Medical Board Of Western Australia and McGushin
[2009] WASAT 128
•26 JUNE 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: MEDICAL ACT 1894 (WA)
CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA and McGUSHIN [2009] WASAT 128
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
DR M LEVITT (SENIOR SESSIONAL MEMBER)
DR P QUATERMASS (SENIOR SESSIONAL MEMBER)
MS B HOLLAND (SESSIONAL MEMBER)
HEARD: 29 APRIL 2009
DELIVERED : 26 JUNE 2009
FILE NO/S: VR 113 of 2008
BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant
AND
MICHAEL McGUSHIN
Respondent
Catchwords:
Medical practitioner - Disciplinary proceedings - Gross carelessness - Admitted allegations - Practitioner undergoing lengthy period of retraining - Whether suspension appropriate penalty - Public confidence in the medical profession
Legislation:
Medical Act 1894 (WA), s 13(1)(c)
Result:
Practitioner fined and conditions imposed on registration
Category: B
Representation:
Counsel:
Applicant: Mr P Tottle and Ms F Vernon
Respondent: Mr G Bourhill
Solicitors:
Applicant: Tottle Partners
Respondent: Lavan Legal
Case(s) referred to in decision(s):
Craig v Medical Board of South Australia (2001) 79 SASR 545
Medical Board of Western Australia v Pate [2007] WASAT 161
Roberman v The Medical Board of Western Australia (2005) WASC 45
Thomas v Medical Board of Western Australia (2005) WASC 244
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Medical Board of Western Australia made a number of allegations that a surgeon, Mr Michael McGushin, was guilty of gross carelessness in relation to five patients between 1999 and 2007. During that period, Mr McGushin conducted a surgical practice at the Kalgoorlie Regional Hospital.
Mr McGushin admitted the allegations against him, and the Tribunal was called upon to determine the appropriate penalty. The principal issue for the Tribunal was whether, as the Board contended, the conduct demanded a period of suspension from practice. Mr McGushin argued that, given the steps which he had taken to address the problems giving rise to the complaints against him, and given the conditions of registration to which he was prepared to agree, suspension from practice was not necessary or appropriate.
The Tribunal considered the nature of the allegations, and the very significant retraining that Mr McGushin had undertaken to address the deficiencies in his practice. It accepted that the problems did not relate to Mr McGushin's surgical ability, but to his clinical decision‑making. It also accepted that those problems could, at least in part, be attributable to Mr McGushin's excessive workload in Kalgoorlie and personal issues which he was confronting at the relevant time. Having heard from those who had supervised Mr McGushin's practice over a period of 15 months since he commenced retraining, the Tribunal was satisfied that the public interest would best be served by imposing conditions on Mr McGushin's practice and a fine in relation to his conduct, rather than suspension.
The issue for determination
Following a mediation process in these proceedings, and after some amendments to the allegations against him, the respondent, Mr Michael McGushin, admitted a number of allegations of gross carelessness against him. The allegations related to five patients treated by Mr McGushin whilst practising as a general surgeon at the Kalgoorlie Regional Hospital (KRH). While the conduct was agreed, the parties were not agreed as to the appropriate penalty to be imposed. The Board contended that the nature of the conduct was such that public confidence in the medical profession demanded that Mr McGushin be suspended from practice for a period. It suggested a period of suspension close to the maximum 12 months' suspension available under the legislation which applied at the time of the conduct, was warranted. Mr McGushin contended that suspension ought not be imposed, and indicated that he was prepared to agree to a number of conditions which would have the effect of limiting his practice, and, in his submission, would meet the public interest associated with disciplinary penalties. The principal issue for determination is, therefore, whether a period of suspension should be imposed.
