MEDICAL BOARD OF AUSTRALIA and NUTTALL
[2017] WASAT 58
•10 APRIL 2017
MEDICAL BOARD OF AUSTRALIA and NUTTALL [2017] WASAT 58
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 58 | |
| HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 | |||
| Case No: | VR:98/2016 | 15 FEBRUARY 2017 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MS R PETRUCCI (MEMBER) DR K JEFFERIES (SENIOR SESSIONAL MEMBER) | 10/04/17 | |
| 41 | Judgment Part: | 1 of 1 | |
| Result: | Practitioner found to have engaged in professional misconduct | ||
| B | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF AUSTRALIA ALASTAIR MARCUS NUTTALL |
Catchwords: | National Law Professional misconduct Advice Lacking experience and expertise Natural therapies Interpreting scan and blood test results Hepatoblastoma |
Legislation: | Health Practitioner Regulation National Law (WA) Act 2010, s 5, s 31, s 35, s 193(1)(a)(i) |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336 Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 Legal Profession Complaints Committee and Wells [2014] WASAT 112 NOM v Director of Public Prosecutions (2012) 38 VR 618 Rejfek v McElroy (1965) 112 CLR 517 |
Orders | 1. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that, at the time of the Consultation with the Patient, Dr Nuttall had not, at any time prior to the Consultation, treated any patient who was suffering from hepatoblastoma.,2. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that at the time of the Consultation, Dr Nuttall did not have sufficient expertise or experience and did not inform the Patient's parents, Mr and Mrs Stitt, that he did not have expertise or experience in the treatment of childhood hepatoblastoma to enable him to properly interpret the Ultrasound Scan or the alpha fetoprotein test result; and Dr Nuttall should not have given any advice to Mr and Mrs Stitt in relation to either of those tests.,3. During or alternatively, prior to the Consultation, Dr Alastair Marcus Nuttall was advised by Mr and Mrs Stitt that:,(a) the Patient had been diagnosed with hepatoblastoma;,(b) the Patient had undergone a needle biopsy;,(c) the Patient had been seen by oncology staff at Princess Margaret Hospital ;,d) the oncology staff at Princess Margaret Hospital had advised Mr and Mrs Stitt that the Patient should be treated with chemotherapy;,(e) a paediatric oncologist had informed Mr and Mrs Stitt that the chance of the Patient being cured as a result of undergoing the chemotherapy proposed by oncology staff at Princess Margaret Hospital was 30% to 50%;,(f) Mr and Mrs Stitt had been treating the Patient with natural therapies;,(g) Mr and Mrs Stitt wished to continue to treat the Patient with natural therapies and did not wish to have the Patient treated with chemotherapy;,(h) Mr and Mrs Stitt believed that as a result of action taken by the staff of Princess Margaret Hospital, there was a hearing listed to take place in a court the following day, as a result of which it was possible that the Patient could be treated with chemotherapy pursuant to an order of a court and without their consent;,(i) Mr and Mrs Stitt intended to have the Patient travel by plane to El Salvador the following day; and,(j) Mr and Mrs Stitt wished to have the Patient travel by plane to El Salvador for the purpose of avoiding the Patient undergoing chemotherapy pursuant to any order that might be made by a Court.,4. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that, during the Consultation Dr Nuttall,(a) knew that the Patient's alpha fetoprotein level had been measured to be 874,380 k/UL; and ,(b) advised Mr and Mrs Stitt that comparing the 1 September alpha fetoprotein level with the level obtained previously showed 'a significant slowdown in the progression of disease' and was 'very encouraging'. ,5. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that, during the Consultation, Dr Nuttall:,(a) compared measurements of a tumour in the Patient's liver as shown on the Ultrasound Scan with measurements obtained by the CT Scan taken approximately one month before the Ultrasound Scan was taken; and,(b) advised Mr and Mrs Stitt that this comparison showed that the Patient's liver tumour was smaller than had been the case one month previously.,6. The AFP level and Ultrasound Scan did not provide any basis for a medical practitioner to conclude that the natural therapies provided to the Patient had:,(i) slowed the growth of the Patient's liver tumour; or,(ii) had any desirable effect on the progress of the Patient's disease;,7. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that Dr Nuttall should not have given the advice referred to in paragraphs 4b and 5b above and Dr Nuttall expressly or impliedly approved of Mr and Mrs Stitt providing alternative therapies to the Patient and/or expressly or impliedly recommended that they continue to administer natural therapies to the Patient.,8. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that Dr Nuttall ought to have contacted a member of the oncology staff at Princess Margaret Hospital to better inform himself about the Patient's clinical state and/or the likely efficacy of the proposed chemotherapy treatment before offering any medical advice to Mr and Mrs Stitt concerning their intention to have the Patient travel to El Salvador in order to avoid undergoing chemotherapy pursuant to a potential order of a court.,9. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that Dr Nuttall did not at any time:,(a) contact any member of the oncology staff at Princess Margaret Hospital to discuss the Patient's clinical condition or the treatment of the Patient proposed by Princess Margaret Hospital ; ,(b) contact a member of the oncology staff at Princess Margaret Hospital in order to ascertain whether the Patient's clinical state was such that she was fit to travel by plane to El Salvador before giving the 'fitness to fly' Certificate to Mr and Mrs Stitt; and,(c) by reason of the matters referred to above, Dr Nuttall should not have given the fitness to fly Certificate to Mr and Mrs Stitt.,10. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that Dr Nuttall gave Mr and Mrs Stitt the 'fitness to fly' Certificate, notwithstanding that during, or alternatively prior to the Consultation, Dr Nuttall was advised by Mr and Mrs Stitt of the matters referred to above.,11. The Medical Board of Australia to file submissions as to penalty and costs by 24 April 2017.,12. Dr Alastair Marcus Nuttall to file submissions as to penalty and costs by 8 May 2017.,13. Penalty and costs to be determined on the documents unless otherwise ordered. |
Summary | This matter concerned a medical consultation on 1 September 2009 between a medical practitioner, a 10yearold Patient and the Patient's parents.,The Patient had been diagnosed with a malignant tumour of her liver in early August 2009. Doctors at Princess Margaret Hospital for Children recommended chemotherapy. The Patient's parents wished their daughter to be treated with natural therapies and were opposed to chemotherapy. On 1 September 2009, the Patient and her mother left for South America. Following the Patient's death on 12 November 2009, an investigation by the Coroner resulted in a referral to the Medical Board of Australia.,The practitioner gave advice on a comparison between a CT Scan and an ultrasound. His advice was that the Patient's tumour had shrunk. He lacked the expertise and experience to give such advice. He endorsed the continuing use of natural therapies when he should have given advice that there was no scientific basis for the effectiveness of the natural therapies.,In consideration of the practitioner's level of experience and expertise, and in view of the advice he gave to the Patient's parents and the actions he took during the consultation, as well as the advice he ought to have given to the Patient's parents and the actions he ought to have taken during the consultation, the Tribunal determined that the practitioner behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : MEDICAL BOARD OF AUSTRALIA and NUTTALL [2017] WASAT 58 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)
- MS R PETRUCCI (MEMBER)
DR K JEFFERIES (SENIOR SESSIONAL MEMBER)
- Applicant
AND
ALASTAIR MARCUS NUTTALL
Respondent
Catchwords:
National Law - Professional misconduct - Advice - Lacking experience and expertise - Natural therapies - Interpreting scan and blood test results - Hepatoblastoma
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 5, s 31, s 35, s 193(1)(a)(i)
Result:
Practitioner found to have engaged in professional misconduct
Summary of Tribunal's decision:
This matter concerned a medical consultation on 1 September 2009 between a medical practitioner, a 10yearold Patient and the Patient's parents.
