Medical Board of Australia v Hocking; Hocking v Medical Board of Australia
[2015] ACAT 44
•19 June 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MEDICAL BOARD OF AUSTRALIA v HOCKING
and
HOCKING v MEDICAL BOARD OF AUSTRALIA
[2015] (Occupational Discipline) ACAT 44
OR 13/48, OR 14/31 & OR 14/04
Catchwords
OR 13/48
OR 14/31:OCCUPATIONAL DISCIPLINE – health practitioner regulation – Matter 13/48 – child with dysplastic hip - whether debridement of acetabular rim of hip during arthroscopy – whether practitioner should have disclosed to patient and family restriction on registration - whether second document in format of post-operative report produced to correct errors evidenced in post-operative report on day of arthroscopy – Matter 14/31 - whether novel decision to treat child with platelet rich plasma should have been taken only after advice and approval – whether incorrect statement to parent that treatment used with success by colleague vitiated consent - whether conduct in both matters unsatisfactory professional conduct, unsatisfactory professional performance, or professional misconduct - penalty
Catchwords
OR 14/04:OCCUPATIONAL DISCIPLINE – health practitioner regulation – appeal from decision to refuse to remove conditions on practitioner’s registration
Legislation cited: Health Act 1993 (ACT) ss 10, 54
Health Practitioner Regulation National Law (ACT) ss 3, 5, 39-41, 126, 140, 146, 155-159, 160, 178, 182, 185, 193, 196, 199, 202, 225
Health Practitioner Regulation National Law (ACT) Act 2010
Cases cited:Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Bernadt v Medical Board of Australia [2013] WASCA 259
Briginshaw v Briginshaw (1938) 60 CLR 336
Comcare v Sahu-Khan (2007) 156 FCR 536
Department of Health & Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218
Felix v General Dental Council [1960] AC 704
Hocking v Medical Board of Australia & Anor [2014] ACTSC 48
Hocking and Medical Board of Australia [2015] ACAT 22
Jemielita v Medical Board of Australia (Unreported, WASC, Library No 920584, 13 November 1992
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295
Maguire v Makaronis (1997) 188 CLR 449
Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234
Marine Hull & Liability Insurance Co Ltd v Hurford & Anor (1986) 10 FCR 476Medical Board of Australia v Roberts [2014] WASAT 76
O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204
Pillai v Messiter (No 2) (1989) 16 NSWLR 97
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
Rogers v Whitaker (1992) 175 CLR 479
Sullivan v Civil Aviation Safety Authority (2014) 64 AAR 120
Vissenga v Medical Practitioners Board of Victoria [2004] VCAT 1044
Texts/Papers
cited:Code of Conduct of The Royal Australasian College of Surgeons
Good Medical Practice: A Code of Conduct for Doctors in Australia
Benali et al ‘Hip Subluxation as a Complication of Arthroscopic Debridement’ (2009) Journal of Arthroscopy 405
JWT Byrd et al ‘Hip Arthroscopy in the Presence of Dysplasia’ (2003) 19 Arthroscopy: The Journal of Arthroscopic and Related Surgery 1055
BG Domb et al ‘Arthroscopic Capsulotomy, Capsular Repair, and Capsular Plication of the Hip: Relation to Atraumatic Instability’ (2013) 29 Arthroscopy: The Journal of Arthroscopic and Relation Surgery 162
Victor Ilizaliturri ‘Complications of Arthroscopic Femoracetabular Impingement Treatment: A Review’ (2009) 467 Clinical Orthopaedic and Related Research 760
Michael SH Kain et al ‘Periacetabular Osteotomy After Failed Hip Arthroscopy for Labral Tears in Patients with Acetabular Dysplasia’ (2011) 93 Journal of Bone and Joint Surgery, Suppl 2: 57
DK Matsuda ‘Case Report, Acute Iatrogenic Dislocation Following Hip Impingement Arthroscopic Surgery’ (2009) 25 Arthroscopy 400
Omer Mei-Dan, MD, Mark McConkey, MK and Matthew Brick, MD ‘Catastrophic Failure of Hip Arthroscopy Due to Iatrogenic Instability: Can Partial Division of the Ligamentum Teres and Iliofemoral Ligament Cause Subluxation?’ (2012) 28 The Journal of Arthroscopic and Related Surgery 440-445
Javad Parvizi et al ‘Arthroscopy for Labral Tears in Patients with Developmental Dysplasia of the Hip: A Cautionary Note’ (2009) 24 The Journal of Arthroplasty No 6 Suppl 1, 110
Tribunal:Ms E. Symons – Presidential Member
Ms R. Creyke – Senior Member
Date of Orders: 19 June 2015
Date of Reasons for Decision: 19 June 2015
Corrigendum: 4 November 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
OR 13/48, OR 14/31 & OR 14/04
BETWEEN:
RICHARD HOCKING
Applicant
AND:
MEDICAL BOARD OF AUSTRALIA
Respondent
Tribunal:Ms E. Symons – Presidential Member
Ms R. Creyke – Senior Member
Date: 4 November 2015
CORRIGENDUM
The Reasons for Decision handed down on 19 June 2015 in the matter of Medical Board of Australia v Hocking and Hocking v Medical Board of Australia (Occupational Discipline) [2015] ACAT 44 are amended as follows:
Page100, Paragraph 306 -
Delete :“Overall, the Tribunal finds that Dr Hocking behaved in a way that constituted unsatisfactory professional performance in relation to allegation 2.”
and
substitute:“Overall, the Tribunal finds that Dr Hocking did not behave in a way that constituted unsatisfactory professional performance in relation to allegation 2.”
………………………………..
Ms L. Crebbin – General President
for and on behalf of the Tribunal
ACT CIVIL & ADMINISTRATIVE TRIBUNAL OR 13/48 AND 14/31
BETWEEN:
MEDICAL BOARD OF AUSTRALIA
Applicant
AND:
DR RICHARD HOCKING
Respondent
OR 14/04
BETWEEN:
DR RICHARD HOCKING
Applicant
AND:
MEDICAL BOARD OF AUSTRALIA
Respondent
TRIBUNAL: Ms E. Symons – Presidential Member
Ms R. Creyke – Senior MemberDATE:19 June 2015
Matter OR 13/48
DECISIONS
1.As to allegation 1, the practitioner has behaved in a way that constitutes unsatisfactory professional performance by debriding Patient B’s acetabular rim while performing hip arthroscopy contrary to the patient’s medical condition.
2.As to allegation 2, the practitioner has behaved in a way that constitutes unsatisfactory professional performance by failing to disclose a restriction on his registration which had the potential to affect the treatment he was able to provide to the patient.
3.As to allegation 3, the practitioner has behaved in a way that constitutes unprofessional conduct by creating a second report of the hip arthroscopy some 3 or 4 months after the operation, in order to indicate that the symptoms suffered by the patient following hip arthroscopy were not due to the way he carried out the surgery.
4.After considering the decisions recorded at 1 to 3 above, the Tribunal decides to impose conditions on the practitioner’s registration as set out in 12 below.
Matter OR 14/31
DECISIONS
5.As to allegation 1(a), the practitioner has no case to answer and no further action is to be taken in relation to the injection of Platelet Rich Plasma (PRP) into Patient A’s left hip joint.
6.As to allegation 1(b), the practitioner has behaved in a way that constitutes unsatisfactory professional performance by failing to refer Patient A to another paediatric orthopaedic surgeon who was not restricted in carrying out surgery if necessary on Patient A.
