Medical Board Of Australia and McClure

[2012] WASAT 69

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: MEDICAL ACT 1894 (WA)

CITATION:   MEDICAL BOARD OF AUSTRALIA and McCLURE [2012] WASAT 69

MEMBER:   MR C RAYMOND (SENIOR MEMBER)

MS M CONNOR (MEMBER)
DR B MENDELAWITZ (SENIOR SESSIONAL MEMBER)
DR F NG (SENIOR SESSIONAL MEMBER)

HEARD:   6, 7 AND 8 SEPTEMBER 2011

DELIVERED          :   13 APRIL 2012

FILE NO/S:   VR 91 of 2010

BETWEEN:   MEDICAL BOARD OF AUSTRALIA

Applicant

AND

ROBERT JAMES McCLURE
Respondent

Catchwords:

Medical practitioner ­ Disciplinary hearing ­ Allegations of gross carelessness ­ Alleged failure to administer antibiotics within reasonable time ­ Alleged failure to ensure a blood gas result obtained within a reasonable time ­ Alleged failure to attend upon and examine patient, or to have patient transferred to a hospital at which the patient could be attended upon and examined by a neonatologist ­ Alleged failure to ensure adequate respiratory support provided within acceptable time ­ Alleged failure to ensure provision of respiratory support in the form of incubation and ventilation as soon as practicable ­ Ordering commencement of continuous milk feeds, alternatively, failing to ensure cessation of continuous milk feeds within an acceptable time ­ Leaving the patient in order to attend another patient without instituting emergency medical treatment ­ Alleged failure to administer antibiotics within acceptable time admitted ­ Whether gross carelessness

Legislation:

Health Practitioner Regulation National Law (WA) Regulations 2010, s 14, s 17, s 289
Interpretation Act 1984 (WA), s 37
Medical Act 1984 (WA), s 13(1)(c)
Medical Practitioners Act 2008 (WA)
State Administrative Tribunal Act 2004 (WA), s 32(2)(b), s 32(4)

Result:

Application successful

Category:    B

Representation:

Counsel:

Applicant:     Ms F Stanton

Respondent:     Mr P Tottle

Solicitors:

Applicant:     McCallum Donovan Sweeney

Respondent:     Tottle Partners

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336

Jemielita v Medical Board of Western Australia (unreported, SCWA) Library No 920584, 13 November 1992

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Proceedings were commenced against the respondent under s 13(1)(c) of the Medical Act 1894 (WA) alleging gross carelessness in relation to the medical care of a newborn infant during the period 1 August 2005 to 2 August 2005.

2. After analysing the evidence, including expert medical evidence, the Tribunal found that the respondent was guilty of gross carelessness in relation to the care of the patient in three respects:

   1)the failure to ensure antibiotics were administered to the patient within an acceptable time;

   2)the failure to attend upon and examine the patient after being advised of an abnormal blood gas result for the patient; and

   3)leaving the patient in order to attend to another patient, without instituting emergency medical treatment for the patient.

3. The Tribunal found that the evidence did not support the remaining grounds on which the application was based.

4. The Tribunal indicated that it would issue final orders consistent with its findings after providing the parties an opportunity to provide submissions on the appropriate disciplinary sanction to be imposed, the applicant's application for costs, and other incidental matters.

Introduction

1. The Medical Board of Western Australia commenced proceedings against the respondent (Dr McClure) on 24 May 2010, alleging that disciplinary action should be taken against him pursuant to s 13(1)(c) of the Medical Act 1894 (WA) (1894 Act). There is some confusion as to whether the applicant is correctly cited as the Medical Board of Western Australia or the Medical Board of Australia, which is addressed further below. The applicant will be referred to as the Board, save where the context requires a more specific reference to either of the Boards.

2. Dr McClure is a neonatal paediatrician who, at all relevant times, was employed by St John of God Hospital, Subiaco (SJOG).  As such, he was responsible for the care of a newborn infant (Ethan), from shortly after his birth on 1 August 2005 until Ethan's transfer on 2 August 2005 to Princess Margaret Hospital.

3. The allegations made against Dr McClure are that he:

   1)failed to ensure that antibiotics were administered to the patient within an acceptable time following the onset of the patient suffering respiratory distress or, alternatively, as soon as practicable after examining the patient at 8 pm on 1 August 2005 or, alternatively, as soon as practicable after being advised of the patient's abnormal blood gas result at or about 10.40 pm on 1 August 2005;

   2)failed to ensure that a blood gas result was obtained for the patient within a reasonable time of ordering blood gas analysis at 8 pm on 1 August 2005;

   3)failed to attend upon and examine the patient, or to have the patient transferred to a hospital where a neonatologist could attend upon and examine the patient, after being advised of the abnormal blood gas result for the patient at or about 10.40 pm on 1 August 2005;

   4)failed to ensure the provision of adequate respiratory support for the patient within an acceptable time following the onset of the patient's respiratory distress on 1 August 2005;

   5)failed to ensure the provision of respiratory support for the patient in the form of intubation and ventilation as soon as practicable after examining the patient at 8 pm on 1 August 2005 or, alternatively, as soon as practicable after he was advised of the patient's abnormal blood gas analysis at or about 10.40 pm on 1 August 2005;

   6)ordered the commencement of continuous milk feeds for the patient or, alternatively, failed to ensure the cessation of continuous milk feeds to the patient within an acceptable time, in light of the patient's ongoing respiratory distress on 1 August 2005; and

   7)left the patient at or about 7.55 am on 2 August 2005 in order to attend another patient without instituting emergency medical treatment for the patient, including the administration of antibiotics and respiratory support in the form of intubation and ventilation, and urgent transfer to Princess Margaret Hospital, when he knew, or should have known, at or about 7.55 am on 2 August 2005, that the patient was in urgent need of such treatment and transfer.

4. Dr McClure acknowledges that he erred in failing to provide Ethan with antibiotics within an acceptable timeframe.  While there was, initially, considerable debate about the time within which antibiotics should have been administered, it was ultimately agreed by all of the expert witnesses and Dr McClure, that, at the very latest, antibiotics should have been administered within four to five hours after Ethan's birth at 11.45 am on 1 August 2005.  All other allegations are contested.  Dr McClure further contends that his omission to administer antibiotics, while a serious mistake, which it is clear he deeply regrets, is not one deserving of any disciplinary sanction.

The applicable legal framework and principles

1. The proceedings were commenced on 24 May 2010, pursuant to s 13(1)(c) of the 1894 Act.

2. The 1894 Act was subsequently repealed by the passage of the Medical Practitioners Act 2008 (WA) (2008 Act), which came into force on 1 December 2008. The 2008 Act contains no transitional provisions in relation to proceedings commenced in the Tribunal, but not concluded under the 1894 Act.

3. The 2008 Act was, in turn, repealed on 18 October 2010 by the Health Practitioner Regulation National Law (WA) Act 2010 (National Law).  Subject to the provisions of the National Law, and by virtue of s 37 of the Interpretation Act 1984 (WA), these proceedings may be continued as if the 1894 Act continued in effect.

4. It is noted that, in terms of s 17 of the National Law, proceedings commenced under the 2008 Act are to continue under the 2008 Act by the National Board. Section 17 of the National Law applies in respect of any of the former acts repealed by s 14 of the National Law, which include the 2008 Act, but not the 1894 Act, which had been previously repealed. Section 17 of the National Law, therefore, does not apply in respect of the proceedings commenced under the 1894 Act. However, s 289 of the National Law, which is not limited in its application only to the former acts, is to much the same effect, and enables a complaint made prior to 18 October 2010 to be dealt with by the National Board under the act of the participating jurisdiction under which it was made, and the proceedings may be dealt with as if that act had not been repealed.

5. There does not appear to have been any formal order of the Tribunal substituting the Medical Board of Australia for the Medical Board of Western Australia, although the Tribunal's orders have, since at least 13 November 2010, consistently referred to the applicant as the Medical Board of Australia.  On the other hand, all documentation filed by the parties through to the conclusion of the hearing has reflected the applicant as the Medical Board of Western Australia.  It appears that the applicant should be the Medical Board of Australia, but this should be regarded as no more than the Tribunal's tentative view, subject to the submissions of the parties.  The orders to be made by the Tribunal will make provision for this.

6. Under s 13(1)(c) of the 1894 Act, the Board may allege to the Tribunal that disciplinary action should be taken against a medical practitioner on the basis that he or she is guilty of gross carelessness or incompetency. In this case, the allegation is restricted to gross carelessness, there being no suggestion of incompetency.

7. The concept of what constitutes gross carelessness or incompetency within the meaning of the legislation was explained in Jemielita v Medical Board of Western Australia (unreported, SCWA) Library No 920584, 13 November 1992.  The approach of the then Board to what constituted gross carelessness or incompetency was accepted by Owen J, who stated, at pages 19 ­ 20:

   In relation to gross carelessness or incompetency, the respondent had this to say:

   'The Board is of the view that gross carelessness or incompetency in s 13(c) of the Act means gross carelessness or inability by the practitioner to attend to the requirements of the patient either at all or with reasonable skill and care.  In the context of s 13 it is necessary that the carelessness or incompetency should assume a scale of gravity which is sufficiently serious to warrant denunciation by professional colleagues of good repute and competence and have reached the scale that such other practitioners regarded as intolerable and deserving of punishment and disciplinary action as falling so short of an acceptable standard of clinical care, that disciplinary action is warranted for the protection of the public.'

