected by Spigelman CJ (with whom Mason P and Handley JA agreed) in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at [36]ff. It is inconceivable that a tribunal would consider removal from the register or suspension to be justified in any case where there was no evidence of disapproval by any peer. Indeed, as the Tribunal remarked in Furey (23 December 2002), it has regarded as a prerequisite for a finding of professional misconduct, a finding that the practitioner has conducted himself or herself in a way that attracts the severe or strong disapproval of "peers of reputable standing" or, at least, that his or her conduct is "so obviously wrong that a peer who did not strongly disapprove would not be thinking reasonably": Davis (2 December 1994).
19 It would be wrong to superimpose on the legislation a requirement that the conduct be disgraceful or dishonourable before a finding of professional misconduct could be made. But in any case, reckless indifference or gross negligence in a professional respect would be regarded as disgraceful and dishonourable conduct by professional brethren of good repute and competency: Basser v Medical Board of Victoria [1981] VR 953.
The Complaints
20 In large part, the complaints about the respondent concern her treatment of five patients. They relate to her competence, her ethics and her honesty. As we have noted, throughout most of her time in general practice in NSW the respondent worked in or conducted clinics for women patients, with an emphasis on termination of pregnancy. Terminations of pregnancy are not unlawful in NSW if performed by a medical practitioner who honestly believes on reasonable grounds the termination is necessary to preserve the patient from serious danger to her life or physical or mental health which continuation of the pregnancy would entail: R v Wald [1971] 3 NSWDCR 25; CES v Superclinics (Aust) Pty Ltd (1995) 38 NSWLR 47. Although most terminations of pregnancy occur in the early stage, or first trimester (up to 12 weeks gestation), a termination may be lawful if performed well beyond that stage, including beyond 20 weeks gestation. However the procedure is simpler and less potentially harmful for the mother in the early stages, so the test for 'lawfulness' becomes harder to satisfy as gestation age increases.
21 All but one of the five patients who are the subject of the complaint saw the respondent for a termination of pregnancy. All four experienced significant and unexpected sequelae. The fifth patient saw her for a dilatation and curettage and was given an incorrect diagnosis and incorrectly made to believe for a time she had a life threatening condition. All five cases are alleged to involve serious breaches of the respondent's professional obligations. The Tribunal made an order on the first day of the hearing that the names and addresses of patients not be disclosed. The patients will be referred to by initials. The Tribunal considers that in the case of people who accompanied the patients to see the respondent, their names should not be published either. So the names of such witnesses are not used. They are also given initials.
22 We shall now deal with the complaints one by one, and part by part.
Particulars of Complaint 1
The practitioner was working as a general practitioner at premises known as the Australian Women's Health Clinic situated at 41 Court Road Fairfield. There she undertook a termination of a twin pregnancy on the patient. Her management and/or treatment of the patient demonstrated a lack of adequate knowledge, skill, judgement and/or care and/or contravened provisions of the Medical Practice Regulation 1998 in the following respects:
(a) She performed the termination of the patient's pregnancy in the said clinic when doing so exposed her to an unnecessary risk of injury;
23 LK already had two children when she became pregnant with twins. She suffered from a number of health problems and she and her partner decided she should have a termination of pregnancy. On 7th November 1998 she went with her partner's sister to the respondent's rooms at 41 Court Rd Fairfield. She had an ultrasound, showing a twin pregnancy of 15 weeks gestation. She saw the respondent. She spent some time with a counsellor. She was given some medication, was instructed to wait while it had effect, was taken to a room adjoining the waiting room, was anaesthetised, and underwent a procedure to terminate the pregnancy. The respondent performed the procedure. It consisted of a dilatation and curettage. It involved inserting instruments through the cervix, into the uterus, and removing uterine contents.
24 Unfortunately, while performing the termination, the respondent perforated the wall of her uterus. This complication is well recognized by specialists in the field of practice. If an instrument goes through the wall, it can cause considerable damage to nearby organs and blood vessels. So that, when a doctor realizes he or she has caused an instrument to perforate the uterus, it is important to stop the procedure. Depending on the size of the hole in the uterine wall, it may be necessary for the patient to have surgical repair. Treatment for the potential complications of a perforated uterus is not usually available in a clinic of a type where the respondent performed the procedure on LK.
25 Pregnancy terminations performed between 13 to 28 weeks of gestation are known as mid trimester procedures. By the time a foetus reaches this stage of development the wall of the uterus is more vascular, and, typically, softer, and easier to perforate with larger instruments.
26 A number of complaints made by the HCCC about the respondent's treatment of LK concern what it alleges are unsatisfactory aspects of the termination procedure, and what she did after the perforation occurred.