7.As to allegation 2, the practitioner has no case to answer and no further action is to be taken in relation to the misrepresentation made to Patient A’s parents to the effect that an orthopaedic colleague in Melbourne had used PRP treatment for Perthes disease in children with success and that this colleague had endorsed the use of PRP treatment for Patient A.
8.As to allegation 3, the practitioner has no case to answer and no further action is to be taken in relation to obtaining informed consent from Patient A’s parents before administering the PRP treatment.
9.After considering the decisions recorded at 5 to 8 above, the Tribunal decides to impose conditions on the practitioner’s registration as set out in 12 below.
Matter OR 14/04
ORDERS
10.The appellable decision of the Medical Board of Australia dated 5 December 2013 is set aside and the decision set out in orders 11 and 12 below is substituted.
11.Conditions 1-3 imposed on the registration of the practitioner are set aside from the date of this order.
Matters OR 13/48, OR 14/31 and OR 14/04
ORDER
12.For the twelve months from the date of this order the following conditions are imposed on the practitioner’s registration.
The practitioner must:
(i)discuss pre-operatively all complex cases (including complex hip and knee surgery cases) with suitably qualified surgeons. This should be followed up by a presentation of all post-operative outcomes of the same procedures during the post-operative period;
(ii)specifically highlight his arthroplasty audit, including the audit of review arthroplasty and including the National Joint Replacement Registry outcomes as part of his continuing professional development, audit and peer review process;
(iii)practise within a departmental setting in the public hospital environment and within a group session in the private sphere;
(iv)organize a theatre arrangement so that his major cases are performed in a location and time such that a second surgeon is available to join the surgery if the clinical complexity of the case requires ‘buddy’ support;
(v)on or before the 19 June 2016, provide a report together with supplementary evidence to the Medical Board of Australia on his compliance with the terms of this condition.
………………………………..
Ms E. Symons – Presidential Member
For and on behalf of the Tribunal
Table of Contents
Overview
Background
General law to be applied
Onus of Proof
Standards of conduct
Matter: OR 13/48 - Patient B and Dr Hocking’s Behaviour
Joint Report Patient B - Dr Cairns, provided 16 March 2015
Allegation 1: Expert evidence
Dr Young
Professor Cundy
Professor Smith
Dr McNicol
Dr Hocking
Allegation 1: Summary of evidence
Allegation 1: Conclusion
Allegation 2: Failing to disclose restrictions on registration
Allegation 2: Conclusion
Allegation 3: Creation of second operation report
Allegation 3: Standards for records
Allegation 3: Conclusion
OR 13/48: Specific law to be applied
Findings OR 13/48
Conclusion OR 13/48
Matter: OR 14/31 – Patient A and Dr Hocking’s Behaviour
Background
Allegation 1: (a) Use of PRP
Allegation 1: (a) Conclusion
Allegation 1: (b) Failure to refer Patient A to another surgeon
Allegation 1: (b) Conclusion
Allegation 2: Misrepresentation to parents of Patient A
Allegation 2: Conclusion
Allegation 3: Informed consent
Allegation 3: Conclusion
Findings
Conclusion OR 14/31
Matter OR 14/04 – Appeal Conditions
Background
OR 14/04: Law to be applied
Conclusion: OR 14/04
Consequences of Findings in OR 13/48 and OR 14/31
COSTS
REASONS FOR DECISION
Overview
1.There are three applications before the ACT Civil and Administrative Tribunal:
(a)Medical Board of Australia v Dr Richard Hocking (OR48 of 2013) (Patient B matter);
(b)Medical Board of Australia v Dr Richard Hocking (OR31 of 2014) (Patient A matter); and
(c)Dr Richard Hocking v Medical Board of Australia (OR4 of 2014) (Conditions appeal).
2.The matters are dealt with separately in these reasons. The first two are in the nature of disciplinary proceedings brought by the Medical Board of Australia (the Board) against Dr Hocking. In the third matter, Dr Hocking is appealing against a decision of the Board which imposed certain conditions on his registration.
3.The parties agreed that one of those conditions (condition 2), relating to retraining, was satisfied. It was also agreed that the conditions appeal should be considered after the applications dealing with Patient A and Patient B were determined. Counsel for the Board submitted:
If it were the case that Dr Hocking were completely vindicated by the tribunal on both of those matters, then in the absence of any material change of circumstances it would follow that the restriction in condition 1 would be lifted - all other things being equal - if, on the other hand he was not, it would then need to be reviewed to determine (a) how significant are the findings in those matters if the findings are made and (b) whether or not the penalty the tribunal decides to impose ... in effect supersedes any conditions[1].
[1] Transcript of proceedings 16 March 2015 at page 10 lines 5 - 12
4.The applications were heard by the ACT Civil and Administrative Tribunal on 16, 18-20, 23-24, and 26-27 March 2015. Where appropriate the relevant evidence appears under the ‘Consideration’ section for each matter.
5.In the reasons following, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the members hearing these matters.
6.The reasons below explain why the Tribunal has reached its decisions in these matters.
Background
7.Dr Hocking is a registered medical practitioner. He qualified as a doctor on 6 January 1997. Thereafter he trained as a specialist orthopaedic surgeon commencing practice in 2002. In 2006 he was admitted as a Fellow of the Royal Australian College of Surgeons. He specialised in adult and paediatric hip and pelvic surgery.In 2008 he took over the practice of Dr David McNicol, an adult and paediatric orthopaedic surgeon, situated in Woden. He has since sold that practice and from mid-2014 has not worked in Canberra.
8.The following facts are agreed, in some instances with corrections or additions by the Australian Health Practitioner Regulation Agency (AHPRA) and by Dr Hocking. The facts reflect the claims made by Dr Hocking and the Board’s responses. The text has been edited by the Tribunal without changing the substance of the contentions and the responses:
(a)on 24 March 2011, practitioners from the Sydney Children’s Hospital wrote to AHPRA regarding Dr Hocking’s treatment of two paediatric patients (Sydney Children’s Hospital notification);
(b)on 12 April 2011, Professor Paul Smith, a Canberra-based orthopaedic and trauma surgeon, and Professor of Surgery at ANU Medical School, lodged a notification with AHPRA regarding Dr Hocking’s treatment of four patients (Professor Smith notification). He attached two letters describing the events the subject of the notification, namely his own letter dated 12 April 2011 and a letter from Dr Stephen Bradshaw dated 20 March 2011;
(c)on 2 May 2011, the ACT Board of the Medical Board of Australia met to consider the Sydney Children’s Hospital notification and the Professor Smith notification and decided to investigate the notifications pursuant to the Health Practitioner Regulation National Law (ACT) (National Law) for the reasons set out in minutes of the Board dated 3 May 2011. On 5 May 2011 Dr Hocking provided an undertaking to the effect that he would perform no elective open hip surgery and would involve a senior colleague in the management of major pelvic injuries, pending completion of the investigation. On 21 June 2012, after the investigation, the Board imposed six conditions on the applicant’s registration to practise medicine (Conditions 1-6.) The Board notified Dr Hocking of these conditions on 26 June 2012;
(d)on 26 February 2013, Dr Hocking provided submissions to the Board dated 15 and 22 February 2013, including reports from supervisors, and requested that Conditions 1-6 be lifted. The Board met on 28 February 2013 to review Conditions 1 to 6 and to decide whether to substitute Conditions 1 to 3 (proposed action). The Board notified Dr Hocking by letter of 1 March 2013 of the proposed action. Dr Hocking’s solicitor made written submissions to the Board in respect of the proposed action by letter of 20 March 2013;
(e)on 16 April 2013, Dr Hocking appeared before the Board and made oral submissions regarding the proposed action;
(f)on 8 May 2013, the Board wrote to Dr Hocking and advised that it had decided to replace Conditions 1-6 with three conditions (Conditions 1-3). Condition 3 stated that the Board would review Conditions 1-3 within six months of notice of their imposition, that is, after a period ending on 8 November 2013;
(g)on 29 November 2013, Dr Hocking provided submissions to the Board, including reports from his supervisors, Dr Michael Gillespie and Dr David Young, and requested that Conditions 1-3 be lifted. The Board met on 5 December 2013 to review Conditions 1 to 3; and
(h)on 2 January 2014, the Board wrote to Dr Hocking and stated that it had considered the reports from his supervisors, as well as the submissions made on 29 November 2013. The Board decided, in accordance with section 126(3)(a) of the National Law, that Conditions 1-3 should not be removed but should be imposed again and reviewed after a further period of six months.
