Medical Board of Australia v Doolabh
[2013] QCAT 704
•20 September 2013
| CITATION: | Medical Board of Australia v Doolabh [2013] QCAT 704 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Dr Bharat Doolabh (Respondent) |
| APPLICATION NUMBER: | OCR284-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 20 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | THE TRIBUNAL DIRECTS THAT: 1. In respect of the delivery of baby HS on 7 to 8 November 2008 the Medical Board may call evidence from one expert only. 2. In respect of the delivery of baby MC on 2 to 3 July 2009 the Medical Board may call evidence from one expert only. 3. The documents to be placed before the Tribunal on the hearing of the referral include: a. Office of the State Coroner Findings of Inquest; b. Queensland Ultrasound for Women report from Associate Professor Rob Cincotta in regards to an exam on 8 October 2008, forming part of the records of Dr Geoffrey Trueman; c. Any referral of HS to Associate Professor Rob Cincotta for the examination undertaken on 8 October 2008, forming part of the records of Dr Geoffrey Trueman; d. The statement of HAC dated 2 February 2010; e. The letter from HAC addressed to Michele Mrozik of the Health Quality and Complaints Commission dated 1 February 2009; f. The complaint of HLS to the Health Quality and Complaints Commission (HQCC); g. Authority for release of information signed by HLS on 29 January 2009; h. Three (3) page document from HAC dated 2 February 2008, forming part of the complaint documents to the HQCC; i. Four (4) page document titled “HS’s Struggle” by HLS; and j. Medical Records from John Flynn Medical Centre. |
| CATCHWORDS: | HEALTH PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the Board sought to rely on more than one expert – where Practice Direction No. 4 of 2009 limits the number of experts that may give evidence in each area of expertise unless the Tribunal orders otherwise – whether the Tribunal should order that the Board is otherwise permitted to rely on more than one expert HEALTH PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the parties filed a proposed bundle of documents – where the registrant opposed some documents being included in the agreed bundle of documents – where the parties sought directions from the tribunal on whether the documents in dispute ought be included – whether the documents should be included Health Practitioners (Disciplinary Proceedings) Act 1999 s 124(1)(a) QCAT Practice Direction No 4 of 2009 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
The Medical Board of Australia has referred a disciplinary proceeding against Dr Doolabh to the Queensland Civil and Administrative Tribunal. The ground for disciplinary action raised in the referral is that Dr Doolabh has behaved in a way that constitutes unsatisfactory professional conduct pursuant to s 124(1)(a) of the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld).[1]
[1]Formerly Health Practitioners (Professional Standards) Act 1999 (Qld).
That ground for disciplinary action arises out of the delivery of two babies, one in November 2008 and one in July 2009. On each occasion where Dr Doolabh was the obstetrician responsible for the delivery of the child. On each occasion the child did not survive.
Two disputes have arisen which presently require resolution. First, there is a dispute as to whether the Board should be restricted to calling one expert in its case; or at least in respect of each incident. Secondly, there is a dispute as to whether certain documents should be included in the documents to go before the Tribunal as an agreed bundle. Each of the parties filed written submissions in respect of both issues.
Expert Witnesses
In respect of each of the incidents, the Board seeks to rely upon two medical experts. One expert, Dr John Wilson, an obstetrician, is common to both incidents.
Dr Doolabh opposes more than one expert being called in respect of each incident. For his part, Dr Doolabh contends that ‘the Board should not be permitted to call evidence from any more than one expert in each area of expertise’.[2] In that regard, I do not understand that Dr Doolabh is suggesting that there is more than one area of expertise in respect of each incident in this matter. Rather, I understand that the submission is put in the context of Practice Direction No 4 of 2009 which provides, at paragraph 2, that:
A party to a proceeding may call evidence from only one expert for each area of expertise.
[2]See Submissions on behalf of Dr Doolabh, filed 26 July 2013, [26].
That limitation imposed by the practice direction is subject to the Tribunal ordering otherwise. The position of Dr Doolabh, as understood by the Tribunal, is summarised in a letter written by his solicitors to the solicitors for the Board on 3 December 2012,[3] wherein it was said:
Our client will agree to your client relying upon one expert witness (Dr John Wilson) in both cases or one expert witness nominated by your client in each case.
[3]Exhibit GRS1 to the Affidavit of Gregg Robert Sivyer filed 26 July 2013.
In his submissions, Dr Doolabh submits that it should be a matter for the Board as to which expert it proposes to call.
