In re S, A Medical Practitioner
[2008] TASSC 73
•19 November 2008
[2008] TASSC 73
CITATION:In re S, A Medical Practitioner [2008] TASSC 73
PARTIES:IN THE MATTER OF THE MEDICAL PRACTITIONERS REGISTRATION ACT 1996 AND IN THE MATTER OF AN INQUIRY BY THE MEDICAL COMPLAINTS TRIBUNAL INTO A COMPLAINT AGAINST S
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 449/2008
DELIVERED ON: 19 November 2008
DELIVERED AT: Hobart
HEARING DATE: 1 September 2008
JUDGMENT OF: Slicer J
CATCHWORDS:
Appeal and New Trial –- Appeal – General principles – Right of appeal – Nature of right – Appeals in the strict sense and appeals by way of rehearing – Appeals by way of rehearing – When rehearing does not involve hearing de novo – Nature of appeal from Medical Complaints Tribunal – Reprobation.
Aust Dig Appeal and New Trial [9]
Medical Practitioners Registration Act 1996 (Tas), s49.
Kudelka v Medical Complaints Tribunal [2004] TASSC 31; Fernando v Medical Complaints Tribunal [2001] TASSC 55; Qidwai v Brown [1984] 1 NSWLR 100, referred to.
Professions and Trades – Health care professionals – Medical practitioners – Disciplinary proceedings – Appeal – Reasons of tribunal considered – No arguable error of law established.
Aust Dig Professions and Trades [1067]
REPRESENTATION:
Counsel:
Appellant: K B Procter SC
Respondent: P L Jackson
Solicitors:
Appellant: Murdoch Clarke
Respondent: Philip Jackson
Judgment Number: [2008] TASSC 73
Number of paragraphs: 25
Serial No 73/2008
File No 449/2008
IN THE MATTER OF THE MEDICAL PRACTITIONERS
REGISTRATION ACT 1996 AND IN THE MATTER OF AN
INQUIRY BY THE MEDICAL COMPLAINTS TRIBUNAL
INTO A COMPLAINT AGAINST S
REASONS FOR JUDGMENT SLICER J
19 November 2008
The appellant seeks, by way of rehearing (Fernando v Medical Complaints Tribunal (No 2) (2003) 12 Tas R 337; Adamson v Pharmacy Board of Tasmania [2004] TASSC 32), review of a decision of the Medical Complaints Tribunal ("the Tribunal") which ordered that he be reprimanded and ordered to pay costs following a referral of and inquiry into his professional conduct. The referral concerned a medical procedure said to have been conducted without the full and informed consent of a patient. There was no suggestion of moral culpability. The complaint was that in the course of an otherwise appropriate procedure, the practitioner attempted to remove an existing and known fibrous growth and in doing so caused injury to the bowel.
The rehearing is conducted on the material placed before the Tribunal. The Court is mindful of the composition of the Tribunal consisting of five members, three of whom were medical practitioners experienced in this field of medicine. This Court ought pay regard to the professional knowledge and judgment in areas beyond the expertise of one trained in law. It has the advantage of reviewing the evidence of expert witnesses who were called before the Tribunal and understands that much of the controversy concerns the nature of an informed consent, a matter which, on review, this Court is able to judge. Nevertheless, questions of medical practice and complex judgment are matters which ought remain the province of those skilled in the discipline. Whilst regard is had to the evidence, respect is paid to the conclusions reached by those medically qualified members of the Tribunal (In Re the Medical Act 1959 [1973] Tas SR 43; A v The Law Society of Tasmania (2001) 10 Tas R 152; Fernando v Medical Complaints Tribunal (supra)). However, findings or evidence of "reprobation" or strong disapproval from other medical practitioners does not bind this Court in the exercise of its own judgment (Qidwai v Brown [1984] 1 NSWLR 100; Re Soames (1979) 32 ACTR 53).
