Medical Board of Australia v Doolabh
[2014] QCAT 582
•4 November 2014
| CITATION: | Medical Board of Australia v Doolabh [2014] QCAT 582 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Dr Bharat Doolabh (Respondent) |
| APPLICATION NUMBER: | OCR284-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 4 November 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Rafter SC Assisted by: |
| DELIVERED ON: | 4 November 2014 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Tribunal finds that the Registrant has behaved in a way that constitutes unsatisfactory professional conduct pursuant to section 124(1)(a) of the Health Practitioner (Disciplinary Proceedings) Act 1999. 2. The Registrant is reprimanded. 3. The Registrant's registration is suspended for a period of 12 months from 12 May 2011. 4. The following conditions are to be imposed on the Registrant's registration: The practitioner must only practise in a position approved by the Board; (a) The practitioner’s specialist practice is limited to surgical assisting in gynaecology and surgical assisting with caesarean section;(b) Otherwise, the practitioner will only work as an assistant to a consultant medical practitioner approved by the Board in advance; (c) The practitioner must notify the Board in writing, for approval, of any medical practitioner he proposes to work with either as a specialist or a surgical assistant, including:(d) the name and address of the employer;(i) the address of the practitioner’s place of employment as a medical practitioner; and(ii) the practitioner’s position description at the place of employment;(iii) The role of an assistant for the purposes of condition (c) is defined to include:(e) assisting a consultant surgeon, subject to the constant and continuous supervision and direction of that consultant surgeon;(i) the consultant surgeon will remain present throughout the provision of the assistance; and(ii) the assistant must not be involved in the personal dissection of tissue or the application of suture material;(iii) The practitioner will allow a representative of the Board to inspect/take or copy the clinical records of his patients, his appointment diary or diaries, at such time or times as the Board or its delegated representative shall determine for the purpose of monitoring compliance with these conditions.(f) The practitioner will provide the Board, at his own expense, a copy of the clinical records of patients nominated by the Board, his appointment diaries at such time or times as the Board or its delegated representative shall determine for the purpose of monitoring compliance with these conditions.(g) Within seven (7) days of the conditions being imposed, the practitioner will notify all partners/employers/employees/colleagues in his practice and every person who is, or may be, responsible for booking consultations with the practitioner of these conditions.(h) Within seven (7) days of the conditions being imposed, the practitioner will, notify the Board of the name of each person the practitioner notified of these conditions pursuant to condition (h).(i) The practitioner will notify the Board within seven (7) days of any change in any of the circumstances referred to in (d)(i) to (d)(iii) above.(j) The practitioner authorises Medicare Australia to provide information to the Board about his practice of medicine to monitor compliance with these conditions.(k) The practitioner authorises insurance funds to provide a list of patients who have submitted claims in order to pay for treatment rendered by him.(l) 5. The review period for the conditions is two and a half years. 6. Details of the reprimand are to be recorded on the Board's register for a period of 12 months. 7. The Registrant must pay the Board's costs as agreed or assessed. |
| CATCHWORDS : | HEALTH PRACTITIONER – MEDICAL PRACTITIONER – DISCIPLINARY PROCEEDINGS – where the practitioner engaged in unsatisfactory professional conduct – where the practitioner was the obstetrician responsible for the delivery of two babies - where in relation to the first delivery the practitioner failed to examine and review the labour, failed to proceed to immediate assisted delivery, failed to provide advice and direction and failed to arrange a paediatrician - where in relation to the second delivery the practitioner failed to arrange a paediatrician – where both babies died – where the parties agreed to the sanction to be imposed – where a number of conditions were placed on the practitioner’s registration – where the practitioner’s registration was suspended for 12 months – whether the period of suspension can be backdated Health Practitioner (Professional Standards) Act 1999 (Qld) ss 123, 124, 241, sch Medical Board of Australia v Martin [2013] QCAT 376, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | KA McMillan QC, instructed by Lander & Rogers |
| RESPONDENT: | GW Diehm QC, instructed by K&L Gates |
REASONS FOR DECISION
Introduction
The Medical Board of Australia has referred disciplinary proceedings to the Tribunal pursuant to s 124(1)(a) Health Practitioner (Professional Standards) Act 1999 (Qld). The Act was subsequently renamed the Health Practitioner (Disciplinary Proceedings) Act 1999 and has now been repealed.
However, s 314(2), Health Ombudsman Act provides that the Tribunal may continue to hear and decide the matter as if the Health Practitioner (Disciplinary Proceedings) Act had not been repealed.
Background facts
The Board contends that the registrant has engaged in "unsatisfactory professional conduct" as defined in the dictionary contained in the schedule to the Act.
At all material times, the registrant held specialist registration as an obstetrician and gynaecologist.