The Patient had been diagnosed with a malignant tumour of her liver in early August 2009. Doctors at Princess Margaret Hospital for Children recommended chemotherapy. The Patient's parents wished their daughter to be treated with natural therapies and were opposed to chemotherapy. On 1 September 2009, the Patient and her mother left for South America. Following the Patient's death on 12 November 2009, an investigation by the Coroner resulted in a referral to the Medical Board of Australia.
The practitioner gave advice on a comparison between a CT Scan and an ultrasound. His advice was that the Patient's tumour had shrunk. He lacked the expertise and experience to give such advice. He endorsed the continuing use of natural therapies when he should have given advice that there was no scientific basis for the effectiveness of the natural therapies.
In consideration of the practitioner's level of experience and expertise, and in view of the advice he gave to the Patient's parents and the actions he took during the consultation, as well as the advice he ought to have given to the Patient's parents and the actions he ought to have taken during the consultation, the Tribunal determined that the practitioner behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010.
Category: B
Representation:
Counsel:
Applicant : Ms F Stanton
Respondent : Mr G Bourhill
Solicitors:
Applicant : MDS Legal
Respondent : Tottle Partners
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113
Legal Profession Complaints Committee and Wells [2014] WASAT 112
NOM v Director of Public Prosecutions (2012) 38 VR 618
Rejfek v McElroy (1965) 112 CLR 517
Introduction
1 This case concerns a consultation between Dr Alastair Nuttall, the Patient and Mr and Mrs Stitt, the Patient's parents, on 1 September 2009 (the Consultation). The Consultation lasted about 45 minutes. The 10yearold Patient had been diagnosed at Princess Margaret Hospital for Children (PMH) with a hepatoblastoma (a malignant tumour of her liver) in early August 2009. The doctors at PMH recommended chemotherapy. The Patient's parents wished her to be treated with natural therapies and were opposed to chemotherapy.
2 On the evening of 1 September 2009, the Patient and her mother left for South America. The Patient died on 12 November 2009.
3 The Patient's death was investigated by the Coroner, resulting in a referral to the Medical Board of Australia (the Board).
Preliminary comments
4 The factual dispute between the parties is very limited. The major issue the Tribunal is required to determine is how Dr Nuttall's conduct is to be characterised. The parties are to be commended for their agreement. The Tribunal thanks counsel for their conduct of the case and their preparedness to engage in answering the Tribunal's questions. Prior to the hearing, Ms Stanton, counsel for the Board, filed very detailed written submissions which form the basis for these reasons.
5 Although the practice of the Tribunal is not to identify the patient in disciplinary proceedings, the actions of Mr and Mrs Stitt in contacting Channel 7 means that the Patient's identity has been released to the general public. Therefore, no purpose would be served in not disclosing her identity.
Onus and standard
6 The Board bears the onus of proof. In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9], the Tribunal stated:
The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
(See also Rejfek v McElroy (1965) 112 CLR 517 (Rejfek))
7 In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, Dixon J, as he then was, observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.
8 The standard of proof required in a civil case where serious allegations are made was stated in Rejfek, where Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ observed at 521 that:
The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved …
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.
9 In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal stated:
… mere mechanical comparison and probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.
10 The Tribunal's findings below are made on the balance of probabilities applying the authorities above.
The legislation
11 The term 'professional misconduct' is defined in s 5 of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) as conduct which includes:
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession[.]
12 The first and second limbs of that definition incorporate the term 'unprofessional conduct' which is defined in s 5 of the National Law as:
[P]rofessional conduct that is of a lesser standard that that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers[.]
13 The relevant authorities are set out in the reasons for decision of Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113:
524 Interpretation of the legislation is assisted by the body of common law in the area of professional disciplinary matters. The classic common law definition of professional misconduct derives from Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 755, namely:
[Conduct] which could be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.
525 The essence of this definition was restated by Priestley JA in Qidwai v Brown (1984) 1 NSWLR 100 at 105:
... whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence[.]
…
527 Contemporary cases involving unsatisfactory professional conduct and professional misconduct primarily consider the wording of the relevant statute rather than the considerations of moral condemnation found in earlier decisions, expressing their views 'in terms of strong criticism'. (Lucire v Health Care Complaints Commission [2011] NSWGA 99 at 84; Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705).
Formal matters
14 The Board is established pursuant to s 31 of the National Law and has the functions referred to in s 35 of the National Law, including the referral of matters concerning registered health practitioners to responsible tribunals in participating jurisdictions.
15 Dr Nuttall has, and had at all material times, general registration as a medical practitioner pursuant to the National Law.
16 Dr Nuttall has held general registration as a medical practitioner since 1987.
17 At all material times Dr Nuttall practised as a general medical practitioner at the Burgess Street Clinic at 6 Burgess Street, Midland, Western Australia (Practice). The Stitts were not Dr Nuttall's patient. The Patient was.
The Patient and PMH
18 The Patient was born on 8 May 1999.
19 In 2009, the Patient had complained of pain and had seen a number of general practitioners who attributed the pain to 'growing pains' with a recommendation to return if the pain did not settle down.
20 In early July 2009, the Patient presented to Dr Sofocado, a general practitioner, complaining of right upper quadrant and shoulder pain.
21 On 5 August 2009, the Patient was referred to PMH by Dr Sofocado (Exhibit A page 9).
22 On 6 August 2009, the Patient had a CT scan of her chest and abdomen at PMH. The report appears at Exhibit A pages 12 (the CT Scan Report). She also had a blood test which showed an abnormally high level of a hormone, alpha fetoprotein (AFP) of 842,000 kU/L (Exhibit A page 3).
23 On 7 August 2009, Mr and Mrs Stitt met with Dr Angela Alessandri, a clinical paediatric haematologist/oncologist at PMH. Dr Alessandri told Mr and Mrs Stitt that chemotherapy was likely to be the Patient's only chance of a cure.
24 It appears likely that at least by this time, Mr and Mrs Stitt commenced natural therapies for the Patient. The natural therapies consisted of a diet of fruit, vegetables and herbs and the application of mud or clay to the Patient's body (natural therapies).
25 On 13 August 2009, a biopsy was taken of the Patient's liver tumour and the Patient was formally diagnosed with metastatic hepatoblastoma (Exhibit A page 5).