The allegations
Very detailed statements of fact in relation to each of the five patients, the subject of the allegations against Mr McGushin, were agreed by the parties. It is not necessary to set out those facts in detail in these reasons. In summary, the allegations against Mr McGushin are as follows:
Allegation 1
Mr McGushin admits that he was guilty of gross carelessness, contrary to s 13(1)(c) of the Medical Act 1894 (WA) (Medical Act), between 10 September 1999 and 20 September 2008 in relation to his care of a patient, (patient A). In summary, the gross carelessness consisted of:
•failing to review patient A to assess her suitability to undergo a laparoscopic operation after a consultation on 10 September 1999;
•failing to warn patient A of certain risks associated with the operation;
•failing to arrange to be observed during the operation by another surgeon with experience in gastric banding operations or upper abdominal laparoscopic surgery and bariatric surgery, which he should have done by reason of his inexperience in the operation, the condition of the patient and the fact that such operations were not routinely carried out at KRH;
•failing to administer deep vein thrombosis prophylaxis to patient A when that was called for;
•failing to make adequate notes of the operation in that he did not record certain important information;
•not arranging for patient A to undergo a blood test after patient A showed certain symptoms post‑operatively;
•failing to arrange for patient A to undergo a gastrographin or barium swallow to eliminate certain possibilities of post‑operative complications when those complications were indicated;
•failing to make a note of his review of patient A after he had been advised of her symptoms and before her discharge;
•authorising patient A's discharge without having arranged for her to undergo certain tests which were indicated;
•failing to have patient A undergo certain tests and investigations after consultations with her on 7 August, 21 August, 25 August and 31 August 2000, when the respondent knew or ought to have known that symptoms being shown by patient A indicated the possibility of various post‑operative complications;
•failing after the 31 August 2000 consultation, and consultations on 8 September 2000 and upon patient's date of admission to KRH on 9 September 2000, to perform treatments or examinations of patient A in light of her symptoms in order to determine whether certain post‑operative complications existed;
•performing a laparotomy on patient A to reposition the gastric band without warning patient A of a risk associated with repositioning rather than removal of the gastric band, and performing an operation when, in view of his inexperience with the particular operation, the risks of the operation and the condition of the patient, he should not have performed it;
•failing to administer deep vein thrombosis prophylaxis before the repair operation, and failing to consult an appropriately qualified and experienced surgeon at a tertiary hospital for advice on the appropriate management of patient A or, alternatively, request the transfer of patient A to a tertiary hospital;
•inserting a size 10 French drain when he knew there was a high risk of it becoming occluded and it was not large enough to perform the required function; and
•failing to make adequate notes of the repair operation.
Allegation two
The respondent accepts that he was guilty of gross carelessness in a professional respect, contrary to s 13(1)(c) of the Medical Act, by sending a letter, dated 20 September 2000, to another doctor concerning patient A which contained incorrect information as to when patient A first complained of certain symptoms after her initial operation.
Allegation three
The third allegation accepted by the respondent is that he was guilty of gross carelessness in that, on or about 26 August 2006, he failed to identify that a patient (patient B), was likely to be suffering from septicaemia when he knew or ought to have known that she was suffering from septicaemia because of observations and symptoms recorded by the KRH nursing staff, and that after that date he failed to arrange for patient B to undergo a laparotomy to determine whether patient B was suffering from septicaemia.
Allegation four
The fourth allegation admitted by the respondent is that he was guilty of gross carelessness in or about December 2006 when he failed to arrange for a patient (patient C) to undergo certain tests when he knew or should have known that one of the tests was required to determine whether patient C was suffering from a recurrence of a pinhole perforation of a sigmoid diverticulum and sepsis as a result of a breakdown of a repair operation carried out by Mr McGushin. It is also admitted that Mr McGushin was guilty of gross carelessness in failing to attend patient C to review him prior to discharge from hospital and authorising his discharge when he should not have been discharged. Finally, in relation to patient C, the respondent accepts that he was guilty of gross carelessness in not providing patient C with drainage of a possible pelvic collection when he was aware, by reason of the results of certain tests and symptoms shown by patient C, that patient C required drainage of an abscess.
Allegation five
Mr McGushin also accepts that he was guilty of gross carelessness in the care of a patient (patient E) between 19 November 2003 and 20 January 2004 in that he failed to see that a tumour was present in patient E's lower rectum when he carried out colonoscopies on patient E on 19 November 2003 and 20 January 2004, and in that he failed to detect the tumour on rectal examinations carried out on those dates.
Allegation six
The final allegation of gross carelessness admitted by the respondent is that, on or about 14 March 2005, he performed a laparoscopic cholecystectomy on a patient (patient F) in circumstances where he knew that patient F's condition posed a serious risk of haemorrhage as a result of the operation and that, for that reason, he should not perform the operation until a supply of platelets was available at KPH, and that he failed to review patient F's medical notes and test results, and failed to examine him, prior to the operation in order to assess patient F's suitability for the operation.
Tribunal's observations on Mr McGushin's conduct
It was accepted by all parties that the nature of the respondent's failures in each case did not relate to his technical surgical competence. Rather, as the parties before the Tribunal accepted, the failures relate to Mr McGushin's clinical decision‑making and patient management. We accept that the failures exhibited are cause for serious concern. We also accept that Mr McGushin himself appreciates the seriousness of his conduct. Given that the conduct occurred over a relatively extended period, and thus could not be said to be mere isolated incidents, we agree with the Board that the nature of the conduct admitted would usually suggest a penalty of suspension from practice, if not removal of the respondent's name from the register of practitioners.
Circumstances of Mr McGushin's practice
Mr McGushin commenced practising as a general surgeon at the KRH in 1992. He occupied a number of positions during his time in Kalgoorlie. These included Chairman of the Eastern Goldfields Medical Association for 13 years, Chairman of the Medical Advisory Council for 13 years, Member of the Executive Committee of the Hospital and a senior instructor of courses conducted by the Royal Australasian College of Surgeons.