   … The concept of gross carelessness involves unacceptable conduct without any intention of wrongdoing on the part of the practitioner.  It also suggests the practitioner is unable to give the care required or is indifferent to the need for such care notwithstanding that he may have the intellectual and technical ability to supply the care that is required.

   In my view, the Board has correctly identified the appropriate meanings of those phrases as they apply to disciplinary proceedings and to standards of professional conduct required of medical practitioners.  I should add one small point.   The concept of 'carelessness' may not be endemic to the practitioner's affairs generally.  It may be limited to individual, perhaps sporadic incidents.  However, the concept of incompetency seems to suggest a more generalised deficiency in the way in which a practitioner handles his professional affairs.

8. The nature of the allegations made, and their potential impact on the standing, reputation and livelihood of a medical practitioner, require that the Tribunal, whilst deciding the issues on the balance of probabilities, should 'feel an actual persuasion of the occurrence of events or existence of facts which are in issue': Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 ­ 363.

The proceedings

1. The hearing was conducted on 6, 7 and 8 September 2011.

2. The applicant prepared a bundle of documents described as a book of evidence, comprising of four volumes and 1,044 pages (BOD).  The BOD includes all relevant medical records and documents produced by SJOG pursuant to a witness summons and statements (including statements in the nature of evidence in chief, in some instances, supplementary statements and responsive statements).  The expert witness statements included for the applicant are those of Professor Lex Doyle, Dr Jennifer Sokol and Dr Andrew Watkins.  The expert witness statements included for the respondent are those of Dr Vaughan Richardson and Dr Jeffrey Robert Tompkins.  A joint expert witness statement is also included.  The expert witnesses are all well qualified to give opinion evidence in the field of neonatology.

3. Witness statements on matters of fact are included in the BOD from the following witnesses for the applicant:

   •Dr Lindsay Adams;

   •Nurse Shanette Sims;

   •Nurse Margaret Clare Naidu (known as Clare Naidu);

   •Nurse Lee Pellicciotta (who, at all relevant times, prior to her marriage, was known as Lee Sexton);

   •Nurse Midwife and Clinical Nurse Coordinator, Cheryl Collins;

   •Dr Michael Aitken; and

   •Mrs JM, the mother of Ethan.

4. The witness statement of Dr McClure is also included in the BOD.  While he is a witness of the fact, he also gave expert opinion evidence but did not participate as an expert in the Tribunal procedures requiring the conferral of expert witnesses and preparation of a joint expert witness statement.

5. All of the witnesses of fact also gave oral evidence during the hearing and were subject to cross­examination, except Mrs JM Aitken and Dr Aitken, whose witness statements were simply tendered by consent.  The expert witnesses gave evidence by way of video conference and Nurse Collins gave evidence by telephone.

6. The parties were unable to agree that the BOD be tendered by consent, on any particular basis.  This was due, in part, to documents being included by the Board in anticipation that various issues might arise, which, following clarification at the commencement of the hearing, counsel for Dr McClure confirmed would not be raised.  It was agreed that if the parties wished to rely upon any documents in the BOD, they would be tendered and made separate exhibits.  Accordingly, in order to facilitate the hearing and the use of the copy documents included in the BOD, the Tribunal indicated that it would use alphabetical lettering, together with the index number used in the BOD, for the purposes of identifying each exhibit.  For example, Exhibit A (7 ­ 22) constitutes all of Ethan's original medical records, being documents 7 ­ 22 in the index.  All of the above witness statements were in due course formally tendered and were received into evidence.

7. Ms Claire Whittaker, a nurse who had primary responsibility for the care of Ethan from 9 pm on 1 August 2005 until the changing of the shifts at 7 am the following morning, did not give evidence before the Tribunal.  This was explained by counsel for the Board on the basis that, while Nurse Whittaker had made entries in the nursing observation record during the evening, she had no interaction with Dr McClure and, accordingly, it was assessed that her evidence would add nothing to the proceedings.

8. Finally, during the course of the hearing, the decision of the Coroner was tendered and accepted into evidence over the objection of counsel for Dr McClure.  The objection was on the basis of relevance.  At the time, the Tribunal indicated that it would determine what weight, if any, was to be given to the decision.  We have concluded that it is not necessary for any weight to be attached to the decision.  The case is about whether Dr McClure's care of Ethan was so deficient, on the grounds alleged in the application, that he should be found to be guilty of gross carelessness.  It is the degree of Dr McClure's departure from the proper standard of care, which a patient should be entitled to expect from a competent medical practitioner, which will determine the outcome of the proceedings, not the consequences of that departure.  It is clear, on the medical evidence, that all that can be concluded about Dr McClure's failure to administer antibiotics to Ethan, within the appropriate time, discussed further below, is that Ethan might have survived if the antibiotics had been administered, but he might also not have done so.  Evidence to that effect by both Professor Doyle and Dr Watkins was not challenged.

9. There were issues raised in Dr McClure's original witness statement concerning the presence of adenovirus in some of Ethan's organs.  These statements were deleted by way of an amendment at the commencement of Dr McClure's evidence, thereby removing the potential arguments concerning cause of death which counsel for both parties stressed was not necessary.  In these circumstances, the evidence of Professor Doyle and Dr Watkins is sufficient to measure the importance of administering antibiotics as part of the process of assessing the gravity of any omission to do so.  It is for that reason that it is not necessary for us to have any regard to the findings of the Coroner and why no weight is accordingly attached to that decision.

General observations in relation to witnesses of fact

1. The circumstances giving rise to these proceedings occurred some six years prior to the hearing.  There was an internal inquiry held at SJOG, but the extent to which some or all of the nursing witnesses participated has not been established, and there is nothing to suggest that any information which might then have been provided, by either the nurses or other medical staff, was recorded in writing.  The evidence before the Tribunal establishes that none of the witnesses prepared witness statements prior to the provision of statements to the coronial inquiry held in August 2008 some three years subsequent to the relevant events.  It is therefore inevitable that all of the witnesses have engaged in some reconstruction based on the medical records and, accordingly, where evidence has been given of particular details not corroborated by contemporaneous records, we have approached it with caution.  That said, we accept the submission made on behalf of the Board that the circumstances were such that those involved in caring for Ethan would, inevitably, have reflected at the time on what had occurred.  It would have been obvious to those involved in caring for Ethan that, when he was transferred from SJOG on 2 August 2005, his chances of survival were poor.  The circumstances were such that we consider it likely that key events would have been fixed at an early time in the memory of those involved.

2. The evidence of Dr Adams calls for further specific comment.  Counsel for Dr McClure submits that there was a subtle prejudice in the manner in which Dr Adams presented his evidence.  Dr McClure's declining of an invitation from Dr Adams to write up the medical notes (after treatment of Ethan by both doctors), was expressed in terms that Dr McClure had replied with words to the effect that he did not want Dr Adams to write the notes (Exhibit D (112) para 24).  Dr Adams was cross­examined about a portion of his witness statement which had been struck out, in which he had described this as a refusal of a request to write up the notes.  Dr Adams conceded that the response was in terms of 'no, that's okay, I'll do it' (T:67(1) (sic 68); 06.09.11).  He further conceded there was nothing unusual in Dr McClure writing up the notes, that Dr McClure was just following normal practice and that, in any event, the clinical notes were a complete note which did not miss out anything of clinical importance (T:68; 06.09.11).  Nevertheless, counsel for Dr McClure made no other specific criticisms of Dr Adams' evidence.  As will be seen further below, Dr Adams' evidence is corroborated in some respects.  We are satisfied that he gave his evidence before the Tribunal as accurately as he was able.  Indeed, when cross­examined about the above statement concerning the writing up of notes, the transcript reflects:

   Mr Tottle:  Can I take it that you don't actually remember what was said?

   Dr Adams: … not definitively, no. (T:68; 06.0911)

1. We nevertheless accept that there was a subtle tenor in the content and manner of Dr Adams' evidence, such that a poorer impression was given of Dr McClure than was warranted, in our view.  For instance, in his witness statement to which we have referred, at para 32, Dr Adams explains why he made contemporaneous notes about the circumstances in which he and Dr McClure participated in treating Ethan on 2 August 2005.  He said that he had made the notes because Dr McClure had told him that he should not write the hospital notes, which again suggests a stronger form of directive than the response actually given.  In the circumstances, we approach the evidence of Dr Adams with particular caution.

2. In our view, the evidence of Dr McClure must also be assessed with caution.  The qualification expressed above in relation to the evidence from the nurses with respect to particular details applies equally to Dr McClure.  It is clear he has reconstructed his various statements based upon the medical records.  We are not critical of him for doing so.  It is understood that, in many instances, he and the nursing witnesses would have had to resort to the medical records to provide the medical detail reflected in their statements.  However, in addition, Dr McClure has, although understandable to a degree, adopted a very defensive response to the situation and has endeavoured to present his account in as favourable a way as possible, but which, in some instances, has been inaccurate and unjustifiable.  While his evidence on key issues will be examined in greater detail below, we will give some examples upon which this conclusion is based.

