MEDICAL BOARD OF AUSTRALIA and SHANAB
[2022] WASAT 89
•4 OCTOBER 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: MEDICAL BOARD OF AUSTRALIA and SHANAB [2022] WASAT 89
MEMBER: JUSTICE S HALL (SUPPLEMENTARY PRESIDENT)
MR J O'SULLIVAN, SENIOR MEMBER
DR E MARILLIER, MEMBER
HEARD: 14 JUNE 2022
DELIVERED : 4 OCTOBER 2022
FILE NO/S: VR 73 of 2019
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
AMRO SHANAB
Respondent
Catchwords:
Vocational regulation - Registered health practitioners - Medical practitioner - Whether practitioner failed in his treatment of patient by not recognising risk of malignant tumour, not acting with appropriate urgency and failing to offer surgical intervention - Whether practitioner made false or misleading statements regarding his conduct - Whether practitioner failed to keep adequate patient records - Whether practitioner failed to advise Medical Board of reduction in scope of practice
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 4(1)(a), s 5, s 6, s 41, s 196(1), s 196(1)(b)(i), s 196(1)(b)(ii), s 196(1)(b)(iii)
Result:
Finding of professional misconduct
Category: B
Representation:
Counsel:
| Applicant | : | MD Cuerden SC & J McKenzie |
| Respondent | : | M Howard SC & SM Denman |
Solicitors:
| Applicant | : | Minter Ellison |
| Respondent | : | Scott Denman |
Case(s) referred to in decision(s):
Allinson v The General Counsel of Medical Education and Registration [1894] 1 QB 750
Briginshaw v Briginshaw [1938] 60 CLR 336
Panegyres v Medical Board of Western Australia [2020] WASCA 58
Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
The respondent, Dr Amro Labib Mahmoud Ahmed Shanab (the practitioner), is a medical practitioner with specialist registration in general surgery and a sub-specialisation in endocrine surgery. He was formerly employed as a consultant surgeon in the endocrine surgery team at Fiona Stanley Hospital (FSH). At all relevant times he has practised under the name of Dr Amro Labib.[1]
[1] Exhibit 8, paras 1 - 10.
On 27 November 2015, a young woman, who will be referred to in these reasons as MM, was referred to the endocrine surgery team at FSH. From that time until 15 November 2016 the practitioner was the endocrine surgery consultant with responsibility for MM's care.[2]
[2] Exhibit 44; Exhibit 8, paras 15 - 26.
A mass above MM's right adrenal gland was detected on an initial computed tomography (CT) scan. This was consistent with a haematoma, that is, an area of bleeding. Another possibility was an adrenal tumour, but this is a relatively rare condition, particularly in a woman of MM's age. For this reason, the practitioner formed a view that the mass was likely to be a haematoma. If that view was correct, it would have been expected that the mass would resolve and reduce in size over the following two to three months.[3]
[3] Exhibit 8, paras 15 - 19.
A subsequent CT scan (April 2016 CT scan) and a medical imaging report on 6 April 2016 (April 2016 scan report) did show a small reduction in the size of the mass but also an adrenal washout[4] which was slow and suggestive of a malignant tumour. Furthermore, on 11 May 2016 an ultrasound report (May 2016 ultrasound report) showed that the mass had increased in size.[5]
[4] Washout is a reduction in enhancement relative to surrounding tissue between different phases of a scan. It indicates density and blood flow and has diagnostic significance in identifying malignant tumours.
[5] Exhibit 50, Exhibit 3.
The Medical Board of Australia (Board) alleged that the practitioner saw the April 2016 CT scan and April 2016 scan report and the May 2016 ultrasound report on or about the dates that they were produced. Further, the Board alleged that these reports should have alerted the practitioner to the fact that the mass was likely to be a malignant tumour and that urgent surgery was required. The practitioner denied having seen either of these reports until 22 July 2016.[6]
[6] Exhibit 8, para 28; ts 142, 15 June 2022.
On 22 July 2016, MM attended at FSH for an appointment with the practitioner. There was conflicting evidence as to whether MM saw the practitioner or whether her appointment was rescheduled for another date. It is, however, accepted that the practitioner reviewed the April 2016 CT scan and the May 2016 ultrasound report on that date and recognised the real possibility of a malignant tumour. He requested that further imaging be undertaken. No urgency was attached to this request and a magnetic resonance imaging (MRI) scan was not done until 3 October 2016.[7]
[7] Exhibit 8, para 52; ts 246, 16 June 2022.
A report in respect of the MRI scan, dated 4 October 2016, recorded a significant increase in the size of the mass and that it was considered likely to be malignant. A CT scan undertaken on 4 November 2016 recorded yet a further significant increase in the size of the mass and findings which were suggestive of metastases in the liver. The practitioner did not inform MM or her general practitioner (GP) of those scan results in a timely manner, nor arrange for appropriate and urgent treatment.[8]
[8] Exhibit 6, paras 36 - 38; Exhibit 54.
MM had been booked for her next consultation with the practitioner on 9 December 2016. That consultation was brought forward to 11 November 2016, and it was only at that time that the practitioner told MM that he had concerns. In fact, by that time MM's condition was terminal. Biopsies were done on 11 November 2016 which revealed that MM suffered from an extensively necrotic poorly differentiated malignant tumour. A positron emission tomography (PET) scan done on 14 November 2016 showed a necrotic adrenal carcinoma and the existence of numerous hepatic lesions consistent with metastases; that is, stage IV cancer.[9]
[9] Exhibit 6; Exhibit 65.
At the request of MM's GP another consultant took over the care of MM on 15 November 2016. Her condition continued to deteriorate, and she died a short time later, on 23 January 2017.[10]
[10] Exhibit 2, para 154; Exhibit 6, paras 61 - 73.
The Board alleged that the practitioner failed in his treatment of MM by not recognising the real risk of a malignant tumour, by not acting with appropriate urgency, and by failing to offer early surgical intervention. The failings of the practitioner in the treatment of MM were alleged to be of such gravity as to amount to professional misconduct. The practitioner accepted that he failed in his treatment of MM, but said that the failure only dated from 22 July 2016, when he claimed to have first seen the April 2016 CT scan and the May 2016 ultrasound report. He nonetheless accepted that his failings as from 22 July 2016 justified a finding of professional misconduct. The issue of when he first became aware of the relevant scans remained a matter that was potentially relevant to penalty.[11]
[11] Minute of Proposed Further Amended Substituted Grounds of Application dated 3 December 2021 (Grounds of Application), paras 21 - 22; Respondent's Opening Submissions dated 1 June 2022, paras 1 2.
There was clear evidence that the practitioner viewed the April 2016 CT scan and April 2016 scan report and May 2016 ultrasound report on 22 July 2016. Computer records of FSH show that he accessed those reports on that day. There is no direct evidence that he saw those reports earlier than that time and he denied doing so. The Tribunal was not satisfied on the available evidence that the practitioner did see the reports earlier than 22 July 2016.[12]
[12] Exhibit 61; Further Amended (Substituted) Response of Amro Shanab to the Respondent's Further Amended Substituted Grounds of Application dated 3 December 2021 (Response to Application), para 22(a)(b).
The Board also alleged that the practitioner made false or misleading statements in correspondence. This correspondence consisted of a letter to MM's GP, a letter in which the practitioner instructed his lawyers to write to FSH, and two letters to the Australian Health Practitioner Regulation Authority (AHPRA). It was alleged that the statements were made by the practitioner (or with his authority) with the intention of avoiding or minimising his responsibility for the failings in the treatment of MM.[13]
[13] Grounds of Application, paras 71 -74.
The practitioner accepted that he made the statements and that at least some of them were incorrect but he denied any intention to deceive or mislead. The Tribunal concluded that, whilst the practitioner may have been careless and overly reliant on the incomplete information available to him when the letters were written, it had not been established to the required standard that he was deliberately untruthful or intentionally misleading in the letters. This aspect of the Board's allegations was not found to be proven to the required standard.[14]
[14] Response to Application, paras 36 - 38C.
The practitioner also admitted that he failed to keep adequate patient records and that he failed to advise the Board within seven days of a reduction in the scope of his practice ordered by FSH in November 2016.[15]
[15] Response to Application, paras 39 - 41.
The Tribunal was satisfied that the proven (and admitted) failings of the practitioner in regard to the treatment of MM, the failure to keep adequate patient records and the failure to notify of the change in his scope of practice, together justify a finding that the practitioner is guilty of professional misconduct.
The uncontested facts
MM was born on 18 March 1987. She was, therefore, 28 years old when she first presented to FSH.[16]
[16] Exhibit 2, para 3.
On 20 November 2015, MM attended at Tom Price Hospital with sudden onset sharp left flank pain radiating into her left abdomen, nausea and vomiting. She was discharged with analgesia.[17]
[17] Grounds of Application, para 5.
On 21 November 2015, MM attended the emergency department at FSH with ongoing pain in her left flank. Notes taken at the time indicate that the pain was beginning to ease off. A non-contrast computerized tomography scan (the November 2015 CT scan) was performed at the request of a doctor in the emergency department.[18]
[18] Exhibit 43.
Later the same day a report on the November 2015 CT scan was prepared by a doctor in the radiology department. The report noted the presence of a heterogeneous lobulated mass in the region of the left adrenal gland measuring 5 centimetres in diameter. The mass favoured the appearance of an adrenal haematoma or haemorrhage. An underlying lesion was suspected, however was not identified in the November 2015 CT scan. Followup with an ultrasound was recommended.[19]
[19] Exhibit 49.
MM was advised by an emergency department doctor that she had a haematoma on her left adrenal gland; that it was not clear what had caused it; and that there could be an underlying lesion. She was told that further imaging would be needed, and she would be referred to the FSH surgical team for review.[20]
[20] Exhibit 31.