The Medical Council of Tasmania, pursuant to the Medical Practitioners Registration Act 1996 ("the Act"), s49(1)(e), referred to the Tribunal for formal inquiry a complaint that "S" had performed a medical procedure to which the patient, "P" did not give her consent. During the course of a hysteroscopy, dilation, curette and insertion of an intra-uterine device, S discovered and attempted to remove a fibroid from the uterus, in the course of which the uterus and bowel were perforated. The allegation concerned the absence of informed consent and the failure of S to satisfy himself that:
"The Practitioner failed to take any or sufficient steps to satisfy himself that the Patient had given her consent to the procedure, or that such consent as she might be taken to have given was sufficiently informed consent, when circumstances which were or should have been known to him should have put him on notice that such consent as she had given may not extend far enough, or be sufficiently informed, to include the procedure."
Absent that consent, it is claimed that the undertaking of the procedure amounted to "professional misconduct" within the meaning of the legislation. That concept can be defined as disgraceful or dishonourable or which would reasonably incur the strong reprobation of medical practitioners of good repute and competence (Kudelka v Medical Complaints Tribunal [2004] TASSC 31; Qidwai v Brown (supra)). This appeal concerns only the last characterisation of reprobation.
The issues are:
(1) Whether P consented to the procedure.
(2) Whether S had reasonable grounds for believing the patient to have consented.
(3) If not, whether it was professional misconduct to undertake the procedure.
No issue of emergency or intervention to prevent death or serious injury arising from an unforeseen complication inherent to surgery, arises on this appeal.
Consent
In 1998, the Royal Hobart Hospital published Procedure Number: Continuum of Care 4, reviewed in 1999 and 2002, relating to the procedures for obtaining consent. Relevant to this matter its provides:
"The procedure for obtaining consent for treatment is in two parts.
·The first part relates to the giving of medical information to the patient. The giving of this information is acknowledged in writing by the doctor and by the patient on the consent form.
·The second part is to obtain the patient's consent in writing on the consent form.
Written consent should be obtained for any procedure involving a significant interference with the person of a patient, entailing material risk, or which may give rise to complications. It should, in particular, be obtained before any of the following procedures:
(i) any treatment involving a procedural risk to the patient.
(ii) any surgical procedure or treatment conducted under hypnosis or acupuncture or where pre-medication or sedation is given.
(iii) any internal examination by a student (which must be supervised by a Medical practitioner) while the patient, male or female, is sedated or anaesthetised.
Consent must be obtained for the presence or assistance of medical or nursing students.
…
The Consent Form:
Will be completed at the time the decision regarding treatment is made. The medical practitioner, (Specialist or Registrar) will confirm that full information has been given to the patient by signing the consent form in the designated place.
…
For elective surgery patients consent should be reviewed at the time of pre-admission and again on admission by the Medical officer in attendance. Any matters requiring further advice or discussion should be referred to the Unit Registrar.
…
Consent for Elective Procedures:
For a patient's consent to be effective, the patient should be told by a Medical Practitioner of sufficient knowledge and experience:
(i) the nature of his or her condition
(ii) the nature of the proposed investigation or treatment, and the material risks, consequences and benefits, associated with that investigation or treatment
(iii) of any reasonable alternative to the proposed investigations or treatments
(iv) the likely outcome if he or she does not undergo the proposed investigation or treatment
(v) the requirements for post-operative management and/or rehabilitation.
It is necessary to advise a patient:
(i) whether or not an anaesthetic, transfusion of blood products may be needed and the possibility of associated risks
(ii) of any additional procedures or treatments which may become necessary depending on the course of the operation. These must be defined and listed on the consent form
(iii) of complications that may occur and a description of these
(iv) that the procedure / treatment may not give the expected results even though it is carried out with due professional care".
Standards of duty and care vary over time, between countries, through technologies and improved techniques and procedures. They may vary according to the nature of the institution, eg, specialist hospitals and rural centres. That which was historically accepted may no longer be apposite. Respect for the autonomy of a patient is now paramount, especially in the area of elective surgery. A literate and educated community ought have greater involvement in defining "informed consent". Here the publication affords a good basis for determining the nature and ambit of the term and the procedures necessary to give effect to policy and professional standard; Cattanach v Melchior (2003) 215 CLR 1; Rogers v Whitaker (1992) 175 CLR 479.
A publication of the Queensland Government, Queensland Health, provides a good example of "consent information" for a patient undergoing diagnostic hysteroscopy, dilation and curettage, which outlines the risks associated with the procedure which include perforation of the uterus and bowel (see also extract from Current Opinion in Obstetrics and Gynaecology Journal, "Complications in hysteroscopy: prevention, treatment and legal risk" 2002, 14:409-415).