3. Dr McClure consistently maintained that Ethan's clinical course was generally improving before deteriorating in the early hours of 2 August 2005 (Exhibit T (105) at para 251).  At para 271 of the same statement, dealing with his examination of Ethan at 8 pm on 1 August 2005, Dr McClure stated that Ethan appeared to be stable, and the general trend of his nursing respiratory observations appeared to be improving.  That was clearly wrong.  Dr McClure was cross­examined concerning a number of critical observations relevant to Ethan's health.  The nursing respiratory observations at 8 pm did not reflect any improvement, but Dr McClure said that he did not recall whether those observations had been recorded at the time of his assessment of Ethan (T:74; 07.09.11 and following).  During this cross­examination, he conceded that the nursing observations at 8 pm did not reflect an improvement in the grunting (which reflects a degree of respiratory difficulty).  Dr McClure conceded that he had noted increasing respiratory distress syndrome (RDS) in the clinical notes at 8 pm.  Dr McClure's own notes also reflect an increased oxygen requirement of 44%, as compared with approximately 25% at 5 pm.  He explained that the 44% was not indicative of a deterioration, because Nurse Collins had informed him that Ethan had, only minutes before, managed to wriggle out from under his supplemental oxygen supply (in fact, we find later that this was due to a machine malfunction), and that, as a result, she had increased his oxygen amount to 44% to let him recover his blood saturation level (Exhibit T (105) para 79).

4. Dr McClure's witness statement, as filed, refers to an oxygen requirement at 10.40 pm of 25% (para 97).  Prior to giving evidence, Dr McClure amended his statement to delete the reference to 24% ­ 25%.  Under cross­examination, he said that he could not explain where he had obtained that measurement from.  The nursing observations at 11 pm reflect an oxygen requirement of 44%.  Nurse Naidu's evidence is that she informed Dr McClure during the 10.40 pm telephone discussion that Ethan's oxygen requirement was then 41% ­ 42%, which she explained, in oral evidence, she could read from a digital monitor above Ethan, while talking to Dr McClure.  Counsel for Dr McClure challenges the likely accuracy of that evidence.  While exercising caution in coming to this conclusion, we do not think the criticism is justified.  The nursing observations (Exhibit A (7 ­ 22) at page 12 of the BOD) show that between 8 pm and 10 pm, Ethan's oxygen requirement had fluctuated from 28% to 24% to 30%, and was 42% at 11 pm.  In a document prepared for the expert witnesses retained for Dr McClure, he stated that Ethan's oxygen requirement was stable (Exhibit X (44) para 3.23).  Yet in a letter addressed by Dr McClure to the Registrar of the Medical Board of Western Australia on 25 June 2006 less than a year later, Dr McClure stated that he asked Nurse Naidu about Ethan's clinical condition and that this was discussed in detail.  This included the supplemental oxygen requirement, pulse, respiratory effort and rate, perfusion, oxygen saturation measurement and milk tolerance which he said appeared unchanged.  However, the oxygen requirement, he stated, was then between 30% ­ 40% and was actually less than when he last carefully assessed Ethan (at 8 pm) (Exhibit W (34) ­ BOD 143).

5. That oxygen rate could only be said to be less, based on the temporary increase to 44%, because Ethan had, according to Dr McClure, wriggled out from under the supplementary oxygen supply.  It was a misleading statement.  We find it is more likely that Nurse Naidu's evidence is correct and the oxygen requirement at 10.40 pm was 42%.

6. This reflects a self­serving attempt at rationalisation of what had occurred after the event.

7. Another example of this is that, in Exhibit X (44) in his instructions to expert witnesses, Dr McClure explained that he had not carried out a full examination of Ethan when he first saw him on 2 August 2005 because he had to attend an emergency caesarean section.  In his later witness statement (Exhibit T (105)), Dr McClure simply stated that his attendance was urgently required at a caesarean section (para 106).  There was no suggestion that it was an emergency operation.  The distinction is obviously an important one in having to weigh the appropriateness of a professional judgment as to which patient to attend upon.  The case appears to have been conducted on the basis that the records subpoenaed from SJOG establish that the operation was not an emergency caesarean section.  Dr McClure was taken to these records by his counsel in the context of establishing the time at which he was most likely to have returned to the neonatal ward to attend upon Ethan (T:41; 07.09.11).  Counsel for the respondent referred to the records in her closing submissions as demonstrating that there had been no emergency caesarean operation requiring Dr McClure's attendance (T119 and T120; 08.09.11), and this was not challenged.  It appears that the subpoenaed medical records were not tendered by way of an omission.

8. We are required by s 32(2)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. Further, by s 32 (4) of the SAT Act, we may also inform ourselves on any matter as we see fit. Having been taken to document 28 by counsel for Dr McClure, we shall have full regard to it as if it had been tendered and received into evidence. It reflects that the reason for the caesarean section was simply that the mother had previously had a caesarean section. There is nothing within the record to suggest that the procedure was an emergency. In the circumstances, we assume that it is common cause that the caesarean section was an elective procedure, but if it is not common cause, we find that the procedure was an elective caesarean section. In any event, we consider that the evidence, disregarding the above document 28, that Dr McClure was required to attend an emergency caesarean operation as set out in his instructions to his expert witnesses (Exhibit X (44) is, in itself, a sufficient example of self­serving rationalisation after the event. Dr McClure's statement in these proceedings establishes no more than that he was urgently required to attend a caesarean section without any indication as to whether the operation itself was an emergency.

The facts

1. The history of what occurred is, in the main, not contentious.  There is a dispute concerning the content of some discussions, a particular telephone discussion at 10.40 pm on 1 August 2005 concerning Dr McClure's first attendance upon Ethan on 2 August 2005, and his interaction with Dr Adams in the subsequent treatment of Ethan.  Where the facts are in contention, we shall set out our reasons for our factual findings but, otherwise, the facts set out are not in issue and therefore constitute our findings.

2. Ethan was born at 11.45 am on 1 August 2005 at full term by induced vaginal delivery.  Dr Aitken was the obstetrician attending on the birth.  He became concerned that Ethan had developed signs of some respiratory distress immediately after the birth and requested Dr McClure to attend.  There has been a great deal of evidence concerning the treatment of Ethan's mother, Mrs JM, particularly in relation to the screening for Group B Streptococcus (GBS).  It suffices to find, simply, that the circumstances of the birth were such as to justify Dr McClure's initial diagnosis of Transient Tachypnoea of the Newborn (TTN), also known as wet lung.  There is no issue about the appropriateness of that diagnosis.

3. We also find that, based on the information provided to Dr McClure by Dr Aitken and the midwife in attendance, it was appropriate for Dr McClure to have concluded and to record, as he did in the hospital notes, 'no septic risk factors'.  Dr McClure's notes also reflect that Ethan exhibited symptoms consistent with TTN, namely grunting (a sound made during exhaling) and mild nasal flaring.  There was no recession of the chest noticed (Exhibit A (10) BOD 20).  Dr McClure requested that Ethan be transferred to the neonatal unit at SJOG, that his oxygen saturation levels be monitored and kept at above 92%, that a cord blood culture be taken and saved in case, later on, a diagnosis of sepsis became a possibility, that his blood sugar be regularly monitored, and that he be fed as tolerated by the nurses of the neonatal unit.

4. Dr McClure states that, between 1 pm and 2.35 pm, he had a general discussion with Nurse Collins about his patients and their medical requirements, including Ethan.  He states that he advised Nurse Collins that Ethan did not have any septic risk factors, so he did not require antibiotics.  Nurse Collins disputes having had this discussion with Dr McClure.  Her evidence is that handover was completed with the outgoing clinical coordinator sometime between 1 pm, when she came on duty, and 1.30 pm.  At that time, there was nothing remarkable about Ethan's condition.  He was not receiving any supplemental oxygen and his oxygen saturation level was 94%.  He was still grunting, which was not unexpected.

5. Nurse Collins was the shift coordinator and, as such, was responsible for the overall care of patients during her shift on that day from 1 pm to 9.30 pm.

6. Nurse Collins was in London at the time of the hearing and gave evidence by the use of telephone conference facilities.  She impressed the Tribunal with the clarity of her evidence and with the obviously impartial manner in which it was given.  She confirmed that her statement to the Coroner in 2008 was given based on her memory, the nursing notes and Ethan's clinical record.  She stated that Dr McClure had an excellent approach to patient care and she readily confirmed evidence given to the Coroner that, at the time, she thought Dr McClure looked tired, that it was a very busy time and that, if he was the doctor on call, he would have taken on the load (T118 and T 119; 06.09.11).  The readiness with which this evidence, favourable to Dr McClure, was given is in stark contrast with the firm manner in which she rejected the suggestion that a discussion about Ethan's septic risk factors occurred between 1 pm and 2.35 pm on 1 August 2005.  She conceded that her recollection concerning the content of the discussion was a 'general memory', but was adamant that the time of the discussion was at 8 pm, which coincided with Ethan's alarm being triggered because his oxygen saturation level had dropped.  Ethan had been provided supplemental oxygen from approximately 2 pm, which had been maintained at about the 28% level.  By 4 pm, his grunting had increased, which could indicate increased respiratory distress.  When the monitor alarm was triggered at 8 pm, his oxygen saturation had dropped to 84% and, as a result, Nurse Collins increased the oxygen supply to 40% and noted that it took approximately three minutes for Ethan to resaturate.

7. While Dr McClure, under cross­examination, debated, and initially disputed, that Ethan's condition had worsened by 8 pm, he ultimately conceded that to be the case (T:103; 07.09.11).