27 According to LK, whose evidence before the Tribunal was not contested, her first memory after she was given an anaesthetic was waking up at Westmead Hospital, where she learned that the procedure had gone wrong, that she had been taken to Westmead by ambulance, and had lost 11 units of blood. LK remained in intensive care at Westmead Hospital for some days, finally being discharged on 13th November 1998, followed by an admission for further recuperation to Campbelltown hospital on 17th November 1998. While at Westmead she had surgery to repair the perforation. She has been advised that by reason of the perforation, further births will need to be by caesarean section. So the consequences to her of the perforation were significant.
28 To see something of the background to the complaints, it is revealing to look at the background to her transfer to Westmead Hospital. Her friend Ms L, who accompanied her to the respondent's rooms, spoke to the respondent shortly after the perforation had occurred. She was given a brief description of it. An ultrasound may be used to locate a perforation, although it is a matter of controversy as to whether Ms Sood should have had an ultrasound performed before an ambulance was called for. There was an ultrasonographer working in the premises that day. Ms L says (though Ms Sood denies this) that Ms Sood told her that after the perforation, she had had to wait for the ultrasonographer to finish having a donut at a local coffee shop before an ultrasound could be taken. LK's friend was then permitted to see the patient. She later described the surgery as 'extremely dirty and unhygienic'. She saw LK 'with her legs apart and blood everywhere'.
29 She could see people walking through a 'back alley' beside the recovery room. She saw cockroaches coming in through the back door. She was shocked by what she saw, and started to vomit. Ms Sood told her her friend would get her money back.
30 Some time later the patient complained to the HCCC. She also sued for and recovered damages against Ms Sood in the District Court at Campbelltown. Some of the evidence in that case was tendered to the Tribunal.
31 When LK had her procedure at the respondent's rooms the respondent employed Dr Nicole Gastaldin to administer sedation and anaesthetics. Dr Gastaldin gave several statements to the HCCC. At that time she had had three years of experience working in termination of pregnancy clinics, and had performed several thousand terminations and administered a similar number of sedations, and general anaesthetics, for the procedure. She only worked with the respondent for a total of fourteen days between 9th October 1998 and 11th December 1998.
32 During the course of this procedure she saw the respondent on two occasions remove sponge forceps grasping what appeared to be a small piece of omentum, the respondent telling her a perforation had never happened to her before. Omentum refers to the fatty layer covering abdominal organs. So the appearance of omentum suggested the instrument had moved into the abdominal cavity. That is diagnostic of a perforation.
33 Dr Gastaldin told the respondent she thought the tissue had the appearance of omentum. The procedure was then stopped, an ultrasound confirming a perforation had occurred.
34 Dr Gastaldin ceased working with the respondent as she said she was 'not comfortable with the standard of practice there. I felt that it was not up to safety standards'. She regarded a pulse oximeter in a clinic such as this as 'requisite'. A pulse oximeter, apart from measuring the pulse, warns if the oxygen saturation level is too low. There was one present in Ms Sood's surgery when Dr Gastaldin worked there but it was not routinely used and its alarm did not work. It had been her experience, especially with a 14 or more week pregnancy, to do the procedure under ultrasound guidance. This helped ensure there were not retained products. However, she noted that terminations in this clinic were not done under ultrasound guidance. LK's was not done under ultrasound guidance. The ultrasound was only used after the emergency arose. Dr Gastaldin was extremely critical of the respondent's methods and attitude. When she worked there, no registered nurses were employed. Theatre staff were untrained in emergency resuscitation techniques and sterilization. She observed theatre staff not comply with sterile techniques. She was not made aware of any emergency arrangements with local hospitals to admit patients in cases of emergency. She regarded as appropriate standards for terminations, those of the Abortion Providers Federation of Australia. The respondent's clinic in her view fell below those standards.
35 She did not regard the clinic as taking sufficient care to prevent patient to patient disease transmission. For example, the respondent told her she would use the same syringe on more than one patient if there was an unused quantity of medication left over from an earlier patient. She observed the recovery room bedding was not clean; vinyl sheets would be blood stained from one patient when another would be permitted to lie on them; pillow cases showed substantial saliva and lipstick stains, and were cleaned less often than weekly.
36 In clinics involved in this procedure, it is good practice to have available large bore cannulae so fluids can be restored quickly. There were no large bore cannulae kept on the respondent's premises and Dr Gastaldin would bring her own. She expressed concern about the system of transferring patients post-operatively, with a trolley being used that was 1-2 feet higher than the bed. She was critical of the lack of nursing assistance in monitoring patients, or in preparing and administering fluids and antibiotics.
37 Dr Gastaldin gave a description of the procedure as she observed it, which the respondent performed on LK.
"During the procedure, from my position at the anaesthetic patient's head of the table, I observed Dr Sood remove the sponge forceps which were grasping what appeared to be a small piece of omentum. She asked me my opinion, and I responded to the effect that it had the appearance of omentum. She re-introduced the sponge forceps, as I passed to the other side of the patient to introduce an 18G cannula to [LK's] antecubital fossa, and requested fluids and a giving set from the nurse. The cannula used for [LK] was one of several that I had brought in to the clinic that morning from my own stock. I had observed previously that no cannulae were present at the clinic, although smaller guage butterfly sets were present.