Other facts
9.In July 2012, Dr Hocking commenced a period of retraining and supervision. His supervisors were Dr David Young, a leading orthopaedic surgeon with a practice in Melbourne, Dr Michael Gillespie, a consultant orthopaedic surgeon, and Dr Peter Morris, an orthopaedic surgeon, both in Canberra. Dr Hocking made regular visits to Melbourne to consult with and to observe Dr Young’s work. Dr David Hardman, a Canberra-based consultant vascular surgeon, was also appointed as a mentor to Dr Hocking.
General law to be applied
10.The Tribunal is to make its decisions in accordance with the Health Practitioner Regulation National Law (ACT) Act 2010 (National Law), the legislation which adopted, subject to certain modifications, the National Law as applying in the ACT.[2]
[2] Hocking v Medical Board of Australia [2015] ACAT 22 at [8]-[9]
11.Section 196 in Division 12 of the National Law sets out the decisions the tribunal may make about a registered health practitioner. Section 198 in Division 12 of the National Law provides that Division 12 of the National Law applies despite any provision to the contrary of the Act that establishes the responsible tribunal but does not otherwise limit that Act.
12.In making its decisions, the Tribunal is also to take account of the objectives and guiding principles underpinning the National Law. In particular, it must consider the following objectives: that the law is ‘to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered’; and that ‘restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality’.[3]
[3] Section 3(3)(c)
13.The first two matters relate to notifications concerning the treatment by Dr Hocking of two patients, Patient A and Patient B, both children. The relevant item of ‘notifiable conduct’ in relation to Patient A and Patient B is that Dr Hocking “placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards”.[4]
[4] Section 140(d) of the National Law
14.If findings are made adverse to Dr Hocking, the Tribunal’s role is to consider liability for the breaches leading to those notifications, and whether to impose a penalty.
15.The relevant matters are:
(a)OR 13/48: an application by the Board dated 11 December 2013 for de-registration or other penalty in relation to an allegation that Dr Hocking had engaged in conduct that constituted professional misconduct, unprofessional conduct or unsatisfactory professional performance concerning his treatment of Patient A; and
(b)OR 14/31: an application by the Board that a penalty be imposed on Dr Hocking in relation to an allegation that Dr Hocking had engaged in conduct that constituted professional misconduct or unprofessional conduct or unsatisfactory professional performance concerning his treatment of Patient B.
Onus of Proof
16.It is accepted in professional disciplinary proceedings that the Board bears the onus of proving matters, and that the standard of proof in civil matters is the balance of probabilities. In disciplinary hearings of this kind, that is often expressed as requiring comfortable satisfaction or an ‘actual persuasion’.[5]
[5] O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204
17.The Board, in its closing submission, submitted that the Tribunal should be ‘comfortably satisfied to the Briginshaw standard’ that its charges were made out. Counsel for Dr Hocking reminded the Tribunal that its findings require an ‘actual persuasion, and not merely a mechanical comparison of probabilities’.[6]
[6] Dr Hocking’s Closing Submissions [4.35]
18.The Tribunal accepts that the rules of evidence ‘are founded upon principles of common sense, reliability and fairness’[7] and, to that extent the principles arising from the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J should apply. In so saying, the Tribunal is indicating its appreciation of ‘the need not lightly to reach conclusions carrying grave consequences’.[8]
[7] Sullivan v Civil Aviation Safety Authority (2014) 64 AAR 120 at [93] per Flick and Perry JJ
[8] Sullivan, per Logan J at [19]
19.As Logan J observed in Sullivan at [8]:
… the Tribunal’s conclusions must be based on logically probative material [and] where that conclusion may have grave consequences for a party to the review … it would not lightly be reached and this factor intrudes on what the Tribunal should regard as probative in the making of a reasonable decision.
20.The Tribunal also notes, in the context of the reference to the ‘Briginshaw standard’, that in Sullivan, the Full Court of the Federal Court rejected a submission that the AAT had made an error of law in failing to adhere to the Briginshaw principle and confirmed that tribunals are not bound to apply the rules or principles of evidence, such as those arising in Briginshaw.[9] As the majority in Sullivan observed, such a principle:
… would be inconsistent with the well-entrenched acceptance of the proposition that curial proceedings are inherently different from the tasks entrusted to decision-making by administrative tribunals and the Administrative Appeals Tribunal in particular; and would be inconsistent with the flexibility of procedure deliberately entrusted by the Legislature to the Tribunal.[10]
[9] Sullivan, at [104], [114] per Flick and Perry JJ (Logan J agreeing with the outcome).
[10] At [114]
21.That statement of principle is consistent with the recent observation of the High Court in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 396 per French CJ:
The exercise of the Tribunal's freedom from the rules of evidence should be subject to the cautionary observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [(1933) 50 CLR 228] that those rules “represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth”. It is a method not to be set aside in favour of methods of inquiry which necessarily advantage one party and disadvantage another. On the other hand, that caution is not a mandate for allowing the rules of evidence, excluded by statute, to “creep back through a domestic procedural rule”.
Standards of conduct
22.The issues are whether in relation to his treatment of Patient A and Patient B, Dr Hocking behaved in a way that constituted ‘unsatisfactory professional performance’, ‘unprofessional conduct’, or ‘professional misconduct’, as defined in section 5 of the National Law.[11] If the Tribunal finds breaches of one, some, or all of those standards, the Tribunal is able to impose a penalty.[12]
[11] Section 196(1)(b) of the National Law
[12] Section 196(2) of the National Law
23.There is limited documentary indication of what are those standards. In that context, the Tribunal notes the statutory authority for the Board to develop codes and guidelines which are to be used by bodies such as the Tribunal in disciplinary proceedings.[13] It would be helpful if detailed standards were to be developed by the Board.
[13] Sections 39-41 of the National Law
24.The Tribunal was referred to the Code of Conduct of the Royal Australasian College of Surgeons (surgeons’ Code) and Good Medical Practice: A Code of Conduct for Doctors in Australia (doctors’ Code) for relevant standards. The two Codes profess to be ‘the standards of ethical and professional conduct expected of doctors by their professional peers and the community (doctors’ Code, 1.1) or ‘defines the professional behaviour of surgeons’ (surgeons’ Code, 2). However, they do not identify with specificity the standards which are reasonably to be expected of someone with five or six years’ experience and an equivalent level of training to Dr Hocking.