Effectively, the Board seeks an order relieving it of the limitation to call evidence from only one expert for each area of expertise as contained in the practice direction. The Board submits that it is necessary for it to rely upon more than one expert as the expert reports obtained were prepared for distinct purposes and they address discrete issues in the referral.[4]
[4]See Submissions on directions, filed on behalf of the Board on 6 June 2013 (Board’s submissions on directions) at [8] and Submissions on expert evidence, filed on behalf of the Board on 24 July 2013 (Board’s submissions on expert evidence) at [11].
In respect of the first incident, it says that the reports of Dr Glenda McLaren were prepared for the coronial inquest concerning the child’s death, and that Dr McLaren specifically coments on evidence that was before the Coroner, including that of Dr Doolabh. It refers to the fact that it seeks to rely upon much of the evidence before the Coroner in these disciplinary proceedings, and submits that the reports ‘form part of the whole of the Board’s evidence and the basis for the Coroner’s findings’. It is then said:
In that regard, the Board’s reliance on Dr McLaren’s reports is limited to the circumstances in which they were provided.[5]
[5]Board’s submissions on expert evidence at [14].
By way of contrast, the Board submits that Dr Wilson’s reports have been prepared ‘to assist this honourable Tribunal with determining whether a ground for disciplinary action can be established’. The Board then contends:
On that basis his opinion is distinguishable from Dr McLaren’s. While Dr Wilson agrees with the opinions expressed by Dr McLaren, (a further reason why Dr McLaren’s reports ought to be relied upon by the Board), he specifically provides an opinion on the Registrant’s professional behaviour. Dr Wilson’s reports are intended to assist the Tribunal in its consideration of whether the Registrant has engaged in the conduct upon which the Referral is made.[6]
[6]Ibid at [15].
The Board further submits:
While the reports of Dr McLaren are relied upon as part of the Board’s record, it is the expert evidence of Dr Wilson that is relied upon by the Board to assist this Tribunal. However, each of the opinions are directly relevant to the issues the Tribunal must consider in determining this matter.
Those submissions explain why there are reports from both Dr McLaren and Dr Wilson. That is, they were prepared for different purposes. The former for the purposes of the coronial inquest; the latter for the purposes of these proceedings. It is clear from a reading of her report and the Coroner’s findings that it was the Coroner who engaged Dr McLaren to provide expert evidence to him.
However, the explanation for the existence of reports from the two experts does not demonstrate a necessity to call each of those experts in these proceedings. Rather, with respect, the identification of the distinctly different purposes for which Dr McLaren’s and Dr Wilson’s reports were prepared rather demonstrates that the former is not, as the Board contends, directly relevant to the issues the Tribunal must consider in determining these proceedings as the Board contends.
With respect, I cannot see how describing the Board’s reliance upon Dr McLaren’s reports as being limited to forming ‘part of the Board’s record’ assists the Board. The proceedings before the Tribunal are not a review of the Board’s decision to refer the matter to the Tribunal based upon the material which was before the Board. The Tribunal must determine the proceedings on the basis of the material which forms the Tribunal’s record. That record will comprise material which the parties agree to place before the Tribunal or which is otherwise admitted into evidence. Whether such material is admitted will be subject to, amongst other things, any practice directions of the Tribunal.
The Board has not, in my view, demonstrated the necessity it asserts to call more than one expert in respect of the first incident. I am not of the view that the limitation on calling only one expert imposed by the practice direction is to be lifted merely because the ‘necessity’ to call more than one witness arises simply because more than one witness has expressed an opinion. The limitation imposed by the practice direction is consistent with the objects of the Act to have the Tribunal deal with matters in a way that is, amongst other things, accessible, economical and quick.[7] It is also consistent with the requirement that the Tribunal achieve the objects of the Act by ensuring proceedings are conducted in an informal way that minimises costs to parties, and is quick as is consistent with achieving justice.[8]
[7]See s 3(b) of the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act).
[8]See s 4(c) of the QCAT Act.
The limitation is also consistent with facilitating a conclave of experts and the provision of a joint report by them as also provided for in the practice direction. So too, it is consistent with facilitating experts giving concurrent evidence if that course is ultimately followed. Whilst neither of these processes may be undertaken in this matter if Dr Doolabh himself does not call expert evidence, the underlying rationale for limiting the number of experts called remains unaffected.
I am also not satisfied that the Board has demonstrated any necessity to call both Dr Wilson and Dr Vacca in respect of the second incident.