Dr Sood again removed the sponge forceps grasping what appeared to be a small piece of omentum. Dr Sood made comment that a perforation had never happened to her before. The procedure was halted and the ultrasonographer was called to perform an ultrasound. I do not recall any delay in the arrival of the ultrasonographer."
38 Dr Healy, a Melbourne practitioner with 22 years of experience, gave evidence in the damages claim, and that evidence, with additional opinion, was in evidence before us. She had undertaken 35,000 terminations although only did first trimester procedures. There were opinions in evidence from another highly experienced practitioner in the field of termination, Dr Philip Goldstone, (whose oral evidence the Tribunal had the benefit of) Dr Brian Peat, Director of Obstetrics, Women's and Children's Hospital, Adelaide, and Dr Brodie, the founding director of Australian Birth Control Services, a general practitioner, with 28 years experience of performing terminations. We shall return to aspects of the evidence of all of these.
39 The Tribunal had the benefit of statements from an ambulance officer who took LK to Westmead Hospital on 7th November 1998. Sharon Barlow, ambulance officer paramedic, said when she went to get LK she and her fellow officers were told to enter through a laneway. She observed refuse from nearby shops stacked in the lane. A double door opened from the lane straight into the recovery room. She described that room as 'shabby and dark with poor lighting'. Across the door, leading to the rear lane, there was a half curtain on a rod, half way across the doorway, giving little privacy. She was told the perforation had occurred 20-30 minutes before her arrival. Although she was told the patient was to be taken to Westmead, she questioned that, as Fairfield and Liverpool Hospitals were much closer.
Was the patient exposed to an unnecessary risk of injury?
40 It is important that a clinic have proper equipment, and take adequate measures to avoid infection. Dr Healy 'would severely disapprove if no cannulae were present' at the clinic when the procedure was performed. She described equipment present as 'inadequate'. Dr Goldstone said a more substantial intravenous cannula should have been used, given this was a second trimester termination and LK had a history of hyperemesis. He said the clinic was 'ill equipped to cope with an operative emergency' if Ms Barlow's description was accurate. Accepting the accuracy of the descriptions of Dr Gastaldin and Ms Barlow, Dr Peat was also critical of the standard of equipment.
41 The Standards of Practice of the Abortion Providers Federation of Australia (which describes a second trimester as a pregnancy of duration 13-28 weeks from last menstrual period) incorporates the N.H.M.R.C guideline called 'Infection Control in the Health Care Setting'. At p.28 that guideline says "Injectable products in multi-dose vials should not be used except in particular cases". (None of those cases apply here).
42 The Tribunal accepts the evidence of LK and Ms L, Dr Gastaldin, Ms Barlow, Dr Healy, Dr Peat and Dr Goldstone, especially insofar as any of their evidence conflicts with that of the respondent. She has not contradicted, or attempted to, the evidence of the observations or description of her premises or equipment, made by Dr Gastaldin, Ms Barlow and Ms L.
43 The Tribunal finds Ms Sood performed the termination of the patient's pregnancy in the clinic when doing so exposed her to an unnecessary risk of injury.
(b) She undertook the termination when she had insufficient skill and/or experience to do so;
44 Second trimester terminations are associated with a higher rate of complications: Dr Goldstone.[2] Further, the evidence shows LK had, in 1990, undergone a radical diathermy. That is also a known risk factor for perforation.[3] (LK said Ms Sood did not ask her for that part of her history. It is certainly not recorded, although her previous caesarean is).
45 Dr Peat said that to be competent to perform second trimester terminations of twins at 16 weeks requires specific training and a system of audit and review. He said women (such as LK) are at a significant risk of cervical and uterine trauma if excessive dilatation occurs, and this is more likely using the Misoprostal regime Ms Sood used to dilate the cervix.
46 There was evidence before the Tribunal in the form of the transcript of findings of an enquiry held on 8th June 1995 by the New South Wales Medical Board under s.66 (1) of the Act. At that enquiry Ms Sood is recorded as having said she only undertook first trimester terminations and would refer later term patients to another clinic. There was another enquiry under s.66 (1) on 12th June 2002. At that enquiry Ms Sood said she had commenced undertaking second trimester terminations in approximately 1994-5.
47 The HCCC submits that the only way the two statements can stand together is if she did not commence second trimester terminations until after June 1995. If that is so, given the way she conducted the procedure on this occasion, it is unlikely she had sufficient experience or skill to carry out second trimester terminations, it submitted.