History of patient
In July 2006, P, who was suffering from heavy menstrual bleeding, was referred by her general practitioner to the gynaecological unit of the Royal Hobart Hospital where she was examined by a Senior Registrar. The Registrar, not called as a witness, could recall the consultation but not its detail. An ultrasound earlier performed disclosed:
"There are multiple fibroids some subserosal majority are intramural, and several are thought to be causing deviation to the endometrial cavity. The largest of these measures 38x34mm which is in the mid uterus 20x14 posteriraly and 26x26 related to the fundus.
Mild dilatation to the right renal pelvis was noted.
…
COMMENT:
Bulky uterus. Due to fibroids. One of these may well be causing deviation to the endometrial cavity however it can only be traced in its proximal extent.
Some dilatation to the right renal pelvis, cause of this is unclear. No dilatation to the right ureter."
The Registrar's clinical notes contain the following entries:
"Pelvic U/S: Slightly bulky uterus
Multiple tiny intramural fibroids
Endometrium 8mm
…
Discussed options – Medical vs Surgical Mirena Hysterectomy Implanon Ablation Depo Pros & Cons of each
NoT keen for surgery
Would like to try Mirena ) Hysteroscopy D&C
Need endrometrial sample ) +I/O Mirena".
and include statements relevant to the issue of consent to the effect that he had discussed with the patient:
"… the proposed operation/procedure treatment … Hysteroscopy D&C; I/O Mirena … including the nature and likely results of, relevant benefits, foreseeable risks associated with that treatment and the alternatives to that treatment
There are some risks/complications which may happen with this operation/procedure/treatment. They include … Haemorrhage/ Infection/Perforation
I have also discussed other procedures/treatments which may become necessary which include …".
An incomplete standard consent form signed by the patient and the Registrar provided:
"Dr/Mr ________ and I have discussed my/or ___________ present condition
Name of doctor Name of patient to be treatedand the various ways in which it may be treated. The doctor has recommended the operation/procedure/treatment above. I have/have not been provided with written information regarding this operation/procedure/treatment. I have had my questions/concerns regarding the operation/procedure/treatment answered to my satisfaction.
I understand that (please carefully read the following points and make amendments where necessary):
·Anaesthetics, medicines and blood transfusions may be required and these may have some risk.
·Additional procedures/treatments may become necessary to prevent serious risk or harm. The doctor has discussed these with me and I consent to these being carried out as required.
·If I am a public patient I understand that my operation/ procedure/treatment will be performed by an accredited member of the hospital and not necessarily by my doctor of choice.
·Even though the operation/procedure/treatment is carried out with due professional care it may not give the expected result, and complications may arise.
·There may be examination or assistance by medical/other student/ancillary personnel involved in my operation/procedure/ treatment at the discretion of the treating doctor, to which I consent. I consent to the operation/procedure/treatment described above, including the operation/procedure/treatment specified above which might become necessary/desirable, for me/for ___________.
Name of patient
except that I DO NOT consent to having the following:
[Signatures of the patient, Dr Macbeth and an unidentified witness]."
The Registrar reported to the general practitioner:
"I reviewed [the patient] in the Gynaecology Clinic today. She is a lady who presents with a history of menorrhagia. She has had a pelvic ultrasound done now which showed a slightly bulky uterus, multiple tiny inch (sic) mural fibroids, and an endometrium of 8mm, but otherwise a normal pelvis. I have had an in depth discussion with [her] today about her management options, medical vs surgical. I offered her Mirena or Implanon or Depo, as this oral conceptive pill does not seem to be working any more, or surgery in the form of hysterectomy or ablation. We discussed the pros and cons of each.
[She] is not keen to have surgery at this point and in fact she would like to try the Mirena, which I think is an excellent idea. I did however explain the need for an endometrial sample in a 45 year old lady and she is not particularly keen to have an endometrial pipelle and therefore it would all work well if we bring her in as a day case, do a hysteroscopy D&C, and insertion of a Mirena."