In its submissions, the Board refers to the fact that Dr Vacca is an internationally recognised expert in vacuum delivery and a published author on Ventouse extraction who conducts regular workshops in Australia and overseas regarding that method of assisted delivery. It is noted that Dr Doolabh has received training from Dr Vacca which, the Board says, tends to support its submission that Dr Vacca is considered and eminent practitioner in that aspect of obstectric practice.
In my view, none of those matters go to demonstrating any necessity to call Dr Vacca, nor to demonstrating why there ought be a departure from the general limitation of a party to one expert witness. Dr Vacca’s expertise is not the issue.
I do not consider that a departure from the usual position established under the practice direction is warranted merely because the additional witnesses expertise, or even eminence, is able to be established. Rather, the practice direction assumes expertise on the part of the witnesses. I do not understand the Board’s submissions to go so far as to say that Dr Vacca’s expertise is in a different area to that of Dr Wilson. In its submissions, the Board says:
Dr Wilson and Dr Vacca may have similar qualifications, but the purpose of their reports differ. Dr Wilson provides a general opinion on a range of issues arising from the Registrant’s conduct. In contrast, Dr Vacca has been engaged to provide an opinion on the discrete issue of whether Ventouse extraction was appropriate in [the child’s] case and on how it was performed by the registrant.[9]
[9]Board’s submissions on expert evidence, at [20].
However, an examination of the relevant reports does not support that submission. It is quite clear from the reports of Dr Wilson dated 28 August 2012 and 27 June 2013 that he was asked to provide an opinion on, amongst other things, the appropriateness of Ventouse extraction in the particular case. He addresses the issue and explains why it is that he is unable to give ‘a definitive opinion’ on it.
Similarly, a reading of the reports of Dr Vacca of 21 August 2012 and 25 July 2012 reveals that Dr Vacca was asked ‘to provide an opinion commenting on issues relating to the delivery of [the child]’. Those issues included, in addition to Ventouse extraction: fetal tachycardia; fetal distress; alternative delivery assistance; preference of delivery method; timing of delivery for fetal tachycardia; effect on the child and mother.
Therefore, I am not satisfied that the Board has demonstrated the asserted necessity to call both Dr Wilson and Dr Vacca. Each expert seems able to have been asked to express his opinions on the relevant issues. Each has. That one has gone further than the another does not establish a need to call both.
Which witnesses the Board chooses to call in respect of each incident, as Dr Doolabh submits, is a matter for the Board.
Disputed documents
On 27 July 2012 the Tribunal made directions requiring the parties to file, amongst other things, a bundle of agreed documents. The parties have been unable to agree to a bundle of documents.
A document has been filed in the Tribunal which sets out Dr Doolabh’s response to the proposed documents.[10] There are a number of documents which he opposes being included in the agreed bundle. In addition to those, Dr Doolabh had indicated his agreement to the inclusion of a number of statements made by various witnesses in the inquest into the death of the child involved in the first incident subject to those persons being available to be cross examined. On 14 June 2013 the Tribunal made directions that the statements of those witnesses be their evidence-in-chief in these proceedings.
[10]See Attachment A to the Board’s submissions on directions.
Document 4 – Office of the State Coroner Findings of Inquest
Dr Doolabh submits that the issues the subject of the coronial inquest were very broad and largely irrelevant to the issues before the Tribunal. In that regard, he points to the fact that of the 21 recommendations made by the Coroner only one recommendation directly related to him. That was recommendation 17. It recommended that Dr Doolabh undertake retraining in Ventouse vacuum extraction, ethics and communication skills.
Dr Doolabh submits that the Coroner had no power pursuant to the Coroners Act 2003 (Qld) to make any findings of the kind sought by the Board in these proceedings. That is so. The Coroner did, however, find that there was sufficient evidence to warrant Dr Doolabh’s management of the labour being reviewed by his professional body as there was a body of evidence which might cause a disciplinary body to conclude that he had failed to provide the mother with an adequate standard of care. Therefore, the Coroner directed that the material gathered during the inquest be provided to the Medical Board of Australia for its consideration. The Coroner formed that view, and made that direction, on the basis of three particular criticisims of Dr Doolabh’s management of the mother’s labour made by Dr McLaren. In light of the Tribunal’s decision above in respect of expert witnesses, it may, or may not be, that the Board chooses to call Dr McLaren as its expert in respect of that incident. If she is called, any findings of the Coroner based upon Dr McLaren’s opinions might be considered in these proceedings.