48 The Tribunal sees Ms Sood's statements as consistent: suggesting she only began performing second trimester terminations after June 1995, a little over three years before she operated on LK. There is no evidence she had the training Dr Peat said one should have for conducting second trimester terminations. Nor is there any evidence her cases were ever audited and reviewed. Indeed, although her C.V. shows she attended a number of continuing education courses, none of them suggest they were associated with this field of endeavour. Dr Peat said that "to undertake a second trimester TOP without adequate training, ongoing experience including audit and case review, with an improper technique and in substandard premises would invite my severe disapproval".[4]
49 The Tribunal infers the respondent did have insufficient skill and experience for second trimester terminations.
50 The Tribunal finds this part of the complaint is proved.
(c)The clinic lacked the appropriate facilities and/or equipment to safely conduct the procedure;
51 The Tribunal has set out above in some detail, the state of the facilities and equipment, the views of those who commented on them and the fact that the Tribunal accepts those (other than Ms Sood) who have given evidence about those matters.
52 The Tribunal finds this part of the complaint proved.
(d) (where it first appears) She failed to warn the patient adequately or at all that there was a risk that her uterus would be perforated and of the potential consequences of having a perforated uterus;
53 This part of the complaint is not happily drafted. Senior Counsel for the HCCC invited the Tribunal to interpret 'would' as 'could', and that is the way we read it. Whether it be read as 'would' or 'could', we take the complaint to be that she was not warned of the possibility that her uterus might be perforated.
54 In the evidence she gave to the District Court, LK said she was not warned by Ms Sood her uterus might be perforated and was simply asked to sign a consent document. It is clear from her cross-examination that there was some discussion about the procedure. However, she denied being told the procedure might damage her organs, and said in any event she could not read properly when given the document. However she did agree she had not told Ms Sood she could not read. The document, which is in evidence, does not mention that perforation is a risk, though it does say 'instrumental trauma' is a possible complication.
55 Perforation of the uterus clearly is a significant risk. Dr Healy said she had a rate of one in 5000 cases. Dr Peat said it can be up to 1.4% if done (as here) without ultrasound guidance. The evidence establishes the consequences of perforation can be very significant. In LK's case she required a laparotomy, ligation of blood vessels, repair of the uterine wall, bilateral iliac artery ligation and ligation of bleeders in left ovarian fossa.[5]
56 At common law a medical practitioner has an obligation to a patient to inform him or her of the nature of an intended procedure. The choice by a patient to undergo surgery has no meaning unless made on the basis of relevant information and advice: Rogers v Whitaker (1992) 175 CLR 279 @ 489 (Mason CJ Brennan, Dawson, Toohey, McHugh JJ).
57 The Tribunal is satisfied LK was not given all relevant information and advice. In particular she was never warned her uterus might be perforated.
58 This part of the complaint is made out.
(d) (where it secondly appears) She failed to take adequate precautions to minimise the risk of uterine perforation;
59 There are steps which can be taken to reduce the risk of uterine perforation. One is the use of ultrasound guidance: Dr Peat Ex E Tab 2, p.2. Although Dr Peat concedes there are some very experienced operators who do not use it routinely so 'it is hard to too strongly disapprove' of Ms Sood for not doing so here. He quotes studies which show the perforation rate drops from 1.4% without, to 0.2% with, ultrasound guidance in second trimester terminations, however.
60 Dr Peat, from Dr Gastaldin's account of the procedure, concluded from the type of perforation here, that there was a 'lack of cervical preparation and an attempt to over-dilate the cervix by mechanical means'.
61 Dr Goldstone is critical of Ms Sood's use of the medication called Misoprostol for cervical preparation, given she had had a caesarean section. He said the preferable means of preparing the cervix was the insertion of a series of laminaria rods, with a request to the patient to return for the procedure on the next day. That involved a two stage procedure, as opposed to the one stage approach which Ms Sood used. He said if the one stage approach using Misoprostol were to be used LK should have had a far more extensive explanation than she in fact had, and that given she had a history of a caesarean, the decision to use Misoprostol was erroneous - most practitioners would have used laminaria rods.
62 This part of the complaint is made out.
(e) She directed the use of an inappropriate dilating agent, viz. Misoprostol, thereby unnecessarily increasing the risk of trauma to the patient's cervix and uterus, including perforating the uterus;
63 The evidence on which the HCCC relies to establish this is under (d)(where it secondly appears) above. This part of the complaint is made out.