26 Dr Alessandri met with the Mr Stitt on 19 August 2009.
27 Dr Alessandri wrote to Mr and Mrs Stitt on 25 August 2009. The letter relevantly stated:
…
We also had a long discussion that day [7 August 2009] about the place of natural therapies in the treatment of childhood cancer and other diseases. I acknowledged Mrs Stitt comes from a family tradition of natural medicine with her mother ([the Patient's] grandmother) being a natural healer in her native El Salvador. I was also made aware that natural therapies had been used in the past to treat [the Patient] and her brother. I did comment that there was no scientific evidence that natural remedies were able to cure hepatoblastoma or any other childhood cancers. Mrs Stitt in particular was keen that I took into account her desire to pursue natural therapies in the timing of the commencement of any other therapy. I said that I could not commit to delaying the start of conventional therapy for [the Patient] given that the disease had already spread from the liver to the lungs, but I did undertake to work with you in an effort to provide [the Patient] with the best possible care. We discussed our team approach to the care of children with cancer and the fact that I represented several medical opinions from our department. We also talked about our unit's membership of the Children's Oncology Group, which is the world's largest children's cancer clinical trials cooperative, group. This gives us access to expert opinion from North America and around the world.
You both wished to discuss what would happen if you did not agree to [the Patient] receiving chemotherapy. I talked about the availability of the PMH Clinical Ethics Service if we could not resolve our differences in terms of what was in [the Patient's] medical best interest and advised that ultimately there were legal avenues available if required. We talked about [the Patient's] pain and I organised a card for you so you could collect the pain relief medicine from the pharmacy with minimal charge. While I understand English is not Mrs Stitt's first language, from her questions and involvement In the discussion, I had no concerns about her understanding with respect to [the Patient's] medical situation.
The blood tests from 6 August 2009 showed that [the Patient] had a very high alpha feto protein or AFP. This is a hormone that can be abnormally high in some cancers that occur in the liver and elsewhere in the body. Other tests confirmed her slightly abnormal liver function. After discussions with the surgeons and radiologists, a biopsy was taken of the liver tumour using ultrasound guidance on 13 August 2009. [The Patient] stayed overnight for that procedure and I was concerned at her level of pain afterwards. I encouraged her to ask for pain relief when she was feeling uncomfortable and made sure she was given pain medications to take home. From our discussions, I became aware [the Patient] was on natural therapies supplied by Nick Dale (naturopath) and her family. These, were primarily being administered by Mrs Stitt under the direction of the [Patient's grandmother]. I expected the liver biopsy result to be available the following week and made arrangements to see you in the oncology clinic on 19 August 2009. Mr Stitt supplied me with Nick Dale's phone number so I could document the contents of the therapies he had recommended. I was and remain unable to comment on whether the natural therapies are causing [the Patient] any harm.
The pathology of [the Patient's] tumour was available on 19 August 2009 and I met with Mr Stitt in the presence of Suzanne Member (oncology liaison nurse) as planned. I believe it was too difficult for Mrs Stitt to come to PMH that day. As you will recall Mr Stitt, I started the discussion by telling you that [the Patient's] tumour was called an hepatoblastoma which is the most common primary liver tumour in children. I stressed it was a cancer and that without chemotherapy in combination with other conventional therapies [the Patient] would not survive. My reading to that point suggested a 30% chance of long term cure with conventional therapy, although as we discussed later, more recent studies that are published in abstract form suggest a better survival rate of 50%. [The Patient] has 2 things in her favour that make me think the 50% long term survival rate is reasonable. The first is that the liver tumour would be able to be taken out with surgery if it does not grow significantly before treatment starts. The second is that her AFP is very high and this is a good sign in this type of tumour.
You admitted having doubts and concerns regarding chemotherapy, but suggested you would support the recommended treatment. You had no confidence however that Mrs Stitt would agree to chemotherapy and felt that you were in a difficult position. You also suggested [the Patient] was in pain at times and not asking for pain relief, which was of great concern to me. We discussed my inability to support natural therapies as sole treatment when conventional, scientifically tested therapies with reasonable outcomes are available. On your suggestion, I called Dr Jocelyne Atkinson, your previous GP, to enlist her help in talking over the issues with Mrs Stitt in her native Spanish. You also suggested reimaging of [the Patient's] tumour before commencing therapy as a way to assess the effects of the natural therapies. I would not agree to a repeat CT scan for this purpose as it would expose [the Patient] to additional, unnecessary radiation. I did however undertake to request an ultrasound. I also outlined the need for tests to assess [the Patient's] heart and kidney function before starting treatment and the placement of a line called an infusaport to make it easier for her to receive chemotherapy. I requested that these tests and the line placement under a general anaesthetic take place as soon as possible to limit the delay in starting [the Patient's] treatment. We discussed the process for resolving conflict over [the Patient's] medical treatment once again, namely discussions with the PMH Clinical Ethics Service and ultimately legal avenues, and you agreed to call me the following day to discuss how Mrs Stitt was feeling about the prospect of chemotherapy.
I did not hear from you on 20 August 2009 and therefore called you the following day, on 21 August 2009. From our two telephone conversations that day, it became obvious that you were no longer supporting chemotherapy for [the Patient] and that you and Mrs Stitt wished to continue with natural therapies instead. You were keen to delay the ultrasound as much as possible and did not want any other tests before the ultrasound report was available. I stressed to you the better outcome from more recent trials with metastatic hepatoblastoma and that the longer we delayed the start of therapy, the less likely it was that we would be able to cure [the Patient]. You reported plans to speak to other alternative practitioners who treat cancer patients. My position on this is that there is no scientifically valid evidence that any alternative therapies cure cancer in children and such therapies could not be supported in place of conventional therapies with known outcomes. I fully accept chemotherapy brings with it risks of side effects, but most of these are manageable with good supportive care[.]
(Exhibit A pages 1011)
28 The letter also outlined Dr Alessandri's proposed treatment plan for the Patient as at 25 August 2009.
29 Despite Dr Alessandri's careful and extensive advice, the Stitts wished to continue with the natural therapies and to avoid chemotherapy for the Patient.
The Stitts' decision to travel to South America
30 The Stitts decided to travel to Mrs Stitt's native country, El Salvador, to continue the natural therapies and to avoid an order being made by a court to require chemotherapy for their daughter.
31 At some time before 1 September 2009, the date of the Consultation, tickets were purchased for Mrs Stitt and her daughter to travel to El Salvador via Brisbane and Los Angeles.
32 It is probable that the Stitts had decided to leave before the Consultation. However, it is unnecessary to make a formal finding for the purposes of the Tribunal's decision.
Events prior to the Consultation
33 Prior to the Consultation there was a conversation between Mr Stitt and Dr Nuttall's brother, Dr Adam Nuttall (Exhibit B, Statement of Mr Stitt to Coroner; Exhibit A pages 30-41 paragraph 53; Statement of Mr Stitt paragraphs 6-8; evidence of Mr Stitt at Inquest Transcript, Exhibit A page 164 last paragraph and page 165 paragraphs 8 and 9; and evidence of Dr Nuttall at Inquest Transcript, Exhibit A page 52 paragraph 4).
34 As a result of that conversation, Dr Nuttall, knew that the Stitt family wished to consult him about the Patient's diagnosed hepatoblastoma.