8. Nurse Collins gave her reason for recollecting that the discussion about administering antibiotics occurred at 8 pm, rather than at any earlier time, because 'Ethan wasn't that sick earlier in the day' (T:119; 06.09.11).  We prefer the evidence of Nurse Collins on this issue to that of Dr McClure.  We have noted Dr McClure's propensity to reconstruct and attempt to justify his position.  The setting off of the alarm (although Nurse Collins stated that it appeared to have been caused by a mechanical issue with the machine, rather than Ethan wriggling out from under the head box as Dr McClure recalled (T:120; 06.09.11), coupled with Ethan's increased level of grunting and continued need for supplemental oxygen, accords better with Nurse Collins' explanation that she would not have raised the issue of antibiotics earlier because Ethan did not then appear unwell.  We therefore do not accept Dr McClure's evidence that this discussion took place sometime between 1 pm and 2.35 pm, which is when Dr McClure carried out his second review of Ethan.

9. At the review of Ethan at 2.35 pm, Dr McClure noted that Ethan had required a supplemental oxygen requirement of 27%, was showing increasing signs of respiratory distress but otherwise seemed well, and that his peripheral perfusion was good.  Dr McClure revised his diagnosis and changed it to TTN, with the additional possibility of concurrent RDS of the newborn.  Dr McClure also ordered a chest x­ray be taken to confirm his revised diagnosis.

10. Dr McClure carried out a further review of Ethan at 5 pm on 1 August 2005.  Ethan's condition had improved relative to the 2.35 pm review.  His grunting was occurring occasionally.  His chest recession was reduced.  Ethan's oxygen requirement had decreased slightly to 25%.  He was tolerating normal volumes of milk by naso­gastric tube, and Dr McClure's review of the chest x­ray which had been taken showed signs consistent with TTN and mild RDS.  As Dr McClure regarded Ethan's condition as improving, he was happy to order that his current management be continued.

11. Dr McClure next examined Ethan at 8 pm on 1 August 2005.

12. It was shortly before this examination that Ethan's monitor alarm had gone off, and we find that it was then that a discussion occurred between Dr McClure and Nurse Collins, when Nurse Collins enquired whether antibiotics should be administered, as examined above.  In addition, Dr McClure and Nurse Collins discussed Ethan's perfusion, which Nurse Collins thought was worse than before.

13. In his evidence, Dr McClure stated that he thought Ethan's condition at 8 pm showed an improvement although, as discussed, he later accepted that not to be the case.  In his witness statement, he provided a basis for this as being that Ethan's oxygen requirement had reduced from a maximum of 29% at 3 pm to 25% ­ 28% at 8 pm.  That oxygen requirement was, however, higher than he had himself noted at 5 pm, being 25%.  This is indicative of the manner in which Dr McClure attempted to cast his evidence in as favourable a way as possible.  Ethan's condition had worsened by 8 pm, as he ultimately conceded.  Even so, that concession assumes that the sudden increase in oxygen requirement to 40% at 8 pm was attributable to either a malfunction with the equipment, or Ethan moving out from underneath the head box.  Nurse Collins stated that Ethan had not moved out from under the head box and that he was too big to do so (Exhibit N 106 para 7).  It was a machinery issue (T:120; 06.09.11).  As Dr McClure did not have firsthand knowledge of the cause of the increased oxygen requirement and Nurse Collins did, we accept her explanation.  As Ethan's perfusion was discussed, it is also likely that Nurse Collins would have informed Dr McClure that Ethan had taken approximately three minutes to resaturate after she had increased the oxygen supply to approximately 40%.  Nurse Collins expressly stated in her evidence that she and Dr McClure discussed Ethan's oxygen requirement, his poor perfusion and the possible need for antibiotics.  Dr McClure responded with words to the effect that there were no septic risk factors or set up for sepsis and, therefore, antibiotics were not required.  By this, Nurse Collins understood that Dr McClure was conveying that the usual risk indicators were not present, namely, any indication of GBS from testing of the mother, no maternal temperature and no temperature in Ethan.

14. Dr McClure instructed that Ethan be given continuous milk feeds to reduce his work of breathing (which is consistent with a deterioration in condition contrary to Dr McClure's original view, which he endeavoured to justify), and also that a capillary blood gas sample be taken for testing.

15. Nurse Pellicciotta attempted to take a blood sample from Ethan to enable a blood gas analysis to be conducted.  She had difficulty in doing so because of, what she described as, Ethan's poor peripheral circulation.  The blood gas analysis cancelled automatically, reporting that the sample was insufficient.  Nurse Pellicciotta took another blood sample from Ethan with the same unsuccessful result.  The blood gas analysis machine was new and it was necessary for it to be checked by staff from the pathology department in order to limit any further trauma to Ethan.

16. Finally, blood gas test results were obtained and, at 10.40 pm, Nurse Naidu, the shift coordinator who had taken over from Nurse Collins, telephoned Dr McClure at home with the results.  The results were anomalous and unreliable, for reasons discussed below, in considering the expert witness evidence.

17. There are differences in the evidence of Dr McClure and Nurse Naidu as to what was said during this discussion.  It is common cause that Nurse Naidu read the results to Dr McClure.  To the extent that some of the results had question marks alongside them, we accept Dr McClure's evidence that Nurse Naidu informed him of those question marks.  It is improbable that Nurse Naidu would not have done so.  The reliability of Dr McClure's evidence is again questionable, because of his tendency to reconstruct.  In his witness statement, Dr McClure stated that Nurse Naidu informed him that the nurses had made seven attempts to collect a capillary blood sample to measure Ethan's blood gas.

18. As reflected above, there were two initial occasions on which blood samples were taken from Ethan.  A third sample was taken after the pathology staff had attended to the blood gas analysis machine.  At approximately 8.55 pm, Nurse Pellicciotta made an entry on the multi­disciplinary notes (Exhibit A (11) BOD 22) reflecting that two attempts had been made to obtain a blood gas analysis.  It is obvious that Dr McClure misread '2' as a '7'.

19. Nurse Naidu's evidence was that she did not have the nursing notes with her at the time of making the telephone call to Dr McClure.  Apart from reading the gas analysis results, the only other detailed information she could give him was that which was visible on the digital display above Ethan.  She recalled that the digital display showed that Ethan's oxygen requirements had increased to 41% ­ 42% in order to maintain his saturation levels at 96% ­ 98%.  She thought that she may have told Dr McClure about a desaturation, which the nursing notes showed had occurred at around 10 pm, when Ethan had desaturated down to 59%, but she could not be sure.

1. Dr McClure was cross­examined about why he changed his witness statement at the commencement of his evidence to amend a statement to the effect that Nurse Naidu had informed him that the oxygen requirement was stable at 24% ­ 25%.

2. Paragraph 97 of Dr McClure's statement was amended by deleting the specific oxygen readings so that he was, so he contended, advised that Ethan's oxygen requirement was stable.  It is common cause that there was a discussion about Ethan's oxygen requirements.  His requirement had been generally between 25% ­ 28%.  If Nurse Naidu had known that (which is not clear), she could hardly have said that his oxygen requirements were stable when she could see that his then current requirement was 41% ­ 42%.  Nurse Naidu was cross­examined on how she could be certain about this measurement, but she remained firm that she recalled that aspect quite clearly.  She described how she could view the digital display from the position she was in when telephoning Dr McClure.  Furthermore, there is a degree of corroboration on this issue from Dr McClure.  In his letter to the Registrar of the Medical Board of Western Australia on 25 June 2006 (Exhibit W (34)), only 11 months after the events in question, he stated that Nurse Naidu informed him that Ethan's oxygen requirement was then between 30% ­ 40% (BOD 143), which he stated was actually less than when he last carefully assessed Ethan.  This last statement was misleading, because the only way a reading of 30% ­ 40% could be less would be by taking into account the 40% (or 44%) supplement required, which Dr McClure had discounted as being due to either Ethan moving out from under the head box or because of some machinery malfunction.  We accept Nurse Naidu's evidence that Dr McClure was informed that Ethan's oxygen requirement had increased to 41% ­ 42%.

3. We also accept Nurse Naidu's evidence that she did not have the nursing observation notes with her at the time of making the telephone call to Dr McClure.  It is a matter of some surprise to us that, in these circumstances, Dr McClure did not ask Nurse Naidu to uplift the nursing notes in order to give him as accurate a clinical picture as possible.  While Nurse Naidu could not say that she had informed Dr McClure of the desaturation which occurred at 10 pm, he would have been so advised if he had requested that Nurse Naidu read the observation notes to him.

4. Dr McClure then instructed Nurse Naidu that he was to be informed if Ethan's condition deteriorated or if his oxygen requirements went above 50% and stayed at that level for a sustained period.  No other change in his treatment plan was ordered, as reflected in Nurse Naidu's documentation of the instructions and the clinical notes.

5. Dr McClure was not contacted by nursing staff during the remainder of the night.

6. The nursing notes show that Ethan remained reasonably stable until approximately 5 am on the morning of 2 August 2005.  Up until then, he continued to exhibit moderate grunting, although he appeared settled.  However, at approximately 5 am he desaturated to 65% and exhibited some apnoeia, requiring brief stimulation.  The nursing notes reflect that, at 6.28 am on 2 August 2005, Ethan was exhibiting apnoeia/shallow breathing and had desaturated to a level of 52%.  He required stimulation and his appearance was described as 'dusky'.  His supplemental oxygen was maintained throughout the early hours of 2 August 2005 at between 38% ­ 44%.  It was evident that Ethan's condition was deteriorating.  It is surprising that no­one thought it prudent to contact Dr McClure and inform him of this deterioration in Ethan's condition.