(f) She used the drug Misoprostol in an inappropriate manner in that she did not allow sufficient time for it to take effect before commencing the procedure;
64 Dr Goldstone said if Misoprostol were to be used there should have been sufficient time allowed between its administration and the procedure - a minimum of 1 1/2 to 2 hours. LK's friend, Ms L, said LK had the medication at 10.30 - 10.45. Ms Sood's referral letter says the time was 10am and the procedure approximately 11.30am. The Tribunal prefers Ms L's evidence where it varies from that of Ms Sood. Ms Sood did not dispute her version before the Tribunal, and did not confirm her own. On other aspects of Ms L's evidence, such as the state of the procedure room, there is substantial harmony with the evidence of Ms Barlow. The Tribunal finds the Misoprostol was administered only about an hour before the procedure and that insufficient time was allowed to elapse before the procedure was performed. This part of the complaint is made out.
(g) She failed to document the administration of the drug Misoprostol pre-operatively;
65 Any medication given to a patient must be documented.[6] But the only record produced by Ms Sood about the use of Misoprostol on LK was in her referral letter to Westmead Hospital. Her own records do not mention it. This part of the complaint is made out.
(h) She continued the surgical procedure inappropriately when she was aware or should have been aware that the uterus had been perforated;
66 On this issue, as in all others, the Tribunal accepts Dr Gastaldin's evidence where it differs from that of Ms Sood. Our reasons include the very thorough descriptions given by Dr Gastaldin, the fact that her view about the clinic's shortcomings accord with those of experts retained by the HCCC, and Ms Sood's not contradicting her version before the Tribunal. Further, Dr Goldstone says the operative findings at Westmead Hospital are more consistent with the evidence of Dr Gastaldin than of Ms Sood.
67 It will be recalled that Dr Gastaldin saw Ms Sood twice remove sponge forceps, gripping what to her had the appearance of omentum. The fact that on the first occasion she withdrew what appeared to be omentum is diagnostic of a perforation. Indeed, Dr Healy called it 'incontrovertible proof'. Given the appearance of the tissue, Dr Healy would 'strongly disapprove' of her continuing with the procedure, and says she should have stopped it then. Dr Goldstone said most practitioners would halt the procedure immediately, although some may complete it under ultrasonic control. In his view, if the tissue was omental, it indicated a significant risk of injury to bowel or pelvic structures, and the termination should only have been completed under laparascopic control in a hospital setting. Fortunately, such severe damage was not found by the surgeon at Westmead Hospital, but as the notes state, a pelvic haematoma needed to be evacuated, a significant number of blood vessels required ligation, and bilateral internal iliac artery (the major artery to the pelvis) ligation was required to achieve haemostasis.
68 Even if it were thought appropriate to pass an instrument into the uterus again, it should have been one which was much narrower than forceps such as a uterine sound, since the forceps could have caused more damage.[7]
69 The Tribunal is firmly of the view that after the first time she withdrew the tissue Dr Gastaldin thought was omentum, she should have ceased the procedure.
70 This part of the complaint is made out.
(i) She failed to appreciate in a timely manner that she had perforated the patient's uterus;
71 The evidence for this is in (h) above. For the same reasons as (h) is made out, so is (i).
(j) She failed to provide appropriate post-operative care in that she:
iv) failed to call an ambulance as soon as she was aware that she had damaged blood vessels;
v) did not accompany the patient to hospital or arrange for another doctor to do so despite the fact that she had recently been given anaesthetic agents, had a perforated uterus and was in a semi-conscious state;
72 The uterus was perforated at about 11.30am, according to the respondent's note at Ex E Tab 7. The ambulance was not called until 11.51am.[8] The perforation was lateral, in the place where the major blood vessels were. The most important thing in those circumstances was to arrange transport to hospital so that resuscitation could be undertaken in a better equipped facility.[9] Although Ms Sood had an ultrasound done first, this was unnecessary because the presence of the tissue which appeared to be omentum was diagnostic of perforation.[10] The decision to delay calling an ambulance was described by Dr Healy as "appalling medical management".[11] She registered a severe degree of disapproval for this, and expected her colleagues would also disapprove.
268 We are not persuaded to the appropriate degree of proof that this part of the complaint is made out.
(i) The practitioner is a dishonest person.
269 The matters established in (a) to (g) above amply demonstrate to the Tribunal that Ms Sood is a dishonest person. However, the HCCC drew the Tribunal's attention to some additional matters, if more were necessary, to establish that proposition. We shall now consider them.
270 On 2nd July 2004 Ms Sood gave an undertaking to the Medical Board that she would not perform terminations of pregnancy under any circumstances. The HCCC tendered an advertisement apparently from the Parramatta Sun, an outer Sydney suburb newspaper, dated 8th March 2006. It is as follows:
*** Helping women make their choice*** ""Dr. Ms. Suman Sood
8 Dunmore Street, Wentworthville
Ph: 9636 4454 Fax: 9687 8767
BULK BILLING
We provide:
* Women's Health + Men's Health
* Pregnancy Choices Incl. Terminations
* Menopause Choices
* IUD, Mirena, Implenon (Contraception)
* Sexual Health & Pap Smear
* Counselling, Anxiety & Addiction Mx
* Weight Control
271 The HCCC submitted that although there is no evidence she has been performing terminations, that advertisement shows she is not prepared to honour "the spirit" of her own undertaking, and is further evidence of dishonest character. The advertisement does not say she will conduct the terminations, however, and, while we agree that it suggests she was not at the time abiding by the spirit of her undertaking, we are not satisfied to the requisite degree of proof it establishes she was in fact acting in breach of her undertaking. There is no evidence she was conducting terminations and, whilst one may speculate, more is needed before we would conclude on the balance of probabilities the advertisement proves a breach of the undertaking.
