MEDICAL BOARD OF AUSTRALIA and STEPHENS
[2018] WASAT 13
•20 FEBRUARY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: MEDICAL BOARD OF AUSTRALIA and STEPHENS [2018] WASAT 13
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MS D QUINLAN (MEMBER)
DR K JEFFRIES (SENIOR SESSIONAL MEMBER)
HEARD: 3 AND 5 NOVEMBER 2017
DELIVERED : 20 FEBRUARY 2018
FILE NO/S: VR 113 of 2016
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
DARYL ALAN STEPHENS
Respondent
Catchwords:
National Law - Unprofessional conduct - Penalty - Area of need - Maximum fine - Breach of s 130 of National Law
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 3, s 5, s 130, s 196(2), s 196(2)(a), s 196(2)(d)
Result:
Practitioner reprimanded
Practitioner fined maximum of $30,000 pursuant to s 196(2)(d) of National Law
Practitioner fined $2,000 for breach of s 130 of National Law
Summary of Tribunal's decision:
The Medical Board of Australia filed an application to the Tribunal under the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) as a result of Dr Daryl Alan Stephens' conduct whilst he was caring for a patient. In addition, the Medical Board sought a penalty for Dr Stephens' failure to report the loss of his accreditation pursuant to s 130 of the National Law.
The Tribunal was satisfied on the basis of Dr Stephens' admissions that his conduct constituted professional misconduct. It was also clear from the extensive expert evidence before the Tribunal that Dr Stephens' conduct amounted to conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
Although Dr Stephens' conduct would ordinarily result in suspension, the Tribunal took into account Dr Stephens' particular circumstances which established that the protection of the public was not required in this case; and that Dr Stephens had exhibited significant insight and had then undertaken steps to prevent reoccurrence of such conduct.
The Tribunal ordered that Dr Stephens be reprimanded and that he be fined a maximum of $30,000 pursuant to s 196(2)(a) of the National Law. Dr Stephens was also fined $2,000 for the breach of s 130 of the National Law.
Category: B
Representation:
Counsel:
Applicant: Ms F Stanton and Ms J McKenzie
Respondent: Mr H Quail and Ms W Meggison
Solicitors:
Applicant: MDS Legal
Respondent: Panetta McGrath Lawyers
Case(s) referred to in decision(s):
A Legal Practitioner [2013] WASAT 37 (S)
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Legal Profession Complaints Committee and Barber [2015] WASAT 99(S)
Medical Board of Australia and Myers [2014] WASAT 137 (S)
Medical Board of Australia and Nuttall [2017] WASAT 58
Medical Board of Australia and Veettill [205] WASAT 124 (S)
Medical Practitioners Board of Victoria v Hoole [2010] VCAT 136
Re A Practitioner (1984) 36 SASR 590
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 19 July 2016, the Medical Board of Australia (the Board) filed an application relating to Dr Daryl Alan Stephens (Dr Stephens) under the Health Practitioner Regulation National Law (WA) Act 2010 (National Law).
The application arose as a result of Dr Stephens' care of a patient (the Patient). The Patient subsequently died. The Tribunal notes that it was not required to determine the Patient's cause of death and no allegation was made that Dr Stephens' treatment, or lack of treatment, was the cause of death.
The Tribunal thanks the lawyers for both parties for the manner in which the case was conducted and their focus on the real issues in dispute.
The factual background
The factual background is set out in the Board's closing submissions, at paragraphs 1 to 16, in which the Board stated:
1.[The Patient] whose date of birth was … saw a significant amount of blood in his urine on 29 April 2013. On the same day he attended a general practitioner at the Woodbridge Medical Centre in Cooloongup. Pathology tests and an ultrasound scan of the kidneys, ureters and bladder were arranged. On 6 May 2013 the ultrasound scan was performed and reported on. It demonstrated an ovoid structure attached to the bladder wall, and the sonographer queried whether this was a carcinoma of the bladder; [Exhibit A page 6]. On 9 May 2013 the Patient attended the general practitioner Dr Jose at the Woodbridge Medical Centre, and Dr Jose wrote a letter of referral to Dr Stephens [Exhibit A page 11].
2.The Patient was first seen by Dr Stephens on 23 May 2013 at Dr Stephens' rooms at St John of God Hospital, Murdoch. Dr Stephens noted one episode of bleeding and a plan for a 'Flexi' - meaning an examination of the bladder by flexible cystoscopy [Exhibit B page 7]. No past medical history was noted other than that the Patient was 'fit and well'.
3.On 24 June 2013 Dr Stephens performed flexible cystoscopy at the Peel Health Campus (PHC). Dr Stephens made the clinical note 'Polypoid for TURBT - see US' [Exhibit B page7]. (The acronym 'TURBT' - for trans-urethral resection of bladder tumour - is used interchangeably with the term 'resection' and the term 're-resection' is used to refer to a further resection at the tumour site).
4.On 19 July 2013 Dr Stephens performed the TURBT at PHC. He made a note on the Operation Report; 'Large Bladder Tumour'; [Exhibit B page 9].
5.Four grams of bladder tumour curettings from the procedure were submitted to Uropath, a pathology service specialised in urological malignancies and other urological disorders. The pathologist Dr Cohen examined the tissue fragments and produced a report dated 23 July 2013, (the First Pathology Report); [Exhibit A page 21]. The First Pathology Report stated:
Sections of all tissue submitted confirm a muscle-invasive high-grade transitional cell carcinoma. Much of the tumour is superficial but in several fragments there is underlying stroma extensively infiltrated by tumour. In one tissue fragment tumour extension into underlying detrusor muscle is seen.
Conclusion
Bladder-muscle-invasive high-grade transitional cell carcinoma. [original emphasis],
6.After 19 July Dr Stephens performed four further procedures on the Patient as follows:
6.1.flexible cystoscopy on 22 October 2013 when he noted a 'Good scar' and a lesion he describes as a 'red dot' but which he noted on the operation report is noted as '?tumour' [Exhibit A page 10];
6.2.diathermy of lesions on 29 October 2013 [Exhibit A page 11];
6.3.cystoscopy on 6 January 2014, when he noted lesions that appeared to be carcinoma in situ [Exhibit A page 12]; and
6.4. a resection of the lesions that appeared to be carcinoma in situ on 21 February 2014 [Exhibit A page 13].
7.Dr Stephens ceased treating the Patient on 29 April 2014, having had his accreditation at the PHC suspended.
8.Dr Guo of PHC then took over the Patient's care. Dr Guo first saw the Patient at a consultation on 1 May 2014 and he arranged a staging CT scan to be performed on the same day; [Exhibit A page 201]. In light of apparent metastases in the liver and multiple mesenteric lymph nodes shown on that scan, Dr Guo referred the Patient to Prof Hayne at the Fremantle Hospital and Health Service (FHHS). The Patient consulted Prof Hayne [see the notes Exhibit A page 218], and he referred the case the MultiDisciplinary Team at FHHS. Prof Hayne made the notification to AHPRA that led to these proceedings [see Exhibit A pages 222230].
9.The Patient underwent chemotherapy at the Rockingham Kwinana District Hospital.
10.The Patient died on 5 October 2014, as a direct result of a caecal perforation [Exhibit A page 270].
The experts
Extensive expert evidence was produced to the Tribunal.