MM was admitted to FSH later the same day, under the care of a surgeon, Associate Professor Mohammad Ali Ballal of the Acute Surgery Unit. After a review, she was advised that urgent surgery was not required unless she started actively bleeding and that she should be reviewed in about three months' time and have a further CT scan at that time.[21]
[21] Exhibit 34.
On 22 November 2015, MM was discharged from FSH and advised that in about three months' time she would receive an appointment for an outpatient CT scan and a review by the FSH endocrine surgery team. An internal request for an outpatient CT scan was made by a member of the Acute Surgery Unit, to be carried out in approximately three months' time.[22]
[22] Exhibit 34.
On 25 November 2015, an employee of FSH telephoned MM and offered her an appointment at the endocrine surgery clinic (clinic) on 27 November 2015. MM accepted the offer and attended the clinic on 27 November 2015, where she was seen by Dr Patrick Walker. Dr Walker was a surgical registrar at that time working under the practitioner's supervision. MM told Dr Walker that her pain had improved somewhat but remained an issue for her. Dr Walker noted that MM was displaying no symptoms of a functional adenoma underlying the haematoma. Dr Walker then discussed the case with the practitioner.[23]
[23] Exhibit 35.
The practitioner did not see MM at that time however, he reviewed the electronic file records regarding the emergency department admission. He communicated a plan to Dr Walker, which included ordering blood tests and a further CT scan to be carried out in six months' time. There were, accordingly, two CT scan requests in the system at this time: the CT scan made by the Acute Surgery Unit at the time of MM's discharge on 22 November 2015 and the one made by Dr Walker on 27 November 2015.[24]
[24] Exhibit 44; Exhibit 45.
From 27 November 2015 until about 15 November 2016 the practitioner was the consultant with primary responsibility for the care of MM. That responsibility included supervising the care provided by registrars at the clinic and ensuring that registrars and other medical staff at the clinic understood the care that MM required.[25]
[25] Response to Application, para 8; Exhibit 5, para 44.
On 6 April 2016, MM underwent the April 2016 CT scan. This scan was done pursuant to the request made on 22 November 2015 and noted the referring doctor as Associate Professor Ballal. The April 2016 scan report dated the same day noted the existence of a 33 millimetre AP x 37 millimetre x 41 millimetre CC lobulated mass within the left adrenal gland. The mass had attenuation of 35 Hounsfield units (HU) before contrast administration and attenuation of 75 HU in the portal venous phase and an attenuation of 53 HU in the delayed phase. The report stated that 'the lesion is consistent with an adrenal tumour or mass'. No focal liver lesions were noted. It was recommended that correlation with biochemistry and surgical referral be considered. The April 2016 CT scan and April 2016 scan report formed part of MM's computer patient records at FSH.[26]
[26] Exhibit 50.
On 11 May 2016, MM underwent an intra-abdominal ultrasound (the May 2016 ultrasound). The May 2016 ultrasound appears to have been done pursuant to the request made by Dr Walker on 27 November 2015 for a CT scan. It is not apparent who made the decision to do an ultrasound rather than a further CT scan. In any event, the May 2016 ultrasound report noted the referring doctor as the practitioner. The May 2016 ultrasound report also noted the existence of a left adrenal mass measuring 4 x 3.4 x 4.9 centimetres, inconclusive flow in the lesion and that it was uncertain whether the lesion was benign or malignant based on imaging alone. The May 2016 ultrasound formed part of MM's computer patient records at FSH.[27]
[27] Exhibit 52.
On or about 28 April 2016, FSH sent a letter to MM advising that an outpatient appointment had been scheduled for her on 27 May 2016. On 6 May 2016 this appointment was rescheduled to 24 June 2016. On 31 May 2016 the appointment was again rescheduled to 22 July 2016. It is not alleged that the practitioner was responsible for these changes.[28]
[28] Grounds, paras 29 - 31; Response, para 20.
On 22 July 2016, MM attended at the FSH clinic (22 July 2016 consultation). Electronic records show that she checked in at 2.46 pm. Her appointment was for 3.45 pm. The practitioner accessed MM's computer patient record at 2.53 pm and saw the April 2016 CT scan and April 2016 scan report and the May 2016 ultrasound report. Whether he saw MM at that time is a matter in issue, but he accepts that on reviewing the patient records he recognized the possibility of an underlying malignant tumour, though he continued to believe that that was not the most likely diagnosis. He completed a request for a further CT scan. In the request he noted 'left adrenal mass. Is it malignant? Is it getting bigger in size?'. The practitioner did not mark the request as urgent or take any steps to ensure that it was done urgently.[29]
[29] Exhibit 61; Exhibit 46.
On 27 July 2016, the practitioner authorised an adrenal MRI scan be performed in lieu of the CT scan requested on 22 July 2016.[30]
[30] Exhibit 8, paras 55 - 58.
On 3 October 2016, MM underwent the MRI scan (October 2016 MRI scan) that had been requested and a report of the October 2016 MRI scan was completed the following day. The report noted the existence of left adrenal mass measuring 100 x 97 x 95 millimetres, which had significantly increased in size. The report stated that a malignant process was thought most likely. A further evaluation with a CT scan was recommended and the report stated that the findings had been discussed with a surgical registrar. The October 2016 MRI scan and report formed part of MM's computer patient records at FSH.[31]
[31] Exhibit 53.
On 4 October 2016, a radiology registrar spoke by telephone with Dr Yang Huang, an endocrine surgery registrar. The radiology registrar said words to the effect that they were concerned about MM's large left adrenal mass, that the mass was most likely to be a malignant process, other differential diagnoses included a pheochromocytoma or an interval haemorrhage. The radiology registrar said that they recommended an urgent CT scan with adrenal protocol to further characterize the mass.[32]
[32] Applicant's Opening Submissions dated 29 April 2022, para 144.
Later the same day, Dr Huang discussed with the practitioner what he had been told by the radiology registrar. The practitioner also reviewed the October 2016 MRI scan. He continued to believe that the lesion was unlikely to be malignant but accepted the recommendation of the radiology registrar to do a further CT scan. He asked Dr Huang to book MM in for the next available clinic. He did not urgently advise MM or her GP of the possibility of an underlying tumour or take adequate steps to ensure that MM was seen urgently.[33]
[33] ts 160, 15 June 2022.
On 7 October 2016, a surgical registrar, acting under the supervision of the practitioner and with his authority, submitted a request for a further CT scan.[34]
[34] Exhibit 48.
On 4 November 2016, MM underwent a CT scan (November 2016 CT scan) that had been requested on 7 October 2016. A report of the same date noted that the heterogeneous left adrenal mass had further increased in size and now measured 129 x 140 x 127 millimetres. No central necrosis was detected but there was a possibility of renal invasion. There had been the development of multiple sub-centimetre low attenuating loci scattered across both hepatic lobes, which was suggestive of metastases into the liver. The November 2016 CT scan and report formed part of MM's computer patient records at FSH.[35]
[35] Exhibit 54.
On 9 November 2016, MM's GP, Dr Christopher Newall, requested and received a copy of the November 2016 CT scan report. Dr Newall requested that MM's next appointment be brought forward. At that stage MM's next appointment was scheduled for 9 December 2016. The appointment was brought forward to the afternoon of 11 November 2016.[36]
[36] Exhibit 6, paras 61 - 73.
On the morning of 11 November 2016, (the 11 November 2016 consultation) MM attended the emergency department of FSH with right flank pain and fever. She was discharged to attend her afternoon appointment at the clinic. The practitioner saw her at approximately 2.40 pm. There is a dispute as to what was said, but the practitioner does admit that he examined MM and told her that a biopsy was required. He agreed to try to get the biopsy done that day and MM was admitted for that purpose under the practitioner's care.[37]
[37] Exhibit 37; Exhibit 2, paras 112 -115; Exhibit 8, para 76.
Later the same day, MM underwent biopsies of her liver and the left adrenal mass. The biopsies showed an extensively necrotic poorly differentiated malignant tumour. Metastasis from another site was not entirely excluded and it was noted that clinicopathological correlation was required for a definitive diagnosis. MM also underwent blood tests on that day.[38]
[38] Exhibit 58; Exhibit 39.
On 14 November 2016, MM underwent a whole of body PET scan. The report of the PET scan noted a large retroperitoneal mass that appeared to arise from the adrenal gland and was most in keeping with a necrotic adrenal carcinoma. There were also numerous hepatic lesions consistent with extensive hepatic metastases (stage IV cancer).[39]
[39] Exhibit 55.
On 15 November 2016, Dr Newall requested that Dr Dean Lisewski, a general surgery consultant at the clinic, take over the care of MM. This occurred and Dr Lisewski advised MM the same day that he suspected that she had stage IV adrenocortical cancer and that she had a very poor prognosis given that the tumour had metastasised to her liver. Chemotherapy was started on 21 November 2016 but was ceased after several weeks because of multiple side effects and no encouraging response.[40]
[40] Exhibit 6, paras 61 - 73.
On 5 December 2016, the practitioner was advised that adrenalectomy had been removed from his scope of practice at FSH, until he completed up-skilling and could demonstrate his competency in this procedure. He was required to give the Board notice of this restriction within seven days of becoming aware of it. He failed to provide that notice.[41]
[41] Grounds, paras 80 - 81; Response to Application, para 41.
The practitioner failed to make any or adequate records in respect of his review of the April 2016 CT scan and April 2016 scan report, the May 2016 ultrasound report, the July 2016 consultation (if there was one), his review of the October 2016 MRI scan and report or the 11 November 2016 consultation.[42]
[42] Response to Application, paras 39 - 40.