Section 398Z of the Health Practitioners (Disciplinary Proceedings) Act provides that in conducting an NRAS disciplinary proceeding the Tribunal may adopt, as it considers appropriate, the findings of a Court or other entity that may be relevant to the hearing. Whilst the particular finding that there was sufficient evidence to warrant a review of Dr Doolabh’s management of the labour is, of itself, of little relevance because that review will now be conducted by the Tribunal in these disciplinary proceedings, it may be that there are some findings of the Coroner which may be relevant and which may be adopted; for example, the findings required by s 45 of the Coroners Act.
However, whether the Tribunal considers it appropriate to adopt any part of the Coroner’s findings will be a matter which it considers in light of the evidence in these proceedings.
The document should be included.
Document 5 – Dr Trueman’s Medical Records
Dr Doolabh opposes these records being included in the documents which go before the Tribunal on the basis that they are irrelevant to matters in issue in the proceedings. It is noted by Dr Doolabh that the majority of the documents are not Dr Trueman’s records and it is said any remaining documents created by Dr Trueman have no bearing on matters in issue before the Tribunal.
The Board submits that the records ‘respond to the allegations’ in paragraph 3 of the Board’s referral, in particular, that during HLS pregnancy there was an investigation of an irregular heartbeat of the foetus at 35 weeks. On that basis, the Board says that the medical records refer directly to the allegations made the Board and they ought to be considered in the material before the Tribunal in considering the referral. It also notes that the Board’s independent expert was briefed with the medical records in order to provide an opinion to the Tribunal.
The extent of the reference to the irregular heartbeat in paragraph 3 of the Board’s referral is that:
The history of her pregnancy included investigation of an irregular heartbeat of the foetus at 35 weeks.
The records of Dr Trueman include a report from Associate Professor Rob Cincotta of 8 October 2008. That report is relevant to the issue raised by the Board in its referral. It should be included.
I cannot see relevance, to that issue or any other, in the other documents included in Dr Trueman’s notes. I have been unable to find a note of Dr Trueman himself in relation to that referral to Associate Professor Cincotta or in respect of the irregular heartbeat more generally. However, if there are such notes that I have overlooked, it together with Associate Professor Cincotta’s report, should be included.
Otherwise, Dr Trueman’s records should not be included in the bundle.
Document 29 – Statement of HAC
HAC is the mother in law of HLS, the mother of the child in the first incident.
In opposing the inclusion of this statement Dr Doolabh notes that HAC was not present for the events the subject of the proceedings and submits that her statement is otherwise irrelevant to matters in issue in the current proceedings.
Having read the statement of HAC, there are certain matters, particularly at paragraphs 12 and 13, relating to discussions which she had with Dr Doolabh after she had arrived at the hospital which may be relevant to the proceedings. The documents should be included in the bundle on the basis that HAC will be called to give evidence.
Document 38 – Complaint to the Health Quality and Complaints Commission
Dr Doolabh opposes the inclusion of this document because it largely duplicates other documents already proposed to be tendered; it contains hearsay information; and because the fact that there was a complaint is irrelevant to matters in issue in the current proceedings.
I am of the view that parts of the document should be included. It should, however, be restricted to HAC’s letter of 1 February 2009; pages 1 to 5 of the complaint document; HLS’s authority; the three page document dated 2/2/2009 and the four page document entitled HS’s Struggle. All other documents should be excluded.
Whilst the accounts provided in the complaint do include hearsay information, the Tribunal is able to exclude such matters from its consideration, or otherwise give them appropriate weight.
Document 44 – Medical Records of John Flynn Medical Centre
Dr Doolabh opposes these documents on the basis that medical practitioners from the John Flynn Medical Centre were not present for and had no involvement in the management of MJ in respect of the second incident. Dr Doolabh further submits that the documents are irrelevant to matters in issue in the proceedings.
The Board states that ‘the records are relevant to [MJ’s] pregnancy’ it also states that it provided the documents to its independent expert.
An examination of the records shows that they include correspondence to Dr Shiri Dutt at the John Flynn Medical Centre from Dr Doolabh subsequent to the delivery of MJ’s baby. I am of the view that the records should be included.
Document 50 – Letter from Mater Division of Neonatology to MJ and MB
Dr Doolabh submits that the document is irrelevant to matters in these procedings. The Board submits that the letter identifies the events that occurred following MC’s arrival at the Mater Hospital in Brisbane, in particular, the decision to administer chest compression and adrenaline to MC when her heartrate repeatedly dropped.
It is apparent that this document relates to events which occurred subsequent to the delivery of the baby MC at the John Flynn Hospital. It is only those earlier events which have any bearing on the professional conduct of Dr Doolabh. Nothing subsequent to the arrival of baby MC at the Mater Hospital could inform the present proceedings.
The document should not be included.
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