Associate Professor Declan Murphy was called on behalf of the Board. His experience and qualifications are set out in Exhibit C at pages 7374 and page 57. He is highly qualified, experienced and credentialed. He is a consultant urologist and Director of Genitourinary Oncology at the Peter MacCallum Cancer Centre. His written evidence appears between pages 43 and 86 of Exhibit C.
Associate Professor Nathan Lawrentschuk was also called on behalf of the Board. His experience and qualifications are set out in Exhibit C page 106. Again, he is highly qualified, experienced and credentialed. He is a urologist oncologist at the Peter MacCallum Cancer Centre and at Austin Hospital in Melbourne and in private practice. His written evidence appears at pages 105117 of Exhibit C.
Associate Professor David Webb gave evidence on behalf of Dr Stephens. His curriculum vitae appears at pages 194237 of Exhibit D. He practises as a urologist at Austin Health at the Olivia NewtonJohn Cancer Wellness and Research Centre and in private practice. He is again highly qualified, experienced and credentialed. His written evidence on behalf of Dr Stephens appears in Exhibit D at pages 149192.
Dr Robert Wines gave evidence on behalf of Dr Stephens. His curriculum vitae appears at pages 125126 of Exhibit D. Although he was a leader in his field when in practice, it is now many years since he has been in practice. His last Honorary and Visiting Urologist position expired in 1998. His current position is as a Consultant Emeritus. His written evidence appears between pages 95 and 124 of Exhibit D.
An expert conferral was conducted between the four specialists retained by the parties: Professors Murphy, Lawrentschuk and Webb and Dr Wines. The results of that conferral are set out in Exhibit E. As a result of that expert conferral, the matters relating to Dr Stephens' breach were almost entirely agreed between Professors Murphy, Lawrentschuk and Webb. The specialists are to be commended for the joint expert report they produced. Their efforts were greatly appreciated by the Tribunal.
The experts gave concurrent evidence at the hearing. As a result of the agreement between the three associate professors, it is unnecessary to analyse their reasoning. Given that the evidence of the three associate professors was based on current knowledge and practice, the Tribunal has preferred their evidence to that of Dr Wines due to his lack of recent experience.
Expert evidence was also provided by a pathologist, Dr Ronald J Cohen, He is highly qualified, experienced and credentialed. His curriculum vitae appears at pages 1731 of Exhibit C. His written evidence appears between pages 12 and 39 of Exhibit C. He did not take a part in the expert conferral or give oral evidence at the hearing. His evidence was unchallenged.
What was the nature and severity of the Patient's disease as diagnosed by the first pathology report?
The Tribunal has adopted the Board's submissions on this topic. The Board submitted:
11.Upon conferral, all expert witnesses agreed that the Patient's cancer was high-grade; [Exhibit E Answer to question 3].
12.The significance of the diagnosis of high-grade bladder cancer is explained by the Cancer Council's publication 'Explaining Bladder Cancer' provided by Prof Murphy [Exhibit A page 298]. This document explains that in 'low- grade' bladder cancer, cancer cells are slow-growing and less likely to invade other tissue, whereas in 'high-grade' bladder cancer, the cells grow quickly and are more likely to spread into the bladder muscle; [Exhibit A page 300]. This distinction is also dealt with by A/Prof Lawrentschuk in his statement filed on 19 June 2017 at para 10 [Exhibit C pages 107108], in which he explains that high-grade cancer is more likely than low-grade cancer to recur and progress.
13.Upon conferral all experts also agreed that the Patient's cancer was stage pT2a using the 'Tumour, Nodes, Metastasis' or 'TNM' staging system; [Exhibit E Answer to question 3].
14.The TNM System is set out in in the Cancer Council publication at [Exhibit A page 299]. This shows that a T2 tumour is one that has spread into the layers of muscle that surround the bladder. A diagrammatic illustration of the stage of the Patient's bladder cancer has been provided by A/Prof Murphy and is at [Exhibit A page 301].
15.At the time that the First Pathology Report was received by Dr Stephens (on or about 23 July 2013) there had been no staging CT scan, and so it was not known whether the cancer was in the nodes or whether it had metastasised to other sites. A/Prof Murphy explains in para 25 of his witness statement filed on 19 June 2017 [Exhibit C page 76] that the staging for Nodes was 'NX' at that time, and the staging for Metastases was 'MX' at that time, as the status was unknown.
16.Muscle-invasive (T2) bladder cancer is described by the Board's expert witnesses as follows:
16.1.'T2 disease of the bladder is a very serious, significant, aggressive and life-threatening disease'; Dr Cohen at para 16 of his statement filed 16 June : 2017 [Exhibit C page 16];
16.2.'Invasion of the stroma is in itself very significant and changes the stage from T0 to T1. This finding indicates aggressive disease which is often underestimated with a long-term mortality of 20-50%. This is because at this level of invasion the cancer can infiltrate the lymphatic and haematological systems and metastasise which is described in 16-18% of cases.
Invasion of the muscle layer represents even deeper, more advanced cancer progression. In about a third of patients in whom there is muscle invasion the cancer will have already metastasised at the time of diagnosis. This is the case irrespective of the extent of invasion seen by the pathologist'; Dr Cohen at paras 9 and 10 of his supplementary witness statement filed 20 September 2017 [Exhibit C page 35];
16.3.'T1 or T2 bladder cancer is a particularly aggressive form of cancer', Dr Cohen at para 7 of his Statement filed 21 October 2017 [Exhibit C page 39];
16.4.'There is no question but that this should be considered a high risk cancer ... ' A/Prof Murphy report to AHPRA, [Exhibit C para 2 at page 46];
16.5.'... the standard of care accepted by urologists for an otherwise fit, 57 year old man would be to offer radical cystoprostatectomy and urinary diversion, or radical radiotherapy. This advice is supported by all of the major guidelines in urology, due to the aggressive nature of this type of cancer'; para 26 of Statement of A/Prof Murphy filed 19 June 2017 [Exhibit C page 77]; and
16.6.'... the pathology report indicated invasive cancer extending from the epithelium, through the stroma and into the muscle. This is important because the stroma and muscle are where the blood vessels and lymphatic vessels are that take the cancer cells and spread them (metastasise) to lymph nodes and other organs (bone, liver, lungs etc) in the body.'; A/Prof Lawrentschuk para 27, Statement of filed 19 June 2017 [Exhibit C pages 111112].
Dr Stephens' admissions
During the hearing on 1 November 2017, Dr Stephens filed a document entitled 'Admitted Facts and Findings' as follows:
...
2.1.[Dr Stephens] has, and had at all material times, registration as a specialist medical practitioner pursuant to the National Law in the specialty of surgery and the specialty field of urology; and
2.2.at all material times practiced as a consultant urologist.
3.On 23 May 2013 [Dr Stephens] was consulted by [the Patient] (deceased) whose date of birth was … 1955.
4.At the date of the consultation referred to in paragraph 3, thePatient presented:
4.1.reporting an episode of haematuria; and
4.2.with an ultrasound scan indicating a polypoid lesion in his bladder.
5.On 24 June 2013 [Dr Stephens] examined the Patient's bladder by performing a flexible cystoscopy at the Peel Health Campus (PHC) which examination confirmed the presence of bladder cancer in the Patient.
6.On 19 July 2013 [Dr Stephens] performed a transurethral resection of bladder tumour (TURBT) on the Patient at the PHC.
