Medical Board of Australia v Gallery
[2013] QCAT 224
| CITATION: | MBA v Gallery [2013] QCAT 224 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Ross Maxwell Gallery (Respondent) |
| APPLICATION NUMBER: | OCR290 of 2010 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 8 February 2012; 18 – 22 March 2013; & 24 May 2013. |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Member Assisted by: Dr Harpreat Moudgil Ms Emma Robertson Dr John Waller |
| DELIVERED ON: | 19 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
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| CATCHWORDS: | OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – DISCIPLINARY – where the practitioner conceded that he had engaged in unsatisfactory professional conduct – where the practitioner provided the Tribunal with an undertaking to not apply for renewal of registration and to never seek to be relieved of that undertaking – whether the Tribunal should accept that undertaking as a sanction. OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – DISCIPLINARY – COSTS – where the practitioner had some foundation for resisting allegations which were later substantiated – where the Board did not maintain all of its allegations – where a novel process was adopted at the hearing – whether a costs order should be made in the Board’s favour. Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) ss 9, 123, 124(1)(a), 240(1)(b)(v) & (vi), 241(2)(d) & 255. Queensland Civil & Administrative Tribunal Act 2009 (Qld), ss 5 & 66 Latoudis v Casey (1990) 170 CLR 534, cited. NSW Bar Association v Evatt (1968) 117 CLR 177, cited. |
APPEARANCES and REPRESENTATION:
| APPLICANT: | Ms J. Farr of Counsel instructed by DLA Piper |
| RESPONDENT: | Mr D. Tait QC of Counsel instructed by Corrs Chambers Westgarth |
REASONS FOR DECISION
Dr Gallery was the Director of Surgery at the Mt Isa Base Hospital when, in 2004 and 2005, he treated the three patients to whom these proceedings relate. Dr Gallery has conceded the Tribunal should make a finding that his treatment of two of those patients constituted unsatisfactory professional conduct, in that it demonstrated a lack of adequate judgment in the practise of his profession.[1] Having heard expert evidence about Dr Gallery’s treatment of those patients, the Tribunal is satisfied it should make that finding.
[1]Health Practitioners (Disciplinary Proceedings) Act 1999 s124(1)(a); Schedule definition of ‘unsatisfactory professional conduct’ para (b).
Dr Gallery has provided the Tribunal with an undertaking that he will not apply to renew his registration as a medical practitioner and will not seek to be relieved of his undertaking. The Tribunal is satisfied there are grounds to take disciplinary action against Dr Gallery and requires his undertaking by way of sanction.[2]
[2]Health Practitioners (Disciplinary Proceedings) Act 1999 s 240(1)(b)(v)&(vi); s 241(2)(d).
Dr Gallery’s treatment of the patients
The Tribunal has been provided with personal and sensitive information about the treatment of three patients. I am not aware of any basis for concluding the public interest is served by the release of information usually treated in confidence. A non-publication order is warranted to prevent access to those records without leave of the Tribunal.[3] As a mark of respect to the patients and their families, the Tribunal has preserved their anonymity in these reasons.
[3] Queensland Civil and Administrative Tribunal Act 2009 s 66.
Before turning to the treatment of the two patients that Dr Gallery concedes was unsatisfactory, it is appropriate to say something about the third patient, FMN.
Dr Gallery’s treatment of FMN first came to the Board’s attention when her daughter made a complaint. The recommendation arising from the Board’s initial investigation was to take no action. When the Coroner referred Dr Gallery’s treatment of 2 other patients to it, the Board re-opened its investigation into the treatment of FMN and referred that matter to the Tribunal as well.
After hearing evidence from experts called by the Board and Dr Gallery about his treatment of FMN, the Board decided it would not proceed further with those allegations. Not every error of professional judgment amounts to unsatisfactory professional conduct or demands sanction, even where there is a tragic outcome.
The Tribunal must observe the Board’s decision to proceed no further and cannot make any finding about Dr Gallery’s treatment of FMN. Despite that, Dr Gallery has formally acknowledged to the Tribunal that there was a need for earlier surgical intervention. He has expressed his regret for not having done so. The Tribunal accepts this as genuine and hopes this public acknowledgement by Dr Gallery will provide some comfort to FMN’s family.