Matter: OR 13/48 - Patient B and Dr Hocking’s Behaviour
Facts
25.Patient B was born with a congenital hip dysplasia,[14] that is, dislocation or misalignment of her left hip. In 1999, on arrival in Australia, age two, she was diagnosed with the condition and in 2000 underwent treatments to restore her hip to its proper location. She was again treated for hip problems when she was four. When the family moved to Canberra, Patient B came under the care of Dr McNicol. Her care moved to Dr Hocking when he took over the practice of Dr McNicol in 2008. There was medical evidence that her hip dysplasia was in the moderate range at level 1 using the Crowe criteria.[15]
[14] Dysplasia is an abnormal development, for example, of cells, tissue, or an organ. Dysplasia of the hip is a developmental deformation or misalignment of the hip joint
[15] Transcript 16 March 2015 at page 80
26.On 14 April 2011, when Patient B was 13, her general practitioner, Dr Lees, referred her to Dr Hocking for a reassessment as she had developed a limp and been experiencing increasing pain over the previous three to four years. Dr Hocking saw Patient B on 27 May 2011 and reviewed imaging of her hip which showed hip dysplasia. Dr Hocking advised Dr Lees, by letter dated 31 May 2011, that the patient may require a peri-acetabular osteotomy (PAO).[16] An arthrogram (MRI) on 10 June 2011, also revealed a possible ‘supero-anterior[17] labral[18] tear’ that was at the ‘12 o’clock position’, and a poorly developed acetabulum[19] with an edge angle described in the joint report of the experts around the time of the arthroscopy as between 0-5 degrees, and in other evidence between 5 and 10-15 degrees, as compared with the normal 25 degrees.
[16] A peri-acetabular osteotomy is a surgical procedure involving the cutting of bone (the osteotomy) around the acetabulum (hip socket)
[17] Anterior is the front; superior is the top
[18] The labrum is the rim of soft tissue, or fibrocartilage surrounding the acetabulum which stabilises the hip by deepening the socket and protects the joint surface
[19] The acetabulum is the cup-shaped socket of the pelvis in which rests the head of the femor (thigh bone), the two forming the hip joint. The acetabular rim is the outer edge of the acetabulum
27.On 19 August 2011, after receipt of the MRI, Dr Hocking saw Patient B and advised her that he proposed a two-stage treatment plan to repair her hip, and on 23 August 2011 he wrote to Dr Lees and explained the two-stage treatment plan. First, he proposed an arthroscopy[20] to suture the labral tear and to assess the quality of the cartilage; second, a peri-acetabular osteotomy (PAO) to ‘re-direct the acetabulum into a more favourable position’, to be performed ‘some time later’. He categorised the urgency as Category B, that is, within the next 90 days.
[20] An arthroscopy, or arthroscopic surgery, is a minimally invasive surgical procedure on a joint in which an examination and sometimes treatment of damage is performed using an arthroscope, a special illuminating instrument and, if needed, other instruments, inserted into the joint through a small incision or portal
28.On 15 February 2012, Dr Hocking performed a left hip arthroscopy on Patient B at the Calvary Public Hospital, Canberra. In his post-operative report (first report/first operation report) dated 15 February 2012[21] Dr Hocking listed abnormal findings as labral tear, pincer lesion[22] and hip dysplasia. The report then went on:
The labrum was degenerate. The degenerate material was debrided and then a stitch was attempted to be placed in the labrum. The labrum was too degenerate and the stitch cut out. The labrum was debrided[23] back to a stable rim. The underlying acetabular rim was exposed and a pincer lesion was encountered. The rim was recontoured so that the pincer lesion would not impinge after the planned PAO.
[21] Patient B T docs. pages 169-170
[22] Pincer lesion or impingement arises when the ball-shaped femoral head rubs abnormally against the acetabulum or cup-shaped socket into which it fits, because there is an excess of bone on the anterior acetabulum, inhibiting normal movement. This type of impingement occurs because extra bone extends out over the normal rim of the acetabulum and causes an impingement on the thigh bone when the hip is flexed. ‘Impingement’ refers to some portion of the soft tissue around the hip socket getting pinched or compressed
[23] Debridement is the surgical removal of foreign material and damaged tissue from a wound or organ
29.Some three to four months later Dr Hocking produced a second more detailed account of the operation (second report/second operation report)[24]. This second report was written when Dr Hocking became aware that a complication had followed the surgery on Patient B, which could lead to disciplinary proceedings and, on the advice of Dr McNicol and Dr Gillespie, an orthopaedic surgeon in Canberra, who had been appointed by the Board to supervise Dr Hocking following an earlier complaint relating to him. This second report noted that Dr Hocking had decorticated[25] the ‘bone adjacent to the tear … with an arthroscopic burr to facilitate healing of the repair’, referred to the failure of the attempted suture of the labrum, and continued:
These pieces [of the labrum] were deemed irreparable, and as such the labrum was debrided. … Having lifted the capsule off the anterior [front] margin of the acetabulum an extra articular[26] lump of bone was identified protruding from the anterior acetabulum… This same lump is identified in the preoperative standing false profile view, proximal to the joint. This lump was then removed with the burr in preparation for the periacetabular osteotomy (which would be the next planned procedure). This lump has been referred to as a pincer lesion in the shorthand operation report as no other abbreviated description exists for such a lump. The lesion does not truelly (sic) fit the accepted definition of a pincer lesion and thus calling it a pincer lesion is a misnomer in the shorthand operation report. Image 4[27] shows the anterior acetabular margin with this extra articular lump removed. Image 4 also shows in the foreground the remnant of the acetabular labrum at the margin of [Patient B’s] acetabular rim indicating that the contour of the acetabular rim was not altered by the burr as the labral remnant remained in position.
[24] Patient B T docs pages 171-173
[25] Decortication is a procedure used in surgery involving the removal of the surface layer, membrane, or fibrous cover of an organ
[26] Extra-articular to the hip joint is outside the joint femur or thigh bone
[27] Image 4 refers to the photographs which were taken during the operation, and were in evidence at the hearing
30.Patient B was discharged on 16 February 2012 and initially appeared to be in a satisfactory condition. However, when she was first seen post-operatively by Dr Hocking on 23 March 2012, some five weeks after the arthroscopy, he informed Dr Lees that she was ‘not making the usual recovery that we see after a hip arthroscopy’, that she ‘had an irritable hip’, and was ‘walking with a Trendelenburg limp’. Following the surgery, Patient B had been attending physiotherapy at the Calvary hospital but with limited success and Dr Hocking referred her to another physiotherapist who identified a marked leg length discrepancy and reported a lack of expected improvement.
31.Dr Hocking saw Patient B again on 5 April 2012, and on 10 April 2012, in a letter to Dr Lees, he noted that she ‘is much better now’. He repeated that she was ‘eventually going to need to have a peri-acetabular osteotomy as her lateral edge angle is only 15 degrees’.
32.On 31 May 2012, an x-ray identified ‘quite marked dysplastic feature to the left acetabulum, with superolateral subluxation[28] of the femoral head, and … moderate secondary osteoarthrosis[29] changes’.
[28] A ‘subluxation’ means the ball (femoral head) is partially out of the hip socket; while a dislocation implies that the ball was completely out of the socket.
