Medical Board of Australia v Lockie
[2012] QCAT 34
•20 January 2012
| CITATION: | Medical Board of Australia v Lockie [2012] QCAT 34 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Dr Phillip David Lockie (Respondent) |
| APPLICATION NUMBER: | OCR288-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Dr Harpreat Moudgil Dr Stephen Pozzi Dr Susan Dann |
| DELIVERED ON: | 20 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Dr Lockie is reprimanded. 2. The reprimand is not to be recorded on the public register. |
| CATCHWORDS: | HEALTH PRACTITIONER – DISCIPLINARY PROCEEDINGS – SURGEON – UNSATISFACTORY PROFESSIONAL CONDUCT – where parties agreed on facts establishing grounds for disciplinary action and sanction – where unsatisfactory professional conduct resulted in patient's death – where isolated case not pattern of poor practice – where surgeon demonstrated insight into why death occurred – where surgeon fully co-operated in the investigation and subsequent proceedings – where surgeon successfully completed voluntary undertakings about his surgical practice – what disciplinary action should be taken – whether disciplinary action should be recorded in the register Health Practitioners (Professional Standards) Act 1999, ss 59, 118(1)(a), 242(1)(d) |
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 (QCAT Act).
REASONS FOR DECISION
These proceedings arose out of a surgeon’s unsatisfactory professional conduct that resulted in the death of a patient. After investigation, it was the Professional Conduct Review Panel of the Medical Board of Australia that considered the matter. The Panel referred it to the Tribunal, because it concluded the Panel did not have jurisdiction to determine it.[1]
[1]Health Practitioners (Professional Standards) Act 1999, s 118(1)(a).
The Board and Dr Lockie agree on the facts of the case. They also agree that the surgeon engaged in unsatisfactory professional conduct. They have jointly submitted to the Tribunal that it should reprimand Dr Lockie, but the reprimand should not be placed on the public Register.[2] In summary, the rationale for that submission is that:
a)This is an isolated case, not a pattern of poor practice;
b)Dr Lockie has demonstrated insight into why it occurred;
c)He has fully co-operated in the investigation and subsequent proceedings; and
d)He has successfully completed undertakings about his surgical practice, which he entered voluntarily.
[2]Health Practitioners (Professional Standards) Act 1999, s 242(1)(d).
The question for the Tribunal is whether the sanction proposed is appropriate.
The surgery
In December 2008, Dr Lockie, a surgeon, treated an elderly patient whose general practitioner had referred her so he could investigate a lesion noted on her CT scan. As well as being elderly, at 82 years of age, the patient was very small, both in stature and in weight, which was only 22 kgs.
During a sigmoidoscopy[3] to investigate the lesion, Dr Lockie noted a large pedunculated polyp.[4] He did not have a snare of sufficient girth to encircle the polyp to remove it. He terminated the procedure and arranged for the patient to return a few days later so he could perform it with appropriate equipment.
[3]An examination of the rectum and sigmoid colon with an endoscopic viewing device called a sigmoidoscope; Dr Harvey Marcovitch (ed), Black’s Medical Dictionary (A&C Black, 42nd ed, 2010).
[4]A type of polyp with a stalk-like structure that usually acts as a support; Dr Harvey Marcovitch (ed), Black’s Medical Dictionary (A&C Black, 42nd ed, 2010).
During the second procedure, he performed a polypectomy,[5] complicated by equipment difficulties. The patient sustained a bowel perforation during the operation, although this was not then apparent. The patient’s blood pressure dropped after surgery but recovered and she was discharged from day surgery.
[5]The removal of a polyp; Dr Harvey Marcovitch (ed), Black’s Medical Dictionary (A&C Black, 42nd ed, 2010).
After her discharge, she became unwell and was admitted to hospital. Tragically, she later died from post-operative complications leading to sepsis[6], faecal peritonitis[7] and sigmoid perforation.
[6]Poisoning by the products of the growth of micro-organisms in the body and by material released from body cells in response; Dr Harvey Marcovitch (ed), Black’s Medical Dictionary (A&C Black, 42nd ed, 2010).
[7]A type of inflammation of the peritoneum, the serous membrane of the abdominal cavity; Dr Harvey Marcovitch (ed), Black’s Medical Dictionary (A&C Black, 42nd ed, 2010).
Unsatisfactory professional conduct
Dr Lockie admitted his conduct was professional conduct of a lesser standard than might reasonably be expected of him by his professional peers. In particular, he agrees with the Board that he should not have proceeded with the second sigmoidoscopy when he encountered difficulties with the relevant equipment. He also agrees with the Board that he should have arranged to admit the patient to hospital following the difficulties encountered during the second procedure.
Initially the Board alleged unsatisfactory professional conduct in relation to Dr Lockie’s pre-surgical investigation and assessment of the patient and his choice of procedure. However, it did not pursue those allegations when the matter came to the Tribunal for determination. Although there is some difference in the opinions gathered during the Board’s investigation, it seems that the Board accepts that aspect of Dr Lockie’s conduct was appropriate.
[10] The Tribunal notes the opinion given by Dr Renaut, a Laparoscopic Colorectal and General Surgeon and Colonoscopist, who later supervised Dr Lockie. He stated that colonoscopic management, as attempted by Dr Lockie, is acceptable for a polyp of the type found in this case. He also noted that the alternative procedure of bowel resection carried higher risk for this patient than the procedure actually undertaken. Dr Bell, another experienced Colorectal Surgeon who provided an expert opinion about the surgery, held a similar view about the risks to this patient. He considered the patient’s very low weight considerably increased the risk of abdominal surgery.