35 In preparation for Consultation, Dr Nuttall completed forms for the Patient to have blood tests and an ultrasound scan of her abdomen (Statement of Mr Stitt paragraphs 6-8 and Statement of Dr Nuttall paragraphs 25-26). The Patient had had the blood tests and the ultrasound prior to the Consultation.
36 By the time of the Consultation, Dr Nuttall had obtained the sonographer's report in relation to the ultrasound scan of the Patient's abdomen (the Ultrasound Report date 1 September 2009, Exhibit A page 18). The Ultrasound Report refers to a history of a 'known hepatoblastoma' and the reason for the scan as 'to assess size'. The Ultrasound Report identified a hyperechoic mass in the Patient's liver which the sonographer measured as 15.2 centimetres by 11 centimetres by 10.6 centimetres. The sonographer noted that 'old films are not available for comparison'.
37 Results of some of the blood tests that Dr Nuttall had ordered prior to the Consultation were available at the time of the Consultation. A test result for the AFP level in the Patient's blood was not available. That result (874,380 kU/L) became available soon after the Consultation and was discussed between Dr Nuttall and Mr Stitt during a telephone conversation (Amended Response (Response) paragraph 4 and Statement of Mr Stitt paragraph 31). The AFP level had increased by just over 32,000 kU/L. Other than that the conversation took place after Mrs Stitt and her daughter had left for El Salvador, it is not clear when that conversation took place as Dr Nuttall did not make a note of it.
Dr Nuttall's concessions
38 Dr Nuttall conceded that:
a) he had not at any time prior to the Consultation treated any patient who was suffering from hepatoblastoma;
b) he did not have the experience to express an opinion about hepatoblastoma;
c) he should have told the Stitts that he lacked that expertise; and
d) he did not have the expertise to analyse the difference between a CT scan and an ultrasound and reach aconclusion about the outcome.
39 In the circumstances, it is difficult to understand why Dr Nuttall agreed to see Mr and Mrs Stitt and their daughter.
The Consultation
Dr Nuttall's notes
40 Dr Nuttall's notes of the Consultation were:
Family History:
None recorded.
Social History:
None recorded.
Current Medications:
None recorded.
Immunisations:
None recorded.
Past Medical History:
DateCondition
1 September 2009 Hepatoblastoma
Pap Smears:
None recorded.
Progress Notes:
Tuesday September 2009
Dr Alastair M Nuttall
Actions:
Pathology requested: aphafetoprotein U-Es Cr LTFs FBP Ca studies
USS performed at Insight
DO issues wrt parents
- [Patient] had been treated by them with alternate therapies
- was seeming to do better
- deteriorated with needle biopsy but slightly better today
P/
Issues wrt pending court case tomorrow
- apparently the hospital wishes to make [the Patient] a ward of state so she can be forcibly given chemotherapy.
Parents truly believe this will kill their daughter and thus wish to remove her from the jurisdiction of the Australian Legal System. NB [Patient] is not yet a ward of state nor will she necessarily be one after court tomorrow.
Abd USS shows liver tumour to be smaller than CT scan from 1/12 ago. However, this may reflect the different modality used to assess the anatomy of this cancer.
Furthermore, USS report shows no other new lesion, no lymphadenopathy or retroperitoneal lesion seen. Her bloods show normal renal function, normal Ca studies and very slight anaemia (Hb114 g/L cf range 115-155).
Her ALT is 221 U/L (10-35) and GGT 121 UL (5-20) LFTs else normal We await the aFP.
The paediatric oncologist is stating between 30-50% cure for proposed treatment.
OE/
ENT NAD
- Valsalva normal
- Chest clear
- GI liver 1 FB below rib
OTPP
- CNS grossly NAD
Imp/
I feel [the Patient] is fit to travel have given certificate stating same
(Exhibit A pages 13-14)
The natural therapies
41 During the Consultation Mr Stitt explained to Dr Nuttall that they provided the Patient with 'natural remedies' consisting of a diet of fruit, vegetables and herbs and the application of mud or clay to the child's body (Amended Application (Application) paragraph 6.6A; and Response paragraph 2(f); Statement of Mr Stitt paragraph 14.2; and Exhibit E, Statement of Dr Nuttall paragraph 30(f)).
42 Dr Nuttall said that Mr and Mrs Stitt had also told him they thought the Patient seemed to be doing better as a result of the natural therapies.
43 The Tribunal finds that Dr Nuttall knew, as a result of the discussion with Mr Stitt during the Consultation, that Mr and Mrs Stitt wished to continue to treat the Patient with natural therapies (Application paragraph 6.7 and Response paragraph 2(g)).
The percentage chance of success
44 Dr Nuttall recalls that during the Consultation Mr Stitt informed him that the oncologist at PMH in charge of the Patient's case initially told Mr Stitt that the Patient had a 30% chance of being cured if she underwent chemotherapy, but two days later, told Mr Stitt that the Patient had a 50% chance of being cured (Statement of Dr Nuttall paragraph 30(d)).
45 The explanation for this change in prognosis is evident from the letter from Dr Alessandri to Mr and Mrs Stitt dated 25 August 2009 (Exhibit A page 9). Unfortunately, this letter was not given to Dr Nuttall at the time of the Consultation. It is apparent from that letter that Dr Alessandri's research, as at 19 August 2009, suggested that there was a 30% chance of longterm cure with chemotherapy, but that her subsequent consideration of studies that had been recently published in abstract form suggested a better survival rate of 50%. That letter also explained that the tumour would be able to be removed surgically unless it grew significantly before the commencement of treatment and that the Patient's very high AFP level was an indication that chemotherapy was likely to be effective.
46 However, Dr Nuttall was advised of the prognosis. He stated that:
… he was advised by Mr Stitt that he, Mr Stitt, was initially told by a paediatric oncologist at PMH that his daughter had a 30% chance of the patient being cured as a result of undergoing chemotherapy, and that 2 days later he was told by the same paediatric oncologist at PMH that there was a 50% chance of the patient being cured as a result of undergoing chemotherapy. Mr Stitt clearly stated that such a rapid change in the predicted outcome utilising chemotherapy had led to him losing faith in the integrity of the responses he was receiving from the oncologist at PMH[.]
The discussion in relation to the CT scan and ultrasound scan at the Consultation
47 During the Consultation Mr Stitt explained to Dr Nuttall that he wanted to ascertain whether the natural remedies were working (Statement of Mr Stitt paragraph 14.5).
48 Mr Stitt explained to Dr Nuttall that he had wanted an ultrasound scan performed independently of PMH before consenting to the Patient undergoing chemotherapy because he wanted to ascertain whether the natural therapies he had described were working (Statement of Mr Stitt paragraph 14.5).
49 Mrs Stitt gave evidence to the Coroner that the ultrasound scan would 'find out whether it was worse or what was going on' (Exhibit A transcript page 266, paragraph 5; and Exhibit A transcript page 280, paragraphs 3 and 4).