[29] ‘Osteoarthritis’ is chronic non-inflammatory arthritic bone disease
33.Patient B was readmitted to hospital and on 1 June 2012, under anaesthesia, her left hip was returned to position. However, even with traction, the hip continued to dislocate. Dr Hocking again reported to Dr Lees on 28 June 2012 that the hip dislocated ‘with external rotation’ and said he was discussing the case with Professor Paul Smith. At this time, Patient B was no longer his patient, nor was Dr Lees her general practitioner.
34.In early June, at the request of her family, Patient B’s care had been taken over by Professor Smith. Following further CT imaging, an MRI scan, and advice from colleagues, Professor Smith wrote to Dr Zekra, then general practitioner for Patient B, on 19 June 2012 noting that the imaging had confirmed that the hip had dislocated and following the arthroscopy there had been a ‘rapidly progressive joint destructive process’ and there was ‘clear evidence of loss of articular surface and damage to the femoral head’. He also noted, after observing the intraoperative images taken at the time of the surgery, that ‘significant bone was removed from the anterior margin of the left hip joint’. His letter went on ‘This, in my view, is highly likely to have critically destabilised [Patient B’s] left hip joint leading to the rapid destruction of the joint itself’.
35.At Professor Smith’s request, on 26 June 2012, Patient B was examined, under anaesthesia, by Dr Solomon, a Sydney orthopaedic surgeon, specialising in surgery of the hip and knee. Dr Solomon informed Professor Smith on 2 July 2012 that the imaging:
… shows a markedly subluxed left hip with arthritic changes and destruction of the cartilage on both the femoral and acetabular side. … I believe that the reason why this hip deteriorated so rapidly is that the combination of hip arthroscopy, large capsulotomy,[30] labral resection and bone resection has rendered a dysplastic hip even more unstable and as a result the femoral head subluxed and eroded the superior edge of the acetabulum.
[30] A capsulotomy is an incision that opens the clear, cellophane-like capsule that wraps around an organ, in this case, the hip joint
36.Dr Solomon’s report also said:
I find it puzzling that the arthroscopic operative report comments on a pincer lesion as this type of impingement does not exist in hip dysplasia. As you know the problem with dysplasia is too little bone rather than too much bone.
37.On 20 July 2012, Professor Smith performed a total left hip replacement on Patient B with acetabular bone grafting.
38.A notification to the Board concerning Patient B was made by Dr Solomon dated 9 July 2012. The matter was considered by the Immediate Action Committee of the Board, which, on 7 September 2012 advised that it proposed to take immediate action, namely, to appoint an investigator to consider the circumstances leading to the notification.[31] Following submissions made by Dr Hocking, the Board advised on 13 March 2013 that it had decided to remove the 7 September 2012 immediate action conditions on his registration, and would refer the matter to a Performance and Professional Standards Panel (Panel) of the Board pursuant to section 182 of the National Law.
[31] Pursuant to sections 155-159 of the National Law
39.There were six allegations investigated by the Panel which found ‘no case to answer’ on five of the allegations. In relation to the allegation that Dr Hocking ‘debrided [Patient’s B’s] left acetabular rim’ the Panel found ‘there was unsatisfactory professional conduct which may constitute professional misconduct’, and referred the matter to the tribunal.
40.For the purposes of the hearing by the Tribunal, a panel of experts was convened to produce a report on Patient B’s treatment. The panel was chaired by Dr A Cairns, a consultant orthopaedic surgeon, and the panel comprised Dr Young, Dr McNicol, Professor Smith and Professor Cundy, an adult and paediatric orthopaedic specialist in Adelaide, who contributed to the proceedings as the independent expert at the request of the Board. Dr Cairns’s summary of their conclusions follows, together with a summary of the points of dissension of Professors Smith and Cundy.
Joint Report Patient B - Dr Cairns, provided 16 March 2015
Dissenting aspects of the report by Professor Smith, and Cundy (15 March 2015)
Agreed
· It was agreed that [Patient B] was diagnosed with a dislocation of the left hip, and received treatment which commenced at age 2 years. At that time she underwent a left hip open reduction and Salter pelvic osteotomy performed by Dr Terence Hillier, orthopaedic surgeon practising in Albury-Wodonga. The experts agreed that the treatment rendered was for delayed presentation of developmental dysplasia of the left hip.
· The experts agreed that [Patient B] was assessed by General Practitioner, Dr Katy Lees in 2011 and referred to Dr Richard Hocking with the diagnosis of left hip acetabular dysplasia, pain provoked during sporting activities, and tendency to limp.
· The experts agree that imaging investigations conducted about that time demonstrated a ‘centre edge angle’ of the hip in the region of 0 degrees to 5 degrees, and a steep slope to the sourcil (acetabular roof), including an MRI scan reporting an antero-superior tear of the acetabular labrum.
· The experts agree that Dr Richard Hocking’s decision to perform a hip arthroscopy for treatment of the MRI-documented labral tear followed by subsequent peri-acetabular osteotomy (PAO) intended to prolong the longevity of the hip joint, was a reasonable clinical decision, notwithstanding argument and division of opinion within the orthopaedic community at large as to whether intra-articular pathology within the joint should be treated in two stages, as proposed by Dr Hocking, or in one stage at the time of performance of the pelvic PAO.
· The experts agree that within a short time following the surgery the patient’s left hip joint became unstable and dislocated.
· The experts agree that the resultant instability hastened the onset of arthritis and the emergent need for hip joint replacement.
· The experts agree that current conventional orthopaedic wisdom is to proceed with the second stage PAO in a timely manner, as soon after the hip arthroscopy as clinically appropriate.
· The experts agree that the second stage osteotomy should be delayed until the hip has ‘settled down’ following the arthroscopy, preferably in the absence of any stiffness or signs of irritability. …
· The experts agree that the patient’s post-operative management following the hip arthroscopic surgery was not optimal….
· [T]he experts agree that the left hip arthroscopy resulted in instability osteoarthritis of the patient’s left hip and hastened the need for hip joint replacement.
· The experts agree that this unfortunate outcome has been experienced by other surgeons working in the area, and it is increasingly documented within the orthopaedic literature, including prior to the index operation of 15 February 2012.
· The experts agree that the creation of the document known as ‘aide memoir’ by Dr Hocking on the advice of Drs McNicol and Gillespie, [‘some three or four months after the operation’] was not unreasonable [and was prudent] in the circumstances. …
· The experts agree that left untreated, her situation would now be considerably worse. It is reported that the patient has derived a good result and is functioning well following left total hip replacement. However, total hip replacement has a finite life and will require revision, several times during her lifetime.
Not agreed
· The experts do not agree about the intra-operative findings reported by Dr Hocking in either of his accounts of the arthroscopic surgery undertaken
· There is disagreement between the experts over the issue of where and how much bone was removed from the region of the acetabular margin.
· It was not agreed by the experts that Dr Richard Hocking’s post-arthroscopic management was sub-optimal because of factors outside his control.
· [T]he experts disagree as to the validity, accuracy and reliability of the [‘aide memoir’], based upon the apparent discrepancies as compared to the contemporaneous operation report formulated at the time of the surgery, some four months before the latter ‘aide memoir’ also dated 15 [February] 2012.
· The experts disagree regarding the issue of debridement of the patient’s acetabular rim while performing a hip arthroscopy on 15 February 2012, contrary to the patient’s medical condition, as outlined above. This disagreement was largely based upon the controversy regarding the precise location and quantity of bone removed.