From 1998 until 2006, there were two general surgeons in Kalgoorlie. For substantial periods, Mr McGushin was the only surgeon available, and provided an on‑call service for the hospital 24 hours a day, seven days a week. Between 2004 and 2005, Mr McGushin and the other surgeon arranged a roster for on‑call availability on two week on, two week off basis. Whether on call or not, Mr McGushin conducted three operating lists per week and two endoscopy lists per week. He told the Tribunal that a standard working week saw him at the hospital for up to 12 hours a day during business days and approximately 10 hours over the weekend when on call. When not on call, he conducted ward rounds over the weekend.
From mid‑2005 onwards, the other surgeon left Kalgoorlie, and Mr McGushin took on an additional endoscopy list each week. The on‑call roster was arranged on a one week on, one week off basis with locums until a new surgeon arrived in Kalgoorlie in January 2006.
Mr McGushin said that over time, he became professionally isolated and lost the ability to obtain collegiate support, which he now recognises as being important in the practice of medicine.
In June 2006, Mr McGushin had a meeting with the Regional Director and the Medical Director for KRH. The Medical Director expressed concern at several adverse incidents regarding Mr McGushin's practice, and advised that he was convening a Conduct Review Panel to assess Mr McGushin's work. Certain restrictions were imposed on Mr McGushin's operating rights in the hospital pending the outcome of the inquiry.
A review was subsequently conducted for KRH by a Mr Cullingford and a report prepared. The report raised a number of issues concerning Mr McGushin's time management, judgment, communication and interpersonal skills and community and patient perceptions, as well as practice issues. The Conduct Review Panel met on 10 August 2006 with recommendations that Mr McGushin be reinstated to full clinical privileges, with an assessment on progress to be made later in 2006. In November 2006, Mr McGushin was interviewed again by Mr Cullingford and it was reported that there had been marked improvement in his professional behaviour since July 2006 and that there was evidence that the matters raised in the earlier clinical review had been addressed.
It is apparent that, in May 2007, Mr McGushin became the subject of public criticism, particularly from the spouse of a patient who had developed complications following an operation performed by the respondent. Following a public campaign carried out in Kalgoorlie and associated press coverage, the Medical Board raised concerns with Mr McGushin as to his practice. As a result, in May 2007, Mr McGushin gave an undertaking to the Medical Board that he would cease performing procedures that involved abdominal surgery, including laparoscopic surgery.
In late 2007, apparently as a consequence of a discussion between the management of KRH, the Department of Health and the College of Surgeons, a proposal was developed that Mr McGushin be engaged as a registrar at Fremantle Hospital under the supervision of Professor David Fletcher and the general surgical team. That proposal was presented to Mr McGushin in November 2007. Mr McGushin accepted the offer of the position and between 22 December 2007 and 21 January 2008, he relocated to Perth. That arrangement involved him living apart from his wife, who continued to live in Kalgoorlie. From January 2008, until the time of the hearing of these proceedings, Mr McGushin continued to work under the supervision, initially of Professor Fletcher, and subsequently of a consultant general and laparoscopic surgeon, Mr David Cooke, as part of the Fremantle surgical team. Mr McGushin reported that his time at Fremantle Hospital has enabled him to regain a sense of collegiality and he says that he has benefited from the less stressful work environment, and the superior facilities available at Fremantle Hospital.
Mr McGushin said, and we accept, that his transfer to Perth has had a significant impact on his personal situation. His wife has been unable to join him in Perth because they have been unable to sell their home in Kalgoorlie. He has been unable to purchase a house in Perth while the Kalgoorlie property remains unsold, and has lived with his parents since coming to Perth. He is forced to commute to Kalgoorlie on every free weekend in order to maintain his relationship with his wife. His taxable income has been reduced by approximately half. He has faced an uncertain future. His changed circumstances have affected his relationship with friends and acquaintances.
Mr Cooke's evidence
Mr Cooke succeeded Professor Fletcher in January 2008 as the supervisor of Mr McGushin. His supervision included reviewing his work in the Outpatient Clinic and on the wards. In addition, he has been operating together with Mr McGushin, or overseeing Mr McGushin's performance of operations. In September 2008, he reported to the Board that he had found Mr McGushin's pre‑operative assessment to be thorough and mature in approach, reflecting a considerable depth of experience.
Mr Cooke reported that he generally operated with Mr McGushin on between 5 and 15 cases each week, and found his operative techniques satisfactory. He did consider there was potential for further improvement. Mr Cooke considered Mr McGushin's post‑operative management to be good. Mr Cooke said that he had had the opportunity to observe closely Mr McGushin's clinical decision‑making, supervise his practical surgical skills, and to assess his professional standards in general. He considered Mr McGushin to have a good breadth and depth of surgical knowledge, and to make measured judgments which had improved since he joined Fremantle Hospital in January 2008.