50 Dr Nuttall knew at the time of the Consultation that the Stitts wished to know the size of the tumour compared to its size as measured previously at PMH. Dr Nuttall gave evidence before the Coroner that he understood that the Stitts were coming to see him because they were 'looking for another report to assess the changes with respect to the size of the tumour' and for this reason, he ordered the ultrasound (Exhibit A evidence of Dr Nuttall; Inquest Transcript page 52, paragraphs 10 and 11 and page 53, paragraphs 2 and 6).
51 During the Consultation Mr Stitt showed Dr Nuttall the CT Scan Report performed at PMH on 6 August 2009 (Exhibit B, Statement of Mr Stitt paragraphs 12 and 15). The CT Scan Report referred to a mass in the right lobe of the liver with dimensions of 118 millimetres transverse (11.8 centimetres), 130 millimetres (13 centimetres) AP (anteriorposterior) and 167 millimetres (16.7 centimetres) craniocaudal. During the Consultation Dr Nuttall compared the measurements of the tumour from the CT Scan Report with the measurements noted by the sonographer in the Ultrasound Report (Application paragraph 7.1 and Response paragraph 3(a); Exhibit B, Statement of Mr Stitt paragraph 16 and Exhibit E, Statement of Dr Nuttall paragraph 33(b)).
52 Dr Nuttall advised Mr and Mrs Stitt that the Ultrasound Report showed that the liver tumour was smaller than had been the case at the time of the CT scan (Application paragraph 7.2 and Response paragraph 3(b)).
53 Mr Stitt states that when Dr Nuttall compared the scans, he said that the tumour may have shrunk as much as two centimetres and that he seemed pleased when he said this (Exhibit B, Statement of Mr Stitt at paragraphs 16 and 17).
54 Mrs Stitt said in her statement to the Coroner in reference to Dr Nuttall that '[t]he doctor advised us that the latest ultrasound showed that the tumour had shrunk' (Exhibit C, Statement of Mrs Stitt page 25 paragraph 31).
55 In her statement filed in these proceedings, Mrs Stitt says that Dr Nuttall looked at the scans and said that the tumour 'had shrunk'. Mrs Stitt described Dr Nuttall as being 'very excited' about this change (Exhibit C, Statement of Mrs Stitt paragraph 16).
56 When the Coroner asked Mrs Stitt what she would have done if she was told that the Patient's tumour was getting bigger Mrs Stitt stated 'Probably I would have changed my mind ... go for the chemotherapy' (Exhibit A Transcript page 266, paragraphs 7 and 8). Counsel assisting the Coroner asked Mrs Stitt if there was anything that Dr Nuttall said to her that made her think that there were improvements in the Patient, to which Mrs Stitt responded '[w]ell the test show that the tumour was not getting bigger so that was very positive for us' (Exhibit A Transcript pages 266-267).
57 The Tribunal finds that Dr Nuttall told the Stitts that the tumour had shrunk.
The different modalities of a CT scan and an ultrasound
58 Dr Nuttall's evidence was that he said to Mr and Mrs Stitt that the difference in the size of the tumour may have been due to the fact that different radiological modalities were used. Dr Nuttall's clinical notes include the note 'Abd USS shows liver tumour to be smaller than CT scan from 1/12 ago. However, this may reflect the different modality used to assess the anatomy of this cancer' (Exhibit A page14).
59 Both Mr and Mrs Stitt were cross-examined at the Inquest by Counsel for Dr Nuttall on the issue of whether or not Dr Nuttall advised that the measurements of the tumour on the CT scan and the ultrasound scan may not be directly comparable because of the different modalities used to assess the anatomy of the cancer. Both denied any recollection of such advice being given by Dr Nuttall.
60 Mrs Stitt's evidence at the Inquest was (Exhibit A page 280 paragraph 5):
... Dr Nuttall told you, didn't he, ... that the ultrasound the CT scan result from previously couldn't be directly compared? To be honest, I don't remember that.
61 Cross examination of Mr Stitt at the Inquest on this topic was as follows:
[Reading from clinical notes] 'However, this may reflect the different modality used to assess the anatomy of this cancer'.
Now, that's what he actually told you, wasn't it? No. As I recall, he seemed fairly excited by what he saw. I'm going to say what I recall as being his words at the time, but there's something you would like to be part of, and as I recall saying to my wife, 'Should we tell him?' and she said, 'Tell him what?' I said, 'We take her overseas tonight' and I explained the reasons.
Are you denying that he told you that the apparent difference in size between the CT scan and the ultrasound may reflect a different modality? I'm not totally denying it, I'm just telling you what I recall him saying to us as regards to the size being encouraging.
When you say the signs being encouraging, are you saying he was referring specifically to the ultrasound? A shrink - a possible shrinkage in the tumour as much as two centimetres. (Exhibit A Transcript pages 186-187)
Did he tell you what's written down there? [in reference to Dr Nuttall's note to the effect that the apparent difference in the size of the tumour 'may reflect the different modality used to assess the anatomy of this cancer'] Not in my recollection, in that form, no. The conversation took a different tenor. (Exhibit A page188 paragraph 5)
62 Mr Stitt stated when cross-examined about aspects of his recollection:
I do recall the conversation about the encouragement of the shrinkage of the tumour, though. That stood out in my mind. (Exhibit A Transcriptpage 189 paragraph 4)
63 In relation to the question as to whether Dr Nuttall told Mr and Mrs Stitt that the CT scan Report and the Ultrasound Report could not be compared, Dr Nuttall gave evidence that:
... it may well be that I didn't clearly anticipate or project what I felt, that there was also a plus-minus factor because a different modality of assessing tumour size had been used. (Exhibit A Transcript page 67 paragraph 7)
64 Asked during the Inquest if he felt he conveyed the relevance of the different modalities being used, Dr Nuttall stated:
I don't think I conveyed it as well as I should've done ... when I was explaining that there had been this - this change, and I was excited about it ...
I was excited that the ultrasound hadn't shown it to be bigger, but I wasn't necessarily conveying to them that the - the significance of those, the different ways of looking at the tumour might not necessarily mean that in - in the reality of it that it was smaller. (Exhibit A Transcript page 95)
65 Dr Nuttall's own description of his state of mind as 'excited' is consistent with the evidence of both Mr and Mrs Stitt as to Dr Nuttall's demeanour when conveying to them the measurements of the tumour as shown on the Ultrasound Report.
66 When the Stitts were in El Salvador, they met an oncologist to discuss the Patient's case. A Channel 7 reporter and video crew were present at the meeting. The video shows Mr Stitt speaking to a doctor through a translator, and saying to the translator at the meeting, 'Does he not see a shrinkage in these - between these results here [pointing to results] ... and these results here it's getting smaller' (video at about 6.59 minutes) and 'When we left Perth, this doctor here ... an alternative doctor, looked at the results, based on the original ultrasound and looked at the AFP and was happy to declare her fit to travel based on the improvement she had made from here to here [pointing at test results] with the natural remedies' (video at about 12.15 minutes).
67 The Board submitted on the basis of the Stitt's evidence and the video, that Dr Nuttall did not refer to the different modalities.
68 However, Dr Nuttall's notes were made contemporaneously. The Tribunal has no reason to believe that Dr Nuttall would make a note that was not accurate. The note was made well before there was any criticism of Dr Nuttall's conduct. The Tribunal accepts Dr Nuttall's evidence that he did refer to the different modalities.
