Medical Board of Queensland v Bambit

[2010] QCAT 150

CITATION: Medical Board of Queensland v Bambit [2010] QCAT 150

PARTIES:	Medical Board of Queensland (Applicant)
v
Dr Jayne Bambit (Respondent)

APPLICATION NUMBER:   HPF004-09  

MATTER TYPE: Occupational regulation matters

HEARING DATE:     9 February 2010

HEARD AT:  Brisbane

DECISION OF: Judge Fleur Kingham

DELIVERED ON:  26 March 2010

DELIVERED AT:     

Brisbane

ORDERS MADE:

1.     The grounds for disciplinary action against the Registrant are established and the Registrant has engaged in unsatisfactory professional conduct.

2.     The grounds for disciplinary actions are that;

2.1.     The Registrant has behaved in a way that constitutes unsatisfactory professional conduct in that she has engaged in:

2.1.1. professional conduct that is of a lesser standard than that which might reasonably be expected of the Registrant by the public or the Registrant’s professional peers; and/or

2.1.2.Professional conduct that demonstrates a lack of adequate skill or judgement in the practice of the Registrant’s profession.

2.2.     The Registrant has engaged in a pattern of conduct.

3.     The Tribunal approves the undertaking entered into between the Registrant and the Registrant’s Board (set out in “Annexure A”):

4.     The fact of and details of the undertaking must be recorded in the Board’s register for the period that the undertaking is in force.

5.     The Registrant is not permitted to apply for a review of the undertakings for a period of two years.

6.     The Registrant and the Registrant’s Board may agree to vary or release the Registrant from any aspect of the undertaking to ensure its practical application and ongoing relevance.  Should any variation or release extend for a period of more than 30 days, the Registrant and the Registrant’s Board must jointly seek approval of the Tribunal.

7.     The Registrant must pay:

7.1       The Board’s investigation costs in the amount of $1,490.59; and

7.2       The Board’s costs of and incidental to the proceeding on an agreed basis or, failing agreement, to be assessed on the District Court scale.

8.     The parties have liberty to apply.

Annexure A

“Dr Bambit undertakes that:

1.I will not perform any mini-facelift procedures.

2.Without limiting clause 1, I will not perform facelift procedures unsupervised until assessed by a supervisor, at my expense, to the satisfaction of the Board to be competent to perform those procedures.

2.1The supervisor is to be approved in writing and in advance by the Board.

2.2I agree to the supervisor providing reports to the Board, at my expense, on my competence at the Board’s request.

3.I will not perform any combined mastopexy/augmentation procedures.

4.I will provide every patient on whom I perform procedures with a written information document including warnings of operative risks and complications and have each patient sign a consent form indicating that they have read this material.  The signed consent form will be retained in the patient records.

5.If I am assessed as competent to perform facelift procedures, suitable consent forms are to be provided to the Board for its approval.

6.I will provide every patient on whom I plan to perform surgical procedures, with the limited exception of minor skin lesion surgery of the type routinely carried out in general practice, with at least two pre-operative consultations and at least ten days between the first consultation and the surgery.

7.I will not travel interstate in less than four days after having performed a surgical procedure, with the possible exception of removal of minor skin lesions.

8.I will review each surgical patient in person between one and seven days post-operatively and have a nominated medical practitioner approved by the Board to follow up any post-operative complications or concerns if I am not available.

8.1The nominated practitioner should be approved in advance and in writing and must have admitting rights to a suitable hospital.

8.2I will provide each patient who has undergone a procedure with a written notice containing the nominated practitioner’s contact details.

9.I will perform surgical procedures, with limited exception of minor skin lesions of the type routinely removed in a general practitioner’s surgery, only in facilities licensed under the Private Health Facilities Act 1999 (Qld).

10.I will, at my own expense, engage a colleague approved by the Board, to act as my mentor/counsellor.

10.1I will, at my own expense, attend meetings with the mentor/counsellor every month for a period of at least 12 months to discuss post operative care of patients, recognising signs of infection and any issues in relation to complications experienced during or following procedures.

10.2I will contact my mentor/counsellor and seek advice with respect to any post operative complications developed by my patients, other than a minor bleed.

10.3I will authorise the mentor/counsellor to provide reports to the Board at my expense every three months detailing the date of the meetings, a summary of any issues discussed and any concerns the mentor/counsellor may have.

11.I will only perform surgical procedures requiring general anaesthesia or intravenous sedation with the latter being administered by either a specialist anaesthetist or a general practitioner anaesthetist accredited by the Joint Consultative Committee on Anaesthesia (JCCT).

12.I will adhere to Professional Standard 9 of the Guidelines on Sedation and/or Analgesia for Diagnostic and Interventional Medical or Surgical Procedures set by the Australian and New Zealand College of Anaesthetists.

13.I will notify, in writing, any current or future employers and all medical practitioners with whom I work of these undertakings within 7 days of commencement of employment by providing each person with a copy of this Schedule and asking them to sign a copy and return to the Board.

14.I will notify of these undertakings, in writing, to each CEO or equivalent of any health care facility in which I currently perform cosmetic procedures of these undertakings within seven days of approval of these undertakings or prior to commencing performance of any cosmetic procedures at a new facility, by asking the CEO or equivalent to sign an approved information and acknowledgement sheet.

15.I will provide the Board with a list of the names of health care facilities and person to whom I have provided the acknowledgement sheet in accordance with the preceding undertaking.

16.I authorise Medicare Australia to provide information to the Medical Board about my practice of medicine to monitor compliance with these undertakings.