It is consistent with Dr Gallery’s willingness to concede, after hearing evidence from his peers, that his treatment of the other 2 patients, to whom I will now turn, did demonstrate a lack of adequate judgement which constituted unsatisfactory professional conduct.
Turning to the patient AMX, Dr Gallery treated her over a 4 year period. She made persistent and sustained complaints of anal pain. She underwent a number of surgical procedures and Dr Gallery investigated the possible causes of this reported pain. Eventually, without having an established diagnosis as to its cause, Dr Gallery performed an abdomino-perineal excision of the rectum (APER), a procedure the patient did not survive.
Dr Gallery accepts his treatment of AMX was unsatisfactory professional conduct for the following reasons:
a)He inappropriately agreed to perform the APER to treat the patient’s complaints of anal pain;
b)He performed the procedure with insufficient staff and facilities; and
c)He performed the procedure in a manner other than the usual accepted way.
The Tribunal considers it was inappropriate for Dr Gallery to accede to the patient’s request that he perform an APER without having diagnosed the cause of the pain. The APER was undertaken to remove a rectal stump that remained after earlier bowel surgery. Dr Gallery identified that as a possible source of pain, although he had not identified the cause.
Dr Gallery fully investigated the patient’s physical pathology, but he failed to exclude a psychiatric contribution to the pain. He was aware the patient was seeing a psychologist and there were sufficient indications of a possible psychiatric condition underlying the patient’s experience of pain. In those circumstances, Dr Gallery should have refused to perform the surgery in the absence of a psychiatric assessment.
Dr Gallery worked in an isolated regional hospital with limited facilities and staff. The closest hospital to which he could refer his patients was Townsville, nearly 1,000 km away. AMX was resistant to travelling there for surgery, although she had done so before. The Tribunal is cognisant of the special difficulties presented by regional practice. Dr Gallery’s desire to service the hospital’s patients was admirable but, in this case, misguided.
It seems his aspiration to meet his patient’s preferences overwhelmed his professional assessment of what was required to safely perform an APER. In particular, he performed the surgery when he knew a non-specialist anaesthetist was rostered and when he did not have a surgical assistant scrubbed to assist, if required, from the outset of the procedure.
Finally, Dr Gallery accepts he did not follow the usual procedure for an APER which commences with an abdominal incision. Instead, he adopted a perineal approach which provided a more restricted visual approach to the rectal stump. This increased the risks of causing and responding to the excessive bleeding encountered during this surgery.
Turning to the remaining patient, Dr Gallery assumed responsibility for the treatment of DDB on 22 February 2005, when, complaining of abdominal pain, she was admitted as a patient of his surgical team. DDB underwent an X Ray, CT scan and renal biopsy. She was discharged the next day, without Dr Gallery personally examining her. She died 5 days later from septic and haemorrhagic shock consequent upon intra-abdominal bleeding and peritonitis.
Dr Gallery accepts his treatment of DDB demonstrated a lack of judgment in the practise of his profession. He prioritised diagnosis and treatment of a renal tumour over treatment of her bowel symptoms. Another member of his team, Dr Nettle, said he conveyed certain information about the patient’s condition to Dr Gallery before her discharge. Dr Gallery does not recall precisely what he was told by Dr Nettle and his notes were insufficient to assist him.
However, Dr Gallery concedes that, if had been given the information that Dr Nettle said he conveyed, he should have admitted and personally examined DDB, followed up on X Rays he had requested, and given priority to treating her bowel symptoms. He did none of those things. Given his uncertainty about what he was told, Dr Gallery conceded his professional conduct was unsatisfactory.
The jointly proposed sanction
Dr Gallery is now 73 years old and has retired. He did not seek to renew his registration when it fell due in 2011. He told the Tribunal that he formally retired in October 2008, when the Coroner gave his decision in relation to the patient AMX. However, due to difficulties in replacing Dr Gallery at the Mt Isa Hospital, his employer persuaded him to continue to work part time for a further 18 months, which he did without incident.