Mr Cooke considered, from his observations, that Mr McGushin appropriately discussed clinical problems with patients and provided a good explanation of procedures, including the relevant risks. He had observed Mr McGushin appropriately decline surgical intervention where the risks outweighed the benefits.
Mr Cooke reported that he had been assisted by Mr McGushin in about 89 major operations and 87 minor operations, and had supervised him in about 55 major operations and 86 minor operations. He was satisfied with Mr McGushin's post‑operative review of patients. He considered Mr McGushin to be a valuable member of the surgical team.
In the 12 months to January 2009, Mr McGushin assisted Mr Cooke in 15 laparoscopic appendicectomies and had been assisted or supervised with 34 laparoscopic appendicectomies. Mr McGushin has assisted at 26, and been assisted or supervised at 3 laparoscopic hernia repairs. Mr Cooke considered all of these procedures to have been performed competently. In January 2009, Mr Cooke recommended that the operative restrictions placed on Mr McGushin be widened.
In January 2009, Mr Cooke provided the Board with details of all of the work of the surgical unit in which Mr McGushin had worked at Fremantle Hospital, which suggested that there were no unusual complications in the work done by Mr McGushin.
Mr Cooke was firmly of the view that it was appropriate for Mr McGushin to be permitted to broaden his operative restrictions and to work within the Department of Surgery where there is regular peer review. He expressed a preparedness to continue to provide a level of overall supervision of Mr McGushin's practice.
Mr Cooke expressed concern that suspension of Mr McGushin's registration would lead to a deterioration of clinical skills and manual dexterity which would necessitate a further period of retraining when the suspension had run its course.
Interim restrictions on Mr McGushin's practice
These proceedings were commenced by application on 4 June 2008. On 2 July 2008, the Board made an interim application seeking to impose conditions on the respondent's practice. By that time, Mr McGushin had been working in a junior position at Fremantle Hospital for some six months. In response to the interim application, orders were made by consent in the following terms:
1.The practitioner may only practice [sic] medicine in the role of registrar at Fremantle Hospital without admitting rights, and with the clinical and training commitments of a Registrar.
2.The practitioner may participate in the Royal Australian College of Surgeons of WA approved post Fellowship training programme in general surgery and its specialities (program), save where the program requires the practitioner to practice medicine in breach of these orders.
3.The practitioner must be supervised, monitored and audited by Professor David Fletcher (nominated supervisor), Head of Department of General Surgery and Clinical Director of Surgical Services, or such other consultant surgeons as may be nominated by the nominated supervisor and approved in writing by the Board.
4.The practitioner must provide monthly retrospective progress reports to the Board from the nominated supervisor in respect of the practitioner's clinical practice and performance.
5.The practitioner must work with a general surgical unit at Fremantle Hospital and participate in all of its registrar clinical and training commitments including clinics, ward rounds, operating sessions for both elective and emergency surgery, audit and clinical meetings as well as student and registrar/intern teaching.
6.The practitioner must work only under the direction and control of a consultant surgeon or consultant surgeons attached to the Fremantle Hospital and approved by the Board (consultant supervisor).
7.The practitioner must:
(a)discuss the management of each and all of the patients with whose care the practitioner is involved with a consultant supervisor prior to initiating each patient's management;
(b)keep a log book of all patients in whose care the practitioner is involved, identifying the presenting complaint or complaints, diagnosis, management plan, complications and outcome; and
(c)meet with the nominated supervisor on a weekly basis, or such other period as the Board may give prior approval in writing.
8.The practitioner:
(a)must not perform complex intra-abdominal procedures and laparoscopic procedures listed in the Annexure to this order (the Annexure) without direct supervision by a consultant supervisor, who must be present for and watching the whole of any procedure listed in the Annexure;
(b)must not perform any colonoscopy or endoscopy procedure without the direct supervision of a consultant supervisor who must:
(i)be present for and watching the whole of any colonoscopy and endoscopy procedure; and
(ii)verify the practitioner's diagnostic findings;
(c)must not have any supervisory role in relation to any staff of Fremantle Hospital including junior staff;
(d)must obtain from each of the consultant surgeons a report of the practitioner's performance following the conduct of each surgical procedure performed by the practitioner listed in the Annexure to these orders and forward each such report to the nominated supervisor; and
(e)must not alter either the level of supervision which the practitioner receives or the surgical procedures for which the practitioner receives consultant supervision without the Board's prior written approval.
9.These orders apply to all pre-operative and post operative care provided by the practitioner to patients, as well as operative procedures performed by the practitioner.
Mr McGushin has continued to practise in accordance with those conditions since July 2008. The conditions substantially reflect what we understand to have been the arrangements already in place with Fremantle Hospital. On 21 October 2008, the orders were varied to substitute Mr David Cooke as the supervisor in place of Professor David Fletcher.