7.Tissue from the Patient's bladder removed during the TURBT performed on 19 July 2013 was submitted to pathology.
8.On or about 23 July 2013 [Dr Stephens] received by mail to his private rooms a pathology report (the First Pathology Report) in relation to the tissue removed from the Patient's bladder on 19 July 2013 which revealed the existence of a high-grade muscle-invasive transitional cell carcinoma of the bladder.
9.The diagnosis of high-grade muscle-invasive transitional cell carcinoma of the bladder as reported in the First Pathology Report meant that it was necessary for [Dr Stephens], within a few weeks, to:
9.1.arrange for the Patient to undergo a staging CT scan of the Patient's thorax, abdomen and pelvis in order to ascertain the extent of the bladder cancer and whether that cancer had metastasised to other sites; and
9.2.subject to the outcome of the staging CT scan referred to in paragraph 9.1, advise the Patient that the standard of care in an otherwise fit 57 year old with high-grade muscle-invasive bladder cancer, is to offer either radical cystoprostatectomy and urinary diversion and to give consideration to neo-adjuvant chemotherapy or radical radiotherapy, and that, if the Patient was unwilling to accept either of those options, then he could choose endoscopic surveillance with a re-resection of the base of the tumour, provided that such a resection showed no residual tumour.
10.As at 23 July 2013, [Dr Stephens'] practice in respect of pathology reports received at his rooms was to have the reports filed on patients' clinical files, and it was not [Dr Stephens'] practice to read the pathology reports before they were so filed.
11.[Dr Stephens'] practice referred to in paragraph 10 was unsafe because it gave rise to a risk that patients of [Dr Stephens] would not be informed of pathology findings which indicated a need for urgent medical advice and treatment unless and until the patients attended a subsequent appointment with [Dr Stephens] .
12.In accordance with the practice of [Dr Stephens] referred to in 10, the First Pathology Report was filed on the Patient's file without [Dr Stephens] first reading that report.
13.[Dr Stephens] should have:
13.1.read the First Pathology Report as soon as practicable after it was received at his rooms; and
13.2.ensured that reasonable steps were taken urgently to inform the Patient of the diagnosis of high-grade muscleinvasive transitional cell carcinoma of the bladder by having a member of his staff contact the Patient to arrange a consultation for the Patient and by writing to, or otherwise contacting the Patient's general practitioner and advising him of that diagnosis.
14.Following receipt of the First Pathology Report, [Dr Stephens] failed to:
14.1.inform the Patient of the diagnosis of high-grade muscleinvasive transitional cell carcinoma of the bladder; and
14.2.take any of the steps referred to in paragraphs 9.1 and 9.2.
15.On 22 October 2013 [Dr Stephens] again examined the Patient's bladder by flexible cystoscopy at the PHC and [Dr Stephens] noted from that examination the possibility of early dysplasia, and the possibility of a tumour on the surface of the resection scar.
16.Following the performance of flexible cystoscopy on the Patient on 22 October 2013, [Dr Stephens] recommended that the Patient undergo a further TURBT.
17.On 22 October 2013 [Dr Stephens] informed the Patient that the specimen taken during the resection surprisingly showed that the cancer had grown into the muscle but did not inform the Patient that it was a high-grade muscle-invasive transitional cell carcinoma of the bladder .
18.Notwithstanding the findings of [Dr Stephens] made as a result of performing further flexible cystoscopy on the Patient on 22 October 2013, [Dr Stephens] continued to fail to take any of the steps referred to in paragraphs 9.1 and 9.2.
19.[Dr Stephens] performed a further procedure on the Patient on 29 October 2013 at the PHC during which he decided not to perform the planned TURBT, but noted a lesion or lesions within the Patient's bladder which were removed using diathermy.
20.As of 29 October 2013, [Dr Stephens] continued to fail to take any of the steps referred to in 9.1 and 9.2.
21.On 6 January 2014 [Dr Stephens] again examined the Patient's bladder using flexible cystoscopy at the PHC during which [Dr Stephens] noted lesions within the Patient's bladder consistent with the presence of carcinoma in situ (CiS).
22.Following performing the flexible cystoscopy on the Patient on 6 January 2014, [Dr Stephens] recommended the Patient undergo a further TURBT.
23.As of 6 January 2014, [Dr Stephens] continued to fail to take any of the steps referred to in 9.1 and 9.2.
24.On 21 February 2014, [Dr Stephens] performed a further TURBT on the Patient at the PHC during which [Dr Stephens] performed diathermy and resection of multiple lesions within the Patient's bladder that appeared to him to be CiS.
25.As of 21 February 2014, [Dr Stephens] continued to fail to take any of the steps referred to in 9.1 and 9.2.
26.On 25 February 2014, [Dr Stephens] received a pathology report in respect of tissue removed from the Patient's bladder on 21 February 2014 (the Second Pathology Report) which revealed high grade CiS in the Patient's bladder.
27.As of 25 February 2014, [Dr Stephens] continued to fail to take any of the steps referred to in 9.1 and 9.2.
28.On 13 March 2014, the Patient consulted [Dr Stephens] during which consultation [Dr Stephens] referred the Patient for intravesical chemotherapy for treatment of CiS at the PHC.
29.On or about 14 April 2014, [Dr Stephens] was advised in writing by the Chief Executive Officer at the PHC that [Dr Stephens'] accreditation to work at the PHC was suspended because of the [Dr Stephens'] conduct at the PHC.
30.Pursuant to section 130 of the National Law, a registered medical practitioner is required to inform [the Board] of any withdrawal of or restriction in [Dr Stephens'] right to practise at a hospital because of [Dr Stephens'] conduct, professional performance or health within 7 days of the medical practitioner becoming aware of that withdrawal or restriction.
31.In breach of section 130 of the National Law [Dr Stephens] failed within 7 days of becoming aware of the suspension of his accreditation with the PHC, or at all, to inform the [Board] of that event.
32.The [Board] alleges and [Dr Stephens] admits that he behaved in a way which constituted professional misconduct for the purposes of the National Law in that [Dr Stephens]:
32.1.failed between 23 July 2013 and 22 October 2013 to read the First Pathology Report and to take any steps to inform the Patient of the diagnosis of high-grade muscle-invasive transitional cell carcinoma of the bladder;
32.2.informed the Patient on 22 October 2013 that the specimen taken during the resection on 19 July 2013 surprisingly showed that the cancer had grown into the muscle but failed at all times to tell the Patient that it was a high-grade muscle-invasive transitional cell carcinoma of the bladder;
32.3.failed at all times following receipt of the First Pathology Report to take any steps to organise a staging CT scan for the Patient;
32.4.failed between 23 July 2013 and 25 February 2014, subject to the findings of a staging CT scan, to advise the Patient that the standard of care in an otherwise fit 57 year old with high-grade muscle-invasive bladder cancer, is to offer either radical cystoprostatectomy and urinary diversion and to give consideration to neo-adjuvant chemotherapy or radical radiotherapy, and that, if the Patient was unwilling to accept either of those options, then he could choose endoscopic surveillance with a reresection of the base of the tumour, provided that such resection showed no residual tumour; and
32.5.acted in breach of section 130 of the National Law by failing to inform the [Board] of the suspension of his accreditation to practise at the PHC because of his conduct.
The Tribunal notes that Dr Stephens' suspension of his accreditation at Peel Health Campus (PHC), paragraphs 30 32 above, was unrelated to his treatment of the Patient.