On 9 December 2016, the practitioner dictated a letter to Dr Newall. The letter was typed and sent by facsimile to Dr Newall on 23 December 2016. Although the letter states 'Date Dictated 9 December 2016' it refers to the 11 November 2016 consultation. The relevant contents of the letter are as follows:[43]
I saw [MM] today in the Outpatient Clinic. We have bought (sic) her Outpatient Clinic appointment forward as the original appointment was scheduled for 09 December 2016 however after we had a look at her recent MRI scan, we have organized this urgent review due to the changes noted on her MRI done in October. As you know she is a 29year-old lady who presented last year through the Emergency Department and was admitted via the Acute Surgical Unit with the provisional diagnosis of adrenal haematoma on the left side. She was then seen in our clinic shortly after and the plan was to do another CT with contrast in six months' time for follow up as well as adrenal biochemistry workup to exclude functioning tumours. Unfortunately although [MM] had multiple scanning in the last few months, there was no communication between the Radiology Department and the Surgical Team and the patient (and yourself) about the results of these scans. This can obviously cause huge problems and Dr David Fletcher (the Head of the Surgical Department) has been notified about this incident.
On review today, I had a very long chat to [MM] about the recent MRI and CT scans that she had and I obviously have strong concerns about the possibility of this lesion being malignant with metastases to the liver. To avoid any further issues with her treatment plan, I suggested that [MM] should be admitted as an inpatient to the hospital today under my name to speed up the process of her treatment plan.
She will need to have a FDG PET scan to assess the spread of her disease and she will also need a CT guided biopsy to obtain a tissue diagnosis before giving her any chemotherapy. I have spoken to the interventional radiologist on duty today and I was able to squeeze her in to have her biopsy done later this afternoon. I suspect [MM] will remain admitted to the hospital until we get things sorted out for her. We will also involve the Medical Oncology Team to consider chemotherapy for her as well as the liver surgeons to assess the condition of her liver metastatic disease. We will keep you updated with her news.
[43] Exhibit 56.
On 23 January 2017, MM died.[44]
[44] Exhibit 2, para 154.
On or about 19 June 2017, the practitioner instructed his solicitors to send a letter to FSH. The letter was a complaint regarding alleged bullying and harassment of the practitioner by Dr Lisewski and the alleged failure of management to deal with it. The relevant parts of the letter for the purposes of these proceedings are as follows:[45]
The Respondents' Offending Behaviour started on or around 11 November 2016 when Dr Lisewski learned of and took over the care of a patient of FSH who should have been reviewed and diagnosed with an adrenal tumour earlier (Patient A).[46]
…
On 11 November 2016 Dr Lisewski, the registrar, Dr Yang Huang, and Dr Labib together reviewed the scans for Patient A. Dr Lisewski concluded that Patient A should have been operated on earlier, and asked Dr Labib why he had not done anything earlier. Dr Labib told Dr Lisewski that he was shown Patient A's scans two weeks earlier by Dr Yang, while Dr Labib was operating, and had asked for her to be seen urgently in the clinic.
…
Dr Labib told Dr Lisewski that he hadn't been 'flagged' (in) any scans for Patient A.
[45] Exhibit 77.
[46] The references to Patient A were references to MM.
On or about 13 July 2017 and 10 April 2018, the practitioner sent letters to AHPRA. The letters were in response to an investigator's notice seeking information regarding the practitioner's involvement in the care of MM. The relevant parts of the 13 July 2017 letter for the purposes of these proceedings are as follows:[47]
[47] Exhibit 11.
06/04/16
[MM] had the CT scan performed that was requested at the outpatient clinic on 27/11/15.
I reviewed the CT which showed that the mass had shrunk form her previous CT scan, and was now measuring 33mm x 37mm x 41mm (as opposed to the initial CT which showed measurements of 5cm). The clinical impression remained that the mass was a haematoma, and not a tumour.
[MM] did not attend any clinic to have these results reviewed.
11/05/16
[MM] had an ultrasound scan performed which was ordered by a Radiologist. There is no record of the clinician who placed the order. I did not order the ultrasound as I had not seen the patient since our initial consultation on 27/11/2015.
As I had not requested the scan and I was not cc'd to receive a copy of the report, the results were NOT sent to me and I did not see the results.
22/07/16
[MM] was due to attend the outpatient clinic. Due to a shortage of doctors at the clinic on that day, some appointments were rescheduled.
Unfortunately, [MM] was one of the patients that were rescheduled by the clinic staff. The common practice was to reschedule patients with 6 month review appointments (as opposed to patients with 2-4 week review appointments) as they are deemed 'less risky'.
I did not see [MM] on 22/07/16, however I did review her file and requested a CT to exclude assess whether the mass was 'getting bigger, and/or malignant.'
The clinic staff rescheduled [MM] for an appointment on 9/12/16 (not 11/11/16 as indicated in the FSH investigation).
…
03/10/16
The MRI performed on this day showed a drastic increase in the size of the mass, which was now nearly 10cm in size. Unfortunately the report was not approved until 16 days later (on the 19th of October). The suggestion by the radiologist was to have a CT scan (which was my ORIGINAL request and which was changed by the Radiology registrar without my knowledge).
The findings were discussed with my registrar on the 19th of October 2016.
22/10/16
My endocrine surgery registrar showed me the MRI scans during my operating list (4 days after the registrar was notified of the MRI results). This was not a clinic day and [MM] was not at the hospital on this day.
I advised the registrar that the patient should be seen in or next clinic with no dely. I also suggested a CT scan review to evaluate the liver lesions, and made it clear that this should not delay the patient review.
[MM's] appointment was booked for the 9/12/2016. The registrar bought (sic) this forward to the 11/11/2016.
The relevant parts of the 10 April 2018 letter for the purposes of these proceedings are as follows:[48]
[48] Exhibit 13.
Any delay in treatment of this patient was due to a number of factors that were unfortunately out of my control. They include the fact that [MM's] job as a FIFO worker, meant that scheduling of appointments was difficult, the rescheduling of appointments without me being informed, the lack of any system to notify doctors of investigation results and the point that the outpatient's clinic only took place every fortnight.
In relation to my failure to inform AHPRA about my suspension, regrettably I was not aware this was a requirement. I realize I am supposed to be aware of my obligations under the National Law but I was not and I sincerely apologize. I have updated myself on the requitements.
…
06/04/16
[MM] had the CT scan performed that was requested at the outpatient clinic on 27/11/15. [MM] did not attend any clinic to have these results reviewed.
I did however see the CT, which showed that the mass had shrunk from her previous scan and was now measuring 33mm x 37mm x 41mm (as opposed to the initial CT which showed measurements of 5cm). The clinical impression remained that the mass was a hematoma, and not a tumor as the mass was getting smaller, not bigger.
I wanted to be sure about my decision and tried to seek advice from Dr Dean Lisewski who is the other surgeon on the unit, unfortunately, he was away and I was not able to get hold of him.
I did not try to have (sic) another opinion from someone else for the following reasons:
Our unit runs by only two surgeons, Dr Lisewski and myself. As the only specialized endocrine unit south of the river, we are dealing with half the population of Western Australia, which is putting a great amount of pressure on both of us to deliver quality care for our patients. Several attempts by me and Dr Lisewski to get a third surgeon to join our unit, have all failed due to lack of funding.
On a different occasion when I tried to obtain a second opinion about another patient from another surgeon outside of out hospital (namely Dr. Hieu Nguyen), Dr Nguyen told Dr Lisewski that I asked for his opinion and as a result, I was subjected to extensive bullying and harassment from Dr Lisewski who said he felt 'embarrassed that I had called another surgeon asking for advice, as he felt that Dr Nguyen was gloating to him'.
An official bullying complaint against Dr Lisewski at FSH concluded that he had breached the code of conduct.
My experience with Dr Nguyen and Dr Lisewski meant I did not feel supported by the department or have confidence that a request for a second opinion would be received well.
…
22/07/16
[MM] was due to attend the outpatient clinic. Due to a shortage of doctors at the clinic on that day, some appointments were rescheduled.
Unfortunately, [MM] was one of the patients rescheduled by the clinic staff. The common practice is to reschedule patients with 6-month review appointments (as opposed to patients with 2-4 week review appointments) as they are deemed 'less risky'. The rescheduling was done without my knowledge.
I did not see [MM] on 22/07/16; however, I did review her file and requested a CT to assess whether the mass was 'getting bigger, and/or malignant'.
There was no indication at the time that there was any increase in the size of the mass (according to the most recent scan available). Without the patient being available for history taking and physical examination, there was no alerting signs or symptoms to suggest that the CT scan should have been marked 'urgent'. This was a routine file review at the end of a very busy clinic to those who did not attend the clinic on the day. The patient was not there to be properly assessed and examined which led to further delay in the diagnosis.
The allegations
The Board alleges that the practitioner behaved in a way which constituted professional misconduct, unprofessional conduct and/or unsatisfactory professional performance for the purposes of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) in that the practitioner:
(1)In relation to the 27 November 2015 consultation, failed to:[49]
[49] Grounds of Application, paras 13 - 15.
(a)take steps to ensure that the pathology he requested on 27 November 2015 was ordered, carried out or followed up with the patient;
(b)recognise the possibility of an underlying malignant tumour; and
(c)arrange or take steps to cause to be arranged for radiological clinical reviews of the patient to be carried out within no more than 3 months of her appointment on 27 November 2015.
(2)In relation to the April 2016 CT scan and report, failed to:[50]
[50] Grounds of Application, paras 21 - 22.
(a)recognise the possibility of an underlying malignant tumour within the left adrenal gland;
(b)advise the patient or take steps to cause her to be advised, either urgently or at all, of the possibility of an underlying malignant tumour and the need for her to be reviewed immediately;
(c)take steps to arrange a physical examination of the patient;
(d)seek a second opinion, advice or guidance from a more senior colleague, either urgently or at all; and
(e)offer the patient surgical intervention, either urgently or at all.