17.I consent to a representative of the Board contacting and exchanging information with each employer and hospital or facility where I perform cosmetic procedures for the purpose of monitoring compliance with these undertakings.

18.I consent to a representative of the Board inspecting, copying or taking appointment diaries, logbooks or medical records for the purpose of monitoring compliance with these undertakings.”

CATCHWORDS : 

Health Practitioner – Disciplinary Proceedings –Unsatisfactory Professional Conduct – agreed facts which established grounds for disciplinary action

Unsatisfactory Professional Conduct –professional conduct of a lesser standard than might reasonably be expected – lack of adequate skill or judgment – pattern of conduct

Disciplinary Action – Registrant’s undertaking – recorded in the Register – when reviewable –

Costs – investigation costs – costs of proceeding on the District Court scale

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Medical Board of Queensland represented by Mr Andrew Forbes of DLA Phillips Fox Lawyers
RESPONDENT:	Dr Jayne Bambit represented by David Tait, Senior Counsel, and Donna Calladhan, Junior Counsel instructed by Ms Carol Lee of TressCox Lawyers

REASONS FOR DECISION

Judge Kingham –I have consulted with the assessors and have decided to make an order in the terms that has been provided to me by the parties, without any amendment to that order. I will give you my reasons in brief now. Dr Jane Bambit persisted, somewhat against the odds, to obtain her medical qualifications. Her interest is in plastic and reconstructive surgery, primarily cosmetic surgery. She was awarded a Bachelor of Medicine and Bachelor of Surgery in 1992 and she has since undertaken a number of courses. She obtained her fellowship in the Australasian College of Surgery in 2004.  Dr Bambit has come before this Tribunal in relation to her treatment of nine patients between late 2005 and early 2007.

The allegations of the Medical Board of Queensland broadly relate to two types of procedures – breast lift and augmentation procedures and face and neck lift procedures.  The Board and Dr Bambit have filed a statement of agreed and disputed facts.  Importantly, Dr Bambit accepts that the agreed facts establish unsatisfactory professional conduct in that she has engaged in professional conduct, that is of a lesser standard than that which might reasonably be expected of her by the public or her professional peers, and demonstrates a lack of adequate skill or professional judgement in the practice of her profession.  Further, she agrees she has engaged in a pattern of conduct (section 125(2b) of the Health Practitioners Professional Standards Act).

Reduced to its essence, what is agreed in relation to the breast surgeries, is that Dr Bambit did not provide some of the patients with adequate information about the potential complications or ensure that the patient understood the information provided.  In one case, she did not leave sufficient time between the initial consultation and the surgery to enable the patient to properly evaluate the information provided or to obtain a second opinion.  Further, she performed a procedure on a patient without making proper enquiry about the size of a patient’s former implants and failed to warn her about potential problems this might cause.  She also agrees this procedure was not reasonably required and therefore demonstrated a lack of judgement on her part.   Finally Dr Bambit agrees she performed surgery on one patient when prior psychological assessment and counselling was called for.  To perform the surgery at that time and in that manner increased the risks of post-operative complications.

In relation to the neck and face lifts, broadly speaking, Dr Bambit agrees she demonstrated a lack of adequate skill and judgement for some procedures and, in some cases, inadequate post-operative treatment. Dr Bambit conceded she had engaged in a pattern of conduct with respect to incompetence or a lack of adequate skill or judgement when performing “J” or “S” lift procedures.

There do remain some important areas of dispute between the Board and Dr Bambit about some of the particulars the Board originally relied upon. Mr Forbes, for the Board, conceded there were serious issues not still admitted. The Board was content to proceed on the basis of the agreed facts alone for two reasons.

Firstly, the facts about which agreement has been reached constitute grounds for disciplinary action.  Secondly, the undertaking agreed to addresses the most serious aspects of Dr Bambit’s professional conduct and, to some extent, go beyond those facts agreed and address some of those still, formally, in dispute between the parties.

I am satisfied, on the basis of the agreed material, there is ground for disciplinary action.

The purposes of disciplinary proceedings are set out in s123 of the Act: 

The purposes of disciplinary proceedings and disciplinary action against registrants are as follows:

(a)to protect the public;

(b)to uphold standards of practice within the health professions; and

(c)to maintain public confidence in the health professions.

The parties have proposed the Tribunal approve the undertaking offered by Dr Bambit and it is recorded in the Board’s register. A breach of the undertaking may found further disciplinary action; Dr Bambit would not be in a position to seek a review of the undertaking within two years.

The undertaking is set out in full in the order I will make in these proceedings.  It provides that Dr Bambit is prohibited from performing some procedures. For other procedures, Dr Bambit may not perform them unless she has first been assessed by the Board as competent to perform them or she performs them supervised by a colleague approved by the Board. Dr Bambit must provide every patient with information about risks and complications and obtain a signed consent form. She must only perform surgery in licensed facilities and adhere to recognised guidelines on sedation and analgesia. She must make appropriate post operative arrangements and consult a colleague monthly, for 12 months, with respect to post operative care, infections and complications.  Since these matters occurred, Dr Bambit has taken some important steps to enhance her skills and has worked with the Board during the investigation and the pre-hearing process.  The Tribunal takes that into account in making these orders. 

Since July 2007 she has voluntarily submitted to restrictions on her practice, she has taken the counsel of respected colleagues and, in the Tribunal’s assessment, has demonstrated a willingness to be guided further pursuant to her undertaking. In the circumstances I am satisfied that the undertaking is appropriate to address the admitted conduct and to protect the public.