The factual basis for Dr Stephens' admissions is apparent from the experts' reports and their joint conferral.
Remaining issue as to breach
The Board's only challenge to Dr Stephens' admissions arose from paragraph 32.4 above.
In making an admission in the terms of paragraph 32.4, Dr Stephens relied on paragraph 7.2 of the Joint Experts' Report. Paragraph 7.2 stated:
Issue
In the absence of evidence of metastatic disease on a CT scan, what advice should [the Patient] have been given and what treatment should he have been offered?
A/Prof Murphy [Response]
[The Patient] should have been advised of the stage and grade of his disease, and advised of his management options. The standard of care an otherwise fit 57 year old with high grade, muscle invasive bladder cancer should have been offered include:
1.Cystoprostatectomy and urinary diversion, with consideration of neo-adjuvant chemotherapy
2.Radical radiotherapy
3.If unwilling to accept these options, then endoscopic surveillance with a re-resection of the base of tumour, provided such a resection showed no cancer, could be considered
Professors Murphy, Lawrentschuk and Webb all agreed on the response in paragraph 7.2.
The Board submitted that on the basis of the oral expert evidence, the first two options (detailed in paragraph 32.4 of Dr Stephens' Admitted Facts and Findings), should have been recommended above the third option.
Although the oral evidence establishes that Dr Stephens should have recommended options 1 and 2 above, it does not make any substantive difference whether option 1 and 2 were recommended or whether the advice was given as expressed in paragraph 32.4. It is clear from the Joint Experts' Report that options 1 and 2 rank above option 3 and the purport of the evidence is that options 1 and 2 should have been recommended before option 3.
The Board has proceeded on the basis that Dr Stephens should have recommended options 1 and 2 over option 3.
The Tribunal has determined the penalty on the admitted facts set out above and its finding in relation to paragraph 32.4.
Professional misconduct
The term 'professional misconduct' is relevantly defined in s 5 of National Law as conduct which includes:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
...
Unprofessional conduct
The first and second limbs of the definition of 'professional misconduct' incorporate the term 'unprofessional conduct' which is in turn defined in s 3 of the National Law as:
[P]rofessional 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[.]
The Tribunal is satisfied that Dr Stephens' conduct as set out in paragraph 32.4 of the admissions constitutes professional misconduct on the basis of Dr Stephens' admissions. This is also clear from the expert evidence of Associate Professors Murphy, Lawrentschuk and Webb that Dr Stephens' conduct amounted to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
The range of penalties under s 196(2) of the National Law
Section 196(2) of the National Law provides:
If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following
(a)caution or reprimand the practitioner;
(b)impose a condition on the practitioner's registration, including, for example
(i)a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv)a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v)a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi)a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c)require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d)suspend the practitioner's registration for a specified period;
(e)cancel the practitioner's registration.
The Tribunal's approach to assessing penalty
The determination of penalty is discretionary. The approach to the penalty imposed by the Tribunal was set out by Buss P in Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa) at [44].
… The determination of the appropriate penalty option or options was not a mechanical process. The Tribunal had to balance competing considerations and choose between the various penalty options. This entailed assessments of fact and degree and the making of a value judgment. There was no unique 'right' answer which was able to be identified by the application of principle. See, generally, Guss v Law Institute of Victoria Ltd [2006] VSCA 88 [28] (Maxwell P; Callaway & Chernov JJA agreeing); Quinn v Law Institute of Victoria Ltd [2007] VSCA 122; (2007) 27 VAR 1 [34] (Maxwell P), [41] (Chernov JA), [47] (Nettle JA); Papps v Medical Board of South Australia [2006] SASC 234 [52] (Gray J; Nyland & Vanstone JJ agreeing); Stirling v Legal Services Commissioner [2013] VSCA 374 [63] - [68] (Warren CJ, Neave JA & Dixon AJA).
General principles in relation to penalty
In Khosa the Court of Appeal stated the principles relating to penalty in respect of practitioners. Although Khosa was a legal practitioner rather than a medical practitioner, there is no relevant difference in the application of the principles enunciated in Khosa.
Buss P stated at [37] [42]:
It is well-established that the purpose of disciplinary proceedings against a legal practitioner is to protect the public. The purpose is not to punish the practitioner in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practice from practising or by the making of orders which will secure the maintenance of proper professional standards. Further, both the public and the legal profession will be protected by orders which will assure the public and members of the legal profession generally that appropriate standards are being maintained within the profession. See Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 286 (Dixon CJ); Re Maraj (a legal practitioner) (1995) 15 WAR 12, 24 - 25 (Malcolm CJ; Kennedy & Franklyn JJ agreeing); Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 [41] (Doyle CJ; Williams & Martin JJ agreeing).
In TheNew South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, Barwick CJ, Kitto, Taylor, Menzies and Owen JJ said that the court's power to discipline a barrister is 'entirely protective' (183). There is no element of punishment involved even though the exercise of the power may involve great deprivation to the person disciplined (183 184).
In Craig, Doyle CJ examined the basis upon which orders are made by professional disciplinary tribunals and the distinction between orders made for the protection of the public, on the one hand, and the imposition of punishment under the criminal law, on the other:
A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law.
While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.
In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt [The New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177] shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.
In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for [44] - [48].
In In re a Practitioner (1984) 36 SASR 590, King CJ (Zelling & Jacobs JJ agreeing) made observations as to when it may be proper for a court, in exercising its disciplinary function in relation to a legal practitioner, to make an order for suspension rather than an order for the removal of the practitioner's name from the roll. His Honour said:
The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner (593).
Jacobs J noted that 'the main practical difference between suspension and striking off is the element of certainty' (593). His Honour explained:
A practitioner who is suspended, for however long a period, has the right to resume practice when the period of suspension expires; a practitioner who is struck off must, if he desires to resume practice, apply to be re-admitted, with no certainty as to the fate of any such application (593).
An order for suspension of a legal practitioner must be based upon a view that at the end of the period of suspension the practitioner will be fit to practice. See Law Society of New South Wales v McNamara (1980) 47 NSWLR 72, 76 (Reynolds JA).
Murphy JA and Beech JA in Khosa stated at [187] [195]:
The following observations, which are not intended to be exhaustive of the topic, are of relevance in the present context.
The court's, and the Tribunal's, jurisdiction with respect to the regulation of the profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession.
The protection of the public includes both general deterrence of other practitioners who might otherwise be tempted to engage in such conduct, as well as personal deterrence.
In New South Wales Bar Association v Hamman, Mason P said, with reference to the decision of Giles AJA in Law Society of New South Wales v Foreman (No 2):
Giles AJA described the basis of the court's jurisdiction: at 470-1. Citing Bannister and other cases, he referred to the protective function of general deterrence in the following terms (at 471):
'But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.'
These references to the public's perception of the court's reaction to the professional misconduct do not make the court hostage to the public's assumed sense of anger at the misconduct uncovered. The court must be satisfied that its enunciated views give proper weight to widely and reasonably held public attitudes to practitioners in the context of the administration of justice generally and in the particular case.
In general terms, where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off. If an order for suspension is made in that event, it must be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at the end of the relevant period, the practitioner's name will still be on the roll of practitioners and may resume practise. Suspension is a 'serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but who, in the opinion of the court, at the end of the period of suspension, will be a fit and proper person to practise the law'. In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations 'reflecting, to a significant degree, upon the practitioner's fitness to practise'.