69 However, what is also clear is that although Dr Nuttall referred to the different modalities he did not adequately convey to Mr and Mrs Stitt the effect of what he was saying.
70 The Tribunal finds that Dr Nuttall's statement of caution as to the modalities was completely lost in Dr Nuttall's excited demeanour when he told Mr and Mrs Stitt that the tumour had shrunk. The effect therefore was that Dr Nuttall's note of caution was lost in the overall conversation at the Consultation and the excitement that the tumour had 'shrunk'. The Stitts did not remember the note of caution because its significance was so overwhelmed by Dr Nuttall's excitement and in turn, their excitement. It is not surprising that the Stitts did not remember it.
The advice 'Whatever you are doing, keep doing it'
71 In both of her statements, Mrs Stitt refers to Dr Nuttall saying after comparing the scans 'Whatever you are doing, keep doing it' (Statement of Mrs Stitt provided to the Coroner page 25 paragraph 32 and Exhibit C, Statement Mrs Stitt paragraph 16).
72 At the inquest, in answering the question as to whether Dr Nuttall said 'Whatever you are doing, keep doing it', Dr Nuttall responded 'I may well have been encouraging of the choices that they were making at the time' (Exhibit A Transcript page 66 paragraph 4).
73 In his Response to the Application, Dr Nuttall denied making the statement 'Whatever you are doing, keep doing it' (Application paragraph 7.3 and Response paragraph 3(c)). However, at the hearing before the Tribunal, Dr Nuttall conceded that he must have made the statement (T:71; 15.02.17).
74 The Board contends that the statement constituted an express or implied approval of the Stitts treating the Patient's diagnosed cancer with fruits, vegetables, herbs and the application of mud or clay to her body.
75 The Tribunal finds that Dr Nuttall did make the statement 'Whatever you are doing, keep doing it' and that it was an express approval of what the Stitts were doing.
The possibility of legal proceedings to ensure chemotherapy treatment
76 During the Consultation Mr Stitt said to Dr Nuttall that an oncologist at PMH, Dr Alessandri, was pressuring him to allow the Patient to receive chemotherapy for treatment of her hepatoblastoma. Mr Stitt said to Dr Nuttall that he felt 'bullied' (Exhibit B, Statement of Mr Stitt paragraph 14.4 and Exhibit E, Statement of Dr Nuttall paragraph 30(k)).
77 Further, Mr Stitt explained to Dr Nuttall during the Consultation that he had been advised by someone at PMH that PMH was likely to take legal action the following day seeking an order that would, as Mr Stitt understood it, force him to submit the Patient to chemotherapy at PMH. Mr Stitt explained that he had been told that a court order would be sought by PMH unless the Patient was brought to PMH voluntarily the following day to commence chemotherapy (Application paragraph 6.8 and Response paragraph 2(h); Exhibit B, Statement of Mr Stitt paragraph 14.6 and Exhibit E, Statement of Dr Nuttall paragraphs 30(k) and 30(l)).
The 'fitness to fly certificate'
78 Mr Stitt recalls that after comparing the CT scan and the ultrasound scan Dr Nuttall said 'I would like to be a part of this - tell me what is going on'.
79 Mr Stitt's evidence continues:
I then looked at my wife Arely and I said:
'Shall we tell him?'
Before Arely had responded to that question, Dr Nuttall said:
'Tell me what'.
I then said to Dr Nuttall:
'We are flying her out of the country tonight'
(Exhibit B, Statement of Mr Stitt paragraphs 18-21)
80 That recollection is substantially consistent with Mr Stitt's recollection during the Inquest (Exhibit A transcript pages 186 (last paragraph) and 187 (first paragraph)) (see also Application paragraphs 6.86.9 and Response paragraph 2(h))
81 Mr Stitt says that after he told Dr Nuttall that there was a plan to fly the Patient out of the country that night, Dr Nuttall asked if he could examine the Patient to satisfy himself that she was fit to fly. Consent for him to do so was given and Dr Nuttall proceeded with that examination (Exhibit B, Statement of Mr Stitt paragraphs 22-27).
82 Despite Dr Nuttall's evidence that the purpose of the Consultation was to ascertain whether the Patient was fit to fly, the evidence of Mr Stitt was that this only arose when they told Dr Nuttall that they were 'flying her out of the country tonight' and that the provision of the fitness to fly certificate was Dr Nuttall's idea.
83 The Tribunal accepts Mr Stitt's evidence and finds that the purpose of the Consultation was not to obtain a fitness to fly certificate and that the provision of that certificate was initiated by Dr Nuttall.
84 Following his examination of the Patient Dr Nuttall gave a certificate (the Certificate) (Exhibit A page 19) to Mr Stitt (Exhibit B, Statement of Mr Stitt paragraph 28). Dr Nuttall certified that the Patient had been examined on 1 September 2009 and he had found her 'fit to travel abroad by plane'. Dr Nuttall agrees that he gave the Certificate to the Stitts (Application paragraphs 16 and 17 and Response paragraphs 12 and 13).
85 The Certificate had no legal force. However, in the context of the Consultation, the Tribunal finds it was a further encouragement by Dr Nuttall to the Stitts to continue with the natural therapies.
The AFP blood level
86 On 1 September 2009, Dr Nuttall entered into the medical record for the Patient the words 'we await the AFP (Exhibit A page14).
87 After the Consultation, the AFP blood level, as measured on 1 September 2009, became available, and there was a telephone conversation between Dr Nuttall and Mr Stitt about the Patient's AFP level. Dr Nuttall accepts that this conversation occurred but cannot recall what was said (Exhibit E, Statement of Nuttall paragraph 40). Mr Stitt recalls the conversation but does not know whether it occurred on 1 September 2009 or the following day (Exhibit B, Statement of Mr Stitt paragraphs 31-33).
88 Mr Stitt recalled that during the conversation Dr Nuttall knew of the AFP level obtained by PMH (Exhibit B, Statement of Mr Stitt paragraph 32). That report of that AFP level is at Exhibit A page 3). The report shows that at 6 August 2009 the AFP level was 842,000 cubic millilitres (k/UL). The report notes that the reference range is less than 11 k/UL.
89 The provisional AFP level obtained as a result of Dr Nuttall ordering the AFP test is contained in a Clinipath report dated 1 September 2009 (Exhibit A page 15). The reported level as at 1 September 2009 was 874,380 k/UL. The reference range is noted in that report to be 0-6. The confirmed result is again noted to be 874,380 k/UL (Exhibit A page 16).
90 In childhood hepatoblastoma the AFP level becomes elevated. When treatment of the hepatoblastoma is effective, the AFP level declines rapidly (Exhibit E, Statement Professor Emery paragraph 8).