At the time of the matters the subject of the disciplinary proceedings, the registrant was a visiting medical officer at the John Flynn Private Hospital at the Gold Coast.
The proceeding relates to the registrant's conduct in relation to the delivery of two babies at the hospital. On each occasion, the child did not survive.
Facts
The facts are set out in a Statement of Agreed and Disputed Facts, dated 4 December 2012. The registrant concedes that he engaged in conduct that was unsatisfactory professional conduct. While some facts remain in dispute, the parties are agreed that those matters need not be determined because the resolution of them would not necessarily lead to a different form of sanction or lead to greater protection of the public. I agree with that.
The relevant facts are as follows. On 7 to 8 November 2008, the registrant was the obstetrician responsible for the delivery of Samara Hoy to Simone Hoy at the hospital. The registrant was not Mrs Hoy's treating obstetrician but was on call at the hospital over that weekend.
It was Mrs Hoy's first pregnancy. Her pregnancy history included an investigation of irregular heartbeat of the foetus at 35 weeks. No abnormalities were detected.
Upon Mrs Hoy's admission on 7 November 2008, a cardiotocograph (CTG) was performed by a hospital midwife. No further CTG recording was carried out.
Between 7.00 pm and 11.00 pm, the baseline foetal heart rate accelerated from 125 bpm to 164 bpm. A normal heart rate is between 110 bpm and 150 bpm. At 12.00 am on 8 November 2008, the midwife noted the presence of meconium.
At 12.11 am the registrant was contacted by the midwife to attend upon Mrs Hoy. He was informed of the heart rate and that after one and a half hours of the second stage of labour, the foetal head was still not visible. The registrant did not conduct any further CTG examination upon his arrival and despite there being irregular heartbeats on occasion.
There was no record of foetal heart rate recordings in the medical records between 11.45 pm and 1.30 am. The ventouse extraction commenced at 1.40 am. There was no foetal heart beat detected during the extraction.
At 2.01 am on 8 November 2008, Samara was born. The umbilical cord was wrapped tightly around her neck and she was covered in thick meconium. Resuscitation of Samara was commenced by hospital midwives. Dr McMaster, a paediatrician, attended upon Samara at about 2.30 am and continued resuscitation efforts. Dr Kavanagh, intensive care unit medical officer, arrived within one minute of being called.
At 2.38 am on 8 November 2008, Samara was pronounced dead. The autopsy report states that the cause of death was “Birth asphyxia due to the effects of both a prolonged second stage of labour and a tight umbilical cord around the neck. Meconium aspiration was considered to be a reflection of this process rather than a direct contributing factor”.
In relation to the child, Chloe McLachlan, the registrant was the obstetrician responsible for her delivery. The registrant was not Mrs McLachlan's treating obstetrician but was the on call obstetrician for Mrs McLachlan's usual obstetrician.
This was Mrs McLachlan's first pregnancy.
The registrant was on duty between 2 and 3 July 2009.
Chloe had foetal tachycardia for at least half an hour before delivery.
Following five to six pulls over a period of about 10 minutes, Chloe was delivered by ventouse at 3.15 am on 3 July 2009.
Upon delivery, she was found to be extremely pale and very floppy. Her heart rate was good, although she had weak, irregular respirations. She also suffered a moderate to severe oedema of the scalp. The registrant requested that she be transferred to a neonatal unit and Dr Cherry, a paediatrician, was called at that time.
At about 9.30 am on 3 July 2009, Chloe was transferred by ambulance to the Mater Private Hospital in Brisbane.
At the Mater Hospital, Chloe's condition deteriorated and at 2.25 pm on 3 July 2009, Chloe was declared deceased. The autopsy report states that the cause of death was “Hypoxic ischemic encephalopathy, Sarnat Grade 3; Subgaleal Hemorrhage”.
Unsatisfactory professional conduct
The registrant accepts that his conduct constitutes unsatisfactory professional conduct. In relation to the child Samara Hoy, it is accepted that the registrant failed to examine and review, that he failed to proceed to immediate assisted delivery, that he failed to provide advice and direction, and that he failed to arrange a paediatrician.
The Board alleges that the registrant failed to examine Mrs Hoy or review her labour and in doing so compromised Samara’s life. In particular, the registrant did not undertake an immediate vaginal examination to determine the station of the baby’s head, nor did he order continuous CTG tracing when telephoned by nursing staff to attend the hospital.
The registrant was in attendance for at least 45 minutes after being contacted by the midwife, on his version, until the ventouse was conducted. During that time he observed the labour but undertook no other diagnostic steps.
The registrant accepts that in hindsight he should have conducted an immediate vaginal examination and requested continuous CTG monitoring be instituted when he was contacted by the midwife at 12.11 am, and that he recommend to Mrs Hoy that she undergo continuous monitoring with the CTG in view of the abnormal foetal heart rate readings and the presence of meconium.