Where, however, the present unfitness to practise reveals that the practitioner lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice, or that the practitioner is permanently or indefinitely unfit to practise, striking off rather than suspension will (at least ordinarily) be the appropriate response.
A failure on the part of the practitioner to appreciate the impropriety of his or her conduct may support a finding of unfitness to practise. A reason for this is that the lack of appreciation of impropriety and the lack of insight increases the risk of recurrence of the improper conduct.
A suspension order may also be a valuable measure by way of general or personal deterrence, for the protection of the public and the maintenance of the reputation and standards of the legal profession, even without concluding that the conduct demonstrated or should be characterised as indicating that the practitioner was not a fit and proper person. A suspension order entails greater denunciatory and deterrent effect than a reprimand and fine.
Fitness to practise for the purpose of penalty orders is to be determined at the time of the relevant hearing, and not at the time of the misconduct. The same is true of the question of the appropriate penalty generally.
(Citations omitted)
There is no relevant difference between the principles expressed in the judgments.
Twelve matters for consideration
The considerations which apply to penalty in disciplinary cases were stated by the Tribunal in Medical Board of Australia and Myers [2014] WASAT 137 (S) (Myers (S)) and confirmed in Medical Board of Australia and Veettill [205] WASAT 124 (S). The Tribunal set out twelve matters which may require consideration in determining penalty. Those matters are interrelated and are not mutually exclusive or exhaustive. The twelve matters for consideration include:
1)any need to protect the public against further misconduct by the practitioner;
2)the need to protect the public through general deterrence of other practitioners from similar conduct;
3)the need to protect the public and maintain public confidence in the profession by reinforcing a high professional standard and denouncing transgressions and thereby articulating the high standards expected of the profession such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval;
4)in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner;
5)whether the practitioner has breached any:
i)Act;
ii)Regulations;
iii)Guidelines or Code of Conduct, issued by the relevant professional body; and
iv)whether the practitioner has done so knowingly;
6)whether the practitioner's conduct demonstrated incompetence, and if so, to what level;
7)whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future;
8)the practitioner's disciplinary history;
9)whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community.
10)the desirability of making available to the public any special skills possessed by the practitioner;
11)the practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of medical practitioners and in the maintenance of proper standards of medical practice; and
12)the Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness. In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive.
Immediate action
On 20 June 2014, the Board took immediate action against Dr Stephens by imposing conditions on his registration. The conditions on Dr Stephens' registration are set out in a letter from the Board, dated Thursday 17 July 2014, to the supervisors appointed pursuant to the conditions:
...
The following conditions are currently imposed (inter alia) upon Dr Stephens' registration:
1.Dr Stephens must nominate a mentor (to be a senior registered medical practitioner), to be approved by the Board, to meet with Dr Stephens on a weekly basis to discuss the care of all patients seen by Dr Stephens, diagnoses and management plans, with a review of relevant clinical records.
2.The mentor is to report to the Board on a quarterly basis on Dr Stephens' engagement in the mentoring sessions.
3.The mentor is to notify the Board immediately if he/she identifies any concerns with Dr Stephens' practise.
...
The mentoring condition is intended to provide support to Dr Stephens in relation to his performance and professional practise. The mentor is required to review and discuss the care of all patients seen by Dr Stephens and meet with him on a weekly basis.
The mentor's role is that of an experienced and trusted advisor. The relationship between the mentor and practitioner involves regular contact over a period of time with a view to building a trusting relationship with open and honest communication between the practitioner and mentor. The relationship is on a friendly, but professional rather than social basis.
Guidance and support can usefully be incorporated into a mentoring relationship in any of the following ways:
•discussion of the personal and professional effect of the conditions on Dr Stephens' individual situation
•consideration of how Dr Stephens deals with work-related problems
•providing Dr Stephens with an opportunity to talk to an objective colleague outside the practice, and
•encouraging and supporting Dr Stephens in efforts to pursue excellence in health care delivery and involvement in continued professional development and other activities
Reporting
The mentor is required to provide a report to the Board on a quarterly basis addressing Dr Stephens' engagement in the weekly mentoring sessions.
Dr Stephens has proposed that for the first three month period of mentoring, one mentor will review his diagnosis and management plans of all new patients and the other will review his operative indications, operations and complications. Every three months thereafter, Dr Stephens proposes that each mentor will alternate which aspect of his practise they will be required to review.
You are required to notify the Board immediately if you identify any concerns with Dr Stephens' practise.
Should you identify any concerns with Dr Stephens' practice, please contact the Compliance Case Manager ... .
The first mentor report is due on or before 21 October 2014 and can be provided to the Australian Health Practitioner Regulation Agency (AHPRA). The report should address the following areas and discuss any other issues identified:
•which aspect of Dr Stephens' practice you were responsible for reviewing for the previous 3 month period
•Dr Stephens' current progress in the work environment and his professional performance
•Dr Stephens' adherence to professional standards
•whether Dr Stephens' workload is appropriate with respect to his knowledge, behaviour and ability to cope, and
•any professional development or further education undertaken by Professional misconduct
Dr Stephens' mentors, Drs La Bianca and Sofield reported to AHPRA:
REVIEW PERIOD: 01.01.15 to 31.03.15 inclusive
All case notes relating to patients seen by Dr Stephens during the aforementioned period of time, were reviewed and critiqued by Dr David Sofleld and myself.
No obvious complications, omissions or areas of concern were noted.
Dr Stephens applies accepted clinical and operative practice methods and his surgical planning, decision making and management are in line with guidelines recommended by the Urological Society of Australia and New Zealand (USANZ).
Dr Stephens continues to maintain a busy work schedule that is appropriate with respect to his knowledge and abilities, and a clinical practice profile in keeping with his training and over 30 years in specialist practice.
His professional performance has not come Into question during this period of time.
Dr Stephens adheres to the professional standards set by the USANZ and the Royal Australasian College of Surgeons (RAGS).
(Exhibit F)
On 17 July 2015, AHPRA, on behalf of the Board, wrote to Dr Stephens in the following terms:
Monitoring of Conditions
I refer to correspondence from Panetta McGrath Lawyers, dated 6 July 2015, regarding your application for removal of the conditions imposed on your registration as a medical practitioner by the Medical Board of Australia (Board).
On 15 July 2015, the Board considered your application and decided to grant your application and remove the conditions from your registration under section 125(5) of the Health Practitioner Regulation National Law (National Law).
The Board decided to grant your application you have been fully compliant with the conditions imposed upon your registration for 12 months and, in particular, the Board notes that your mentors have consistently reported that:
•no obvious complications, omissions or areas of concern have been noted
•you apply accepted clinical and operative practice methods and your surgical planning, decision making and management is in line with guidelines recommended by the Urological Society of Australia and New Zealand (USANZ)
•you continue to maintain a busy work schedule, that is appropriate with respect to your knowledge and abilities, and a clinical practice profile in keeping with your training and experience, and
•your professional performance has not come into question at any time whilst you have been subject to mentoring
In these circumstances, the Board considers that you do not currently pose a serious risk to persons and it is therefore appropriate to remove the immediate action conditions from your registration.
The Board also noted that applications of this nature are considered on a case by case basis, and the Board has decided to grant your application further to analysis of your individual circumstances.