(3)In relation to the May 2016 ultrasound report, failed to:[51]
[51] Grounds of Application, paras 27 - 28.
(a)recognise the possibility of an underlying malignant tumour within the left adrenal gland;
(b)advise the patient to take steps to cause her to be advised, either urgently or at all, of the possibility of an underlying malignant tumour and the need for her to be reviewed immediately;
(c)take steps to arrange a physical examination of the patient, either urgently or at all;
(d)seek a second opinion, advice or guidance from a more senior colleague, either urgently or at all; and
(e)offer the patient surgical intervention, either urgently or at all.
(4) In relation to the 22 July 2016 consultation:[52]
[52] Grounds of Application, paras 35 - 36.
(a)failed to advise the patient of the possibility of a malignant adrenal tumour and the need for immediate review;
(b)failed to obtain from the patient details of her symptoms;
(c)failed to conduct a physical examination of the patient;
(d)failed to offer the patient surgical intervention, either urgently or at all;
(e)failed to inform he patient that all further medical imaging which he might require her to undergo was urgent and should be undertaken as soon as possible;
(f)failed to formulate a treatment plan for the patient and inform her of that plan;
(g)failed to ensure that the patient's next appointment at the clinic was scheduled within a short period of time (and well prior to 9 December 2016);
(h)failed to seek a second opinion, advice or guidance from a more senior colleague, either urgently or at all; and
(i)told the patient she had 'nothing to worry about' or words to that effect notwithstanding that he had recognised the possibility of an underlying malignant tumour within the left adrenal gland.
(5)Alternatively, in relation to the practitioner's review of MM's FSH records on 22 July 2016, he failed to:[53]
[53] Grounds of Application, paras 40 - 41.
(a)advise the patient or take steps to cause her to be advised either urgently or at all of the possibility of an underlying malignant tumour and the need for her to be reviewed immediately;
(b)take steps to arrange a physical examination of the patient, either urgently or at all;
(c)seek a second opinion, advice or guidance from a more senior colleague, either urgently or at all; and
(d)offer the patient surgical intervention, either urgently or at all.
(6)In relation to the practitioner's request for an abdominal CT scan, which was amended to a request for the October 2016 MRI scan, he failed to:[54]
[54] Grounds of Application, paras 52 - 53.
(a)inform the patient or take steps to cause her to be informed, either urgently or at all, that medical imaging was urgent and should be undertaken as soon as possible;
(b)mark or otherwise record the request as urgent; and
(c)take any or any reasonable steps to ensure that the medical imaging was undertaken urgently.
(7)In relation to October 2016 MRI scan and report the practitioner failed to:[55]
[55] Grounds of Application, paras 50 and 53.
(a)advise the patient to take all necessary steps to ensure that she was advised, either urgently or at all, of the possibility of underlying malignant tumour and of the need for her to be reviewed immediately;
(b)advise the patient's GP, Dr Newall or take steps to cause him to be advised, either urgently or at all, of the possibility of an underlying malignant tumour and the need for MM to be reviewed immediately;
(c)take all necessary steps to ensure that MM's next appointment at the clinic was urgently rescheduled from 9 December 2016 to the earliest possible date and, in any event, to no later than 14 October 2016 so that the patient could undergo physical examination and be advised of surgical options, either urgently or at all;
(d)seek a second opinion, advice or guidance from a more senior colleague, either urgently or at all.
(8)In relation to the request for the November 2016 CT scan the practitioner failed to:[56]
[56] Grounds of Application, paras 55 - 56.
(a)inform the patient or take all necessary steps to ensure that she was informed, either urgently or at all, that the medical imaging was urgent and should be undertaken as soon as possible;
(b)cause the request to be marked or otherwise recorded as urgent; and
(c)take any reasonable steps to ensure that the medical imaging was undertaken urgently.
(9)In relation to the November 2016 CT scan and report the practitioner failed to:[57]
[57] Grounds of Application, paras 52 - 53,
(a)advise the patient or take all necessary steps to ensure that she was advised, either urgently or at all, of the possibility of an underlying malignant tumour and the need for her to be reviewed immediately;
(b)advise MM's general practitioner, Dr Newall, or take steps to cause him to be advised, either urgently or at all, of the possibility of an underlying malignant tumour and the need for MM to be reviewed immediately;
(c)take all necessary steps to ensure that MM's next appointment was urgently rescheduled from 9 December 2016 to the earliest possible date and, in any event, to no later than 11 November 2016 so MM could undergo a physical examination and be advised to surgical options, either urgently or at all; and
(d)seek a second opinion, advice or guidance from a more senior colleague, either urgently or at all.
(10)In relation to the 11 November 2016 consultation, told the patient that he was now concerned about the recent MRI because it had shown an increase in size of the tumour and thereby gave the patient the impression that he had no such concern or basis for concern at an earlier time, whereas in fact by 22 July 2016 he had recognised the possibility of an underlying malignant tumour and not informed MM of that fact.[58]
[58] Grounds of Application, paras 52 - 53.
(11)On or about 9 December 2016, the practitioner dictated and caused to be sent a letter to Dr Newall that contained representations that he knew to be false or misleading in that:[59]
[59] Grounds of Application, para 70.
(a)he gave an account of the 11 November 2016 consultation and claimed to have written the letter to Dr Newall on the date of the consultation;
(b)claimed that MM's appointment, scheduled for 9 December 2016, had been urgently brought forward due to a review of her then recent MRI report (that is the October 2016 MRI report); and
(c)claimed that there had been no communication between the FSH radiology department and the FSH surgical team about the results of the patient's multiple scans in the last few months.
(11)On or about 19 June 2017, the practitioner instructed his solicitors to send a letter to FSH of that date that contained representations that he knew to be false or misleading in that:[60]
[60] Grounds of Application, paras 72A and 72B.
(a)the letter represented that the practitioner was shown MM's scans for the first time two weeks prior to 11 November (that is on or about 28 October 2016 while he was operating);
(b)that on or about 28 October 2016 he had asked for MM to be seen urgently in the clinic; and
(c)that he had not been 'flagged' in any scans for the patient.
(12)On or about 13 July 2017 and 10 April 2018, the practitioner sent letters to AHPRA dated those dates that contained representations that he knew to be false or misleading in that the letters stated that:[61]
[61] Grounds of Application, paras 73 - 74.
(a)the practitioner did not seek a second opinion from another surgeon on receipt of the April 2016 CT report because:
(i)Dr Lisewski was away and he was unable to get hold of him;
(ii)he could not obtain a second opinion from a surgeon working in another hospital because when he had sought a second opinion from that surgeon on a previous occasion he had been subjected to extensive bullying and harassment from Dr Lisewski;
(iii)an official bullying complaint that he made about Dr Lisewski to FSH concluded that Dr Lisewski had breached the Code of Conduct; and
(iv)his experience with Dr Lisewski and the other surgeon meant he did not feel supported by the department or have confidence that a request for a second opinion would be well received.
(b)the patient's appointment at the clinic on 22 July 2016 was cancelled and rescheduled by the clinic staff due to a shortage of doctors in the clinic on 22 July 2016;
(c)the patient's appointment at the clinic on 22 July 2016 was rescheduled to 9 December 2016 without his knowledge;
(d)he did not see the patient on 22 July 2016;
(e)he was unable to physically examine the patient or take a further history from her; and
(f)that he ordered the CT scan on that date during a review of the patient's file at the end of the day without having seen her.
(13)Failed to keep adequate contemporaneous medical records in respect of MM's care in that he failed to:[62]
(a)make any record in respect of his reviews of the April 2016 CT scan and report, the May 2016 ultrasound report, the October 2016 MRI scan and report or the November 2016 CT scan and report;
(b)make any record in respect of the 22 July 2016 consultation; and
(c)make any adequate records of the 11 November 2016 consultation in the patient's clinical record maintained by FSH.
(14)Failed to notify the Board that his right to practice at FSH had been restricted within 7 days of becoming aware that his scope of practice had been reduced.
Response to the allegations
[62] Grounds of Application, para 78.
The practitioner accepts that his treatment of MM from 22 July 2016 was substantially below that which was required and expected. He accepts that his clinical failings amount to professional misconduct. In particular, he accepts that he ought to have taken the steps set out by the Board from 22 July 2016. He accepts that from 22 July 2016 he ought to have offered MM urgent surgical intervention.[63]
[63] Respondent's Opening Submissions, paras 1 - 4.
The practitioner does not accept that he saw the April 2016 CT scan and the May 2016 ultrasound and their respective reports at about the time of their production. His position is that he did not see the scan and the reports until he reviewed them on the patient's electronic file on 22 July 2016. Accordingly, his position is that his clinical failures date from that time. He accepts that he failed to make an adequate record of his involvement in MM's care. He also accepts that he failed to give notice to the Board of the removal of his credentials to perform adrenalectomy.[64]
[64] Respondent's Opening Submissions, paras 5 - 11.
The practitioner admits that each of the letters referred to in the allegations was either written by him or on his instructions, however he denies that they contain false or misleading representations. He submits that the Board has misconstrued some aspects of the letters and that others, whilst later shown to be incorrect, were a reflection of the practitioner's honest belief at the time.[65]
The matters in issue
[65] Response to Application, paras 36 - 38C.
Whilst the practitioner accepts that his admitted conduct constitutes professional misconduct the matters that remain in dispute have the potential to affect the appropriate penalty. In particular, the allegations of making false or misleading statements are likely to be critical to any submission by the Board that the practitioner should be permanently deregistered. For these reasons the resolution of the matters in dispute is a matter of importance.
The matters that are in dispute are as follows:
1)Whether there were any substantial failings on the part of the practitioner such as would constitute professional misconduct before 22 July 2016. It is accepted by the parties that this issue essentially turns on whether it can be established that the practitioner saw the imaging and reports of the April 2016 CT scan and the May 2016 ultrasound prior to 22 July 2016 (Issue 1).