272 Next, Ms Katzmann SC tendered two press releases, apparently issued about these proceedings.[95]
273 In the first, dated 30th August 2006, having announced she had withdrawn her name from the medical register, she said:
Today Dr Suman Sood announced that she has withdrawn her name from the Register of Medical Practitioners of NSW, with effect from 31 August 2006 and apologized for any inconvenience caused to her patients as a result of the withdrawal."Press Release for Dr Suman Sood
'I have taken this extreme action in the best interests of my patients. My court proceedings and the recent media frenzy have been distressing. Many of my patients have been disturbed by the media coverage which contained inaccuracies and distorted accounts of my treatment of some patients. I can only speculate as to the source or sources for these stories. By withdrawing my name from the Register I will be able to fully concentrate on my forthcoming court hearings without exposing my patients to any further uncertainty about their future medical care.
Being an Australian, I am committed to upholding the Australian spirit of fairness and moral integrity.
As a Medical Practitioner, I have always endeavoured to care, assist and provide selfless professional service to the community in whatever capacity I could and as a citizen, I shall continue to do the same in future.
I am confident that truth will ultimately prevail and justice will be achieved.'I take this opportunity to thank all my patients, colleagues and well wishers for their continued support, faith and confidence shown during this tumultuous period.
Date: 30 August 2006”
274 The next one was dated 11th September 2006, the first day of these proceedings. It is as follows:
"Dr Suman Sood's Press Release
Dr Suman Sood - Medical Tribunal
Ms. Barbara Crossin has informed the HCCC regarding this. She also has stated in her letter to HCCC that this decision also reflects Dr. Suman Sood's concern for her former patients."I, Suman Sood have decided not to contest the HCCC at the Medical Tribunal proceedings. I have accepted my counsel Mr. Boulten and Mr Fordham's advise that it is inappropriate for me to comment on the particulars in the HCCC case whilst the criminal proceedings are continuing. This is particularly so given that Section 128 of the Evidence Act does not apply to the Medical Tribunal proceedings and the limited protection provided to me by Section 122 of the Medical Practice Act.
275 Ms Katzmann SC submitted the press releases show on Ms Sood's part a lack of insight as to her wrongdoing and a lack of any form of acknowledgement she did wrong. Further, she submitted that given the criminal proceedings referred to in the second press release only concerned the patient LT, the reference to s. 128 Evidence Act and the limits to which it gives a protection in this Tribunal, is not relevant to complaints which do not touch that patient's treatment.
276 Ms Katzmann SC submitted that Ms Sood could have, but did not, acknowledge her wrongdoing, but instead, by issuing statements including 'truth will ultimately prevail and justice will be achieved' merely persisted with what she had said in the past, a position 'which locks herself into a series of lies'.[96]
277 Having considered them, we do not see the press releases of themselves as establishing dishonesty. However the one dated 30th August 2006, we consider, at the very least shows a lack of insight on her part.
278 There were, however, other instances of dishonesty established to the Tribunal's satisfaction:
(a) It is apparent from her solicitor's affidavit used in the Supreme Court proceedings on 3rd July 2002 and thereafter, to stay the Medical Board's suspension order, that she falsely instructed her solicitor she had closed her practice following her suspension on 12th June 2002, when, as we have found, she continued to practice as though the order was never made;
(b) Ms Sood applied for registration in Queensland on 1st October 2004. When doing so, she acknowledged she was subject to disciplinary proceedings, and purported to give a 'list of complaints'.[97] We are satisfied the list was both incomplete and misleading, and deliberately so.
(c) She applied for registration in the ACT on 21st January 2003. The ACT Board asked her about disciplinary proceedings, including preliminary investigations or actions which might lead to disciplinary proceedings. But she gave only details of the conditions attached to her registration. When the ACT Board learned (as we are satisfied was the fact) there were thirteen open, current, investigations into her conduct, it refused her registration as her statement supplied was 'materially false or misleading'. The Tribunal is satisfied that she gave the ACT Board information which was false, and knew it to be;
(d) The Tribunal is satisfied she persuaded Dr Allen to give a false account of his part in the LT case when she appeared before the Medical Board on 12th June 2002;
(e) The Tribunal is satisfied she persuaded Dr Allen to help her hide the fact she conducted the dilatation and curettage on TJ.