The evidence of Professor Fletcher
A witness statement was received in evidence from Professor Fletcher, who reported that he had been content with Mr McGushin's progress in terms of his assessment and technical performance, and considered that he should not be restricted from performing laparoscopic or open abdominal procedures. Professor Fletcher expressed the opinion that Mr McGushin's problems at KRH resulted from isolation and excess work. He said that Mr McGushin had recognised the problems in his practice, had voluntarily accepted a period of retraining at Fremantle Hospital, and had taken appropriate steps to address the issues which he previously had. Professor Fletcher is of the opinion that any period of suspension imposed on Mr McGushin would now be counter‑productive to the effort that had been expended in significantly improving his standard of patient care.
The Board's submissions
The Board accepted that the regular reports which had been provided to it by the supervisors supported a conclusion that 'whatever may have been the case before the period of retraining at Fremantle Hospital, the respondent is presently competent to practise surgery subject to appropriate conditions'. It also accepted that the respondent would not present a danger to the community if allowed to continue to practise, provided appropriate conditions are placed on his return to practice. It submitted that, however, in light of the authorities to which reference was made, a period of suspension is necessary to maintain public confidence in the medical profession.
Reference was made to Craig v Medical Board of South Australia (2001) 79 SASR 545 at [553] ‑ [554] where it was observed:
Public interest may justify a penalty intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and to deter the practitioner from any further departure. An order might also be made to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct.
The Board relied particularly on the requirement to reassure the public and demonstrate to it that conduct of the type admitted by the respondent is not acceptable.
The Board also relied on the Medical Board of Western Australia v Pate [2007] WASAT 161. That case involved a single serious case of gross carelessness where the doctor concerned discharged an intoxicated and abusive patient into police custody without having examined him. The patient died a few hours later. Dr Pate was suspended for two months, with the Tribunal noting that it was necessary to convey a message to the public that medical practitioners aim to uphold high standards.
The question of maintaining confidence in the high standards of the profession was discussed by Jenkins J in Roberman v The Medical Board of Western Australia (2005) WASC 45 at [168]. Her Honour said:
Thus there were only two aspects of the protection of the public left for consideration. The first was general deterrence of like‑minded practitioners and the second was restoration of the public's confidence in the high standards of the profession. I do not suggest that these are not important matters to be considered in the process of fixing penalty but they must be placed in the factual context. The context was that the misconduct occurred approximately 10 years earlier. [F's] allegations had been known to the appellant's employer and others in that period and no complaint had been made to the respondent about the appellant's conduct in regard to this matter. However, since the Douglas Inquiry the appellant had received a great deal of adverse publicity and had been dismissed from his position because of the respondent's finding. His career, at the age of 61, was effectively over. These consequences to the appellant would be a very effective deterrent to any like‑minded practitioner, especially when the respondent was able to impose a significant monetary penalty and to reprimand the appellant.
Our attention was also drawn to the decision of Hasluck J in Thomas v Medical Board of Western Australia (2005) WASC 244 (Thomas v Medical Board of Western Australia). That case involved an appeal from a decision of the Medical Board to suspend Dr Thomas for a period of 12 months following findings in relation to the care provided to four former patients extending over a period of five and a half months. The findings against Dr Thomas were of gross carelessness and improper conduct. Various penalties were imposed by the Board in relation to each finding; in the case of most of the findings, periods of suspension of either six or 12 months were imposed but the periods were effectively concurrent so that a total suspension of 12 months was imposed.
As counsel for the Board observed, the decision in Thomas has certain similarities to the present factual situation. It involved several findings of gross carelessness. Dr Thomas had voluntarily ceased operating on patients and sought assistance from colleagues. Those restrictions in his practice resulted in financial detriment. Hasluck J declined to interfere with the Board's penalty, noting the principle that an appellate court should be slow to overturn a specialist Tribunal's findings on penalty unless the Tribunal's discretion has clearly miscarried.
On the basis of those authorities, the Board submits that public confidence in the medical profession demands that a penalty of suspension be imposed. It submits that the imposition of a fine, and conditions on Mr McGushin's practice would be an inadequate demonstration of the seriousness with which gross carelessness by medical practitioners is treated.
Counsel for the Board made eight points in support of the submission that a suspension from practice was appropriate.
The first matter to which counsel referred was that the admitted carelessness related to five patients, and involved multiple deficiencies in the respondent's practice. Emphasis was placed on the conduct relating to patient A which extended over a significant period of time and involved a number of failings on the part of the respondent.
Second, counsel pointed out that the conduct complained of extended over a period of six years, from 1999 till 2007.
Thirdly, counsel submitted that the conduct could not be explained as an isolated lapse, but rather demonstrated a systematic deficiency in the respondent's approach to his patients.
Fourthly, counsel observed that patient F haemorrhaged during the operation by Mr McGushin and subsequently died.
Fifthly, in relation to patient E, it was submitted that that patient lost the opportunity for earlier treatment in relation to the rectal tumour which Mr McGushin failed to detect.