· The experts were unable to offer specific comment regarding the significance of the current embargo (other than recognising that it precluded [Dr Hocking] from doing so at the time) which would have prevented Dr Hocking from performing a peri-acetabular osteotomy, the second of the two stage treatment plan recommended to the patient, given that none of the parties are cognisant of what was in Dr Hocking’s mind at the time. It was noted that the hip arthroscopy was performed on 15 February 2012, and that the embargo in place at that time was potentially to be lifted on or about 26 June 2012 (paragraph 3, Statement ‘A’), a time interval which would not be inconsistent with an acceptable interval between the two procedures, had the unfortunate catastrophic complication not occurred.
· The experts disagree as to the possible motivation underlying the statements made with the [‘aide memoir’].
Contentions
41.The Board submitted that the allegations in the Patient B matter are as follows:
Allegation 1 - by debriding Patient’s B’s acetabular rim (that is, by removing bone from the rim of the hip socket) while performing a hip arthroscopy on 15 February 2012 on her left hip, which was not indicated by her medical condition, Dr Hocking engaged in unsatisfactory professional performance.
Allegation 2 - by failing to disclose to the patient and her family the restriction on his registration which had the potential to affect the treatment he was to provide to her involving a two-staged treatment plan, the second stage of which (the peri-acetabular osteotomy) he was restricted from performing, Dr Hocking engaged in professional misconduct or unprofessional conduct.
Allegation 3 - by creating a second operation report in respect of the hip arthroscopy performed on 15 February 2012 which on its face purported to be a contemporaneous account of the operation but which was written several months after the operation, Dr Hocking engaged in professional misconduct, or unprofessional conduct.
42.Dr Hocking contended in relation to allegation 1 that:[32]
[32] Dr Hocking’s Closing Submissions at [4.8]
(a)he did not remove significant bone from Patient B’s acetabular rim;
(b)he resected a bump outside of the articular part of Patient B’s hip joint, proximate to but not from her left acetabular margin as, in his professional opinion, if the bump had been left in place it would cause impingement after the second (PAO) stage of Patient B’s treatment; and
(c)the superior defect in Patient B’s left hip acetabulum was a defect caused after Patient B’s left hip subluxed and some time after the 15 February 2012 hip arthroscopy.[33]
[33] Dr Hocking’s Closing Submissions at [4.26]
Consideration including evidence
43.The Tribunal observes that in coming to its decision it has taken note of several matters which affected the weight it gave to some of the copious evidence:
(a)the testimony of all but one of the experts was polarised to a greater or lesser extent, the exception being Professor Cundy the independent expert;
(b)only two people had seen the inside of Patient B’s hip joint and hence were in a better position to assess its anatomic state. Each of those persons (Dr Hocking and Professor Smith) had opposing views of the relevant state of her hip joint and what occurred to cause the dislocation of the hip;
(c)two of the witnesses for Dr Hocking (Dr Young and Dr McNicol) admitted that they had relied to a significant extent on conversations they had with Dr Hocking when compiling their expert reports;
(d)the two principal witnesses for the Board (Professor Smith and Professor Cundy) would not claim to be hip arthroscopists. Nonetheless, they are experienced orthopaedic surgeons and Professor Cundy said that he had undertaken arthroscopic procedures on many joints but not the hip, so he is a practising arthroscopist. In addition, Professor Smith pointed out, that although he was not a practising hip arthroscopist, arthroscopy being a technology which had developed after he became a surgeon, he has acted as assistant or observer on hip arthroscopic procedures over the last couple of years in order to become fully familiar with the current state of hip arthroscopic techniques;
(e)the issues in this matter arose in 2012 and 2013. Since then, there has been a change in Dr Hocking’s circumstances, namely, he has abandoned his paediatric practice except for emergency surgery, only undertakes adult elective hip and pelvic surgery, and no longer practises in the Australian Capital Territory;
(f)the evidence of the orthopaedic surgeons in the two hospitals in which Dr Hocking has been working in the last twelve months (Dr Furzer, North West Regional Hospital, Burnie, Tasmania and Dr Finch, head of the orthopaedic department, Tamworth Rural and Regional Hospital) provided a recent appraisal of his technical skills, competence and knowledge in his orthopaedic sub-specialty;
(g)some of the experts (Dr Young, in his 9 April 2014 report, Dr McNicol in his report 22 July 2014) point out that isolated images cannot give an accurate picture of what occurred during surgery; others, such as Professor Smith, comment that the images are insufficiently distinct to be helpful, a feature in part of the developmental stage of the skeleton of Patient B. In addition, the scanned images are enlargements and have pixelated, thus losing resolution.[34] Finally, the joint report in this matter noted that ‘How much bone has been removed at the time of the hip arthroscopy is difficult to judge from the limited arthroscopic photographs available’. These matters detract from the weight to be attributed to the images.
[34] Transcript of Proceedings 18 March 2015 at page 116
Allegation 1: Debriding Patient B’s acetabular rim
44.This has been the most complex and technical of the allegations before the Tribunal. One of the difficulties is a definitional one. It is illustrated in this observation by Dr Hocking:
The arthroscope, which is the camera in this photograph, is situated outside of the hip joint. When I am talking about the hip joint, I am meaning the specific part of the hip joint which is the articulation between the femoral head, and the acetabulum. It is true that the hip joint also includes the capsule but the hip joint has intra-articular compartments and extra-articular compartments. The arthroscope, in this position, is in one of the extra articular compartments that hip arthroscopists refer to as the para-labral gutter. This is immediately in from of the hip joint and does not show inside the hip joint, thus the appearance of a burr in this compartment indicates that the burr is not in the hip joint itself but is anterior to the hip joint’.[35]
[35] Transcript of Proceedings 20 March 2015 at page 269
45.Other difficulties have been the conflicting evidence from the medical experts, including as to the interpretation of the images, the exact location of the removal of bone during the arthroscopy, and the absence of imaging of Patient B’s hip between 15 February 2012 and 11 April 2012.
Allegation 1: Expert evidence
Dr Young
46.Dr Young’s report dated 12 September 2012 noted the reference in Dr Hocking’s first report to ‘a pincer impingement’ being resected and went on:
Dr Richard Hocking assures that there was no attempt to remove a pincer lesion but simply to freshen the bone underneath the torn labrum, to reattach the labrum which I would concur is totally appropriate. After there was a failure to be able to get sutures to hold in the labrum, part of the labrum was resected but again due to technical difficulties unfortunately the mini capsulotomy used to access the labrum was not repaired at the time of surgery. However, the patient was asked to remain on crutches for a prolonged period of time to protect the hip from subluxation and the patient was advised to undergo a Periacetabular Osteotomy’.
47.He then observed that ‘many surgeons around the world have had this experience’,[36] which was well documented in the literature including an article by Mei-Dan and Brick,[37] and concluded: ‘I believe Dr Richard Hocking … became the victim of an unfortunate complication, perhaps avoidable if the proposed Periacetabular Osteotomy was performed soon after the hip arthroscopy’. In his report of 9 April 2014, Dr Young noted:
One could be critical of embarking upon that labral report finding that the labrum was too degenerate to repair and needing to resect it and then not protecting the hip with an immediate periacetabular osteotomy.