P underwent the procedure on 11 August 2006. She was anaesthetised. During the procedure S found a "pedunculated, submucosal fibroid" which he attempted to remove. The unsuccessful intervention resulted in uterine perforation and possible bowel injury which necessitated further surgery requiring a hysterectomy and colostomy, and later surgery to the bladder.
P recalls the initial consultation and her awareness of the ultrasound report disclosing the fibroids. She told the Registrar that she did not wish to have a hysterectomy because she did not want surgery. She elected the non-invasive Mirena insertion and understood the procedure to require general anaesthetic and examination of the uterus. At no time subsequent was there discussion involving the removal of the known fibroid. She gave evidence before the Tribunal and her declaration was tendered at the hearing. In that statement she said she believed that "S spoke to me briefly in the operating theatre before I was put under the anaesthetic but I cannot recall anything that he said". Relevant to the question whether she would have consented on the finding of a fibroid growth larger than reported, she stated:
"13I do not know whether I would have agreed to surgery for removal of the large fibroid if I had been told beforehand that it was going to happen.
14I do not know whether I would have agreed to go ahead with the insertion of the Mirena if I had known in advance that if a larger fibroid was found it would have to be surgically removed before the Mirena could be inserted.
15However, I do know that I did not want to have a hysterectomy because I did not want to have any surgery and I believe that I should have had the opportunity to be told that the fibroid would have to be removed in order to permit insertion of the Mirena, to find out what risks that might involve and whether there were any other alternatives available to me, and to make a decision for myself as to whether to have that done."
Her account was not significantly challenged during cross-examination. She conceded that someone (but not S) had told her before the procedure that:
"I believe that someone told me before the procedure that if there were found to be too many fibroids in the uterus the insertion of the Mirena may not be able to go ahead."
But in the following exchange with counsel repeated:
"You knew that you didn't want to have a hysterectomy? … Yes.
You knew you didn't want to have an oblation? … Yes.
And you weren't keen on surgery? ... Yes. No."
S wrote to the patient on 13 October 2006 setting out his version of events, relevantly stating:
"It was most unfortunate that our initial meeting was post surgery and that I had not met you before. When I did meet you post surgery and following this time, I attempted to keep you and your family well informed. I also liaised with other specialty areas in order to provide you with the best care. I have reviewed your medical history and I would like to try to provide some clarity to the concerns that you have raised.
…
While it was noted that you were reluctant to have surgery, you declined further evaluation (a biopsy and then placement of the Mirena IUD) in the clinic. I believe that you are now aware that the biopsy would have failed to diagnose the intrauterine fibroid, and the Mirena would not have properly been placed into the cavity of the uterus also because of the fibroid.
Thus in retrospect the office procedures would have been unsuccessful, and the reason would not have been diagnosed until hysteroscopy was eventually performed.
Once it was decided that you would have anaesthesia and surgery, it is always preferred at the time of D and C with Mirena insertion to perform hysteroscopy as well. This is to look inside the uterus is [sic] to see if there were any unexpected reasons for your bleeding that D and C might not reveal. Your ultrasound mentioned multiple small fibroids, but did not report the large fibroid in the cavity of the uterus that was found on hysteroscopy.
From your chart I was aware that you were reluctant to undergo surgery, and I made the decision to remove the fibroid in the cavity of the uterus. While you would still have had a fibroid uterus, it is usually the ones in the cavity that cause abnormal bleeding. If the fibroid was removed, the Mirena IUD could have been placed and I feel you would have been pleased with the result.
While I was not the doctor who reviewed the procedure and signed the consent form with you for this surgery, the form did say that uterine perforation was a risk of surgery, and we would perform additional procedures that were thought necessary. Unfortunately the uterine perforation occurred, and the intrauterine fibroid was unable to be completely removed at that time. Once the diagnosis of uterine perforation was made, I stopped the procedure. Because the cavity of the uterus was enlarged and the fibroid still quite big, I thought I had grasped the fibroid and was removing it. On hindsight, I realize I was pulling on large bowel instead."