7. Nurse Sims commenced her shift at 7 am on 2 August 2005 and spent until approximately 7.45 pm with Nurse Naidu, the shift coordinator, who briefed her in relation to the patients generally, including Ethan.  The above events were reported to Nurse Sims.  In the meantime, the nursing notes reflect that, at 7 am, Ethan suffered a further desaturation to a level of 78% and was apnoeic.  He again required stimulation.  At 7.15 am he desaturated to 68% and exhibited shallow breathing.

8. Nurse Sims went into the nursery at approximately 7.50 am.  When she did so, Nurse Pellicciotta informed her that she was unhappy with Ethan's condition and reported the further desaturations which had occurred.  Nurse Pellicciotta wanted Dr McClure to review Ethan, and Nurse Sims commented that Dr McClure was expected to arrive at the neonatal unit at any minute.  She stated that Dr McClure arrived within minutes of that conversation.  A further desaturation to 44% occurred at 8 am.  Ethan required vigorous stimulation with facial oxygen and was slow to recover.

9. There is some controversy as to the time at which various events occurred, including the arrival of Dr McClure, but nothing turns on the precise times.  Dr McClure's witness statement reflects that he arrived at approximately 7.55 am.  Virtually as he arrived, he received a telephone call on his mobile telephone from the labour ward advising that his attendance was urgently required at the caesarean section.  Dr McClure was the on call neonatal paediatrician, and says that he was therefore expected to attend the caesarean section.

10. The duty roster shows that Dr McClure was indeed on call for elective caesareans and the delivery ward between the hours of 8 am and 5 pm on 2 August 2005.  There was, however, always another specialist available as the second on call.  Dr McClure explained that the doctor second on call, by convention, was free to be anywhere within the metropolitan area, and would only be called if needed.  Dr Adams was the second on call at the time.  In cross­examination, it was put, and not disputed, that Dr Adams lived nearby in Subiaco.  It is necessary merely to observe that, in the events which unfolded, no inquiry was made by anyone, including Dr McClure, concerning how quickly Dr Adams might be available if required.  On Dr McClure's version, the need to do so did not arise.

11. Dr McClure said that, as he was on his way to attend the caesarean section, he was approached by Nurse Sims in the corridor just past Ethan's cubicle, who asked him to review Ethan.  She reported that she was concerned that Ethan had started to have apnoeic attacks and oxygen desaturations over the previous three hours, although his oxygen requirement had otherwise remained unchanged.  Further, Dr McClure stated that he was able to look through the window of Ethan's cubicle, which was approximately 2 metres to 3 metres away, and view the monitor above Ethan to see that his pulse and oxygen saturation levels were satisfactory.  Dr McClure said that he explained 'to the nurses' that he had been called to an imminent delivery of another baby in the adjoining labour ward, and his attendance was required urgently.  The reference to 'nurses' presumably means Nurse Sims and Nurse Pellicciotta who, he said, was standing next to Ethan.  He stated that he asked Nurse Sims if she felt that Ethan was stable enough for him to go to that delivery first and then assess Ethan immediately afterwards, and that she indicated that would be fine.

12. In light of the apnoeic attacks, he requested the nurses to set up the relevant equipment for insertion of an umbilical arterial line in order to intensify Ethan's treatment, and he ordered the cessation of the continuous milk feeds.

13. He stated that, immediately after the caesarean section, he attended upon Ethan at approximately 8.15 am.  It is likely, and we find, that the times when Dr McClure stated he arrived and returned to the nursery are slightly wrong.  Based on times recorded in the medical records of the patient whose caesarean section was attended by Dr McClure, to which Dr McClure was taken in his evidence in chief (T:41; 07.09.11), we find that Dr McClure arrived at the neonatal unit slightly later than 7.55 am and may have returned after the caesarean section a little later than 8.15 am.

14. Nurse Sims disputes Dr McClure's version.  She said that, as soon as he arrived, she called to him from the door of the nursery to examine Ethan.  She said her conversation with Dr McClure took place next to Ethan's bed ­ not in the corridor, as asserted by Dr McClure.  Further, she did not tell him about apnoeic attacks over the previous three hours.  She knew only about the desaturation at 5.10 am and again at 6.28 am, and that Ethan had had more oxygen desaturations during handover.  She further disputed that she had told Dr McClure that Ethan's oxygen requirement had increased but was currently stable, or that Ethan's condition had otherwise remained unchanged.  She said she was very worried about Ethan at the time.

15. Nurse Pellicciotta has a high professional regard for Dr McClure.  She consulted him concerning her own pregnancy.  She said that, when she first observed Ethan after coming on duty that morning, she had noted that his colour was very poor, that he appeared to be peripherally shut down and slightly grey, and that he was lying still.  She said that he appeared exhausted and had very poor peripheral circulation.  Nurse Pellicciotta said that she had discussed Ethan with Nurse Whittaker and Nurse Naidu (who was going off duty), and all agreed that Ethan appeared poorly and needed to be reviewed by Dr McClure.  She remained at Ethan's side and was present when he suffered a further desaturation at 7.50 am when Nurse Sims entered the ward.  Nurse Pellicciotta informed Nurse Sims that she was unhappy with Ethan's condition and that she thought that Dr McClure needed to review Ethan.

16. Given these circumstances, we consider it most unlikely that Nurse Sims would have agreed that it would be fine for Dr McClure to attend the caesarean section and delay a proper examination of Ethan until he returned, and we reject Dr McClure's evidence to that effect.  Dr McClure's evidence that Nurse Sims agreed to his attending the caesarean section first is improbable.  He conceded his memory of the order of events was not strong (T:41; 07.09.11), and was prepared to accept evidence of others that he gave instructions to prepare for inserting an umbilical arterial catheter before leaving for the caesarean section, although he did not recall doing so.

17. We accept Nurse Sims' evidence that Dr McClure walked up to Ethan, that he did not touch Ethan, but then proceeded to give the instructions as related above.

18. When Dr McClure returned to the neonatal unit (approximately 15 minutes later), he examined Ethan and confirmed that he had signs suggesting that he was very unwell.  He noted that Ethan was very lethargic.  He said that he was immediately worried that Ethan had become septic, or severely exhausted due to worsening RDS.  While inserting an umbilical catheter, he noted that Ethan's perfusion and conscious level were rapidly deteriorating.  To cover the possibility of infection, he stated that he immediately requested that intravenous antibiotics be given.

19. Dr McClure managed to obtain, although with some difficulty, a blood sample for the purposes of a further blood gas analysis.  He stated he had no more confidence in the blood gas machine than before, but he considered the situation was sufficiently serious to warrant another attempt.  The results were obtained at 8.55 am.  Dr McClure proceeded with treatment in an attempt to improve Ethan's perfusion and to correct any hypoglycaemia that may have been present.

20. It is not in issue that Dr McClure did order that antibiotics be administered, but the question is when he did so.  Dr McClure's evidence is that he became immediately worried that Ethan may have become septic upon his examination of Ethan.  The issue arises because Dr McClure's evidence is inconsistent with that of Nurse Sims and Dr Adams.

21. Dr Adams states that he arrived at the hospital at approximately 8.25 am on 2 August 2005 and that it was approximately 8.30 am when he first saw Dr McClure standing beside a baby.  Dr Adams left for his ward round and returned to the nursery at about 9 am.  He observed that Dr McClure was standing beside Ethan and the following exchange then occurred:

    Dr Adams:Do you need a hand?

    Dr McClure:     No, just a baby with bad RDS.

22. Dr Adams stated that he then looked at Ethan and noted that he was pale, grey and looked peripherally shut down.  He stated that Ethan had the look of a baby suffering from sepsis.

23. Dr Adams said that he then said to Dr McClure: 'the baby looks septic, you've given antibiotics haven't you?'  Dr McClure does not recall responding to Dr Adams.  Nurse Sims corroborates Dr Adams, and recalls a response to the effect that he had a baby with bad RDS.

24. Dr Adams said that Dr McClure immediately looked very concerned and went pale; that is, the blood drained from his face.  Nurse Sims was not looking at Dr McClure and did not observe this reaction.  He stated that Dr McClure then left Ethan's side and went to the drug preparation desk.  Dr Adams stayed with Ethan, providing facial oxygen and continuous positive airway pressure (CPAP), a ventilator to assist breathing (although, as addressed further below in considering the expert evidence, Dr McClure explained that the ventilator was, what he referred to as, a neopuff ventilator which had to be operated by hand, and is not properly described as CPAP).  He stated that Dr McClure then returned from the drug preparation area and took over providing CPAP to Ethan, and that the antibiotics were then brought over to Ethan by one of the nursing staff and administered by himself at approximately 9.20 am.  Dr Adams remained assisting with Ethan's treatment.  At one point, Dr McClure left to speak to Ethan's parents, and it was at this stage that Dr Adams raised whether he should write the notes.  He stated that, while he was with Ethan, he wrote some notes about the matter on the back of an envelope (Exhibit E).

25. Dr Adams then stated that, when Dr McClure returned from seeing Ethan's parents, he went upstairs and completed his ward rounds.  After doing so, he returned to the doctors' office and used his 2003 diary (Exhibit F) to make notes of what had occurred.