The seriousness of Dr Stephens' conduct
There can be no doubt that Dr Stephens' conduct was serious. He admitted to the most serious level of breach.
The whole point of obtaining a pathology report is to follow up with the patient if any problem is detected so as to take steps to deal with the problem in a timely manner. Failure to do so means that an opportunity to deal with the problem is lost or delayed with potentially adverse, if not fatal, consequences for the patient.
Equally, a failure to advise the patient of the options available for treatment disenfranchises the patient by removing a decision which is the patient's right to make.
Further, a practitioner should give advice to the patient in accordance with best practice and then carry out treatment.
Is there any need to protect the public against further misconduct by the practitioner?
The question that the Tribunal is required to address is whether there is any need to protect the public against further misconduct by the practitioner; that is to be assessed by reference to both the conduct involved in the breach and subsequent conduct.
The Board rightly submits that throughout the period that the Patient remained under Dr Stephens' care, he failed to make an appropriate recommendation for a diagnosis of high-grade muscle-invasive bladder cancer. Further, the Board correctly submits that this fact was not acknowledged by Dr Stephens until the filing of the Admitted Facts and Findings on 1 November 2017 (Board's closing submissions paragraphs 28 and 45). Dr Stephens progressively admitted facts throughout the course of the proceedings. Nevertheless, it is important to bear in mind that Dr Stephens did acknowledge this particular fact and indeed ultimately all the relevant facts.
The Tribunal is satisfied that the late admissions do not provide a basis for a finding that there is a need to protect the public against further misconduct by Dr Stephens.
The Tribunal notes that the Board sought to allege dishonesty against Dr Stephens in the penalty phase. The alleged dishonesty would have constituted professional misconduct if proven. In such circumstances, it is appropriate that such matters be raised in the contravention phase. Accordingly, the Tribunal has not made any findings on the submission that Dr Stephens' conduct was dishonest.
The Tribunal accepts Dr Stephens' submissions in paragraphs 7 to 19 of his closing submissions that:
7.Dr Stephens' conduct was limited to a single patient and no subsequent allegations have been made in respect of Dr Stephens' professional conduct.
8.Dr Stephens has changed his practice (particularly in relation to reviewing pathology reports and discussing all of the available treatment options with patients) as a result of his conduct in this matter.
9.It was Dr Stephens' usual practice to arrange a staging CT, and the need to 'stage with CT' was noted in his clinical records for the Patient [Exhibit B page 6 to 7][.]
10.Dr Stephens is also more alert to the potential consequences of failing to perform a re-resection following an initial transurethral resection of bladder tumour (TIJRBT). He accepts the joint criticism of Associate Professors Murphy, Lawrentschuk and Webb of his decision on 29 October 2013, based on the visual appearance of the Patient's scar, not to proceed with re-resection.
11.It is also relevant that in June 2014, by way of immediate action relating to the now admitted conduct, the Board imposed conditions upon Dr Stephens' registration requiring, among others, that he meet with a Board approved mentor on a weekly basis to discuss the care of all patients seen by him, diagnoses and management plans, with a review of relevant clinical records [see above].
12.Over the course of a 12 month period Dr Stephens continued to practice as a consultant urological surgeon and complied with all of the conditions imposed on his registration. Dr Stephens' two mentors provided reports to the Board confirming that Dr Stephens adhered to the professional standards set by the Urological Society of Australia and New Zealand (USANZ) and the Royal Australasian College of Surgeons (RACS).
13.In July 2015 the Board removed the immediate action conditions from Dr Stephens' registration after forming the view that he did not pose a serious risk to persons.
14.The Tribunal has the three reports from Dr Stephens' mentors, Dr Shane La Bianca and Dr David Sofield, dated:
a.3 October 2014;
b.6 January 2015; and
c.29 April 2015 (Mentor Reports).
[Exhibit F]
15.During the period of mentoring, Dr La Bianca and Dr Sofield reviewed all case notes relating to patients seen by Dr Stephens in that period.
16.The Mentor Reports consistently state that:
a.no obvious complications, omissions or areas of concern were noted;
b.Dr Stephens applies accepted clinical and operative practice methods and his surgical planning, decision making and management are in line with guidelines recommended by the Urological Society of Australia and New Zealand (USANZ);
c.Dr Stephens continues to maintain a busy work schedule that is appropriate with respect to his knowledge and abilities, and a clinical practice profile in keeping with his training and over 30 years in specialist practice;
d.Dr Stephens' professional practice has not come into question during this period of time; and
e.Dr Stephens adheres to the professional standards set by the USANZ and the Royal Australian College of Surgeons (RACS).
…
19.Since the immediate action conditions were lifted in 2015 Dr Stephens has continued to conduct a full time practice as a specialist urologist practising in an area of need (North Queensland). His conduct has not been the subject of criticism and he does not represent any continuing risk to public safety.
The conditions imposed by the Board on a practitioner as a result of immediate action are not determinative of the penalty that should ultimately be imposed on a practitioner. Nevertheless, a practitioner's compliance, or noncompliance with the conditions and the reports of his mentors provide evidence as to the need to protect the public against further misconduct by the practitioner. Compliance with the relevant conditions to the satisfaction of the Board will generally demonstrate, as in Dr Stephens' case, that the need to protect the public against further misconduct is low. Conversely, if a practitioner fails to comply with conditions then the need to protect the public against further misconduct is high.
Is there a need for general deterrence and to protect the public and maintain public confidence in the profession by reinforcing high professional standard and denouncing transgressions?
The Tribunal accepts the Board's submission that there is an important need to impress on medical practitioners the need to read the results of tests that they order and to ensure that they do all that they reasonably can to ensure that their patients receive standard treatment for their condition.
The Tribunal accepts that the Board's submission that the penalty imposed must be of sufficient severity to reassure the public that transgressions such as those the subject of findings in this matter will be denounced in order to uphold the standards of medical practice in the State. The Tribunal adds that what is sufficient to constitute sufficient severity is to be assessed in all of the circumstances.
Dr Stephens submitted at paragraphs 22 to 25 of his closing submissions:
22.Dr Stephens recognises that there is a need to deter practitioners from failing to take proper measures to ensure the timely diagnosis of disease (through review of pathology reports, further investigations such as staging CT scans and re-resection to confirm tumour removal) and from failing to provide patients with all of the possible treatment options available to them.
23.Dr Stephens' failings were serious and considered in light of the evidence of Dr Wines, are perhaps reflective of an approach to treatment and patient consent from an earlier era. Dr Stephens acknowledges that the appropriate standard of care is that identified in their reports and evidence by Associate Professors Murphy, Lawrentschuk and Webb and has adapted his practice accordingly.
24.General deterrence is respectfully not required given that all three experts, particularly Professor Murphy, made it clear that the standards to which they referred are commonly held and applied by specialist urologists and do not accommodate what might have been acceptable in Dr Wines' era.
25.The adoption of the EAU Guidelines on Muscle-invasive and Metastatic Bladder Cancer in 2015 (the Guidelines) [Exhibit B page 65 to 123], subsequent to Dr Stephens' unprofessional conduct, has made the standard of care in relation to the treatment of muscle invasive and metastatic bladder cancer clear to all practitioners, in case there was doubt.