[11] Although Dr Lockie accepts he should have sought to admit the patient to a hospital instead of discharging her from the day surgery, the Tribunal is aware that transfer from a day surgery to a hospital is not necessarily an easy or smooth process in the hospital system.
The Board’s response and Dr Lockie’s subsequent conduct
[12] The Executive Director of the hospital to which the patient was admitted notified the Board in March 2009. The Board commenced enquiries shortly afterwards. In May 2009, it issued a Notice to Dr Lockie to show cause why the Board should not take immediate action against him.[8]
[8] Health Practitioners (Professional Standards) Act 1999, s 59.
[13] In July 2009, the Board accepted undertakings proposed by Dr Lockie with some changes required by the Board. Dr Lockie undertook not to undertake any colonoscopies at any day surgery until the investigation and any subsequent disciplinary proceedings had concluded. That undertaking remains in force.
[14] He also undertook that, for two months, he would only perform colonoscopies under the supervision of specialists approved by the Board. Dr Lockie bore all the costs of the supervision. The supervisors were required to report to the Board at the end of the period of supervision.
[15] Dr Lockie had fully complied with the supervised practice undertakings well before the matter came to the Professional Conduct Review Panel. Both supervisors reported to the Board that they considered Dr Lockie was qualified to perform colonoscopies and polypectomies.
[16] Dr Lockie recently audited his colonoscopy practice in order to provide context to this case. Over some nine years, he had undertaken 1,018 colonoscopies, of which 176 patients required at least one polypectomy. Of those procedures the only occasion on which a perforation resulted was this one.
[17] The Tribunal does not expect this will provide any comfort to the family of the patient who passed away. Their loss is complete and cannot be remedied.
[18] The reports of Dr Lockie’s supervisors and the audit results are relevant, though, to the Tribunal’s task in determining what orders it should make to achieve the objectives of disciplinary proceedings: to maintain professional standards and public confidence in the profession and to protect the public.
[19] Dr Lockie has expressed his regret, which the Tribunal accepts is sincere. His conduct since suggests that is so. His co-operation with the Board indicates a desire to address the deficiency in his performance. He has since altered his practice. He says he now has a lower threshold for terminating procedures if faced with equipment difficulties and for referring cases to other specialists of hospitals.
[20] There was early agreement between the Board and Dr Lockie, due in no small part to Dr Lockie’s active co-operation and engagement with the Board. Regrettably, it has taken longer than it might otherwise to reach its conclusion. This is, apparently, because of some confusion about whether the Professional Conduct Review Panel or the Tribunal could determine the matter. The Panel identified the issue with the procedure that had been set in train.
[21] The delay is not attributable to Dr Lockie personally. The result of the undertakings he gave is that he has not performed a colonoscopy at any day surgery since July 2009, almost 2.5 years ago. He has been assessed as competent to do so and, recently, one of his supervisors specifically commented that Dr Lockie is aware of the importance of deciding whether surgery as an inpatient is indicated in particular cases.
[22] Dr Lockie submitted to the Tribunal that he has experienced difficulties in securing and maintaining credentialing at various private hospitals because of the undertakings he gave. He did not produce any evidence to that effect. Although the Tribunal has given no particular weight to that submission, it would not be a surprising outcome from the public notification of his undertakings.
[23] Dr Lockie is well regarded by the many peers who, with knowledge of these proceedings, have provided strongly supportive character references. Although they cannot inform the Tribunal’s assessment of the events, they do give a picture of Dr Lockie’s general competence as a surgeon, his personal qualities and, importantly, his general attitude towards his patients and his professional obligations. Some of the referees, helpfully, gave quite specific examples of scenarios which illustrated Dr Lockie’s genuine care for his patients.
[24] Regardless of the impact of delay on Dr Lockie, the Board has maintained since April 2011 that Dr Lockie has been assessed as competent to perform the procedure and that the appropriate sanction is a reprimand that is not recorded on the public register.
[25] Whether or not the reprimand is noted on the public register, the Tribunal has not been asked to restrict publication of these reasons and they will be publicly accessible. Further, since July 2009, the public register has recorded Dr Lockie’s undertakings.
[26] If there is any further disciplinary proceeding against Dr Lockie, for whatever reason, the Board will have access to the record of these proceedings and may refer to the outcome, even if it is not publicly recorded. This will serve to deter Dr Lockie personally, if that is necessary, from unsatisfactory practice.
Conclusion
[27] The consequence of Dr Lockie’s unsatisfactory professional conduct was tragic in this case. These proceedings cannot remedy the family’s loss.
[28] The objectives of disciplinary proceedings must guide the outcome of this case. Surgeons are not infallible. The community cannot expect them never to make a mistake. Dr Lockie has acknowledged and addressed the deficiency.
[29] He has reflected upon and altered his practice. He has willingly embraced independent supervision and expert review of his performance. Two specialists have assessed Dr Lockie to be competent to perform the procedure, whether as an inpatient or at a day surgery.
[30] For 2.5 years, Dr Lockie has voluntarily and wholly complied with undertakings intended to demonstrate his competence and curtailed his practice until the matter was determined. These undertakings have been made public.
[31] The parties agree the Tribunal should reprimand Dr Lockie but that it should not record the reprimand on the public register. In the particular circumstances of this case, the Tribunal is satisfied that orders to that effect are appropriate.
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