26. The diary note is consistent with Dr Adams' evidence outlined above.  We observe, however, that there is also a record of Ms Lee Sexton (Nurse Pellicciotta) saying to him 'we'd been saying that to him all night'.  In context, we understand that to be suggesting that the nurses had been reporting to Dr McClure during the night that Ethan looked to be septic or, at least, was displaying symptoms which should have been interpreted as being consistent with that condition.  At first, this appears to cast some doubt on the reliability of Dr Adams' note.  However, Nurse Pellicciotta did say in her witness statement (which was prepared nearly three years later) that she thought that the nightshift nurses (Ms Claire Whittaker and Ms Clare Naidu) had been in touch with Dr McClure regarding Ethan during the overnight period (para 84 of her statement in the coronial inquiry).  It is therefore possible that Nurse Pellicciotta did say something along the lines indicated by Dr Adams but, if so, she was wrong.  No­one had been in communication with Dr McClure subsequent to the telephone discussion with Nurse Naidu at 10.40 pm the previous night.  The issue was not explored in cross­examination and, accordingly, the only significance we give to this aspect of the matter is that it neutralises any initial doubt about the reliability of Dr Adams' notes.

27. As we indicated, Dr Adams' evidence needs to be approached with caution.  However, there is no basis to criticise Dr Adams' evidence generally, beyond the 'subtle prejudice' point.  Dr Adams made a contemporaneous note which was at least justifiable on the basis that he foresaw medico­legal issues arising because he thought, correctly, that Ethan was not likely to survive, and there is a degree of corroboration from Nurse Sims.  Her recollection of Dr McClure's response to the inquiry about whether antibiotics had been administered was that Dr McClure indicated that he had a baby with bad RDS.  Dr McClure does not assert that he made any response indicating that he had ordered antibiotics, which is perhaps surprising if he had done so.  There is also the question of timing.  On any basis, Dr McClure had returned from the attendance upon the caesarean section operation to attend to Ethan by about 8.20 am.  The nursing staff had proceeded to set up the equipment to enable Dr McClure to insert an umbilical arterial catheter.  Dr McClure said that it would have taken him at least five to 10 minutes to put on surgical, sterile gloves, gown and mask to clean Ethan's abdomen with antiseptic solution, allow it to dry and create a sterile field with surgical drapes (T:61; 07.09.11).  According to Dr Adams' evidence (statement Exhibit I (113)), the medication cupboard was only approximately 3 metres from Ethan's bed, and a typical order for antibiotics could be prepared in less than five minutes (paras 23 and 24).  Dr McClure had completed the insertion of the catheter, taken a blood sample and had the test results available by 8.55 am, as appears from the laboratory report (Exhibit A 12 BOD 26).

28. It is not clear how long it would have taken to process the sample, but it appears inexplicable as to why it would have taken until 9.20 am for antibiotics to be administered if there had been a realisation that antibiotics needed to be administered as soon as possible.  At the latest, one would have expected that the antibiotics would have been administered as soon as the arterial catheter was in place, and that must have been prior to 8.55 am.  In all of these circumstances, we hold the requisite level of persuasion that Dr Adams' evidence of his interaction with Dr McClure on the morning of 2 August 2005, as outlined above, is to be preferred to the evidence of Dr McClure.

29. In arriving at this conclusion, we have taken into account the submissions made by counsel for the respondent to the effect that:

    My clear recollection is ­ and I stand to be corrected by the transcript, but my learned junior's note also records this ­ that Nurse Pellicciotta said quite clearly ­ in my recollection is on at least two occasions ­ that antibiotics were ordered before Dr Adams arrived.  No argument about the fact that they were administered after he arrived, but they were ordered before he arrived.

30. We do not consider that the transcript supports this submission.

31. Nurse Pellicciotta's recollection of what occurred after Dr McClure's initial attendance is not good.  She was unaware that he had left to attend a caesarean section operation.  She conceded that he may have arrived, given some instructions for the milk feed to cease and for the preparation for the catheter to be undertaken, and then left for a time, but she did not recall that having occurred.  She estimated that it would have taken between 10 and 15 minutes for the catheter to be inserted, which would have been well before 8.55 am, as we have rationalised above and the transcript then reflects:

    Then after that the management continued and at some point Dr Adams arrived on the scene? ­­­ Yes.

    And assisted with Ethan's management? ­­­ That's correct.

    That was some time after 9.00, do you think, or you ‘re just not able to say be reference to the notes? ­­­ It would have been sometimes [sic] after 9.00 because I know he gave the first saline bolus.

    Yes.  He also, I think, was the person who physically administered the antibiotics? ­­­ Yes, he was.

    Would that be your recollection? ­­­ Yes, because I handed them to him.

    Those were the antibiotics which had previously been ordered by Dr McClure? ­­­ Yes, correct. (T:109 and T:110; 06.09.11)

32. Dr Adams' evidence, as set out above, is that when he asked Dr McClure whether he had administered antibiotics, Dr McClure went to the drug preparation desk.  Dr McClure then returned and took over providing 'CPAP' (sic) to Ethan.  The antibiotics were then brought over to Ethan by one of the nursing staff and administered by Dr Adams.

1. Nurse Pellicciotta's evidence goes no further than establishing that Dr Adams administered the antibiotics which had previously been ordered by Dr McClure.  It does not establish when Dr McClure ordered the antibiotics.

Medical evidence and the Tribunal's conclusions

1. In the joint expert witness statement, the expert witnesses address factors directly relevant to the grounds relied upon by the Board.  We shall follow the same course but, before doing so, we shall endeavour to summarise what we understand to be uncontroversial medical doctrine.

2. As explained in the witness statements of Professor Doyle and Dr Watkins, TTN is due to a failure to reabsorb the foetal lung liquid present in the lung during intra­uterine life.  Production of this liquid is normally 'switched off' by a catecholamine surge in labour, and the mechanical compression of the chest during vaginal delivery may also play a role, although this is more controversial.  This condition is most commonly seen in infants born after elective caesarean section, without the 'priming' effect of labour, but may be seen after vaginal delivery, especially if labour is short.  The distress produced is characteristically mild, with low oxygen requirement, sometimes an early elevation of carbon dioxide level and a mild self limiting course.  Respiratory distress may persist for more than 24 hours, but is usually self limiting over this time.  It is regarded as a diagnosis of exclusion, as the clinical features may overlap with a number of other conditions, particularly sepsis.

3. RDS refers to a condition otherwise known as Hyaline Membrane Disease, caused by a lack of surfactant, a detergent­like chemical which lines the lung to reduce surface tension in the tiny airways of the lung.  Without this chemical, surface tension generated at the air­fluid interface in these airways causes them to collapse, impairing oxygenation and making the lung stiffer, causing respiratory distress.

4. This condition is characteristic of premature infants and is not characteristic of term infants, especially those without predisposing conditions such as maternal gestational diabetes.  It can occasionally be seen in term infants, but is not a diagnosis of first resort in such infants.

5. There are other causes of respiratory distress in term babies and, of these, infection, especially of the lung (pneumonia) is very dangerous, although rare.  Infection is usually caused by the germs that live in the birth canal, including GBS.  Infection is very rare after an elective caesarean delivery, and is more likely to occur after the membranes (or 'waters') have broken.  However, germs can also get into the baby where the membranes have not ruptured.  Infection must always be considered in any baby with respiratory distress that does not resolve quickly after birth, or in any baby where it appears for the first time beyond the first few hours.  The fact that infection might be a possible cause does not mean that antibiotics must be prescribed for all babies who have any respiratory distress immediately after birth.  However, when the breathing difficulty does not resolve quickly, infection remains a possible cause.  In a baby where respiratory distress persists, it would be usual clinical practice to take tests looking for infection, and to start antibiotics before these results confirm infection, because the infection will take hold and antibiotics will not be able to reverse the process.  Babies can die very quickly from infection, sometimes within hours of its onset.  How long to wait is arguable, but if respiratory distress persists beyond the first 30 to 60 minutes, infection must be considered more seriously.

6. The clinical and radiological features of RDS can be exactly mimicked by bacterial pneumonia, such as that due to GBS.  Dr McClure is one of the editors of the Oxford Handbook of Paediatrics, (Oxford University Press, 2008) (Exhibit AA).  He contributed to and is the author of chapter 6 on neonatology.  At page 132, there is a specific discussion on the non­specifically ill neonate.  Dr McClure writes:

   Early recognition of serious neonatal illness is an important skill.  The nurse may say that the infant is just 'not right'.  Listen to the nurse, examine the baby carefully, and act if in any doubt!  Any serious disease can present non­specifically.

7. The first of a number of major causes which are listed by Dr McClure is infection.  Amongst the symptoms likely to be presented are apnoeia, expiratory grunting, flaring nostrils and tachypnoea, all of which were present in Ethan.

8. We turn now to address the medical evidence in relation to the grounds relied on by the Board.

Whether antibiotics were administered within an acceptable time

1. Professor Doyle was unable to participate in the joint conferral and resultant joint expert statement.  Professor Doyle had expressed the view, as outlined above, that where respiratory distress persists, it would be usual clinical practise to take tests looking for infection, and to start antibiotics before the results are available.  He stated that how long to wait before administering antibiotics is arguable.  All of the other expert witnesses, who expressed varying views on this issue, agreed that, at the very latest, Ethan should have had antibiotics prescribed and administered within four to five hours.  In his oral evidence, Professor Doyle indicated he had no issue with that conclusion.