Dr Stephens' recognition that there is a need to deter practitioners is appropriate. Dr Stephens' concession as to his failings is also appropriate. As stated above, Professors Murphy, Lawrentschuk and Webb are all highly qualified and their knowledge was very current both as at the dates of the hearing and in 2013. Dr Wines' knowledge was not current as at 2013 and was not current at the date of the hearing.
Contrary to Dr Stephens' submission in paragraph 24 above, general deterrence is needed to remind practitioners of their obligations and the consequences of breaching their obligations, given the potentially adverse nature of a breach. The question is what is necessary to constitute general deterrence.
The Tribunal notes Dr Stephens' submissions relating to Medical Board of Australia and Nuttall [2017] WASAT 58. Essentially, Dr Stephens' submissions sought to distinguish his conduct from Dr Nuttall's conduct. However, that case was factually very different and the Tribunal did not find it useful in reaching a conclusion as to an appropriate penalty for Dr Stephens. The Tribunal accepts that it is distinguishable.
Did the case involve dishonesty, and if so, can the public and fellow practitioners place reliance on the word of Dr Stephens?
The Tribunal is satisfied that the case put against Dr Stephens did not involve allegations of dishonesty.
Has Dr Stephens breached any Act, Regulation, Code or Guideline, and whether Dr Stephens has done so knowingly?
Dr Stephens submitted at paragraphs 36 and 37 of his closing submissions that:
33.… Dr Stephens has conceded from the outset by failing to inform the Board that his accreditation at Peel Health Campus had been suspended, he was in breach of section 130 of the Health Practitioner Regulation National Law (WA) Act 2010.
34.However, none of the other allegations raised by the Board and accepted by Dr Stephens constitute a breach of any written Act, Regulations or Code of Conduct. The Guidelines did not apply at the time of Dr Stephens' misconduct [Exhibit B Report of Associate Professor Webb pages 172-174].
The Tribunal accepts Dr Stephens' submissions.
Did Dr Stephens' conduct demonstrate incompetence?
Dr Stephens submitted that his conduct was not incompetent and at paragraphs 35 to 41 of his closing submissions stated:
35.Dr Stephens' treatment and management of the Patient was not incompetent in the sense that he lacked the requisite skill, knowledge or ability to provide the Patient with the requisite standard of care.
36.Dr Stephens' failure to read the pathology report for up to three months reflected a more general inadequacy is his systems that has now been cured. He knows and has always known that it is important to review pathology results promptly.
37.His failure to organise a CT staging was isolated and not reflective of a failure to understand the need for one. He had noted it needed to be done but failed to organise one. His failure to advise the patient of his exact diagnosis was ameliorated by the fact that in October and evidenced by the diagram drawn on the back of the pathology report, he told the patient of the location and nature of the tumour he had removed and that it surprisingly had grown into the muscle [Exhibit D pages 13 and 48).
38.His failure to fully advise the patient of his treatment options was not because Dr Stephens did not know what those options were but because he had formed the view that the best treatment option for the patient was conservative management rather than radical surgery or radiotherapy. Whilst this was serious misconduct and even patronising, it did not reflect incompetence.
39.Dr Stephens' admitted misconduct does not extend to the surgical procedures he performed (and nor is it alleged or the subject of any finding). His decision not to re-resect the tumour site on 29 October 2013 was deliberate and based on his) experience. It has some support from Dr Wines and even Professor Webb (in his reports but not in evidence). For the reasons given by Professors Murphy, Lawrentschuk and Webb the decision was wrong and Dr Stephens accepts the criticism of his peers of his conduct. He should have reresected the tumour site to check whether any malignant cells remained behind. Whether fortuitously or because Dr Stephens' original judgment was correct, there was never any subsequent evidence of recurrent muscle invasive bladder cancer at either the tumour site or elsewhere in the bladder.
40.Further, Dr Stephens' surgical management of the carcinoma in situ was appropriate [Exhibit B page 178].
41.Associate Professor Webb's view in his report of 3 August 2017 and his evidence was to the effect that, notwithstanding the errors he made, Dr Stephens' management of the Patient's bladder cancer appears to have been 'curative', even though no further reresection of the base of the initial tumour was undertaken and there are no definitive histopathological results which can finally determine this issue.
The Tribunal does not accept that Dr Stephens' conduct was competent. He failed to advise the Patient of the recommended options. He chose an option that was inconsistent with the evidence of three of the experts. To have the requisite knowledge and to then fail to apply it in appropriate circumstances constitutes incompetence.
Was the incident isolated?
The incident was isolated in that it involved only one patient. The Tribunal's concern is that the conduct extended over a number of months.
Does Dr Stephens have any disciplinary history
There have been no previous adverse findings against Dr Stephens.
Whether or not Dr Stephens understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof)?
Dr Stephens submitted at paragraphs 48 to 50 of his closing submissions that:
48.Dr Stephens has insight into his failings and is remorseful over his management of the Patient. He was present in the Tribunal hearing to hear the criticism of his colleagues and accepts it unreservedly.
49.Although he did not immediately admit the allegations against him (apart from the section 130 breach), on receipt of the joint conferral report and understanding the disapprobation of his professional peers, Dr Stephens recognised and readily conceded his failings in respect of the care and treatment he provided to the Patient.
50.Dr Stephens instructs that he has amended his practice in respect of pathology reports and is alert to the ongoing need for radiological and histopathological investigation in patients diagnosed with highgrade muscle-invasive cancers. He also recognises the ongoing importance of ensuring that patients are fully informed and advised about all relevant treatment options.
The Tribunal accepts Dr Stephens' submissions and finds that he understands the error of his ways.
In particular, the Tribunal notes that Dr Stephens is now working at the Mackay Base Hospital in Queensland. It was a very significant decision on the part of Dr Stephens to leave his practice in Western Australia and his home of at least 30 years to move diagonally across the country. Dr Stephens has moved from a situation where, in his previous practice, prior to the imposition of the immediate conditions, where he was effectively practising unsupervised and alone to a hospital environment to a situation where he is not working alone, is part of a team and is subject to peer supervision. Such a move is reflective of an acknowledgement by Dr Stephens that he needed to change his practices. The move is evidence of a high degree of insight on Dr Stephens' part and a willingness to move to an environment that minimises the chances of any repetition of the breach conduct.
Are there any special skills possessed by the practitioner?
Dr Stephens submitted in paragraphs 52 to 57 of his closing submissions that:
52.Dr Stephens is currently employed as a consultant urologist at Mackay Base Hospital in far north Queensland. He is one of the few urological surgeons available in the region.
53.The Director of Surgery at MacKay Base Hospital, Dr Casper Pretorius has provided a testimonial in support of Dr Stephens dated 30 October 2017 (Pretorius Testimonial).
54.In the Pretorius Testimonial, Dr Pretorius notes that:
a.Dr Stephens has been employed as a full time permanent Staff Specialist at Mackay Base Hospital since January 2016;
b.Dr Stephens provides a high level of urological services to the Mackay Health Service District;
c.Dr Stephens provides the only public urology services within a 400 kilometre radius with the nearest tertiary referral hospital for urology services located at the Princess Alexandra Hospital in Brisbane, which is 953 kilometres from Mackay;
d.Dr Stephens' current average monthly workload consists of:
i.15 emergency admissions;
ii.66 elective admissions (with an average of 12 major admissions); and
iii.an average of 18 non-operative admissions per month;
e.Dr Stephens consults with an average of 160 patients in clinic each month;
f.Dr Stephens is a keen contributor to education and teaching. He mentors junior medical staff and presents lectures to James Cook University (JCU) pre-graduates twice a month; and
g.if Dr Stephens was to be suspended from practice for a period of time, Mackay Base Hospital would not be able to offer a public urology service which would significantly disadvantage urology patients from both a clinical and financial perspective.