2)Whether the practitioner deliberately or dishonestly attempted to mislead Dr Newall in the letter of 9 December 2016 (Issue 2).
3)Whether the practitioner deliberately or dishonestly attempted to mislead FSH in the letter from his lawyers of 19 June 2017 (Issue 3).
4)Whether the practitioner deliberately or dishonestly attempted to mislead AHPRA in the letters of 13 July 2017 and 10 April 2018 (Issue 4).
The evidence
The Board tendered statements of MM's mother (LB) and her GP, Dr Newall. Dr Lisewski and MM's sister (NEB) were called to give evidence and their statements were tendered as their evidence-in-chief. The Board also tendered two expert witness reports, by Dr Kingsley Faulkner and Dr R J Aitken.
The practitioner was called to give evidence and his substituted witness statement was received as his evidence-in-chief. He was subject to detailed cross-examination.
At the conclusion of the hearing, the parties filed an agreed bundle of 92 documents to be received in evidence. The documentary evidence included:
1)images, including CT scans;
2)reports, including imaging reports and pathology results;
3)hospital records; and
4)correspondence.
Relevant legal principles
The National Law applies as a law of Western Australia by virtue of s 4(1)(a) of the National Law. The Tribunal is the responsible tribunal for Western Australia for the purposes of the National Law: see s 6 of the National Law.
Pursuant to s 196(1) of the National Law, after hearing a matter about a registered health practitioner the Tribunal may decide one or more of the following:
a)the practitioner has behaved in a way that constitutes unsatisfactory professional performance: s 196(1)(b)(i);
b)the practitioner has behaved in a way that constitutes unprofessional conduct: s 196(1)(b)(ii); and
c)the practitioner has behaved in a way that constitutes professional misconduct: s 196(1)(b)(iii).
Unsatisfactory professional performance is defined in s 5 to mean that the knowledge, skill or judgment possessed, or care exercised by the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
Unprofessional conduct is defined in s 5 to mean professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.
Professional misconduct is defined in s 5 to include:
(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[.]
In Panegyres v Medical Board of Western Australia [2020] WASCA 58 (Panegyres) the Court of Appeal considered the statutory scheme. The relevant principles that can be drawn from that decision can be summarised as follows:
(a)unlike the other two terms, the definition of professional misconduct is inclusory and does not contain an exhaustive statement of the concept;
(b)professional misconduct has both a performance component (paragraphs (a) and (b)) and a conduct component (paragraph (c));
(c)under paragraphs (a) and (b) of the definition of professional misconduct there is no category of unprofessional conduct which is incapable, depending on the circumstances, of giving rise to professional misconduct;
(d)it follows from the non-exhaustive nature of the definition that the concept of professional misconduct is wider than that which is provided for in paragraphs (a) to (c). It can include conduct which does not fall within any of paragraphs (a), (b) or (c) in the definition. For example, conduct which was formerly referred to in cases as infamous conduct in any professional respect in the sense of being conduct that would be reasonably regarded as disgraceful or dishonourable by a practitioner's professional brethren of good repute and competency (in the sense described in Allinson v The General Counsel of Medical Education and Registration [1894] 1 QB 750 at 763).
A finding of professional misconduct under paragraphs (a) or (b) of the definition involves, in substance, two elements. First, the practitioner's conduct as established must constitute one (in the case of paragraph (a)) or more (in the case of paragraph (b)) instance or instances of unprofessional conduct. Secondly, the conduct must individually, in the case of paragraph (a), or taken together, in the case of paragraph (b), amount to conduct which is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. The second element, that is that the conduct was substantially below the relevant standard, involves answering three questions. First, what level of training or experience is possessed by the practitioner. Secondly, what standard of conduct would be reasonably expected of a registered health practitioner of that level of experience. Thirdly, was the conduct of the practitioner substantially below the standard identified?
The inquiry as to the second element is potentially different to the question that must be considered under the designated meaning of the term unprofessional conduct. For unprofessional conduct, the standard is what might reasonably be expected of the practitioner by the public or his or her professional peers. Often, depending on the evidence, that will be the same standard of conduct that would be reasonably expected of a registered health practitioner of the practitioner's level or experience, but the standard may not always be the same.
For professional misconduct it is not enough that the practitioner's conduct is merely less than the standard. The departure must be substantially below the standard. For the conduct to be substantially below the requisite standard it ought to reflect a degree of serious departure from the standard reasonably expected of a practitioner of an equivalent level of training or experience but that is not to suggest that conduct is only substantially below the relevant standard where it is inconsistent with the practitioner being a fit and proper person to hold registration. The gravity of a finding of professional misconduct must be acknowledged and is something that is properly taken into account in exercising the evaluative judgment requirement by the criterion in paragraphs (a) and (b) of unprofessional conduct substantially below the requisite standard. Whether behaviour constitutes professional misconduct as being substantially below the relevant standard involves a qualitative evaluation rather than a binary determination. The question is one of degree.
The existence of a generally accepted professional standard is a question of fact. There are at least three means by which the Board may establish a relevant professional standard. First, by expert evidence as to the generally accepted standards or duties. Second, professional conduct rules, including relevantly the Good Medical Practice: A Code of Conduct for Doctors in Australia (Conduct Code) which is of that nature and has additional evidentiary significance by virtue of s 41 of the National Law. Thirdly, an applicable statutory regime governing the conduct in question. There are some professional standards that can be accepted without evidence. Cases within this category have generally involved an element of moral turpitude, fraud or dishonesty. Where the Conduct Code is relied upon, ultimately the question is not merely whether the impugned conduct is in breach of the Conduct Code but whether the conduct as found is behaviour on the part of a practitioner that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct.
Professional misconduct is plainly reserved for conduct which is more serious than unprofessional conduct. It is not entirely clear where the concept of unsatisfactory professional performance falls within the relevant hierarchy. In Panegyres Vaughan JA observed (at [139]) that the three categories of behaviour are categories of different gravity. Panegyres was a case that did not involve an issue of unsatisfactory professional performance.
The concept of unsatisfactory professional performance was considered by Mitchell J in Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203 (Solomon). The concept of unprofessional conduct is broader than, but not necessarily more serious than, unsatisfactory professional performance. The latter is a subset of unprofessional conduct and focused on the capacity of the practitioner in the practice of the health profession, which is a narrower concept than unprofessional conduct. The phrase 'in the practice of the health profession' is apt to denote the actual delivery of health services rather than the administrative, regulatory and other matters associated with the delivery of such services.
The focus of the definition of unsatisfactory professional performance is on the knowledge, skill or judgment possessed or care exercised by the practitioner whereas the focus of unprofessional conduct is on the conduct of the practitioner. However, the concept of unsatisfactory professional performance is not divorced from the practitioner's conduct.
The concept of unprofessional conduct is also broader than unsatisfactory professional performance in that a number of matters are expressly included in the former but not the latter. As to establishing unsatisfactory professional performance see Solomon at [129] - [137].
The party bringing the proceedings, in this case the Board, bears the onus of proof. The standard of proof is the civil standard of the balance of probabilities and the principles in Briginshaw v Briginshaw [1938] 60 CLR 336 apply.
Any adverse finding in a disciplinary process is a serious matter for a professional person. The serious consequences of such a finding mean that the facts showing that a person has engaged in unsatisfactory professional performance must be affirmatively established by reliable evidence. The same is necessarily true of a finding of unprofessional conduct or professional misconduct. The allegations of dishonesty are of particular significance in this case because the Board submits that if proven they would mean that the practitioner was not a fit and proper person to hold registration as a medical practitioner.
Issue 1 - awareness of scans - evidence
The undisputed evidence was that at the relevant time the procedure for ordering diagnostic imaging at FSH was that a request form would be completed. The request form would specify the type of imaging requested, the name of the consultant in charge and the name of the requesting clinician. Once the imaging had been completed a Medical Imaging Report would be prepared which would provide a radiologist's interpretation of the results. A hard copy of this report would be delivered by internal mail by being placed into the pigeonhole of the referring doctor (usually the consultant in charge nominated on the request form). It should be noted that FSH have since made changes to this procedure.[66]
[66] Exhibit 8, para 28; ts 142, 15 June 2022.
The report for the April 2016 CT scan states that the referring doctor was Associate Professor Ballal. It does not refer to the practitioner. The report was not approved until 29 April 2016 and was not printed until 2 May 2016. There is no direct evidence as to whether the report was delivered to Associate Professor Ballal or, if so, what he did with it. The practitioner in evidence before the Tribunal expressly denied receiving or seeing the report prior to 22 July 2016.[67]
[67] Exhibit 8, para 29; ts 142, 15 June 2022.
The other evidence relied on by the Board as indicating that the practitioner saw the April 2016 CT scan prior to 22 July 2016 is his letters to AHPRA of 13 July 2017 and 10 April 2018. In both of those letters the practitioner states that he saw the April 2016 CT scan and April 2016 scan report in April 2016. The practitioner said in evidence that he wrote these letters sometime after the relevant events and relied on a SAC 1[68] Critical Incident Investigation Report (SAC 1) produced by FSH which stated that he had viewed the April 2016 CT scan at the time. He assumed that the SAC 1 report was correct and formulated his responses to AHPRA accordingly. He also had initially wrongly assumed that the April 2016 CT scan was produced as result of the request by Dr Walker on 27 November 2015, though he later knew that was not the case.[69]
[68] Severity Assessment Code: the 1 indicates that the incident involves a death.
[69] ts 162, 15 June 2022.