91 Mr Stitt recalled that during the telephone conversation with Dr Nuttall in relation to the AFP level, Dr Nuttall explained to him that the normal AFP level was between 0 and 6, and told him the Patient's AFP level. Mr Stitt stated that Dr Nuttall told him that comparing the 1 September AFP level with the level obtained previously showed 'a significant slowdown in the progression of disease' and was 'very encouraging' (Exhibit B, Statement of Mr Stitt paragraph 33 and paragraph 60 of Mr Stitt's statement to the Coroner). Dr Nuttall's evidence given at the Inquest was consistent with that of Mr Stitt in that, when asked about both the ultrasound scan and the AFP level Dr Nuttall stated 'I would have projected to them that some of these things had shown a slow down' (Exhibit A transcript page 65 paragraph 3). Further, although Dr Nuttall cannot now recall the conversation, in his letter to AHPRA dated 3 December 2014 (Exhibit A pages 323-325) he stated, 'What I am sure I told Mr and Mrs Stitt was that the comparatively small increase in the alpha fetoprotein reading suggested that the tumour was not growing quickly'.
92 The video of the Stitts' consultation with a medical practitioner in El Salvador (from about 4.42 minutes) records Mr Stitt saying, in relation to Dr Nuttall's advice about the two AFP levels:
The independent doctor here said that this is encouraging because it's not doubled, he expected it to go more in three weeks. The fact it's only gone up by 30,000 is ... he's encouraged.
93 When the medical practitioner in El Salvador noted that the second level was higher than the first, Mr Stitt replied 'But only by 30,000, he said normally within three weeks it should have gone up to 900,000 or more'.
94 Later during the same meeting, Mr Stitt stated (at about 12.15 minutes):
When we left Perth, this doctor here, an alternative doctor, looked at the results, based on the original ultrasound and looked at the AFP and was happy to declare her fit to travel based on the improvement she had made from here [pointing at test results] to here [pointing at other test results] with the natural remedies.
95 The Tribunal finds that the significance of the AFP levels was a mater on which Dr Nuttall had no expertise or experience. He should never have expressed an opinion, let alone the misleading opinion he did express.
Contacting PMH
96 Dr Nuttall did not at any time contact any member of the oncology staff at PMH to discuss the Patient's clinical condition or the treatment of the Patient proposed by PMH.
97 Dr Nuttall stated that at no time did he have the Patient's or Mr and Mrs Stitts consent to contact any member of the oncology staff at PMH and further, it was clear to Dr Nuttall that he would not be given that permission.
The flight to El Salvador
98 On the night of 1 to 2 September 2009 the Patient and Mrs Stitt boarded a flight in Perth and travelled to Los Angeles via Brisbane. They stayed overnight in Los Angeles at the home of a relative while awaiting a visa for the Patient, and then boarded a further flight to El Salvador (Exhibit A evidence of Mrs Stitt at Inquest Transcript page 271 paragraph 1).
What should Dr Nuttall not have done?
99 The Board contends that Dr Nuttall should not have;
1) given the fitness to fly certificate without contacting PMH as to the Patient's clinical condition (alleged atparagraphs 19, 19A, 20 and 21.6 of the Application) oratall (alleged at paragraphs 17, 18 and 21.1 of theApplication);
2) given advice to the effect that the measurements of the tumour by means of the CT scan and the ultrasound scan respectively could be compared, and showed the livertumour to be smaller than it had been one month previously (alleged at paragraphs 7.2, 11A, 21.2 and 21.3 of the Application); or
3) expressly or impliedly approved of Mr and Mrs Stitt providing alternative therapies to [the Patient] by saying to Mr and Mrs Stitt 'Whatever you are doing, keep doing it' (alleged at paragraphs 7.3, 21.4 and 21.5 oftheApplication).
What should Dr Nuttall have done?
100 The Board contends that Dr Nuttall should have:
1) told Mr and Mrs Stitt during the Consultation, in effect, that:
1.1. he was a general practitioner with no expertise or experience in the treatment of childhood hepatoblastoma and he could not interpret the Ultrasound Report or serial AFP blood level measurements (alleged at paragraphs 10B and 21.6 of the Application);
1.2. the Ultrasound Report did not provide any evidence that the natural therapies they were providing to [the Patient] were efficacious in the treatment of her cancer (alleged at paragraphs 11 and 21.6 of the Application); and
1.3. the natural therapies they were providing could not have any desirable effect on the Patient's cancer (alleged at paragraphs 13, 14 and 21.6 ofthe Application);
2) contacted Dr Alessandri (or any doctor working with the oncology team at PMH) in order to better understand the nature and severity of the Patient's disease and clinical condition (alleged at paragraphs 15, 19, 19A, 20 and 21.7 of the Application) and the basis for the recommendation of chemotherapy; and
3) told Mr Stitt, when the AFP result became available, that comparison of the AFP level obtained on1 September 2009 with the level measured previously did not indicate that the Patient had received efficacious therapy (alleged at paragraphs 11, 14 and 21.6 of the Application).
Expert evidence
101 Expert evidence was given by Professor Jon Emery, Herman Professor of Primary Care Cancer Research, University of Melbourne. Professor Emery provided two reports, the first undated (Exhibit A pages 331334) and the second dated 11 November 2015 (Exhibit A pages 335336).
102 In Professor Emery's first report, he provided his opinion relating to specific questions as set out below:
1. Whether [Dr Nuttall] provided Mr and Mrs Stitt with appropriate and adequate advice in comparing the Patient's results from the 6 August 2009 CT scan with those from the 1 September ultrasound.
I note that neither Dr Nuttall, nor Insight Clinical Imaging, had access to the ultrasound scan performed on 5 August for comparison with the ultrasound scan performed on 1 September. According to the Coronial record Dr Nuttall advised Mr and Mrs Stitt that the second ultrasound scan showed that [the Patient's] liver tumour was smaller than on the CT scan from PMH from the month before. Dr Nuttall's medical notes state this may reflect the different modality used to assess the anatomy. The Coronial report states that Dr Nuttall 'conceded that he may not have conveyed that caution as well as he should have done ... he acknowledged that he did not necessarily express the significance of different ways of looking at the tumour and that it might not necessarily mean, in reality, that it was smaller.' In Dr Nuttall's response of 3 December 2014 he refers to his medical notes and states that '[the Patient]'s parents did not agree that I had told them of my opinion in this regard, but I find it unimaginable that I would have made a note of that at the time but not explained to them the unreliability of comparing different radiological modalities in regard to accurately assessing variability of tumour size over time.'
It is clear from Dr Nuttall's medical records that he understood the complexity of this case but it is not clear exactly how Dr Nuttall discussed the results of the ultrasound with Mr and Mrs Stitt. Based on Dr Nuttall's statement to the Coroner I believe that Dr Nuttall did not provide Mr and Mrs Stitt with adequate advice about the inherent flaws in comparing the size of the tumour from the CT of 6 August 2009 and the ultrasound scan of 1 September 2009. Failure to do so may have led the parents to believe that the alternative therapy may have been working.
2. Whether [Dr Nutall] provided Mr and Mrs Stitt with appropriate and adequate advice concerning the results from blood tests taken on 7 August 2009 with the Patient's alpha fetoprotein (AFP) results dated 1 September 2009.
j) Mr and Mrs Stitt wished to have the Patient travel by plane to El Salvador for the purpose of avoiding the Patient undergoing chemotherapy pursuant to any order that might be made by aCourt.