279 We are persuaded that the respondent is a dishonest person.
280 As Priestley JA said in Richter v Walton (NSWCA, 15 September 1993, unreported),
- "Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, ... the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest." [98]
281 Similarly, in Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215 Buchanan JA said at [24]
- "Medical practitioners occupy a position of considerable trust, and it is in the public interest that they should merit that trust. Accordingly, it is to be expected that medical practitioners will be scrupulously honest in their dealings with patients, with other doctors and those in related professions such as nurses, radiologists and technicians and support staff and with the government departments with which they deal in the course of their practice."
282 In McBride v Walton (NSWCA 15 July 1994, BC 9402907) in dismissing the appellant's submission that the doctor's practice of medicine has not been affected by any manifestation of dishonesty, Handley JA observed:
"Parliament has made a legislative judgment that persons who were not of good character should not be registered. Medicine was to be an honourable as well as skilled and learned profession" (BC9402907 at 6).
283 Having in mind our findings as to her dishonesty, we are persuaded the respondent is not of good character.
Complaint 10
On 23 August 2006 the practitioner was convicted of the charge that on 20 May 2002 at Fairfield in the State of Sew South Wales she did unlawfully administer to a woman a drug with intent to procure her miscarriage.
284 The HCCC tendered a certificate of conviction to make good this complaint. We are satisfied it is made out.
Complaint 11
On 23 August 2006 the practitioner was convicted of the charge that on 20 May 2002 at Fairfield in the State of New South Wales she did unlawfully cause to be taken by a woman a drug with intent to procure her miscarriage.
285 The HCCC tendered a certificate of conviction to make good this complaint. We are satisfied it is made out.
Conclusion and Summary
286 By reason of the Tribunal's findings above, we are satisfied the respondent is guilty of unsatisfactory professional conduct and professional misconduct as alleged, in complaints 1, 2, 3, 4, 5, 6, 7, and 8. We also find proved 9, 10 and 11, and by reason of those findings we are also satisfied the respondent is guilty of 'unsatisfactory professional conduct' and 'professional misconduct', as well as being not of good character.
287 The complaints established show that the respondent:
(a) lacks competence as a medical practitioner;
(b) is dishonest with her patients, fellow professionals, and the Health Insurance Commission;
(c) has knowingly misled the Medical Board and the District Court and others;
(d) has failed to keep proper medical records, and has created false ones when she has seen it as necessary in her own interests;
(e) shows indifference to orders of the Medical Board and to legislation which regulates the Medical Profession.
(f) Has difficulties learning from complaints and peer reviews.
288 Proceedings before the Tribunal are not to punish a doctor, although its orders may have that effect. The Tribunal is concerned rather with the protection of the public and maintaining the standards of the profession: Law Society of NSW v Foreman (1994) 34 NSWLR 408; HCCC v Litchfield (1997) 41 NSWLR 630 @ 637D - 638E; Buttsworth v Walton BC 9101315 @ 15.
289 We bear in mind too that although a doctor has been dealt with by the criminal law where the conduct dealt with by the Tribunal has criminal consequences, it is no defence in the proceedings before the Tribunal that double jeopardy is involved: Litchfield @ 635D; Zaidi v HCCC (1998) 44 NSWLR 82 @ 93F.
290 This case shows very clearly a need to protect the public from an incompetent and dishonest medical practitioner, and assist to maintain public trust in the medical profession.
291 By reason of the respondent's serious flaws in ability and character, the Tribunal has serious doubts that she will ever be regarded as a fit and proper person to practise medicine. We see the only way to provide properly for the protection of the public, and maintenance of standards in and respect for the medical profession, is to order her deregistration and restrict her from re-applying for ten years.
Findings and Orders
1. The respondent is guilty of
(a) unsatisfactory professional conduct;
(b) professional misconduct
2. The respondent is not of good character.
Orders
1. The respondent is deregistered.
2. The practitioner is not to apply for re-registration as a medical practitioner for ten years.
[1] See Schedule 4 Part 4 Clause 11 of the Health Care Complaints Act 1993 which provides that an amendment made to a health registration Act (including the Medical Practice Act) by the Health Registration Legislation Amendment Act 2004 does not apply to a complaint that was referred to a Committee or Tribunal under the health registration Act before the commencement of the amendment or to a complaint where an inquiry into it had commenced before the commencement of the amendment
[2]Ex. E Tab 20 p. 1
[3] Dr Healey Ex G Tab 3 T 13
[4]Ex E Tab 21 p 3
[5] Ex E Tab 17 p. 21
[6] Dr Goldstone Ex E Tab 20 p.2.