The Board contends that by failing to do these things, the registrant failed to meet the standard of practice expected of him by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) Guidelines. This is conceded by the registrant.
Moreover, the Board contends that the registrant failed to proceed to an immediate assisted delivery, and in doing so he compromised Samara’s life. The registrant admits that he did not proceed to an immediate assisted delivery but says that he could not perform a vacuum extraction and internal examination in the absence of the patient’s consent. He concedes that the manner of his attempts to expedite delivery were inadequate.
In addition, the Board contends that the registrant failed to provide advice and direction such that neither Mrs Hoy nor her husband were able to make informed decisions. In particular, the registrant did not provide advice and direction in relation to the urgency of the clinical position of the labour, the distress of the baby, and the likely threat that this presented to Samara’s life, or the need to proceed to an immediate assisted delivery.
Moreover, the Board contends that the registrant failed to have a paediatrician available to assist at the time of delivery. In particular, he did not appreciate the significance of information provided to him by the midwife that despite pushing for one and a half hours the labour was not progressing, the foetal heart rate had accelerated, meconium was present in the mother’s discharge, and the foetal heart beat was not detected in the last 15 minutes of delivery which militated a paediatrician being present during the delivery.
In relation to the child, Chloe McLachlan, the Board contends that the registrant failed to have a paediatrician in attendance and in doing so compromised her life. In particular, the registrant did not anticipate that post-partum the baby would more than likely require intensive resuscitation, and he did not organise for a paediatrician to attend and be available to assist at the time of delivery. The registrant concedes that he should have called Dr Cherry once he determined there were signs of foetal distress and that delivery was imminent so that Dr Cherry could be present at the delivery. In addition, the policy of the hospital was to call paediatricians for ventouse deliveries. Notwithstanding this, the registrant contends that it was not normal practice at that time.
Sanction
The parties jointly submit that an appropriate sanction and other orders would be:
(a)a finding that the registrant has behaved in a way that constitutes unsatisfactory professional conduct pursuant to section 124(1)(a) of the Act;
(b)that the registrant be reprimanded pursuant to section 241(2)(a) of the Act;
(c)that the registrant’s registration be suspended for 12 months to commence from 12 May 2011 pursuant to section 241(2)(g) of the Act;
(d)that conditions be attached to the registrant’s registration whereby he must only practice in a position approved by the Board, that his specialist practice be limited to surgical assisting in gynaecology and surgical assisting with caesarean section, and that otherwise the registrant will only work as an assistant to a consultant medical practitioner approved by the Board in advance. These conditions may be imposed pursuant to section 241(2)(b) of the Act.
(e)that pursuant to section 241(3) of the Act that the review period for the conditions be two and a half years;
(f)that pursuant to section 242(1)(d) the details of the reprimand be recorded in the Board’s register for 12 months; and
(g)that pursuant to section 255(1) the registrant pay the Board’s costs as agreed or assessed.
In relation to a proposed sanction that has been agreed between the parties, I respectfully agree with the remarks of Deputy President Judge Horneman-Wren SC in Medical Board of Australia v Martin[1]. His Honour said:
[91] The parties have jointly proposed a sanction. The Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside of the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.
[92] In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 290-291, Burchett and Kiefel JJ referred to the important public policy involved in a court (or tribunal) not departing from agreed sanctions which are within a permissible range in all the circumstances of the case. That public policy identified was in not jeopardising the beneficial consequences of potentially lengthy and complex litigation being concluded with an acknowledgement of wrong doing and agreement as to an appropriate sanction for the conduct. Their Honours observed that such beneficial consequences could be jeopardised if parties “...were to conclude that proper settlements were clouded by unpredictable risks”.
[93] Whilst those observations were made in the conduct of a consumer protection litigation, they are, in my opinion, apposite to disciplinary proceedings such as these. It would be an unfortunate consequence, detrimental to the system of just and timely resolution of proceedings of this kind, facilitated as they are by the encouragement of parties to participate in alternative dispute resolution, if the parties were to conclude that proper agreements reached might be upset by the Tribunal simply taking a different view of what may be an appropriate sanction in a particular matter. This is particularly so given that a party proposing the agreed sanction will be a National Board charged with the functions of registering suitably qualified and competent persons in the relevant health profession; imposing conditions on their registration; and developing and approving appropriate standards, codes and guidelines for the health profession.[2]
[1] [2013] QCAT 376.
[2]Medical Board of Australia v Martin [2013] QCAT 376.
The written submissions on behalf of the Board refer to the decisions in Medical Board of Queensland v Broadbent[3], Medical Board of Australia v Lockie[4], Medical Board of Australia v Karam[5] and Medical Board of Australia v Gallery[6]. Those cases are not factually similar to the present case but they do provide some general guidance as to the appropriate sanction.