[36] Dr Young in his report dated 9 April 2014 said that he had found at least 6 peer review articles ‘detailing the risk of rapid onset subluxation osteoarthritis of the hip after hip arthroscopy
[37] Omer Mei-Dan, MD, Mark McConkey, MK and Matthew Brick, MD ‘Catastrophic Failure of Hip Arthroscopy Due to Iatrogenic Instability: Can Partial Division of the Ligamentum Teres and Iliofemoral Ligament Cause Subluxation?’ (2012) 28 The Journal of Arthroscopic and Related Surgery 440-445
48.Dr Young reported on 9 April 2014: ‘I do note in the detailed operative report [second report] of Richard Hocking, he talks about removing a ‘spur of bone from the edge of the acetabulum’ which he felt might cause pincer impingement. A spur of bone simply means flattening the edge of the acetabular rim which would not in itself reduce the coverage of the femoral head significantly and therefore would play only a minor part in de-stabilising the hip. The capsulotomy and the fact that the labrum was not repairable were the two aspects of the hip arthroscopy intervention that most contributed to the instability in the hip, as the subluxation was occurring, producing acetabular edge overhanging and then the rapid onset of subluxating osteoarthritis’ (at 3-4).
Professor Cundy
49.In his report of 7 December 2012 Professor Cundy had noted that in the second operation report Dr Hocking had stated that ‘the contour of the acetabular rim was not altered by the burr as the labral remnant remained in position’. Professor Cundy said of this comment: ‘This would appear to indicate that Dr Hocking was aware of the potential dangers of removing bone from the acetabular rim in a patient with hip dysplasia’. He then went on: ‘I consider it was inappropriate to remove the bone from the patient’s acetabular rim especially, as stated in the ‘first’ operative report, the labrum was found to be not suitable for repair prior to the described bony rim surgery (at 5).
50.In his 11 September 2014 report Professor Cundy commented on the location of the bone removal by Dr Hocking:
This ‘first’ operative report … indicates that a pincer lesion was encountered after the acetabular rim was exposed and the rim was recontoured. This clearly indicates that bone was removed from the patient’s acetabular rim. The ‘second’ operative report provides different details and makes reference to a ‘lump’ of bone which was removed and includes details to differentiate it from the pincer lesion described in the ‘first’ operative report. In fact, the initial pincer lesion is described in the ‘second’ report as a ‘misnomer’ and [the second report] later makes specific mention that the contour of the acetabular rim was not altered by the burr. This is different to the ‘first’ operative report where it is clearly stated that ‘The rim was recontoured so that the pincer lesion would not impinge after the planned PAO’.
51.Professor Cundy confirmed in a letter dated 24 February 2014 that he had viewed the supplied images but was ‘of the opinion that three of the images are consistent with the action of surgical bony debridement of the acetabular rim’. As he had said in a report of 12 December 2012: ‘I consider the debridement of the acetabular rim was not required and the performance of this part of the procedure has contributed to the hip subluxations’.
52.He pointed out that the stability of the hip joint relies on structures including the ‘bony structures of the hip joint, the capsule and the surrounding labrum’ and that: ‘The procedure of left hip arthroscopy performed on [Patient B] did alter all these 3 structures by way of bony debridement of the acetabular rim, division of the capsule … as well as debridement of the labrum (which was deemed irreparable)’.
53.In response to a question about whether the intra-operative photographs show that Dr Hocking removed bone from the patient’s acetabular rim during the operation in question, Professor Cundy said in his report dated 11 September 2014:
The intra-operative photos indicate that a burr was introduced into the joint. The intra-operative photos do not readily reveal what was exactly performed with the indicated burr, however, the ‘first’ operative report does clearly indicate that ‘the rim was recontoured’ and I feel it is reasonable to therefore assume that this bone recontouring was performed with an instrument similar to the burr as evidenced in the operative photographs.
In addition the ‘second’ operative report makes mention of the use of a burr but in this report Dr Hocking alleges that this was used to remove extra articular bone. Whilst the intra-operative photographs do not clearly demonstrate removal of bone from the acetabular rim, the ‘first’ operative report written by Dr Hocking indicates that this was performed.
54.In his evidence to the Tribunal Professor Cundy said:
We’ve got strong suggestions from the intra-operative photos that bone was removed. We’ve got evidence from comparing the pre-arthroscopy and the x-rays and the x-rays done during the arthroscopy that bone was removed and comparing those with the post-operative x-rays as well it also reflects that bone has been removed from the acetabular rim beyond a simple freshening up of the bone.[38]
[38] Transcript of Proceedings 16 March 2015 at page 48
55.He provided, at short notice, a further report for the Tribunal after he had given his initial evidence. This report, dated 22 March 2015, commented on a number of extra images that were produced for the first time by Dr Hocking at the hearing (Hocking images). The report affirms his opinion, based on the images supplied, that the anterior wall of the acetabulum overlapped the acetabular roof and was not clearly separate from it as Dr Hocking’s diagram on the second of his images indicated. He interpreted the information from Hocking image 7/17 as indicating that the extra-articular bump ‘is on the acetabular rim’.
56.He agreed that the burr used in the operation was in the hip joint ‘as described anatomically’ as it was ‘in the para-labral gutter’. As he said both the ‘intra-articular’ and the ‘extra-articular’ compartments ‘are within the hip joint proper’. He confirmed that the term ‘extra-articular’ really means ‘it’s not within the opposing surfaces of the femoral head and acetabulum’. However, ‘it is within the hip joint’.[39] He repeated that his reading of Hocking images 10/17 and 11/17 ‘confirms removal of bone from the acetabular rim’.
[39] Transcript of Proceedings 24 March 2015 at page 439
57.Professor Cundy also noted that if the location of the bump was as shown by Dr Hocking, it would not have caused impingement after a PAO as it was well above the acetabular rim. That again suggested that it was the acetabular rim from which bone was removed rather than above it. He adhered to this view under cross-examination.[40]
[40] Transcript of Proceedings 24 March 2015 at pages 438-439
58.He reiterated this view in his evidence on 24 March 2015 when he said:
… it’s been alleged that when a peri-acetabular osteotomy is performed, that bump of bone there would impinge on the femoral head/neck area. I do not believe that is possible. The bump of bone is outside the acetabular rim, and if I put the femoral head in the socket … when the peri-acetabular osteotomy is done, the pelvis is shifted laterally and anteriorly to improve the coverage of the socket over the ball. Now, if the bump of bone is up there and you’ve tilted your pelvis laterally and anteriorly, what will happen is that the acetabular rim will bump into that area well before that bump of bone would bump into it.[41]
[41] Transcript of Proceedings 24 March 2015 at page 432
59.In his final evidence to the Tribunal on 24 March 2015, Professor Cundy said, in his view, using the clock face analogy to describe the site of the debridement according to Professor Smith, the area of bone removed was around 10 o’clock to 1 o’clock but Hocking image 9/17 suggested that the bone removed was from 12 o’clock to 2 o’clock. That brought the site of the debridement closer to the red dot on Hocking image 9/17 which, as Dr Hocking claims, was where he located and removed a bump.[42] He did concede that if the bump of bone was in the location suggested by Dr Hocking, removal of it would ‘be highly unlikely to destabilise the hip joint’.[43]
[42] Transcript of Proceedings 24 March 2015 at pages 433-434, 437, 438
[43] Transcript of Proceedings 24 March 2015 at page 439
60.In response to the argument of Dr Hocking that it was rapid arthritic change, rather than any excess removal of bone by him that caused the need for the total hip replacement, Professor Cundy said that the 31 May x-ray revealed ‘bone-on-bone articulation’ and he observed ‘less bone in the area of the acetabular rim’.[44] When asked whether the deterioration of the hip bone between February and April could have been due to weight-bearing, rather than removal of bone during the arthroscopy, he said he was surprised at the rapidity with which the deterioration occurred. In his view the bone was removed surgically, rather than due to natural causes and this was confirmed by the first report.[45]
[44] Transcript of Proceedings 16 March 2015 at page 45
[45] Transcript of Proceedings 24 March 2015 at pages 54-55
61.On this issue, the transcript contains the following interchange between counsel for Dr Hocking and Professor Cundy:
Is there any other explanation for the change in the contour of the acetabulum between the x-rays that were taken 11 April 2011 and those taken on 31 May and 3 June 2012?---It is possible that with weight bearing that the femoral head has caused a deformity to that area as well as on that area depicted.