Both parties submit that the undertaking given by Dr Gallery is the appropriate sanction for his unsatisfactory professional conduct. The purposes of disciplinary proceedings are to uphold professional standards and public confidence in the profession and to protect the public.[4] Disciplinary sanctions are not punitive. Their function is protective.[5]
[4] Health Practitioners (Disciplinary Proceedings) Act 1999 s 123.
[5] NSW Bar Association v Evatt (1968) 117 CLR 177, 183-184.
Although Dr Gallery is no longer registered, the Tribunal has the power to impose sanction,[6] including to indicate a form of disciplinary action that it would have taken were he registered.[7]
[6] Health Practitioners (Disciplinary Proceedings) Act 1999 s 9.
[7] Health Practitioners (Disciplinary Proceedings) Act 1999 s 240(1)(b)(vi).
The Board has submitted that, were Dr Gallery still registered, it would be appropriate for the Tribunal to suspend him and impose conditions requiring re-training and mentoring. The Tribunal accepts that submission.
Dr Gallery apparently practised full time without incident from 2005 until October 2008, when he formally retired, and then for a further 18 months part-time at his employers’ request. The Board did not suspend his right to practise and did not impose any conditions upon him. His employer, Queensland Health, presumably assessed him to be competent to continue to practise as a surgeon.
The only rational interpretation of those events is that Dr Gallery did not present an immediate threat to the public. For that reason the Tribunal would not have cancelled Dr Gallery’s registration outright. A period of suspension would, however, have reflected that Dr Gallery did not, it seems, have insight into the unsatisfactory aspects of his practise until late in the day.
Had Dr Gallery been a younger practitioner who wished to continue to practise, the Tribunal would have suspended him for a period and imposed conditions requiring further education and mentoring and, perhaps, some specific and supervised surgical procedures. The mentoring would have been directed to address strategies for coping with the singular difficulties of regional surgical practise.
Given Dr Gallery has indicated he will never return to practise, none of that is necessary to protect the public.
The costs of the proceedings
The Tribunal may make any order as to costs it considers appropriate.[8] That is a broad general discretion which must be exercised judicially, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation.[9]
[8] Health Practitioners (Disciplinary Proceedings) Act 1999 s 255.
[9] Latoudis v Casey (1990) 170 CLR 534, 557.
The Tribunal often makes a costs order in the Board’s favour if it succeeds in establishing grounds for taking disciplinary action. There are some unusual features in this case, however, which commend a different order.
Since Dr Gallery offered an undertaking in May of 2011, this case has concerned the basis upon which he would give, and the Tribunal would accept, his undertaking in full resolution of the proceedings. Until the expert evidence was tested in the concurrent evidence session, Dr Gallery had some foundation for resisting some of the findings that he now agrees are made out. Likewise, after hearing from the experts, the Board did not maintain all of its allegations.
The procedure adopted in this case significantly curtailed the costs for both parties and for the Tribunal. Both parties voluntarily engaged in a novel process and both have benefited by avoiding further costs. Dr Gallery was entitled, however, to put the Board to proof on the allegations against him and his admissions obviated substantial evidence on all three cases. As a result of his concessions, the Tribunal has not been required to assess voluminous clinical material to pass judgment on Dr Gallery’s professional performance. A hearing originally listed for 8 days, and likely to have involved many more days in the Tribunal making findings and formulating reasons, was ultimately reduced to about 4 days of hearing and mediation. That deserves to be reflected in the costs order.
I consider it appropriate to discount Dr Gallery’s liability for costs by requiring him to pay 2/3rds of the Board’s costs. That proportion is not intended to reflect the number of patients about whom the Tribunal has made findings against Dr Gallery. Rather it is adopted by the Tribunal as a pragmatic formulation to recognise the peculiar circumstances of this case.
The process by which the parties arrived at an agreed position
Because of its unusual history, I would like to make some observations about the progress of this matter. It illustrates both the difficulties in reaching an agreed position in matters involving complex clinical issues and the opportunity that the Tribunal’s flexible procedures offer to minimise the scope of conflict and, therefore, the cost and delay of disciplinary proceedings.