As regards the May 2016 ultrasound report, that report notes the practitioner as the referring doctor. There is no request form for an ultrasound. The only request to which the May 2016 ultrasound could relate is the request for a CT scan made by Dr Walker on 25 November 2015 (which noted the practitioner as the relevant consultant). There is no evidence to explain who made the decision to change the modality, or why that change occurred. The practitioner has consistently denied seeing the May 2016 ultrasound report before 22 July 2016. He said in evidence that he did not order an ultrasound and would not have done so in this case. In these circumstances he would not have expected to receive an ultrasound report, though he would not have declined to look at it if he did. He said that the distribution system was not 100% reliable and not all reports were sent to the pigeonholes.[70]
[70] ts 172, 15 June 2022.
Both reports formed part of the FSH computer Clinical Manager Records. The practitioner had access to these records and audit records show that he accessed both the April 2016 CT scan and April 2016 scan report and the May 2016 ultrasound report on 22 July 2016. There was no evidence that alerts, or email notifications were sent to inform the relevant consultant when scans or reports were added to the file.
Issue 1 - awareness of scans - findings
The fact that the April 2016 scan report is addressed to Associate Professor Ballal supports a conclusion that this report was issued pursuant to the request made by the Acute Surgical Unit on 22 November 2015. If the normal delivery procedure was followed it would have been placed into the pigeonhole of Associate Professor Ballal and not that of the practitioner. There is no evidence that it was redirected or forwarded on to the practitioner. Accordingly, it is not possible to draw any inference that the usual distribution process, assuming it was followed, would have led to the practitioner receiving the hard copy April 2016 scan report.
Nor can it be inferred that the practitioner looked at the April 2016 scan report on the electronic file prior to 22 July 2016. Access to the files is logged and the first time the practitioner accessed the April 2016 scan report was on 22 July 2016. That is consistent with the fact that he did not order that report and there is no reason to think he was alerted to its existence. On the other hand, he had a reason to access the file on 22 July 2016 because MM had a consultation booked for that day.
This leaves the fact that the practitioner stated in the letters to AHPRA that he had seen the April 2016 scan report at around the time it was produced. Indeed, he said that he reviewed it after it was placed in his pigeonhole. However, in evidence he now denies that he did see the April 2016 scan report at that time. He says that this was said in the letters because there was an assertion that he saw the report in April 2016 in the SAC 1 report, which he assumed to be correct. He claims not to have been consulted during the investigation which led to that report. Furthermore, he wrongly assumed at the time the letters were written that the April 2016 CT scan was produced as result of the request from Dr Walker.
At face value it might seem odd that the practitioner would make an assumption regarding having reviewed the April 2016 scan report, additionally including the detail of the report being placed in his pigeonhole, when he had no clear memory to that effect. However, it is, perhaps, understandable that he might too readily have done so given that the April 2016 CT scan appeared to show a small reduction in the size of the mass, consistent with it being a haematoma and not a malignant tumour (a point he relied on in the letters). Whilst his change of position does him little credit, his explanation for the letters is plausible. Ultimately, we are not convinced that these letters should prevail over the practitioner's present denials that he saw the April 2016 CT scan prior to 22 July 2016.
As regards the May 2016 ultrasound report, the practitioner has consistently denied receiving or seeing it before 22 July 2022. As against that denial there is only the fact that he is noted on the May 2016 ultrasound report as the referring doctor and would have received the hard copy report if the delivery process had been followed. It would place a heavy burden on the reliability of that process to conclude that he received the ultrasound report on or about 11 May 2016. Furthermore, since the practitioner did not request an ultrasound, he had no reason to expect that he would be receiving one. Having said that, the implication by the practitioner that an ultrasound would have no utility cannot be accepted. It may not have been the modality that the practitioner would have preferred, but the contents of the May 2016 ultrasound report, if read, would have alerted him to the real likelihood that the mass was malignant and growing.
In final submissions senior counsel for the Board accepted the evidence that the practitioner saw the May ultrasound report before 22 July 2016 was the weakest part of the Board's case. It was conceded that the evidence as to the distribution system was such that the Tribunal would be justified in failing to be satisfied that the practitioner had seen the May ultrasound report prior to 22 July 2016.[71]
[71] ts 275, 16 June 2022.
There is no independent record that confirms that the practitioner received either of the reports in his pigeonhole. On the other hand, there can be no doubt, and indeed it is admitted, that he saw those reports on the electronic file on 22 July 2016. The likelihood that that was the first time he saw them is reinforced by the fact that he noted on the request for a further CT scan that the mass appeared to have become larger and that there was a possibility of a malignancy. This and the fact that he requested a further CT scan are consistent with his claim that he had not previously seen these reports. That is not to say that this course of action was adequate; it clearly was not.
It was, of course, a major deficiency in the system of distribution of the reports that they were not brought to the attention of a responsible clinician and actioned earlier than 22 July 2016. Given the nature of the reports and the likely consequences of delay for MM it was imperative that they be actioned as soon as possible. However, we understand that following this matter FSH undertook a review of its report distribution system and improvements were made.
We are not satisfied that the practitioner saw either the April 2016 CT scan and report or the May 2016 ultrasound report prior to 22 July 2016. Accordingly, the relevant commencement time of the practitioner's clinical failure is 22 July 2016. From that date, as he accepts, he was under a clear and pressing obligation to ensure that MM was informed of the likelihood that she had a malignancy and of having a review to consider treatment options, including urgent surgery. His failings after that time are admitted.
Issue 2 - the letter to Dr Newall of 9 December 2016 - evidence
The Board alleges that the letter to Dr Newall of 9 December 2016 is false or misleading in three respects. First, that the references to a consultation 'today' give the false impression that the letter was written on 11 November 2016. Secondly, that the letter gives the impression that the consultation had been brought forward at the instigation of the practitioner, rather than at the request of Dr Newall. Thirdly, that the letter gives the impression that there had been a failure of communication by the radiology department.[72]
[72] Applicant's Opening Submissions, paras 176 - 181.
As to the date of the letter, it bears on its face the annotation 'Dictated on 9 December 2016'. Records from FSH confirm that that annotation is correct. The practitioner said in evidence that his usual practice was to dictate a letter to the patient's GP shortly after a consultation. For some time he believed that he done that on 11 November 2016, but that for some unknown reason the letter had not been typed until December 2016. He maintained that view in proceedings before the PPS Panel in 2018. However, he now accepts that he did not in fact dictate the letter until 9 December 2016. He believes that he realised some time after the 11 November 2016 consultation that he had not dictated a letter and that this meant that there was no record by him in the patient records of what had occurred that day. He says that he dictated the letter as if it was being written as at the time of the consultation as that would be the usual way in which a record of what had occurred would be made. He denies that there was any intention to mislead in doing this and his only purpose was to ensure that the patient records were complete. The letter was not sent to Dr Newall until 23 December 2016.[73]
[73] ts 229 - 231, 16 June 2022.
As to the bringing forward of the consultation, there is no doubt that the consultation was brought forward to 11 November 2016, the issue is how this occurred. On 4 October 2016 Dr Huang showed the practitioner the October 2016 MRI scan that had been done the previous day and informed him that a radiology registrar had expressed concern about the large left adrenal mass and that an urgent CT scan was recommended to further characterise the mass. Although the practitioner continued to maintain the view that the mass was unlikely to be malignant, he says that he asked Dr Huang to book MM into the next available clinic, which he understood to be 11 November 2016.[74]
[74] ts 225, 16 June 2022.
In a letter to AHPRA Dr Huang essentially confirmed that the practitioner asked him to book the next available appointment and that the practitioner approved a plan to make an appointment at the clinic on 11 November 2016. Dr Huang then says that he delegated the task of organising the appointment to a resident medical officer and that, because the November 2016 clinic was full, MM was tentatively listed for the 9 December 2016 clinic. Dr Huang was on leave from 12 to 24 October 2016 and states that he planned to re-arrange the appointment time to 11 November 2016 on his return. He states that on 9 November 2016 he was informed that Dr Newall had telephoned expressing concerns about MM's most recent CT scan results and that MM's clinic appointment was then finalised for 11 November 2016.[75]
[75] Exhibit 12.
As to the failure of communication, the allegation is that the practitioner falsely suggested that the radiology department had failed to communicate the results of scans to MM and Dr Newall. Other than denying that the April 2016 CT scan and May 2016 ultrasound had been received by him, the practitioner accepted in evidence that there was no failure on the part of the radiology department to communicate scan results. He accepts that it was not the obligation of the radiology department to communicate those results to the patient and that responsibility lay with him. He says that the sentence in the letter relied on by the Board for this allegation has been misconstrued. His intention was to say that the failure of communication was between the FSH on the one side (comprising the radiology department and the surgical team) and the patient and her GP on the other side. He says that he was not suggesting that radiology department had not properly communicated with the surgical team or that that was the reason for a failure to provide information to MM and her GP.[76]
Issue 2 - the letter to Dr Newall of 9 December 2016 - findings
[76] ts 236 - 237, 16 June 2022.
There can be no doubt that this letter was in fact dictated on 9 December 2016. The fact that the practitioner maintained for some time that it was dictated on 11 November 2016, soon after he saw MM, does him no credit but that does not necessarily mean that the terms of the letter were intended to mislead as to when it was written. The letter bears on its face a clear notation stating that it was dictated on 9 December 2016 and from that point of view it could hardly have misled Dr Newall as to when it was written (and Dr Newall does not state that it did).
What plainly occurred is that the practitioner failed to follow his usual practice of dictating a letter on 11 November 2016 in circumstances where care of the patient had been transferred to another doctor. That failure is relevant to the allegation that he failed to keep proper patient records. Subsequently he realised that there was no record of the assessment that he had undertaken on that day. The importance of complete records in a case where the adequacy of treatment was in question would not have been lost on him. Such a record would usually take the form of a letter reporting to the GP. Somewhat foolishly, he then decided to remedy the deficiency by drafting a letter in December 2016 as if it had been written in November 2016. This was of no utility to Dr Newall since any information contained in the letter would have been overtaken by other events by December 2016. However, whatever the motivation for writing it, the claim that the letter was false or misleading as to the time it was created has not been established.