For instance, if the femoral head was subluxing because the – for example, the removal of part of the labrum and the capsulotomy itself, that could well, I’m going to suggest to you, cause the bone on bone friction in precisely the area that’s shown in those later x-rays. Do you agree with that?---I agree it is possible, but it does surprise me with the rapidity of which those occurred.
That presumably depends on the idiosyncratic anatomical qualities of the individual patient?---Yes.
… And in all of those circumstances, the truth is, isn’t it, Professor, you are not able to say whether what is shown on those 31 May and 3 June x-rays is a result of surgical removal of bone as opposed to friction caused by a subluxing joint?---Indeed, I am able to say that there was surgical removal of bone from that area because it’s clearly stated in the first operative report that bone was removed from the acetabular rim.[46]
[46] Transcript of Proceedings 16 March 2015 at pages 54-55
62.Professor Cundy refuted Dr Hocking’s evidence to the Tribunal that, if the quantity of bone removed was as described by Professor Smith, there would have been insufficient time to complete the removal within the time taken for the arthroscopy. As he noted, if Dr Hocking’s account was accepted, it took him less than five minutes to remove the ‘extra-articular bump’ and even if the amount of bone removed was larger, ‘with powered instruments, such surgical debridement can be efficiently performed and not take much longer [than 5 minutes] to perform’ (at 3). In cross-examination he maintained that to burr away two to three cubic centimetres of bone, the amount estimated by Professor Smith, would take five to ten minutes.[47]
Professor Smith
[47] Transcript of Proceedings 24 March 2015 at page 440
63.Professor Smith took over the care of Patient B in early June 2012. On 29 June 2012 Professor Smith wrote to Dr Hocking and said:
As I discussed with you this morning, there was in my opinion no indication for removal of bone in this patient. Contrary to your assertion that the reason that this hip came out of joint was due to the capsulotomy, the real reason is bone removal. The degree of bone loss following your arthroscopy is apparent when the preoperative and postoperative radiographs are compared. The issue in hip dysplasia is that there is not enough bone. Removing bone makes things worse – as exemplified in this case. Your operation report clearly states that you found a pincer lesion and removed bone – there is no pincer lesion in a patient with hip dysplasia – including this patient – I have diligently reviewed all XR and preop scans and have verified this. The patient had significant anterior and superior bone deficiency – see the false profile view for confirmation.
[211] Exhibit 21
363.In addition to the diminution of his ‘error rate’, the Tribunal is conscious that Dr Hocking has undergone a considerable period of retraining and close supervision, he does appear to have learned lessons from the experiences over the last few years, and the most recent reports of his performance are encouraging. The Board has agreed that he has satisfactorily concluded his period of retraining, and the Tribunal considers there would be no value for a continuation of that condition.
364.The joint report of experts states that the conditions should be lifted subject to ‘satisfactory outcomes’. It is not clear what is meant by that expression. The similar comment by the Board only referred to completion of the Tribunal processes, not necessarily tying them to a complete exoneration of Dr Hocking.
365.The Tribunal has found that some of the allegations made against Dr Hocking are made out and that he has not met the standards against which his conduct as a health practitioner is to be measured. At one level, that is not a satisfactory outcome. At the same time, the Tribunal is aware that the events to which those allegations relate occurred some years ago. Since then, although another notification was received in the second half of 2014, there is evidence of a significant improvement in Dr Hocking’s performance.
Conclusion: OR 14/04
366.In summary, the Tribunal accepts that there remain some concerns about Dr Hocking’s performance and his capacity for insight into, and self-reflection about, fundamental matters relating to character and his own conduct.[212] However, the Tribunal also accepts that the retraining to which he was subject has been satisfactorily completed, and that the close supervision to which he was subject had achieved its purpose at that time.
[212] Board’s Closing Submissions 27, [127]
367.Accordingly, the Tribunal finds that the decision to refuse to remove conditions 1-3 to which Dr Hocking’s registration is subject should be set aside and substituted by the new conditions in Order 12 in accordance with the recommendations in the joint report of Dr Fletcher and Dr Young.
368.Dr Hocking has indicated that the recommendations in the joint report of Dr Fletcher and Dr Young are manageable provided he practises in an environment akin to the hospitals in Burnie and Tamworth. The understanding of the Tribunal is that Tamworth Rural Regional Hospital is intending to offer him an extended contract and assuming that transpires, the recommended conditions should not be unduly restrictive and provide the correct balance between permitting him to practise his profession, while taking account of the safety of the public.
Consequences of Findings in OR 13/48 and OR 14/31
369.The conditions in Order 12 take into account all of the Tribunal’s findings in these matters. They are a global response to the outcomes.
370.The Tribunal also finds that the undertaking offered by Dr Hocking should be accepted. Although it has accepted that he no longer practises or intends to practise in paediatric surgery, other than trauma surgery, where he is supported by a team, the Tribunal considers as a matter of public safety that the formalising of that position should be placed on the public record.
371.The Tribunal is satisfied that these conditions are consistent with s 3(3)(c) of the National Law.
COSTS
372.The parties have agreed that they will bear their own costs.
………………………………..
Ms E. Symons – Presidential Member
HEARING DETAILS
FILE NUMBER:
OR 13/48, OR 14/04 and OR 14/31
PARTIES, APPLICANT:
Medical Board of Australia (OR 13/48 and OR 14/04)
Dr Richard Hocking (OR 14/31)
PARTIES, RESPONDENT:
Dr Richard Hocking (OR 13/48 and OR 14/04)
Medical Board of Australia (OR 14/31)
COUNSEL APPEARING, APPLICANT
Mr N J Beaumont SC, with Ms R Withana (OR 13/48 and OR 14/04)
Mr R Crowe SC (OR 14/31)
COUNSEL APPEARING, RESPONDENT
Mr R Crowe SC (OR 13/48 and OR 14/04)
Mr N J Beaumont SC, with Ms R Withana (OR 14/31)
SOLICITORS FOR APPLICANT
Australian Government Solicitor (OR 13/48 and OR 14/04)
Minter Ellison (OR 14/31)
SOLICITORS FOR RESPONDENT
Minter Ellison (OR 13/48 and OR 14/04)
Australian Government Solicitor (OR 14/31)
TRIBUNAL MEMBERS:
Ms E Symons, Presidential Member
Ms R Creyke, Senior Member
DATES OF HEARING:
16, 18-20, 23-24, 26-27 March 2015
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