Counsel's sixth submission was that the focus of the retraining undertaken by Mr McGushin was on his technical skills, rather than the full range of his care of patients and his clinical decision‑making. It was submitted that the Tribunal could not be confident that the required level of support and supervision would be available, and would prevent repetitions of the conduct, if Mr McGushin's right to practise was widened.
Seventh, counsel submitted that, on the basis of the authorities referred to earlier in these reasons, consistency required the imposition of a period of suspension.
Finally, it was submitted that a penalty by way of the imposition of conditions and a fine would not satisfy an informed member of the public that the penalty imposed was proportionate to the conduct the subject of the proceedings. The maximum penalty available under the Medical Act, which is applicable in this case, was $10,000. It was submitted that, even if the maximum fine were to be imposed in respect of each of the findings of gross carelessness, a fine would be seen as inadequate in the context of Mr McGushin's earnings at the relevant time.
Before moving to consideration of those submissions, it is convenient to consider the alternative to suspension which was urged upon us by counsel for Mr McGushin. That alternative was the imposition of conditions on Mr McGushin's registration. At the request of the Tribunal, the Board provided a set of draft conditions which it would consider appropriate were the Tribunal to decide that Mr McGushin's registration should not be suspended. The conditions suggested were as follows:
1.The Respondent may only practice [sic] medicine as an employee in a tertiary hospital.
2.The Respondent may only practice [sic] medicine under the supervision of Mr David Cooke or another supervisor approved in writing by the Medical Board of Western Australia (the Board) (the Supervisor).
3.The Respondent may not practice [sic] medicine until the Supervisor has informed the Board in writing that he or she agrees to report in writing to the Board every three months stating whether the Supervisor believes the Respondent is performing satisfactorily as a surgeon and identifying any concerns the Supervisor may have with the Respondent's performance and including the information required in condition 15(c) below. For the sake of clarity the first such report is to be provided on or before 3 August 2009.
4.The Respondent may not practice [sic] medicine upon receiving 7 days written notice from the Board that the Board has not received a report referred to in Condition 3 above (the Report Notice) until such time as the Board informs the Respondent that the report referred to in the Report Notice has been received and the Respondent may practice [sic] medicine.
5.The Respondent must keep a log in relation to each patient treated by him, in the form of Attachment A to these conditions.
6.The Respondent must:
(a)provide the Supervisor each week with a copy of the log kept in accordance with Condition 5 for the previous week; and
(b)discuss individual patient cases with the Supervisor when requested to do so by the Supervisor.
7.The Respondent must pay the Supervisor's costs, if any, of providing the reports referred to in Condition 3.
8.The Respondent must arrange an annual independent audit of his practice by an auditor approved in writing by the Board (the Auditor) the first audit to take place on or before 2 November 2009.
9.For the sake of clarity:
(a)the Board's approval referred to in Condition 8 above will not be given unless the Auditor agrees to provide a written report of each audit performed by the Auditor to the Board within 28 days of conducting an audit; and
(b)the audits referred to in Condition 8 may be conducted by different auditors.
10.In order to facilitate the audits referred to in Condition 8 above[,] the Respondent must:
(a)keep a copy of his operation notes in relation to any operation performed by the Respondent;
(b)keep a copy of any notes made by the Respondent in relation to any patient who has experienced complications after any operation performed by the Respondent; and
(c)provide the copies referred to in Condition 10(a) and (b) above to the Auditor.
11.The Respondent must pay the Auditor's costs of conducting the audits referred to in Condition 8 above.
12.The Respondent may not practice [sic] medicine upon receiving 14 days['] written notice from the Board that the Board has not received a report referred to in Condition 9(a) above (the Audit Notice) until such time as the Board informs the Respondent that the report referred to in the Audit Notice has been received and the Respondent may practice [sic] medicine.
13.The Respondent must not perform any colonoscopy or endoscopy procedure without the direct supervision of the Supervisor who must:
(a)be present for and watching the whole of any colonoscopy and endoscopy procedure; and
(b)verify the Respondent's diagnostic findings.
14.The Respondent must provide all and any consents to the Board that are required to enable the Board, its officers and agents, to access details of his clinical practice at any time.
15.The Respondent must not perform the complex intra-abdominal procedures and laparoscopic procedures in the schedule to these orders (the Schedule) except in compliance with the following conditions:
(a)the Respondent must be directly supervised by the Supervisor or another consultant surgeon nominated by the Respondent and approved in writing by the Board (Consultant Surgeon), during the first 5 (five) occasions on which the Respondent performs each procedure listed in the Schedule (Supervised Procedures).
(b)[f]or the sake of clarity:
(i)"directly supervised" means that the Supervisor or the Consultant Surgeon must be present for and watching the whole of the Supervised Procedure;
(ii)the supervision of the Supervised Procedures may be undertaken by different people;
(iii)before a person is approved by the Board to be a Consultant Surgeon[,] that person has agreed to provide a report of the Respondent's performance during each of the Supervised Procedures observed by that person to the Supervisor within 7 days of the Supervised Procedure being undertaken.