Since its inception, this Tribunal has encouraged parties to endeavour to reach agreement to the extent that they can. To that end, the Tribunal usually requires parties to attend a confidential compulsory conference presided over by a Member of the Tribunal. Parties are encouraged to reach an agreed position on facts, findings and sanction to be placed before the Tribunal for its consideration.
No agreement between the parties, except as to the facts, can bind the Tribunal. That would be inconsistent with the Tribunal’s public interest function, inherent in a disciplinary jurisdiction. As well as the time and expense that may be saved thereby, the conference offers an opportunity for frank discussion of a practitioner’s professional conduct. Where it is lacking, the discussion may aid the practitioner to develop insight about the shortcomings exposed by their conduct. It also provides a forum for the practitioner to test the Board’s allegations and to focus on the objectives of the disciplinary process.
In this case, the matter came before the Tribunal for hearing in February 2012. The parties advised the Tribunal they had arrived at an agreed position on sanction, after having participated in such a conference. However, underlying that agreed position there remained a fundamental conflict about the facts relating to all three patients and about which aspects of Dr Gallery’s clinical practise were unsatisfactory.
I considered it untenable for the Tribunal to determine the proposed sanction without clarity about the basis for sanction, particularly in relation to clinical errors with tragic consequences. As a result, the parties were required to go into evidence and that took some time to prepare.
The hearing resumed a year later, after experts had been briefed and the Tribunal had held a number of directions hearings to settle procedures to promote an efficient hearing. In a break from traditional trial process, it commenced with expert evidence heard concurrently. This involved the experts called by each party on a particular topic being heard together. With the assistance of the Assessors, I took the lead in questioning the experts on agreed topics and inviting them to comment upon each other’s response. Counsel also had the opportunity to ask questions and clarify their evidence.
The Tribunal is indebted to Mrs Julie Farr and Mr David Tait QC, both experienced, skilled counsel who appeared, respectively, for the Board and Dr Gallery. Their co-operation, persistence and care in guiding their clients and expert witnesses in a novel procedure ensured it was both efficient and effective. Through discussion, the experts developed an emerging consensus about the treatment of the three patients.
The concurrent evidence session occurred in open court and with Dr Gallery present throughout. It was a confronting and challenging process for Dr Gallery to face his peers as they debated and critiqued his performance. Although he did not concur in all the matters agreed by the experts, Dr Gallery demonstrated increased insight into the shortcomings of his practise. His willingness to reflect on their evidence laid the foundation for further discussion between the parties.
At their request, I adjourned the hearing and Ms Stilgoe, a Senior Member of the Tribunal, mediated their discussions. The resultant agreement provided both the factual basis for the Tribunal’s disciplinary findings and the justification for the jointly proposed sanction. Approximately 5 further hearing days were saved and those resources devoted to other matters. Had the hearing proceeded with all matters contested, it is realistic to anticipate more than 5 hearing days would have been required.
The families of the three patients involved in this matter have each lost a loved member of their family. It is important for them and for confidence in the profession generally that allegations of unprofessional conduct are thoroughly and fairly explored. That has been done openly and in public.
Dr Gallery co-operated in a taxing process following some years of uncertainty and coronial hearings. The Tribunal accepts that he genuinely regrets his unsatisfactory conduct and the tragic outcomes. Dr Gallery gave many years of sound and valuable service to the community. He helped many people during his career. His professional service is not the sum total of his mistakes. He has made acknowledgments about his conduct after reflecting on evidence given by his peers. He will not return to practise and has demonstrated insight about his responsibilities in these three cases.
The Tribunal is well served, as are the parties, by the Queensland Civil and Administrative Tribunal Act 2009 which provides ample scope for innovative and flexible procedures. It is also fortunate to have Members with the necessary skills to exploit the potential of those procedures, in this case Ms Stilgoe. The case also illustrates the value of choosing the particular process to suit the individual matter, with an eye, always, to the objects of the QCAT Act to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[10]
[10] Queensland Civil and Administrative Tribunal Act 2009 s 5.
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