In his response to the Medical Council on 23 January 2007, he provided further detail which included:
"The consent for her initial procedure was obtained by Dr Macbeth, a senior registrar at Royal Hobart Hospital. I was not involved in her preoperative consultation and thus cannot comment on what specifically was said to the patient prior to surgery. Dr Macbeth included the risk of uterine perforation as a complication of hysteroscopy, dilation and curettage, +/- insertion of Mirena IUD. I reviewed the chart as the patient was being prepared for anesthesia and was aware that
1) The patient had a known, symptomatic, fibroid uterus
2) She did not want a hysterectomy, and
3) She preferred to avoid surgery, but declined sampling of the uterus and placement of the Mirena IUD as an office procedure.
I routinely explain to patients that hysteroscopy is used to view the cavity of the uterus and if a polyp or fibroid is found, removal would be attempted. I cannot comment as to whether this was discussed with Mrs P. It is regrettable that this possibility was not included in the section 'I have discussed other procedures/treatments which may become necessary …' on the consent form. My review of the patient's medical records just prior to surgery may have influenced me to remove the fibroid, knowing her wish to avoid hysterectomy. Removal of one pedunculated, submucosal fibroid would typically add only 15-20 minutes of operative time and would still allow the patient to go home the same day. Based on my interpretation of the sentence on the consent form 'additional procedures/treatments may become necessary …' I felt that removing the intrauterine fibroid in order to complete the procedure (place the Mirena IUD) would be expected by the patient."
He gave evidence to the Tribunal which will be later considered but he did not claim "actual consent" other than that previously recounted.
It is clear that P was reluctant to undergo invasive surgery whilst she was aware that her body contained a fibroid. She had with that knowledge consented to a procedure which involved entry and insertion of a device into her body. She had clearly elected a procedure different from that undertaken by the surgeon. She was entitled to further consider options if a fibrous growth more dangerous or larger than that indicated by the July report was found. She was entitled to be told of the attendant risks and to exercise her own judgment in choosing remedy. P did not consent to the course followed by the surgeon. That alone might warrant an adverse finding.
Reasonable belief and response
S knew and trusted the competence of the Registrar. His surgical list disclosed the procedure to be performed was a "hysteroscopy, D & C and insertion of the Mirena". He accepted in his declaration presented to the Tribunal that his view was that it was necessary for the patient to understand and consent to the procedures in the knowledge that:
"6.1Why the surgery was necessary - abnormal bleeding presumably caused by the fibroid uterus as shown on the ultrasound.
6.2Small risk of cancer being present so there is a need for the curette to take a tissue sample for analysis
6.3If the fibroids shown on the ultra sound are not preventing the placement of the Mirena IUD, we will place it.
6.4If there is a pedunculated mass or polyp in the uterus it might prevent the placement of the IUD.
6.5In those circumstances it will be necessary to remove that mass in order to confirm it is benign and not cancerous, to allow treatment of symptoms, as well as to allow placement of the IUD.
6.6These procedures carry a small risk of perforation of the uterus, bladder above or bowel below."
His position as stated in 6.4 and 6.5 was not accepted by Mr Francis Clark, a staff specialist in obstetrics and gynaecology at the Launceston General Hospital, nor by the Tribunal. That view does not accord with the Royal Hobart Hospital publication, nor the Queensland document already referred to. S did not recall seeing the ultrasound report of July, nor reading the consent form signed by the patient. In his account of the events occurring during the procedure, he stated:
"16I reviewed the chart as the patient was being prepared for anaesthesia and was aware, in addition to those matters relating to consent that:
16.1The patient had a known, symptomatic, fibroid uterus
16.2She did not want a hysterectomy, and
16.3She preferred to avoid surgery, but declined sampling of the uterus and placement of the Mirena IUD as an office procedure.
17I had the Registrar with me commence the operation by dilation and hysteroscopy. When she looked inside and found the mass she handed the operation to me. I saw a pedunculated fibroid. I knew the patient was not keen for surgery but had already embarked on surgery. I knew she had consented to the curette and I assumed, based on my experience of the competence of Dr Macbeth that she knew there was a chance that a mass that pathology might later confirm to be fibroid or a polyp might need to be removed. I assumed she had been informed that the Procedure could cause a perforation of the uterus, bowel or bladder and that should a mass need to be removed in order to place the IUD that might also cause a perforation.
18I knew that she was in surgery to address the problem she had with bleeding. Removal of the fibroid was necessary to enable that to occur.