4) During the Consultation Dr Nuttall
a) knew that the Patient's AFP level had been measured to be 874,380 k/UL; and
b) advised Mr and Mrs Stitt that comparing the 1 September AFP level with the level obtained previously showed 'a significant slowdown in the progression of disease' and was 'very encouraging'.
5) During the Consultation Dr Nuttall:
a) compared measurements of a tumour in the Patient's liver as shown on the Ultrasound Scan with measurements obtained by the CT Scan taken approximately one month before the Ultrasound Scan was taken; and
b) advised Mr and Mrs Stitt that this comparison showed that the Patient's liver tumour was smaller than had been the case one month previously.
6) The AFP level and Ultrasound Scan did not provide any basis for a medical practitioner to conclude that the natural therapies provided to the Patient had:
i) slowed the growth of the Patient's liver tumour; or
ii) had any desirable effect on the progress of the Patient's disease;
7) Dr Nuttall should not have given the advice referred to in paragraphs 4b and 5b above and Dr Nuttall expressly or impliedly approved of Mr and Mrs Stitt providing alternative therapies to the Patient and/or expressly or impliedly recommended that they continue to administer natural therapies to the Patient.
8) Dr Nuttall ought to have contacted a member of the oncology staff at PMH to better inform himself about the Patient's clinical state and/or the likely efficacy of the proposed chemotherapy treatment before offering any medical advice to Mr and Mrs Stitt concerning their intention to have the Patient travel to El Salvador in order to avoid undergoing chemotherapy pursuant to a potential order of a court.
9) Dr Nuttall did not at any time:
a) contact any member of the oncology staff at PMH to discuss the Patient's clinical condition or the treatment of the Patient proposed by PMH;
b) contact a member of the oncology staff at PMH in order to ascertain whether the Patient's clinical state was such that she was fit to travel by plane to El Salvador before giving the 'fitness to fly' Certificate to Mr and Mrs Stitt; and
c) by reason of the matters referred to above, Dr Nuttall should not have given the fitness to fly Certificate to Mr and Mrs Stitt.
10) Dr Nuttall gave Mr and Mrs Stitt the 'fitness to fly' Certificate, notwithstanding that during or alternatively prior to the Consultation, Dr Nuttall was advised by Mr and Mrs Stitt of the matters referred to above.
Orders
1. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that, at the time of the Consultation with the Patient, Dr Nuttall had not, at any time prior to the Consultation, treated any patient who was suffering from hepatoblastoma.
2. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that at the time of the Consultation, Dr Nuttall did not have sufficient expertise or experience and did not inform the Patient's parents, Mr and Mrs Stitt, that he did not have expertise or experience in the treatment of childhood hepatoblastoma to enable him to properly interpret the Ultrasound Scan or the alpha fetoprotein test result; and Dr Nuttall should not have given any advice to Mr and Mrs Stitt in relation to either of those tests.
3. During or alternatively, prior to the Consultation, Dr Alastair Marcus Nuttall was advised by Mr and Mrs Stitt that:
(a) the Patient had been diagnosed with hepatoblastoma;
(b) the Patient had undergone a needle biopsy;
(c) the Patient had been seen by oncology staff atPrincess Margaret Hospital ;
d) the oncology staff at Princess Margaret Hospital had advised Mr and Mrs Stitt that the Patient should be treated with chemotherapy;
(e) a paediatric oncologist had informed Mr and Mrs Stitt that the chance of the Patient being cured as a result of undergoing the chemotherapy proposed by oncology staff at Princess Margaret Hospital was 30% to 50%;
(f) Mr and Mrs Stitt had been treating the Patient with natural therapies;
(g) Mr and Mrs Stitt wished to continue to treat the Patient with natural therapies and did not wish tohave the Patient treated with chemotherapy;
(h) Mr and Mrs Stitt believed that as a result of action taken by the staff of Princess Margaret Hospital, there was a hearing listed to take place in a court the following day, as aresult of which it was possible that the Patient could be treated with chemotherapy pursuant toanorder of a court and without their consent;
(i) Mr and Mrs Stitt intended to have the Patient travel by plane to El Salvador the following day; and
(j) Mr and Mrs Stitt wished to have the Patient travel by plane to El Salvador for the purpose of avoiding the Patient undergoing chemotherapy pursuant to any order that might be made by aCourt.
4. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that, during the Consultation Dr Nuttall
(a) knew that the Patient's alpha fetoprotein level had been measured to be 874,380 k/UL; and
(b) advised Mr and Mrs Stitt that comparing the 1 September alpha fetoprotein level with the level obtained previously, showed 'a significant slowdown in the progression of disease' and was 'very encouraging'.
5. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that, during the Consultation, Dr Nuttall:
(a) compared measurements of a tumour in the Patient's liver as shown on the Ultrasound Scan with measurements obtained by the CT Scan taken approximately one month before the Ultrasound Scan was taken; and
(b) advised Mr and Mrs Stitt that this comparison showed that the Patient's liver tumour was smaller than had been the case one month previously.
6. The AFP level and Ultrasound Scan did not provide any basis for a medical practitioner to conclude that the natural therapies provided to the Patient had:
(i) slowed the growth of the Patient's liver tumour; or
(ii) had any desirable effect on the progress of the Patient's disease;
7. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that Dr Nuttall should not have given the advice referred to in paragraphs 4b and 5b above and Dr Nuttall expressly or impliedly approved of Mr and Mrs Stitt providing alternative therapies to the Patient and/or expressly or impliedly recommended that they continue to administer natural therapies to the Patient.
8. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that Dr Nuttall ought to have contacted a member of the oncology staff at Princess Margaret Hospital to better inform himself about the Patient's clinical state and/or the likely efficacy of the proposed chemotherapy treatment before offering any medical advice to Mr and Mrs Stitt concerning their intention to have the Patient travel to El Salvador in order to avoid undergoing chemotherapy pursuant to a potential order of a court.
9. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that Dr Nuttall did not at any time:
(a) contact any member of the oncology staff at Princess Margaret Hospital to discuss the Patient's clinical condition or the treatment of the Patient proposed by Princess Margaret Hospital ;
(b) contact a member of the oncology staff at Princess Margaret Hospital in order to ascertain whether the Patient's clinical state was such that she was fit to travel by plane to El Salvador before giving the 'fitness to fly' Certificate to Mr and Mrs Stitt; and
(c) by reason of the matters referred to above, Dr Nuttall should not have given the fitness to fly Certificate to Mr and Mrs Stitt.
10. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that Dr Nuttall gave Mr and Mrs Stitt the 'fitness to fly' Certificate, notwithstanding that during, or alternatively prior to the Consultation, Dr Nuttall was advised by Mr and Mrs Stitt of the matters referred to above.
11. The Medical Board of Australia to file submissions as to penalty and costs by 24 April 2017.
12. Dr Alastair Marcus Nuttall to file submissions as to penalty and costs by 8 May 2017.
13. Penalty and costs to be determined on the documents unless otherwise ordered.
I certify that this and the preceding [128] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
4
8
1