2. The failure to administer antibiotics, at the latest by the time of Dr McClure's 5 pm review of Ethan on 1 August 2005, was a significant error.  It is clear, on the medical evidence, that it was no answer to suggest that there were no risk factors or set up for sepsis.  The standard of care expected of an appropriately qualified and competent medical practitioner, in such circumstances as then existed, required that antibiotics be administered.  We reject the submissions made by Dr McClure's counsel that this neglect does not amount to gross carelessness.  It was a fundamental requirement of proper medical treatment that antibiotics be administered.  The medical evidence is that administering antibiotics can cause no harm, but it may prevent the death of an infant who, unbeknown to the practitioner, is suffering from infection.  In this instance, not only did Dr McClure fail to consider the need for antibiotics after Ethan had continued to suffer from respiratory distress up until 5 pm on 1 August 2005, but he failed to recognise that need, even after Nurse Collins had prompted him, during his 8 pm review of Ethan, by expressly enquiring whether antibiotics should be administered.  Dr McClure had become set in his thinking concerning Ethan's condition and appropriate treatment.  That remained the case, notwithstanding the information provided to him during the telephone discussion with Nurse Naidu at 10.40 pm that evening.

3. The failure to consider the administration of antibiotics, as alleged in the grounds relied upon by the Board, which are limited temporally to 10.40 pm on 1 August 2005, cannot be explained away as a simple error of judgment, or even as carelessness falling short of gross carelessness. It is not as if Dr McClure gave any thought to the possibility of administering antibiotics and then discounted it on some logical medical basis, even if erroneous. There was no logical basis for any decision not to administer antibiotics. He was correct in identifying that the usual risk factors for infection were not present, but the established doctrine is that, even so, antibiotics should be administered because infection remains a possibility, and it is too dangerous not to do so. Dr McClure simply did not apply his mind to the issue. He had, as we have already indicated, become fixed in his view about Ethan's correct diagnosis and treatment. This departure from the standard of care which a patient should be entitled to expect from a reasonably competent medical practitioner is so serious as to constitute gross carelessness within the meaning of s 13(1)(c) of the 1894 Act. We are fortified in that conclusion by Dr McClure's inability to identify the need for antibiotics until Dr Adams stated, on the morning of 2 August 2005, that Ethan looked septic, and specifically asked if Dr McClure had administered antibiotics.

4. When a clinical treatment is so fundamental and accepted within competent members of the medical profession, and the failure to provide it is so potentially dangerous, it is gross carelessness not to provide that treatment.  We note that the evidence establishes that Dr McClure had, for some time, been working under additional pressure, due to the death of a colleague and while other colleagues were on leave of absence, and that Nurse Collins specifically observed that he looked tired.  While that may explain an otherwise inexplicable departure from acceptable clinical practice, it does not alter its characterisation as gross carelessness.

5. We find that allegation is made out in that Dr McClure failed to ensure that antibiotics were administered to Ethan within an acceptable time, being within four to five  ours following the onset of Ethan suffering respiratory distress; that is, by no later than 5 pm on 1 August 2005.

Failure to ensure a blood gas result was obtained within a reasonable time

1. This ground refers to the alleged failure to ensure that a blood gas result was obtained within a reasonable time of ordering the blood gas analysis at 8 pm on 1 August 2005.

2. None of the expert medical witnesses directly addressed this ground.  Dr McClure's evidence was that he ordered the blood gas analysis to obtain an objective baseline and data measurement of Ethan's respiratory status to supplement the clinical and non­invasive monitoring taking place.  Although Ethan's condition had deteriorated slightly, that was not inconsistent with Dr McClure's diagnosis of RDS and TTN.  There is no evidence to suggest that there was such a pressing need for a blood gas analysis that Dr McClure should have pressed the issue and made enquiries about the delay in being informed of the results.

3. In the circumstances, we do not consider that this ground has been made out as a basis for any adverse finding against Dr McClure.

Failure to attend and examine Ethan, or have Ethan transferred

1. Dr McClure met this ground by explaining why he considered that the instructions he gave Nurse Naidu were appropriate, based on his discounting of the apparently anomalous blood gas results and his version of the clinical condition of Ethan at the time, as explained by Nurse Naidu.  Concerning the issue of transfer for examination by another neonatologist, he observed that there would have been no benefit in Ethan suffering the risks of a transfer, only to be examined by someone no better qualified than himself.  We agree with this aspect of his response.  The real issue is, therefore, simply whether Dr McClure should have attended upon and examined Ethan following the discussion with Nurse Naidu at 10.40 pm on 1 August 2005.

2. Dr McClure's evidence is that Nurse Naidu informed him about the malfunctioning of the blood gas machine.  She denies having done so.  There is no corroboration either way.  On this evidence, it would not be appropriate to make any finding adverse to Dr McClure, and we therefore proceed on the basis that, whether Nurse Naidu told him or not, he was aware that difficulties had been experienced with the new blood gas machine.  If we are wrong in that conclusion, and Dr McClure's evidence has again been affected by reconstruction, in any event, the results reported to him at 10.40 pm were, in themselves, anomalous and open to doubt.  Professor Doyle was of the view that the partial pressure of carbon dioxide reading of 115 which was given is very high and would not be consistent with Ethan's description at that time.  He pointed out that the blood sample was taken as a capillary collection, which would usually be taken from the baby's heel, and can sometimes produce blood with a higher carbon dioxide reading than is present in the rest of the body, particularly if the heel is cool and the blood flow is reduced, or if blood flow is reduced for other reasons.  That reasoning was premised on an assumption that there appeared to be no change in Ethan's clinical status at that time.  We have found to the contrary, in that Ethan's condition had actually worsened, although apparently not significantly.  The nursing observations during the early hours of the morning of 2 August 2005 show a relatively stable condition involving moderate grunting, with Ethan's colour described as pale pink, and that he was settled.

3. Dr Watkins did not agree with Dr Sokol's view that the blood gas result indicated that Ethan was in extremis (Exhibit EE (95) para 20).  In his view, pulmonary hypertension sufficiently severe to account for the elevated carbon dioxide reading would have been associated with gross ventilation ­ perfusion mismatch and a very high oxygen and ventilation requirement to sustain life.  Further, he stated that Ethan would not have coped with an inspired oxygen of 40% and reasonable arterial oxygen saturations, and would not have lasted the night unassisted as he did.  As we have found above, the results as recorded in the test were anomalous and we consider that Dr McClure was justified in not relying on them.

4. Dr Watkins went on in his statement to say, at para 23:

   One cannot dismiss a result which is so abnormal on a number of fronts as wrong without undertaking further assessment.  Given that the problem was perceived either as sampling difficulty or due to machine malfunction, the solution should have been to examine Ethan, to perform arterial blood gas sampling (whether by stab or via indwelling line), thus removing any perfusion artefact, and to then repeat measurement on the similar machine in Adult ICU (a reference to the blood gas machine kept in SJOG's adult intensive care unit).

5. In the joint witness report under the discussion of what is there described as 'Issue two' and the 'set of assumptions 3', as we understand it, all the experts would have required Dr McClure to attend the hospital.  That is certainly the case under the 'set of assumptions 4', which is in accordance with the facts we have found, save in respect of the assumption that Dr McClure was told that Ethan had experienced an oxygen desaturation at approximately 10 pm (which the evidence is insufficient to support ­ Nurse Naidu could say no more than she though she probably would have told him).

6. Professor Doyle, in his witness statement at para 13, does say that it was not a critical failing on Dr McClure's part that he did not review Ethan again after the 10.40 pm report to him.  However, he clarified in his evidence that his reference to whether something was critical or not was in the context of whether the die was already cast, and so it was not going to make any difference (to whether Ethan survived or not) (T:27; 08.09.11).  He had to be cautioned by the Board's counsel to stop looking for a causal link between an omission or an act and the actual outcome, and to focus on what was the correct clinical thing to do.  In that context, he went on to say that, on the 'set of assumptions 3', to which we have referred, Dr McClure would have needed a proper blood gas sample and it would have been his responsibility to collect that sample by an arterial specimen (T:28; 08.09.11).

7. Ethan's continued respiratory distress, his increased need for supplemental oxygen and the advice that Ethan's perfusion had remained poor, coupled with the anomalous test results, were such that that, in our view, Dr McClure was required to review Ethan himself. These were all indicators that infection might be involved in Ethan's medical condition. We consider that the departure from what would constitute an acceptable standard of medical care is sufficient to constitute gross carelessness within the meaning of s 13(1)(c) of the 1894 Act, and we find accordingly.

8. We find ground 3 is made out, in that Dr McClure failed to attend upon and examine Ethan after being advised of the abnormal blood gas analysis at 10.40 pm on 1 August 2005.

Failure to provide respiratory support

1. Under this heading, we deal with both grounds 1.4 and 1.5 as set out in the application.  Ground 1.4 alleges failure to ensure adequate respiratory support within an acceptable time, following the onset of the patient's respiratory distress on 1 August 2005.  Ground 1.5 alleges more specifically the failure to provide respiratory support in the form of intubation and ventilation as soon as practicable after examining the patient at 8 pm on 1 August 2005 or, alternatively, as soon as practicable after being advised of the abnormal blood gas analysis at about 10.40 pm on 1 August 2005.

2. In the Board's statement of issues, facts and contentions, the support for these grounds has been focussed on the treatment which should have been provided after 8 pm on 1 August 2005 and at about 10.40 pm on the same day.

3. There is no evidence to suggest any need for respiratory support beyond the supplemental oxygen provided prior to 8 pm because, until then, there was nothing remarkable about Ethan's clinical condition.