As to the bringing forward of the appointment date, the practitioner's discussion with Dr Huang on 4 October 2016 could well have left him with the impression that the appointment was brought forward to 11 November 2016 at his instigation. That the task of changing the appointment was delegated to another person and apparently not acted upon until Dr Newall called on 9 November 2016 were not matters that the practitioner would necessarily have been aware of. In any event, the statement regarding how the appointment came to be brought forward could hardly have misled Dr Newall, who would be well aware of his telephone call of 9 November 2016. In these circumstances it has not been established that the practitioner made a deliberately false or misleading statement when he said that 'we' brought the appointment forward. Having said this, it was somewhat self-serving of the practitioner to describe the appointment as an 'urgent review'. Whatever the circumstances by which MM came to be seen on 11 November 2016, it was incorrect to give the impression that her case had been managed with appropriate expedition.
As to the failure of communication, the issue is essentially one of interpretation. The interpretation proposed by the Board is open, but it is not the only one that is available. The interpretation advanced by the practitioner is also reasonably open. The matter could have been placed beyond doubt by the use of a comma after the words 'Surgical Team'. This case illustrates the value of the sometimes derided Oxford comma. However, the absence of a comma in a letter that the practitioner did not type himself would be an unsafe basis on which to base a conclusion that a person had acted dishonestly. The seriousness of such a conclusion is such that we are unable to accept that the statement was intended to be false or misleading.
We are not satisfied that the allegations of false or misleading statements in the letter to Dr Newall have been made out to the required standard.
Issue 3 - the letter to FSH of 19 June 2017 - evidence
The Board alleges that the letter from the practitioner's lawyers to FSH dated 19 June 2017 is false or misleading in three respects. First, that he was first shown the October 2016 MRI scan by Dr Huang two weeks prior to the 11 November 2016 consultation. Secondly, that when he saw the October 2016 MRI scan, he asked for MM to be seen urgently in the clinic. Thirdly, that he had not been 'flagged' in any scans for MM.[77]
[77] Applicant's Opening Submissions, paras 183 - 185.
As to when he saw the October 2016 MRI scan, the practitioner now accepts that the date of the discussion with Dr Huang was 4 October 2016. However, at the time this letter was written he was under the mistaken belief that the conversation had occurred on a day he was conducting a surgery and had identified the likely day as 19 October 2016. Thus, while he now accepts that he did see the October 2016 MRI scan more than two weeks before the 11 November 2016 consultation, at the time of the letter he believed that it was about two weeks earlier.[78]
[78] ts 217, 16 June 2022.
As to asking for MM to be seen urgently in the clinic, the account given by Dr Huang has been referred to in respect of Issue 2. Dr Huang says that the practitioner asked him to book MM into the next available clinic.
As to not being 'flagged' into any scans, the practitioner says that this was a word used by his lawyers and he is not sure what it was intended to mean. He thinks that the word would normally mean that results of scans or blood tests had been brought to his attention by one of the registrars when he was not present at the hospital.[79]
Issue 3 - the letter to FSH of 19 June 2017 - findings
[79] ts 239, 16 June 2022.
It is accepted by the Board that for some time the practitioner was under the honest misapprehension that he had been shown the scans in mid October. It was only subsequently determined that that had occurred on 4 October 2016. Whilst that means that his estimate of only seeing the scans two weeks prior to the letter was still wrong, the magnitude of the error is significantly reduced. In these circumstances, we cannot be confident that this was an act of deliberate dishonesty or was intended to mislead.
As to whether his claim that he asked to see MM urgently was untrue, this largely depends on whether the appointment was brought forward from December to November 2016 at the instigation of the practitioner or due to the intervention of Dr Newall. Whilst it seems more likely that it was Dr Newall's intervention that resulted in this change, that does not detract from the evidence of the practitioner that he had expressed a view that MM be seen sooner. In these circumstances it was open for him to believe that the arrangements to see MM earlier had been made as a result of his actions. It was, perhaps, inaccurate to describe what was done as arranging for MM to be seen 'urgently', particularly given that the circumstances called for much more urgent action than asking for MM to be booked to the next available clinic. The practitioner accepted in evidence that it would have been open to him to have seen MM at short notice outside normal clinic appointment times. However, an allegation of dishonesty requires more than an inapt use of language. The practitioner's failure to act with appropriate expedition is relevant to his treatment failures, but the allegation that the letter was false or misleading in this respect is not made out.[80]
[80] ts 234, 16 June 2022.
As to whether it was false for the practitioner to say that he had not been 'flagged' in any scans for MM, this very much depends on what was meant by that word. His own explanation that scans had not been brought to his attention by registrars is not implausible, though it does nothing to excuse his treatment failures after 22 July 2016.
We are not satisfied that the allegations of false or misleading statements in the letter to FSH have been made out to the required standard.
Issue 4 - the letters to AHPRA of 13 July 2017 and 10 April 2018 - evidence
The Board alleges that the second letter to AHPRA is false or misleading in six respects. First, by stating that he did not attempt to obtain a second opinion either because Dr Lisewski was on leave or because he had been subjected to extensive bullying and harassment when he sought advice from another surgeon on another occasion. Secondly, that due to a shortage of doctors on 22 July 2016 MM's appointment for that day was rescheduled. Thirdly, that the rescheduling was done without his knowledge. Fourthly, that he did not see MM on 22 July 2016, though he did review her file. Fifthly, that because he was unable to examine or speak to MM there were no signs to alert him to the need for urgency. Sixthly, that MM did not attend the clinic on 22 July 2016.[81]
[81] Applicant's Grounds of Application, paras 73 - 74.
As to the reasons for not obtaining a second opinion, Dr Lisewski was on leave from 22 July to 25 July 2016. However, the practitioner accepted in evidence that he could still have called Dr Lisewski and would expect that such a call would be answered. As to bullying, the practitioner gave evidence that Dr Lisewski had treated him in a demeaning or disrespectful way. He said that this was in small ways, but gave as an example being referred to by Dr Lisewski as his registrar even after he was a qualified specialist. He also said that on another occasion when Dr Lisewski had been on leave, he (the practitioner) had sought a second opinion from another endocrine surgeon and had later been berated for it by Dr Lisewski. Dr Lisewski was called to give evidence and denied any bullying behavior and, specifically, the examples referred to by the practitioner. Dr Lisewski presented as a confident and forthright man who was unlikely to be reticent in sharing his opinion of the conduct of others. The practitioner, on the other hand, presented as a more reserved person.[82]
[82] ts 127 - 128, 15 June 2022.
It was put to the practitioner in cross-examination that his complaint about bullying in the letter to FSH of 19 June 2017 referred to bullying occurring after 11 November 2016. It was suggested that any bullying after that date could not provide an explanation for the failure to obtain a second opinion prior to that time. However, in evidence the practitioner said that he had been subjected to bullying and belittling conduct from Dr Lisewski from earlier in their relationship. He said that the bullying became worse after 11 November 2016, and it was not the intention of the letter to FSH to imply that there had been no such conduct before that date.[83]
[83] ts 131 - 132, 15 June 2022.
The second to sixth allegations of falsity all relate to whether MM attended the clinic on 22 July 2016 and was seen by the practitioner. The clinic records show that MM had an 'arrival time' of 2.46 pm, a 'seen time' of 3.10 pm and a 'departure time' of 3.30 pm. The 'arrival time' is the time a patient checks in at the clinic reception. 'Seen time' is the time a patient is seen by doctor. 'Departure time' is the time the patient leaves the clinic. The appointment outcome was 'reappoint'. 'Reappoint' is the outcome used to book a patient's next appointment, rather than rescheduling an existing appointment. The fact that the next appointment used a different identifying number also indicated that MM was seen on 22 July 2016. Computer records also show that the practitioner reviewed MM's file on 22 July 2016 at 2.53 pm. Records were also available as to when other patients were seen. The Board submits that the records support an inference that the practitioner saw MM, though it is conceded that any appointment was for no longer than five or six minutes.[84]
[84] Applicant's Opening Submissions, para 197; Exhibit 61; Exhibit 97.
There is also evidence of a pathology request form for blood tests that is in the practitioner's handwriting and which was given to Dr Newall by MM when she saw him on 28 July 2016. When asked whether the fact that MM had this form made it more likely that he saw her on 22 July 2016, the practitioner said that other possible explanations were that the form had been sent to MM or given to her at the clinic reception when her appointment was rescheduled.[85]
[85] ts 243, 16 June 2022.
The other evidence relied upon by the Board to establish that a personal consultation occurred are statements made by MM to her sister, NEB. In her statement NEB said that she had had a conversation with MM on 22 July 2016 in which she was told by MM that she had attended a consultation that day at the hospital and that it had been troublesome to get there because she had had to take three buses. However, in crossexamination NEB conceded that MM had said she had gone all that way effectively for nothing. The Board submitted that regard should be had that NEB was giving evidence in difficult circumstances and that her concession in cross-examination was not necessarily inconsistent with a brief consultation.[86]
[86] Exhibit 2, para 59; ts 108, 15 June 2022; ts 268, 17 June 2022.
NEB also gave evidence that she had been present on 11 November 2016 when the practitioner spoke to MM. She said that practitioner brought up a scan and said words to the effect 'Last time I saw you, it wasn't serious, but now it is'. NEB was not shaken in crossexamination in this regard.[87]
Issue 4 - the letters to AHPRA of 13 July 2017 and 10 April 2018 - findings
[87] ts 111, 15 June 2022.