(c)[i]n each report referred to in condition 3 above[,] the Supervisor must inform the Board if the Respondent's performance during any Supervised Procedure was unsatisfactory or has been reported to the Supervisor by the Consultant Surgeon as being unsatisfactory (Unsatisfactory Supervised Procedures), that has not been referred to in any earlier report to the Board.
(d)[t]he Unsatisfactory Supervised Procedures shall not count in the total of Supervised Procedures carried out by the Respondent for the procedure the subject of the Unsatisfactory Supervised Procedure.
SCHEDULE
1. AP resection;
2. Anterior resection;
3. Bariatric surgery;
4. Bowel resection;
5. Excision of rectum;
6. Hartmann's procedure[;]
7. Loop colostomy;
8. Loop ileostomy;
9. Open cholecystectomy;
10. Repair of bowel perforation;
11. Reversal of Loop ileostomy;
12. Reversal of Hartmann's procedure;
13. Sigmoid colectomy;
14. Right hemi-colectomy;
15. Splenectomy.
Mr McGushin was content to accept all of the suggested conditions except for conditions 1, 13 and 15.
In respect to condition 1, Mr McGushin was prepared to accept a condition that he only practises medicine as an employee of South Metropolitan Health Service. That would result in his being employed in a tertiary hospital (in the case of the South Metropolitan Health Service, Fremantle Hospital) but would also incorporate the possibility of his operating in a regional hospital such as Rockingham Hospital. He submitted that he would remain under the overall umbrella supervision and authority of the Head of Surgery of South Metropolitan Health Service. In the course of the hearing, Mr Cooke expressed the view that an arrangement whereby Mr McGushin was able to work at the Rockingham Hospital would be satisfactory, and that he (Mr Cooke) would be in a position to maintain a general supervisory role were that arrangement in place. The conditions suggested by Mr McGushin would have the advantage, from a practical point of view, of increasing the prospects of a suitable position being available.
At draft condition 13, Mr McGushin did not accept that it is necessary for him to perform colonoscopies and endoscopies under the direct supervision of the supervisor as required by that draft condition. The restriction on the performance of colonoscopies and endoscopies, except under supervision, was included by the Board, apparently because Mr McGushin had not performed a sufficient number of those operations whilst under supervision at Fremantle Hospital to demonstrate his capacity to perform those operations. Mr Cooke did not consider that the restriction was either appropriate or required. The Tribunal was advised, however, that the parties were content to delete condition 13, but instead place colonoscopy and endoscopy procedures on the list of procedures contained in the Schedule to condition 15.
In respect of condition 15, although the parties were still negotiating at the time that the matter was heard before the Tribunal, they considered it likely that they would agree to the inclusion in condition 15 of a provision which would permit any of the procedures listed in the Schedule to be carried out 'with the consent of the Board'. The parties were confident that agreement could be reached as to the final wording of condition 15, and as to the list of procedures contained with in the Schedule. The Tribunal therefore did not hear submissions or evidence in relation to the precise formulation of the proposed condition 15.
Suspension or conditional registration
While recognising the substantial force of the Board's submissions as to penalty, we have reached the conclusion that, in the particular circumstances of this case, a period of suspension from practice is not appropriate.
There was no issue in these proceedings as to the fact that Mr McGushin was capable of providing competent and valuable surgical services to the public, subject to appropriate supervision. That supervision is available through Mr Cooke. Mr Cooke made the point, and we agree, that the imposition of a period of suspension would actually present a risk that Mr McGushin's technical skills may be diminished if he is unable to practise, and continue to develop, those skills for a significant period. In that sense, the protection of the public is better served by Mr McGushin being able to put into practice the benefits of the quite extensive period of retraining which he has successfully undertaken.
The first five factors identified by counsel for the Board supporting suspension go to the seriousness of the misconduct by reason of the number of patients involved, the extended period over which the conduct occurred, and the serious consequences of the conduct. We accept, as did Mr McGushin, the seriousness of his carelessness. Mr McGushin proffers by way of explanation, but not necessarily by way of excuse, his demanding workload over a long period of time, relative isolation of his practice with the resultant lack of collegiate support, and the pressures resulting from the absence of the type of facilities available in a metropolitan teaching hospital. We accept that, at least to some extent, the circumstances of Mr McGushin's practice contributed to his gross carelessness on the occasions identified. It is quite clear that Mr McGushin has, not only in these proceedings, but also by willingly undertaking the suggested program of retraining at Fremantle Hospital, acknowledged the nature and extent of his past errors, and he has taken quite dramatic steps to address those problems.