[7] Dr Healy Ex G Tab 3 T 145.12
[8] Ex E Tab 7
[9] Dr Healy in Ex G Tab 3 T145/14-55
[10] Dr Gastaldin Ex G Tab 2 [13]; Dr Healy Ex E Tab 18 p 5-6 and in Ex G Tab 3 at T145/45.
[11] Dr Healy exhibit AA [10]
[12] Ex E Tab 14 p.2
[13] Ex E Tab 18 p.4
[14] See ambulance report Ex E Tab 14
[15] Ibid.
[16] Ibid.
[17] Ex E Tab 17
[18] Dr Healy Ex E Tab 18 p 5
[19] Dr Healy in Ex G Tab 3at T149/20-25
[20] See record at Ex E Tab 7
[21] Ex E Tab 18
[22] Dr Healy 23 October 1999 (Ex E Tab 18).
[23] Dr Healy Ex E Tab 18 [5]
[24] Dr Healy in Ex G Tab 3at T147/25-40
[25] Dr Goldstone Ex E Tab 20 p 3
[26] Ex E Tab 23
[27] Ex E Tab 23 [10]
[28] Quantik Ex E Tab 30 [1]
[29] Zoretic Ex E Tab 28
[30] Mafiti Ex E Tab 29
[31] Ibid.
[32] Allen Ex E Tab 27 [10]
[33] Ex E Tab 26. Handwritten notes.
[34] Zoretic Ex E Tab 28[14]
[35] Ibid.
[36] Ex E Tab 32
[37] Ex E Tab 28 [7]
[38] ibid
[39] Dr Goldstone Ex G Tab 5 p 1
[40] Ex E Tab 31p 2
[41] Ex E Tab 26 p.6
[42] Sood Ex E Tab 25[9]
[43] Sood Ex E Tab 25 [14]
[44] Ex E Tab 28
[45] Ex G Tab 7 p.2
[46] Ex E Tab 39
[47] Dr Goldstone's evidence in this matter at T95/11-17
[48] Ex G Tab 37 Letter from Ms Sood to HCCC 12 March 2003
[49] Ex G Tab 7
[50] Ex F Tab 15
[51] Ex L T 728-23
[52] Ex P
[53] Dr Brodie Ex F Tab 16 p. 7
[54] E.g. ND was given Misoprostal and told it would make the uterus softer.
[55] Dr Peat said this was the most likely drug: Ex L T 1064.21
[56] The Tribunal has made a number of references to Dr Allen in these reasons. He did not give evidence before the Tribunal so our sources of information about his role in matters is documentary only.
[57] TLT 593.5-10
[58] Ex L T964: Dr Brodie.
[59] Ex LT965/11
[60] Dr Brodie Ex F Tab 16 p7
[61] Dr Brodie Ex F Tab 16 pp 5-6
[62] Ex G Tab 12 5.2
[63] Ex L T1060/55-1061/5
[64] Dr Brodie Ex F Tab 16 p 6 and Ex L T964/15-22
[65] Dr Brodie Ex L T991
[66] See Dr Kuah's evidence to the s 66 enquiry. Ex H Tab 5 p 9
[67] Ex L T1065/49
[68] Ex L T1067/28-32
[69] Ex L T1066/1 and Ex F [25]
[70] Ex F Tab 16 p. 11
[71] Dr Gastaldin Ex F Tab 11[6]
[72] Dr Peat Ex F Tab 17 p 1-2
[73] Dr Gastaldin Ex F Tab 11[6]
[74] Dr Peat Ex F Tab 17 p 2. C.f. Dr Gastaldin Ex F Tab 11[6]
[75] MIMS 1-1
[76] Dr Brodie Ex F Tab 16 p 6
[77] Dr Peat Ex F Tab 17 p 2
[78] Ex F Tab 1 para [17]
[79] Dr Goldstone T79/25,56
[80] Dr Healy Ex AA [14]
[81] Butterworths Medical Dictionary (2nd Edition)
[82] Ex F Tab 29 p.4
[83] Pillai [[18]]
[84] Ex G Tab 9
[85] She wrote two scripts, not one, and then failed to read the label on the injection when she administered it. The Committee found this suggested a lack of concentration which could have resulted in "disastrous consequences" for the patient.
[86] Report of Professional Standards Committee 28 July 1997 p 29
[87] Report of Professional Standards Committee 28 July 1997 p 29-30
[88] Report of Professional Standards Committee 28 July 1997 p 30
[89] Report of Professional Standards Committee 28 July 1997 p 26
[90] Report of Professional Standards Committee 28 July 1997 p 28
[91] Report of the Professional Standards Committee 28 July 1997 p 28
[92] Report of Professional Standards Committee 28 July 1997 p 30.8
[93] Report of Professional Standards Committee 28 July 1997 p 30
[94] Report of Professional Standards Committee 28 July 1997 p 31.3
[95] Ex N
[96] T 207
[97] Ex 'AK'
[98] Adopted by the Court in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638
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