Whether or not there was any intentional bullying, we accept that there was tension in the relationship between Dr Lisewski and the practitioner. This may well have been perceived by the practitioner as bullying and made him feel uncomfortable obtaining a second opinion from Dr Lisewski. It may have also affected his willingness to obtain a second opinion from other surgeons lest it be seen by Dr Lisewski as an implied criticism of him. Nonetheless, as accepted by the practitioner's counsel, whilst this may go some way to providing an explanation for the failure to obtain a second opinion, it does not justify it. The practitioner, as a medical specialist responsible for the care of MM, was required to rise above any interpersonal difficulties and do what was necessary in the interests of his patient. He should have obtained a second opinion and he had no sufficient reason for not doing so. However, that does not mean that what he said in the letter to AHPRA in this regard was false or misleading.
As regards the 22 July 2016 consultation, the Board's case in this respect relies on it being possible to prove affirmatively that a personal consultation on that day in fact occurred. The evidence in that regard supports a conclusion that a personal consultation did occur, but it could only have been for a matter of a few minutes. It must be possible that such a very brief meeting would be forgotten by the practitioner and that he would later assume that the new appointment had been made without his knowledge. In these circumstances we cannot accept to the requisite standard that in saying that the 22 July 2016 consultation was cancelled and rescheduled the practitioner was being deliberately dishonest or misleading.
We are not satisfied that the allegations of false or misleading statements in the letters to AHPRA have been established to the required standard.
Does the proven conduct constitute professional misconduct?
The remaining question is whether the proven conduct justifies a finding of professional misconduct. The practitioner concedes that it does, but that is ultimately a matter for the Tribunal to determine. The Board accepts that if the Tribunal is satisfied that the whole course of conduct meets this standard it is unnecessary to characterise individual failings or make separate findings as to each clinical shortcoming.
The question is whether the proven conduct of the practitioner constitutes such a serious departure from the standard reasonably expected of a practitioner of an equivalent level of training or experience as to amount to professional misconduct. This requires consideration of the practitioner's level of training and experience, considerations of the standards relevant to the conduct and an assessment of whether the conduct has failed to meet those standards. In this regard the Board relies on the practitioner's qualifications and employment history, expert evidence from other eminent practitioners and the relevant Conduct Code.
The practitioner graduated with a medical degree from the University of Mansoura, Egypt in 1998. He spent 1999 doing an internship. Between 2000 and 2003 he undertook training in general surgery. He completed a master's degree in general surgery at Mansoura University. He moved to Australia in 2004 and commenced training as a surgical registrar in general surgery at various hospitals in Victoria between May 2004 and July 2012. He became a fellow of the Royal Australian College of Surgeons in 2012. In that year he moved to Western Australia (WA) and worked as an endocrine surgery fellow at Fremantle Hospital, where he remained until February 2014. From February 2014 to January 2015, he worked as an endocrine surgery fellow at Liverpool Hospital in Sydney, NSW. He returned to WA in 2015 on a five year contract as a consultant surgeon (general surgery) in the endocrine surgery department at FSH.[88]
[88] Exhibit 8, paras 8 - 12.
Two expert reports were received without objection. There is no dispute as to the qualifications of the experts or the opinions they advance.
Dr Kingsley Faulkner is a specialist surgeon with over 40 years' experience in general surgery. He ceased practising as an operating surgeon in 2011 but continued thereafter on the academic staff of the School of Medicine at the University of Notre Dame until 2017. He remains an emeritus consultant at Sir Charles Gairdner Hospital and a clinical professor at the University of Western Australia.[89]
[89] Exhibit 3, paras 1 - 2.
Dr Faulkner notes that adrenocortical carcinomas are rare cancers with a reported incidence of one in one to two million of the population annually and are responsible for only around 0.2% of all cancer deaths. Most general surgeons would not manage a case during their careers but subspeciality endocrine surgeons are likely to do so. Nonfunctioning adrenocarcinomas (that is, those that are not producing excessive hormones) usually occur in patients over the age of 40 and the female to male ratio is 1:2. In those respects MM's presentation was atypical.[90]
[90] Exhibit 3, para 2.
Dr Faulkner states that a spontaneous haematoma developing within an internal organ in a patient with no underlying blood dyscrasia, on no anti-coagulant therapy and with no suggestion of trauma should have raised the distinct possibility of an underlying tumour. The April 2016 CT scan report referred to a washout that was slow and this, together with the size of the mass, was sufficient to warrant surgical intervention or at least the obtaining of a second opinion from a more senior colleague. The increase in size of the mass as shown in the ultrasound should have raised additional alarm.[91]
[91] Exhibit 3, paras 3 - 4.
Dr Faulkner concludes that, despite the rarity of adrenocortical carcinomas and that the practitioner may not have had previous experience of such a case, he should, as a general surgeon with a subspecialty interest in endocrine surgery, have managed MM's case with greater clinical knowledge, judgment, diligence and urgency. He should have recognised the possibility of an underlying adrenal tumour and the need for the case to be followed up clinically, biochemically and radiologically with great care. Opportunities for surgical intervention were missed. In particular, if MM had undergone an adrenalectomy in April 2016, and the tumour was still at stage 1 or 2, she may have had a much better prognosis. Dr Faulkner does not believe that the treatment provided by the practitioner was either adequate or appropriate.[92]
[92] Exhibit 3, para 6.
Dr R J Aitken is a specialist surgeon with over forty years' experience in general surgery. He has worked in that capacity in the United Kingdom, South Africa and Australia. He has a particular interest in colorectal surgery. He is a consultant surgeon at Sir Charles Gairdner Hospital.[93]
[93] Exhibit 4, para 1.
Dr Aitken states that if the mass had been a haematoma the natural history would be that it would be reabsorbed. A further CT scan after three months would be sufficient to confirm if this had occurred. The fact that the mass was still present on the April 2016 CT scan and the May 2016 ultrasound made any clinical opinion that it was a haematoma and not a tumour difficult to justify. The default position should have been that a lesion of this size was malignant until proven otherwise. The ordering of a further CT scan on 22 July 2016 is concerning given that there was already evidence indicating the existence of a mass that might be malignant. If there was felt to be a need for a further CT scan it should have been done immediately and the patient reviewed immediately after the scan. The delay at this time, and subsequently, was unnecessary and inappropriate.[94]
[94] Exhibit 4, para 2.
Dr Aitken concludes that there was a failure to order timely investigations and a failure to interpret and appropriately act upon the findings of those investigations. It was only in November 2016 when MM's GP expressed concern that timely action was taken. By then MM had developed hepatic metastases. Dr Aitken expresses the view that the practitioner failed in his duty of care to MM in that his duty of care was not discharged to an acceptable professional standard.[95]
[95] Exhibit 4, para 2.
The Board also relied on the Conduct Code.[96] Section 1.4 of that Conduct Code provides, inter alia, that doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. Section 2 provides that care of the patient is the primary concern and includes assessing the patient and formulating and implementing a suitable management plan. Section 3 deals with working with patients and includes requirements relating to effective communication.
[96] The March 2014 edition, as the conduct in this case occurred before the publication of the more recent edition in 2020.
The practitioner was the surgical consultant responsible for the care of MM throughout the relevant period. He was aware as at 22 July 2016, that the mass had increased in size. He saw both the April 2016 CT scan and report and the May 2016 ultrasound report at this time. Any belief he had that the mass was likely to be a haematoma was inconsistent with the growth reported in the ultrasound report. Furthermore, the practitioner accepted in evidence that the April 2016 scan report contained information regarding washout that was consistent with a malignant tumour. Accordingly, at this time the very real risk of a malignancy should have been apparent to the practitioner and urgent surgery should have been explored as an option.
The fact that the practitioner did not discuss the obvious possibility of a malignancy with MM and raise the option of urgent surgery, but rather merely ordered further imaging without any appropriate urgency, was a very significant failing. To the extent that, as the practitioner put it, he became 'fixated' on the mass being a haematoma his clinical judgment was seriously impaired. Any doubt about the appropriate course of action could have been resolved by seeking a second opinion. The reasons he gave for not seeking a second opinion were plainly inadequate.
When other imaging results were brought to the practitioner's attention in October 2016 his response was again inadequate. The results served to reinforce the likelihood of a malignancy and the need for urgent action. Directing that MM's appointment be brought forward to the next available clinic, still more than a month away, was not an appropriate response to the circumstances.
The treatment failings between 22 July 2016 and 11 November 2016, as described, were clearly very significant. In our view they were such a serious departure from the standard reasonably expected of a practitioner of an equivalent level of training or experience as to amount to professional misconduct.
The failure to keep proper patient records is also admitted. There was a failure to keep a proper record of the 22 July 2016 consultation (brief though it may have been), of the decision-making process regarding the ordering of additional imaging and of the 11 November 2016 consultation. This failure could be the subject of a separate finding of unsatisfactory professional performance, but the Tribunal considers that it is appropriate for it to form part of the conduct relied on to make the finding of professional misconduct.
The failure of the practitioner to advise of the change in his scope of practice is also admitted. It, too, could be the subject of a separate finding of unsatisfactory professional performance, but the Tribunal, again, considers that it is appropriate for it to form part of the conduct relied on to make the finding of professional misconduct.
Conclusion
We find that the contested factual issues have not been proven to the required standard. However, we are satisfied that on the remaining proven facts the practitioner engaged in a course of conduct that was a serious departure from the standard reasonably expected of a practitioner of an equivalent level of training or experience. That departure is of sufficient seriousness as to amount to professional misconduct.
Orders
The Tribunal orders:
1.The Tribunal finds that the respondent behaved in a way that constitutes professional misconduct, within the meaning of s 196(1)(b)(iii) of the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (National Law), from 22 July 2016 to 11 November 2016 in relation to his treatment of Patient MM.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JS
Associate to the Honourable Justice Hall
4 OCTOBER 2022
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