19Removal of one pedunculated, submucosal fibroid would typically add only 15-20 minutes of operative time and would still allow the patient to go home the same day. I felt that removing the intrauterine fibroid in order to complete the procedure (place the Mirena IUD) would be expected by the patient.
20The idea of waking her for a re-consent on the same matters did not occur to me."
At the time he was satisfied, from his own knowledge and practice and confidence in the Registrar, that the patient's consent covered the matters stated in 6.1 to 6.4 above.
In relation to the question of trust, he told the Tribunal:
"I think it's very reasonable for me to trust a fourth year Registrar to do the Consent without having to review it with a patient.
…
But it's true, is it not, that you undertook no responsibility at all for the process of consent? … That's true. I did not do her Consent.
And you saw it as no part of your responsibility to make sure that this lady had, indeed, consented to everything you were likely to have to do? … I assumed that Dr Macbeth had done it, so I did not go beyond that assumption, no.
So is the answer that you did not accept any responsibility for the process of consent? … Yes, I did not consent her."
One of his contentions was that the procedure of hysteroscopy, although investigative, encompassed necessary removal of any "polyps or mass". He explained his opinion on this point in the following exchange (edited) with a member of the Tribunal:
"CHAIRMAN: Dr S, you've said on a number of occasions that to your mind the concept of a hysteroscopy necessarily involves or may involve the removal of a polyp or a fibroid depending on the findings. So when one sees, to your mind, the expression 'hysteroscopy', that carries with it the possibility of removal of let's call it 'tissue' for want of a better expression.
DR S: My exact words are 'possible removal of polyp or mass', and if they bring up mass then I would say 'most likely fibroid'. So in this case that would [sic] the typical masses you find in the uterus.
CHAIRMAN: Yes. And that just relates to the word 'hysteroscopy' itself? It's not the combined expression 'hysteroscopy D and C' or it's just that one word itself?
DR S: Hysteroscopy to me means we're looking for a reason, and if we find something expected or unexpected is what I've been struggling with in all this is. Did the ultra-sound say you should expect to find it or is it reasonable to assume it was an unexpected finding, whether it was expected and thus, you know, should have been written somewhere instead of verbally, if it's an unexpected finding which as a surgeon you do have to deal with. Either way it's basically you're looking for the expected or unexpected, and if it's a polyp or mass you would remove it.
CHAIRMAN: Now you've also said on a number of occasions that for reasons you've outlined you assumed or would have expected that Dr Macbeth, in discussing the hysteroscopy, would have discussed that possibility with Mrs P. Now what basis, if any, do you have for assuming that he would have adopted or had in mind the same meaning of hysteroscopy that you have, that you've just explained to us?
DR S: In general, because it's hysteroscopy, I mean, it's just you're looking for a reason, it's part of your training and our training to discuss what you're doing, what you might find, how you will handle these things. And then the fact that she has a known fibroid uterus, I would have thought even more so he would have said, you know, 'this is what we might find and this is how we'll handle it'.
CHAIRMAN: So to you that's the generally accepted meaning of the word?
DR S: Yeah, of the hysteroscopy as, you know, look, if there's nothing there a curette for some sampling, if there's polyp or mass we'll remove it, and on you go.
CHAIRMAN: But let me put it another way. You would have assumed that his understanding of the word was the same as yours?
DR S: Yes.
CHAIRMAN: Do you remember ever discussing it with him specifically?
DR S: Ah at the time or before that time, no. Since that time, I've only in the sense that he is a friend of mine, but he ---."
S did not regard the additional procedure undertaken as being "too complicated or difficult" and maintained that the standard consent form:
"… does not always say exactly the technique of your surgery or the findings that that time that may need to be treated and sometimes is part of the consent process in the office as opposed to some doctor specifically writing it on the form."
He conceded that removal of a fibroid was not stated in the consent document but that he had assumed it to have been discussed with the Registrar, adding in relation to the possibility of removal:
"… well I would say it's implied based on the discussion, the findings of the ultrasound that he's reviewed, and I would assume that he would have discussed that. Hysteroscopy is a procedure where you're looking and therefore may find something in how we would deal with it at that time."