55.Dr Stephens also provides an on-call service at Mackay Base Hospital.
56.Prior to Dr Stephens commencing employment at Mackay Base Hospital, the Mackay Health District was considered an 'Area of Need' for urological services by the Queensland Department of Health.
57.Mackay Health District's status as an Area of Need changed as a result of Dr Stephens' provision of urology services at Mackay Base Hospital.
The Pretorius Testimonial was attached to Dr Stephens' written closing submissions.
The Tribunal finds that Mackay Health District was an area of need prior to Dr Stephens' arrival and confirms that there was a need for specialist urological services. The need for specialist practitioners in outer and remote areas of Australia and the difficulty of recruiting them is obvious. In Legal Profession Complaints Committee and Barber [2015] WASAT 99(S), the Tribunal recognised the need for special skills is particularly acute in remote areas.
Dr Stephens' personal circumstances
Dr Stephens submitted in paragraphs 58 to 65 of his closing submissions that:
58.At all material times, Dr Stephens was managing a considerable case load and was under a significant amount of work and personal-related stress.
59.At that time, Dr Stephens was undergoing an acrimonious de facto separation and his mother, who lived in Victoria, had recently passed away.
60.At the time that Dr Stephens was operating out of the PHC, he was the only consultant urologist in the region, servicing a population of over 90,000 patients. In effect, he was on-call 24 hours a day, seven days per week which was particularly tiring given that he was employed at PHC for around eight years.
61.Dr Stephens would typically consult with and operate on between 10 to 25 patients per week for ordinary procedures and management, and between 10 to 15 patients per week for major surgical intervention, including, but not limited to, cystoprostatectomy, prostatectomy, transurethral resection of bladder tumour and transurethral resection of the prostate.
62.In addition to the work-related stress experienced by Dr Stephens, at all material times, Dr Stephens underwent, at his own instigation, several anger management counselling consultations to help him appropriately address ongoing issues he was experiencing with senior staff at the PHC related to workload and resourcing issues.
63.Further, the conditions imposed upon Dr Stephens' registration by the Board, by way of immediate action, negatively impacted upon his ability to secure employment in 2015.
64.Dr Stephens' is currently employed as the sole consultant urologist at Mackay Base Hospital, in far north Queensland. Whilst his services continue to be in high need, Dr Stephens now works in a supportive environment and. has the support of Dr Preterms, Director of Surgery at Mackay Base Hospital, as well as being assisted by several residents, registrars, together with clerical support.
65.The professional support afforded to Dr Stephens at Mackay Base Hospital, and the collegiate atmosphere, reduces the risk of workrelated stress that Dr Stephens experienced whilst employed at the PHC.
The Tribunal accepts that at the time of the breach conduct, Dr Stephens was under stress. His move to Mackay reveals an insight on his part as to the need to change his practices so as to avoid the risk of further stress and of any further lapses.
Are there any other matters relevant to Dr Stephens' fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness?
The Tribunal notes the Board's submissions on the decision in Medical Practitioners Board of Victoria v Hoole [2010] VCAT 136 where a practitioner was suspended for a year for a lapse that lasted over a 10 or 11 day period. Viewed in isolation, Dr Stephens' conduct was more serious than Dr Hoole's. However, the conduct is not to be viewed in isolation.
Penalty sought by the Board
The Board contends in its closing submissions that an appropriate penalty in this matter would include:
70.1.reprimands pursuant to section 196(2)(a) of the National Law for each of Dr Stephens conduct in respect of his treatment of the Patient, as admitted and/or found, and Dr Stephen breach of s130 of the National Law;
70.2.suspension of the respondent's registration pursuant to section 196(2)(d) of the National Law for a period of 12 months in respect of Dr Stephens conduct in the treatment of the Patient, as admitted and/or found; and
70.3.a modest fine in respect of the breach of s130 of the National Law, having regard to the maximum fine of $30,000; for example, a fine of $2000.00.
The determination of an appropriate penalty in this case has been difficult. There can be no doubt that Dr Stephens' conduct was serious. On the other hand, his conduct needs to be considered in the overall circumstances. So often, practitioners who appear before this Tribunal lack insight. We are satisfied that Dr Stephens has shown appropriate insight.
Suspension?
Suspension is a less serious result and differs from cancellation of a practitioner's registration because suspension is for a specified limited period; (Myers (S) at [20]).
The proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that the practitioner lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner (A Legal Practitioner [2013] WASAT 37 (S) (A Legal Practitioner (S)) at [26]; Re A Practitioner (1984)36SASR590 at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice (A Legal Practitioner (S) at [27]; Myers (S) at [21]).
The practical effect of an order suspending registration is that at the end of the period of suspension, the practitioner is entitled to resume practice without having to prove that he/she is a fit and proper person.
Conclusion
Ultimately, the real issue is whether Dr Stephens should be suspended or whether he should be fined.
The Tribunal accepts that ordinarily, Dr Stephens' conduct would result in a suspension. However, Dr Stephens' circumstances reveal that the protection of the public does not require that he be suspended for the following reasons:
1)He has completed a 12 month period of supervision successfully;
2)He has moved to a supportive environment where he is part of a team at the Mackay Base Hospital; and
3)He provides urological services in North Queensland that would not otherwise be available.
The Tribunal is satisfied that the maximum fine of $30,000 sufficiently protects the public and provides adequate general deterrence to other medical practitioners.
The fact that the fine is at the maximum level emphasises how seriously the Tribunal views Dr Stephens' conduct.
A fine is only appropriate if Dr Stephens undertakes to continue to practice at the Mackay Base Hospital. In the event that Dr Stephens is not prepared to give such an undertaking, the Tribunal will revisit the penalty.
Penalty in respect of the failure to inform AHPRA of suspension of accreditation at PHC in accordance with s130 of the National Law
The Tribunal accepts the Board's submission at paragraph 69 of its closing submissions that the task of regulating professions necessarily relies on practitioners complying with reporting requirements.
The Tribunal also accepts the Board's submission at paragraph 69 that the important factor as to penalty, in respect of Dr Stephens' failure to report his loss of accreditation, is that of denouncing the transgression in order to bring home to Dr Stephens and other professional persons, the need to comply with such requirements and to reassure the public that the obligation to comply is being upheld.
Conclusion and orders
In order to provide general deterrence and to mark the Tribunal's disapproval of Dr Stephens' conduct:
1.Dr Daryl Alan Stephens be reprimanded pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (WA) Act 2010.
2.Dr Daryl Alan Stephens be fined the maximum of $30,000 pursuant to s 196(2)(d) of the Health Practitioner Regulation National Law (WA) Act 2010.
3.Dr Daryl Alan Stephens be fined $2,000 pursuant to s 196(2)(d) of the Health Practitioner Regulation National Law (WA) Act 2010 for the breach of s 130 of the Health Practitioner Regulation National Law (WA) Act 2010.
The penalty is conditional on Dr Daryl Alan Stephens undertaking to continue to practice at the Mackay Base Hospital in North Queensland for two years from the date of this order.
I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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