4. In relation to treatment after 8 pm, it is alleged in the statement of issues, facts and contentions that it was evident after that time that Ethan's condition was deteriorating and that his oxygen requirement had increased markedly over the period from 5 pm (from 25% to 44%), and Ethan was continuing to exhibit grunting and chest recession and, in those circumstances, it was, or ought to have been, evident to Dr McClure that Ethan required respiratory support in the form of intubation and ventilation at that time.

5. This ground fails on the facts we have found, because the increased oxygen requirement at 8 pm was explained away as being due to machine malfunction.  This may explain why the increased oxygen requirement was not recorded in the nursing notes.  The nursing notes at 8 pm reflect a supplemental requirement of 28%.  The oxygen requirement was consistent around that percentage, both before and after 8 pm, until Nurse Naidu reported a higher oxygen requirement at 10.40 pm during her telephone discussion with Dr McClure.  The nursing records show that the oxygen requirement was higher from 11 pm.

6. Insofar as the ground is based on Dr McClure being advised of the abnormal blood gas analysis, we note that the Board's own expert witnesses express varying views.  Dr McClure commented on these views.  He explained the different forms of providing respiratory support (para 295 and onwards of his statement) being supplemental oxygen, CPAP, intermittent positive pressure ventilation (IPPV) and high frequency oscillatory ventilation (HFOV).  Only supplemental oxygen and IPPV provided by a neopuff and a mechanical ventilator were available at SJOG (paras 157 and 296 of Dr McClure's statement).  Dr McClure then proceeded to set out his views on when CPAP or IPPV is indicated and, further, that it was accepted management that term babies could be left in a head box oxygen at up to 80% ­ 90% for several days (para 305 of his witness statement).  Dr Watkins criticised these views as being acceptable management in the 1970s and 1980s, saying it was becoming increasingly suspect in the 1990s and was not the standard of practice in 2005.  However, Dr McClure tendered an extract from a text book on neonatology by Janet M Rennie and NRC Roberton (3rd edition, 1999), published by Churchill Livingston (Exhibit BB, incorrectly referred to as Exhibit DD, at T:70; 08.08.11).  That text supported Dr McClure's view and tends to suggest that, at least in 1999, Dr McClure's views were supported by a substantial body of medical opinion.  Further, and in any event, Professor Doyle, who, with respect to the other expert witnesses, enjoys the highest standing as an expert witness judged by their respective curriculum vitae, was of the opinion that respiratory support in the form of CPAP or intubation and ventilation was not necessary prior to Dr McClure providing the latter at about 9.30 am on 3 August 2005 (sic ­ 2 August 2005).

1. In the circumstances, we do not consider that either grounds 1.4 or 1.5 are made out.

Continuous milk feeds

1. This ground criticises both the ordering of the commencement of continuous milk feeds and, alternatively, failing to ensure the cessation of continuous milk feeds within an acceptable time in light of Ethan's ongoing respiratory distress on 1 August 2005.

2. It is alleged in the Board's statement of issues, facts and contentions that it is standard practise among neonatologists to cease all milk feeds, including continuous milk feeds, and to provide dextrose infusions via an intravenous drip when a baby is suffering from respiratory distress.  That allegation is supported by Dr Sokol.

3. Dr Watkins criticised the failure to cease feeds and to commence intravenous therapy when the respiratory rate of the infant is consistently around the 60 ­ 70/minute level, as the risk of aspiration mounts and the additional respiratory compromise induced by a full stomach may reduce reserve.  It is to be noted that the nursing notes reflect that Ethan's respiratory rate was consistently more than 60/minute from 2 pm through to 10 pm on 1 August 2005 and, thereafter, was in the range of 43 ­ 54/minute up to the time when Dr McClure was giving constant attention to Ethan on 2 August 2005.  On the other hand, Dr Richardson was of the view that continuous feeds could be justified if it was felt that the baby was stable.  Dr Tompkins considered that the use of continuous milk feeds was entirely reasonable and that the evidence shown by the absence of abdominal distension or vomiting is that no harm was done by the order.

4. Professor Doyle expressed the opinion that, if a baby has vomited and choked on its vomit in circumstances where it is also suffering clear signs of respiratory distress, then it would be appropriate to cease continuous milk feeds and to feed the baby intravenously.  There was no evidence suggesting Ethan had vomited during 1 August 2005.  Further, Professor Doyle noted that the concentration of glucose in Ethan's blood was checked several times and was satisfactory, indicating that the milk feeds were providing adequate calories to Ethan.

5. Thus, while intravenous feeding might have given Ethan some additional reserve of strength, there is no basis on which to find that either ordering or continuing the continuous feeding on 1 August 2005 constituted such a departure from normally accepted clinical practice as to constitute gross carelessness and, accordingly, this ground is also not made out.

The attendance upon the caesarean section before instituting emergency medical treatment for Ethan

1. It must have been clear to Dr McClure that, when he was called by Nurse Sims to review Ethan on the morning of 2 August 2005, she was concerned about his condition.  She reported the frequent desaturations that had occurred during the immediately preceding period.  Dr McClure was aware of the anomalous results of the blood test the previous evening.  He was entitled to assume that nothing untoward had occurred during the remainder of the night of 1 August 2005 and the following morning (save for the recent desaturations), or he would have been called.  Nevertheless, Ethan had been suffering from respiratory distress by then for some 20 hours.

2. As we have found, Dr McClure came up to Ethan's side but did not turn him over and examine him.  We do not accept that Dr McClure got any indication from Nurse Sims that it would be in order for him to attend the elective caesarean section and then return to review Ethan.  It would have taken no time at all for Dr McClure to turn Ethan over (he was apparently lying on his stomach), and it would then have become readily apparent to him, as it did when he examined Ethan some 20 minutes later, that Ethan was not in a healthy state at all.

3. In his responsive witness statement, Dr Watkins made the point that elective caesarean sections can always be delayed and should not be commenced until staff are able to care for the baby, whether nursing or medical.  Further, that, in many cases, the presence of a paediatrician is entirely unnecessary, although conventional in private practice.

4. In addition, it is likely in this case that Dr Adams could have been summoned within a relatively short time.

5. Dr McClure needed to make a professional judgment whether to stay and treat Ethan or whether to attend the elective caesarean section.  In our view, he erred in his decision to attend the caesarean section.  His failure to examine Ethan properly, in circumstances in which it could have been done so easily, with a minimum of delay, borders on indifference, although we do not think that Dr McClure was indifferent.  He no doubt felt under pressure not to disrupt the carrying out of the elective caesarean section, but he did not give any adequate weight to the needs of Ethan in making that decision.

6. There is no issue that, upon proper assessment, Ethan required antibiotics, respiratory support by intubation and ventilation and transfer to Princess Margaret Hospital.  That is the course Dr McClure followed when he examined Ethan properly after returning from the caesarean section.  This is the care which he should have provided immediately upon arrival at the neonatal unit at approximately 8 am.  We understand that all of the expert witnesses have views consistent with this conclusion applied to the facts we have found.  This is evident from the joint statement discussion under this issue (issue 3 in the statement) and assumptions 1 and 2 thereunder, as well as the exchange in oral evidence (T:17; 08.09.11 and following).

7. We consider that Dr McClure's failure to provide the above treatment immediately upon his initial arrival at the neonatal unit on 2 August 2005 constitutes a significant departure from acceptable standards of practice sufficient to constitute gross carelessness.

Conclusion

1. For the foregoing reasons, the respondent is found guilty of gross carelessness in relation to the care of the patient, Ethan, on 1 and 2 August 2005, in that the respondent:

   1)failed to ensure that antibiotics were administered to Ethan within an acceptable time, being four to five hours, following the onset of Ethan suffering respiratory distress;

   2)failed to attend upon and examine Ethan after being advised of an abnormal blood gas result for Ethan at about 10.40 pm on 1 August 2005; and

   3)left Ethan at approximately 8 am on 2 August 2005 in order to attend another patient without instituting emergency medical treatment for Ethan, including the administration of antibiotics and respiratory support in the form of intubation and ventilation, and urgent transfer to Princess Margaret Hospital, when he knew, or should have known, at that time, that Ethan was in urgent need of such treatment and transfer.

Orders

1. The Board seeks by its application that an order be made for either cancellation or suspension of Dr McClure's registration as a medical practitioner in the state of Western Australia, or the imposition of a fine or an order reprimanding Dr McClure.  The Board also seeks an order for costs.

2. In view of the Tribunal's above findings, orders will issue programming the filing of submissions on the appropriate disciplinary sanction to be imposed, to enable the applicant to support its application for costs and for submissions to be filed relating to that application.  The parties will also be required to make submissions on the correct party to be cited as the applicant.  Subject to further order, the outstanding issues will be determined on the documents.  A final order will then issue, reflecting the above basis on which Dr McClure has been found guilty of gross carelessness, reflecting the Tribunal's determination in relation to penalty and costs, and otherwise dismissing the remaining grounds on which the application is based.

   1.On or before 4 May 2012 the applicant must file and serve:

   (a)its submissions on the appropriate sanction to be imposed on the respondent;

   (b)a document setting out the costs claimed in sufficient detail to show how the amount claimed is calculated and to enable the Tribunal to fix costs, if costs be awarded;

   (c)its submissions in support of an award of costs and the basis upon which the amount of costs is claimed; and

   (d)its submissions on the correct party to be cited as applicant.

   2.On or before 25 May 2012 the respondent must file and serve its submissions in response.

   3.Subject to further order, the remaining matters in issue be determined on the documents.

I certify that this and the preceding [133] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR C RAYMOND, SENIOR MEMBER