S raised two significant issues in his response to the referral. The first is whether as a matter of routine or common practice an operating surgeon ought remove any polyp or mass found during a hysteroscopy. The second was that, absent emergency, there was an implied consent to perform a secondary or ancillary procedure or surgical intervention not listed on the form or agreed to beforehand by the patient. Mr Clark, an experienced member of the College of Gynaecology and responsible for the introduction to Tasmania of advanced laparoscopic and hysteroscopic procedures, did not share the approach advanced by S. He drew the attention of the Tribunal to the College Statement of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (endorsed in September 1993) Consent Advice 1, entitled Diagnostic Hysteroscopy Under General Anaesthesia, dated October 2004. The publication relevantly states:
"Some of his opinions were based on data collected and published in 1997 by Overton, Hargreaves and Maresh referred to as the Mistletoe Study (A national survey of the complications of endometrial destruction for menstrual disorders) 1997, 1997, 104, 1351 – 1359."
Mr Clark had reviewed the medical records, documentation, relevant correspondence and proof the patient presented to the Tribunal. He noted that the ultrasound report of 3 July 2006 showed "significant fibroids", an analysis contrary to the appellant's reference to "multiple tiny intramural fibroids", and observed that if S's assessment was correct, there would have been no need for removal. He distinguished between diagnostic and operative hysteroscopy and the comparative higher risks attendant on the latter. It is not necessary to set out in detail his evidence, but to state that his opinions, here recounted, were consistent with the medical records, account of the patient and the presented literature. His opinions and reliance on assumptions were not weakened through cross-examination.
Those opinions were:
"… if there was a reasonable possibility that the diagnostic hysteroscopy might reveal the presence of a fibroid the removal of which might necessitate operative hysteroscopy, that was something that Mrs P should have been informed of, along with the greater risks of operative hysteroscopy, and for which her consent should have been specifically obtained."
"… assuming that the scan report was among the records that Dr S had available to him before he commenced to operate on Mrs P, he should have read that report and had he done so, he should have been aware that there were large fibroids in the uterus and that their removal was likely to be necessary to enable a Mirena to be successfully placed in the uterus."
"… she should have been told what were the material risks associated with operative hysteroscopy, (best explained in The Mistletoe Study referred to above) and the increased risks of operative hysteroscopy as opposed to simple diagnostic hysteroscopy should have been explained to her."
"… despite the facts that in my opinion Dr S should have known that it was likely that removal of a fibroid or fibroids would become necessary, that he could and should have ensured that Mrs P was aware of that and of the additional or increased risks that it would involve over and above those associated with simple diagnostic hysteroscopy and that he had Mrs P's consent to that procedure before she was anaesthetised and that he should not, in all the circumstances have proceeded without that consent, the removal of the fibroid was arguably the most appropriate treatment for her."
The patient was entitled to be advised on, and make judgment about, the higher risks of operative hysteroscopy. The surgeon was aware of her concerns about invasive surgery as distinct from implantation. There was no evidence before him to suggest the need for an emergency intervention. He might have believed the additional procedure to be relatively uncomplicated and this Court accepts his statement:
"I would say I am capable of dealing [sic] a fibroid or polyp or whatever is in the cavity of the uterus in order to place the Mirena IUD and if its too complicated or difficult then I wouldn't do it."
Hindsight might be but a device or justification, but here the consequence confirmed the risks. The Court accepts that if, in the professional judgment of the appellant, the additional procedure appeared too complicated, he would not have continued. It accepts the skills of surgeons and the risks of invasive procedures. It accepts the pressures of time and resources of those skilled in medicine and the problems inherent in operating on another's patient. Here, the judgment of risk remained the province of the patient. As McHugh J observed in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 309 – 310:
"It is the central thesis of the common law doctrine of trespass to the person that the voluntary choices and decisions of an adult person of sound mind concerning what is or is not done to his or her body must be respected and accepted, irrespective of what others, including doctors, may think is in the best interests of that particular person. … the common law respects and preserves the autonomy of adult persons of sound mind with respect to their bodies. By doing so, the common law accepts that a person has rights of control and self-determination in respect of his or her body which other persons must respect. Those rights can only be altered with the consent of the person concerned. Thus, the legal requirement of consent to bodily interference protects the autonomy and dignity of the individual and limits the power of others to interfere with that person's body.