[3] [2010] QCAT 280; [2010] QCAT 488.
[4] [2012] QCAT 34.
[5] [2012] QCAT 198.
[6] [2013] QCAT 224.
The purposes of disciplinary proceedings are set out in section 123 of the Act:
The purposes of disciplinary proceedings and disciplinary action against registrants are as follows -
(a) to protect the public;
(b) to uphold standards of practice within the health professions;
(c) to maintain public confidence in the health professions.
The appropriate sanction in a particular case must depend upon the facts and circumstances of that case. It is also necessary that there be a degree of consistency in outcomes. The proposed sanction, in this case, falls within the permissible range of sanction established in broadly similar cases. Moreover, the proposed sanction reflects the seriousness of the registrant's conduct and imposes conditions designed to protect the public from any future potential risk of harm. The admissions made by the registrant have had a significant bearing on the appropriate sanction. That is clearly a matter that the Board has taken into consideration in formulating its view.
Nevertheless, the registrant's conduct clearly constitutes unsatisfactory professional conduct. His conduct has caused immense distress to those involved. In those circumstances the sanction proposed by the parties is, in my view, appropriate.
The proposed backdating of the 12 month period of suspension to 12 May 2011 reflects the fact that, from that date, the registrant ceased practice because the Board imposed conditions on his registration pursuant to its immediate action powers specifically in relation to the subject matter of these proceedings. The registrant did not obtain re-registration until 2013 and did not resume practice until mid-2013. In the circumstances, by virtue of section 241(2)(g) of the Act and section 114(b) of the Queensland Civil and Administrative Tribunal Act 2009, it is appropriate to backdate the period of suspension to 12 May 2011. There has been a real and effective period of suspension from 12 May 2011 to 11 April 2013 so, in those circumstances, the backdating to 12 May 2011 is clearly appropriate. It should also be noted that, since May 2011, the registrant has not been able to be primarily involved in the delivery of babies.
Orders
The orders that I make will be as follows:
1. The Tribunal finds that the Registrant has behaved in a way that constitutes unsatisfactory professional conduct pursuant to section 124(1)(a) of the Health Practitioner (Disciplinary Proceedings) Act 1999.
2. The Registrant is reprimanded.
3. The Registrant's registration is suspended for a period of 12 months from 12 May 2011.
4. The following conditions are to be imposed on the Registrant's registration:
(a) The practitioner must only practise in a position approved by the Board;
(b) The practitioner’s specialist practice is limited to surgical assisting in gynaecology and surgical assisting with caesarean section;
(c) Otherwise, the practitioner will only work as an assistant to a consultant medical practitioner approved by the Board in advance;
(d) The practitioner must notify the Board in writing, for approval, of any medical practitioner he proposes to work with either as a specialist or a surgical assistant, including:
(i) the name and address of the employer;
(ii) the address of the practitioner’s place of employment as a medical practitioner; and
(iii) the practitioner’s position description at the place of employment;
(e) The role of an assistant for the purposes of condition (c) is defined to include:
(i) assisting a consultant surgeon, subject to the constant and continuous supervision and direction of that consultant surgeon;
(ii) the consultant surgeon will remain present throughout the provision of the assistance; and
(iii) the assistant must not be involved in the personal dissection of tissue or the application of suture material;
(f) The practitioner will allow a representative of the Board to inspect/take or copy the clinical records of his patients, his appointment diary or diaries, at such time or times as the Board or its delegated representative shall determine for the purpose of monitoring compliance with these conditions.
(g) The practitioner will provide the Board, at his own expense, a copy of the clinical records of patients nominated by the Board, his appointment diaries at such time or times as the Board or its delegated representative shall determine for the purpose of monitoring compliance with these conditions.
(h) Within seven (7) days of the conditions being imposed, the practitioner will notify all partners/employers/employees/colleagues in his practice and every person who is, or may be, responsible for booking consultations with the practitioner of these conditions.
(i) Within seven (7) days of the conditions being imposed, the practitioner will, notify the Board of the name of each person the practitioner notified of these conditions pursuant to condition (h).
(j) The practitioner will notify the Board within seven (7) days of any change in any of the circumstances referred to in (d)(i) to (d)(iii) above.
(k) The practitioner authorises Medicare Australia to provide information to the Board about his practice of medicine to monitor compliance with these conditions.
(l) The practitioner authorises insurance funds to provide a list of patients who have submitted claims in order to pay for treatment rendered by him.
5. The review period for the conditions is two and a half years.
6. Details of the reprimand are to be recorded on the Board's register for a period of 12 months.
7. The Registrant must pay the Board's costs as agreed or assessed.
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