The sixth point relied upon by the Board was a concern that the retraining undergone by Mr McGushin concentrated on his technical skills, rather than the patient management and decision‑making issues which underlay the problems in his practice at KRH. It is apparent to us, however, from Mr Cooke's evidence that attention has been given to Mr McGushin's relationship with patients, and his clinical decision‑making, and that those aspects of his practice have also been satisfactory. We consider that supervision of the type contemplated, and the availability of collegiate support in the metropolitan area, will assist in avoiding problems of patient management and clinical decision‑making in the future.
As we have mentioned, the Board also relied upon a number of decisions of the Medical Board, the Supreme Court and this Tribunal in support of the proposition that suspension was called for. Finally, the Board submitted that anything less than suspension from practice would be perceived by properly informed members of the public as an inadequate response to the conduct admitted by Mr McGushin.
While it is true that, in Thomas v Medical Board of Western Australia, Dr Thomas had modified his practice following the allegations against him, the situation in this case has a significant distinction from the cases relied upon by the Board. The distinction is that Mr McGushin has voluntarily surrendered his practice as a consultant surgeon and instead undertaken a relatively quite junior position under supervision in a teaching hospital. Mr Cooke described Mr McGushin's position as an effective suspension. It is clear that, by agreeing to a period of retraining, Mr McGushin has subjected himself to a very substantial loss of income over a quite lengthy period. While the retraining position was not Mr McGushin's own idea initially, it is quite clear that he readily, and apparently quite enthusiastically, accepted it when it was proposed to him. That is to his credit. It is true that the Board subsequently obtained interim orders from this Tribunal which imposed formal restrictions on Mr McGushin's right to practise, but those restrictions were obtained by consent. Although granted on an interim basis, it is appropriate to regard those restrictions as a form of disciplinary penalty, and it is reasonable to have regard to the period of restriction served prior to finalisation of these matters when imposing a penalty for the substantive complaints. At the time of hearing of this matter, Mr McGushin had been subjected to significant restrictions on his practice, initially voluntarily and subsequently by order of this Tribunal, for 15 months.
In our view, an informed and objective member of the public would recognise that Mr McGushin's conduct has already had serious consequences on his right to practise, and that the significant ongoing restrictions constitute a significant penalty. Mr Cooke's analogy to 'an effective suspension' is, in our view, apposite to the consideration of the penalty which should now be imposed.
Counsel for the Board argued that the analogy of effective suspension is flawed, because it rests on a false premise that Mr McGushin was competent to continue practice as a consultant general surgeon. We do not accept that submission. The restrictions placed upon Mr McGushin's practice, effectively since January 2008, have arisen as a direct consequence of the conduct the subject of these proceedings. They are, in effect, a penalty for his conduct. At the time he assumed the restrictions, he was entitled to private practice as a consultant surgeon. He occupied a position at KRH which he voluntarily relinquished.
While we consider that the imposition of the restrictions on Mr McGushin's practice, both by reason of the interim orders and the proposed conditions on his registration, constitute a significant and substantial penalty, we do consider that it is appropriate to impose a fine which signifies that gross carelessness by a medical practitioner attracts a significant penalty. Under the Medical Act which applied at the relevant time, the maximum fine is $10,000. In our view, a fine of $10,000 as a global penalty in relation to all allegations, having regard to the significant financial impact which the restrictions on Mr McGushin's practice have had, and will continue to have, is appropriate.
In accordance with the usual approach by the Tribunal to questions of costs on vocational matters, there should be an order that Mr McGushin pay the costs of the Board in an amount to be agreed, or if not agreed, then to be fixed by the Tribunal.
We are satisfied that the interim restrictions, the conditions on Mr McGushin's continuing practice, a fine of $10,000 and the obligation to meet the costs of these proceedings are together adequate to bring home the seriousness of the practitioner's conduct and to emphasise to other members of the profession and the public, that this type of conduct is unacceptable.
The appropriate conditions
In our view, it is appropriate that condition 1 of the Board's proposed conditions be amended so as to require that the respondent only practise medicine as an employee of the South Metropolitan Health Service. The evidence of Mr Cooke and Mr McGushin was that a condition to that effect would result in Mr McGushin carrying out the more complex procedures at Fremantle Hospital, but having the capacity to carry out procedures elsewhere in the southern metropolitan region, and most likely at Rockingham Hospital. We are satisfied on the basis of Mr Cooke's evidence, that there would be sufficient collegiate support available in Rockingham Hospital, and that his supervision of Mr McGushin would provide adequate reassurance, so that Mr McGushin was not likely to lapse into any repetition of conduct of the nature of that which has given rise to these proceedings.
We accept that the issue as to the proposed condition 13 can be dealt with, as suggested by the parties, by the proposed reformulation of cl 15.
The parties should prepare a minute which reflects their agreement as to the final form of the conditions and the other orders necessary to reflect these reasons. They will have liberty to apply to the Tribunal in the event that the form of conditions is unable to be resolved by agreement.
I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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