At common law, therefore, every surgical procedure is an assault unless it is authorised, justified or excused by law."
The Court is satisfied to the requisite degree that the appellant did not take appropriate steps to ascertain the extent of the consent provided by P. Whilst he had the interests of his patient in his choice of procedure, the attendant risk was not his to evaluate. That remained with the patient. The factual allegations are sustained.
Reprobation
The conduct of the appellant warrants judicial reprobation. The Court accepts the opinions of Mr Clark as representing reprobation by medical practitioners of good repute and competence. In doing so it is permitted to find "professional misconduct".
Notice of appeal
The appellant sought review of the findings of the Tribunal on the grounds that:
"1The Tribunal erred in finding that the patient did not consent to the procedure carried out by the appellant.
2The Tribunal erred in finding that the appellant did not rely on an assumption that Dr Macbeth had obtained the patient's consent to the removal of fibroids.
3The Tribunal erred in finding that, if the appellant did rely on an assumption that Dr Macbeth had obtained the patient's consent to the removal of fibroids, that reliance was unsafe and unreasonable.
4The Tribunal erred in finding that the appellant was indifferent as to whether the patient had consented or not to the removal of fibroids.
5The Tribunal erred in that, in the context that it was conducting an inquiry, it took into account :
(a)the fact that the appellant gave evidence that Dr Macbeth was a friend of his and that he did not apply to have Dr Macbeth called or seek to provide any evidence from Dr Macbeth,
(b)the fact that the proposition that, if a hysteroscopy was to be performed, this necessarily involved the possibility of the removal of a 'growth' was not put to Dr Clark and
(c)the fact that the proposition that it was reasonable for the appellant to assume that Dr Macbeth would have obtained the patient's consent to the removal of the fibroid was not raised with Dr Clark in cross-examination.
6The Tribunal erred in finding that the conduct it had found to be proved constituted professional misconduct."
There is a tension between the requirement to appeal against a tribunal by providing identified errors and requiring an appellate court to rehear the original referral. One tension is the extent to which an appellate court can pay regard to the special skills and judgment of tribunal members skilled in their discipline. Here I have attempted to review the whole case on the material before the Tribunal whilst exercising my own judgment. I have attempted to conduct the review generally but am mindful that in doing so I have not addressed grounds 5(a), (b) and (c) of the notice of appeal. It is correct to claim that the propositions stated in grounds 5(b) and (c) were not specifically put to Mr Clark but the difference between his and the appellant's opinions on those points was clearly known to the parties. The observations of the Tribunal were observations not sanctions permitted by the rule in Browne v Dunn (1893) 6 R 67 (HL). See also Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, Thomas v Van Den Yssel (1976) 14 SASR 205. The Tribunal simply pointed out that the evidence on that point had not been challenged by the appellant. The proceedings were in the form of an inquiry and not adversarial. Strict adherence to the rule in Browne v Dunn (supra) was not required and raised no objection to recall Mr Clark as a witness. Neither was it required to apply the principles stated in Jones v Dunkel (1959) 101 CLR 298. But the Tribunal's reference to the non-calling of the Registrar neither implied that his evidence would not have supported the appellant's case nor was used adversely to the appellant. The Tribunal was entitled to refer to the failure of the appellant to call as a witness the Registrar (Jones v Dunkel) (supra). But as it was told, without objection from the bar table, the possible witness could recall nothing specific about his conversation with P other than what appeared in his notes. Little turned on any failure to call him as a witness. For my part, none of the matters raised by the grounds were significant. I find failure to call the Registrar was immaterial and the opinion reached by Mr Clark identified by ground 5(c) immaterial. The matter of controversy identified by ground 5(b) was well understood and canvassed by the parties and the Tribunal. For my part I accept that the opinion expressed by Mr Clark had not been significantly challenged. That failure had some, but little, import, given the contents of the Mistletoe study and the Consent Advice 1 document published by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. The question of "medical reprobation" is more problematic. I reached my own conclusions about informed consent and reasonableness of inquiry through the judicial process involving the discipline of law. But I drew comfort from a number of conclusions reached by those Tribunal members skilled in the practice and discipline of medicine. Nevertheless, had we differed, the judicial duty and methodology remained paramount.
The appeal will be dismissed.
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