Medical Board of Western Australia and Valibhoy - [2008] WASAT 17

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: MEDICAL ACT 1894 (WA)

CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA and VALIBHOY [2008] WASAT 17

MEMBER: JUSTICE M L BARKER (PRESIDENT)
PROF K FAULKNER (SENIOR SESSIONAL MEMBER)
DR P QUATERMASS (SENIOR SESSIONAL MEMBER)
MS B HOLLAND (SESSIONAL MEMBER)

HEARD: 26, 27, 28 AND 29 NOVEMBER 2007

DELIVERED : 30 JANUARY 2008

FILE NO/S: VR 87 of 2006

BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant
AND
ARIF VALIBHOY
Respondent

Catchwords:

Medical practitioner Gross carelessness or incompetence Surgical registrar working in hospital Whether failure to adequately record treatment plan Whether failure to record treatment plan in timely manner Whether failure to communicate treatment plan in adequate or timely manner Whether failure to make clear, timely and unambiguous record in patient's medication chart Whether failure to properly oversee implementation of treatment plan Whether failure to adequately supervise resident medical officer Allegations not established Application dismissed

Legislation:

Medical Act 1894 (WA)
State Administrative Tribunal Act 2004 (WA), s 32(1), s 32(2), s 32(4)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr M Zilko SC and Ms J Tavelli
Respondent: Mr J Ley and Ms S Norton

Solicitors:

Applicant: Liscia & Tavelli Legal Consultants
Respondent: Lavan Legal

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Jemielita v Medical Board of Western Australia (unreported; WASC; Library No 920584; 13 November 1992)
Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On 14 February 2003, a patient died at the Joondalup Health Campus two days after a routine operation.
In 2004, the events surrounding her death, and the care given to her by the hospital, its doctors and its nurses, were the subject of an Inquest by the State Coroner, and an inquiry by the Medical Board of Western Australia (exercising its previous jurisdiction as a disciplinary body) in respect of the responsible consultant medical practitioner.
The proceedings in the Tribunal concerned the conduct of the practitioner as surgical registrar at the hospital at material times on 13 February 2003. The Board alleged the practitioner was guilty of gross negligence or incompetence in his care of the patient and supervision of a junior doctor that day.
The Tribunal re-examined the events of 13 February 2003 with the assistance of the records of the earlier inquiries.
An important issue in the proceedings was the timing of the ward round by the consultant responsible for the patient's care, together with the practitioner and the junior doctor.
In contrast to evidence given at the previous inquiries, the Tribunal found that the ward round probably occurred just before 12 noon on 13 February 2003.
Primarily as a consequence of this finding of fact, the Tribunal found that the Board's allegations of gross carelessness or incompetence against the practitioner were not made out. The Tribunal therefore dismissed the application.

Issues

The applicant (Medical Board) alleges Dr Arif Valibhoy (the practitioner) was guilty of gross carelessness and incompetence in the care of a patient, Ms Cheryl Edmiston (the Patient) on 13 February 2003 at the Joondalup Health Campus. The Medical Board's application gave rise to three main grounds of carelessness or incompetence on the part of the practitioner:
(1)failing to record the treatment plan set in place by the consultant urologist, Mr Robert Thomas, on the morning of 13 February 2003 for the treatment of the Patient (the treatment plan);
(2)failing to adequately communicate the treatment plan to medical and nursing staff caring for the Patient; and
(3)failing to properly instigate and oversee the implementation of the treatment plan by other medical and nursing staff caring for the Patient.

Facts

The account of facts that follows is mostly not in dispute between the parties. However, some facts are disputed and are the subject of findings by the Tribunal.
On 12 February 2003, the practitioner was registered as a medical practitioner under the Medical Act 1894 (WA) and was engaged as a leaverelieving registrar in the Department of Surgery/Urology at the Joondalup Health Campus.
The practitioner first commenced in this leave-relieving registrar's position on secondment from Royal Perth Hospital on 20 January 2003. It was his first appointment as a surgery/urology registrar, as one component of his clinical duties for that term.
We will return to the question of the practitioner's experience later in these reasons for decision. It is sufficient to state at this point that, at material times, he had practised as a medical practitioner for about nine years after qualifying in Ireland.
On the morning of 12 February 2003, the practitioner arrived at an operating theatre at the Joondalup Health Campus to assist Mr Thomas, a consultant urologist, with a hydro-dilatation and bladder biopsy of the Patient, which commenced at 9.27 am.
At this time Mr Thomas was the consultant with primary responsibility for the care of the Patient. The practitioner, reporting to Mr Thomas, was the surgical registrar. Dr Stephanie Chetrit, reporting to the practitioner, was the surgical resident medical officer (resident) at the hospital also responsible for the care of the Patient. Accordingly, Dr Chetrit was the junior doctor reporting to the practitioner, who in turn reported to Mr Thomas.
Joondalup Health Campus guidelines for medical staff included job descriptions for consultants, registrars and resident medical officers.
During the procedure conducted on the Patient on 12 February 2003, the practitioner said that, under the guidance and supervision of Mr Thomas, he inserted a cystoscope and attempted to take three biopsies of the bladder. The practitioner said he had difficulty with the third biopsy and likewise had difficulty identifying the biopsy sites to cauterise them because his vision became obscured by blood in the bladder, at which time he asked Mr Thomas to take over cauterising the sites. Mr Thomas then cauterised the three biopsy sites.
Later, following the death of the Patient, a post-mortem examination identified five biopsy sites on the bladder which were all infected.
Throughout the procedure the Patient's condition was stable and there was no evidence of any surgical perforation of the bladder.
The Patient's first set of observations following the procedure were taken in recovery ward at 9.55 am and she was transferred from recovery at 10.55 am and admitted to ward 2E Surgical at 11 am.
It was intended that the procedure should be a day procedure only and the Patient would not remain in the hospital overnight.
When the Patient was transferred to ward 2E, she was monitored by nursing staff. No medications or intravenous fluids were charted for the Patient at this time.
In the event, the Patient remained in the hospital overnight.
During the night the Patient's vital observations were recorded at 6.30 pm, 8.20 pm and 10.30 pm. At 10.30 pm a bladder scan was carried out and 300 millilitres of fluid in the bladder was recorded on the nursing observation chart.
The nursing observation chart and the integrated progress notes suggest that the Patient did not pass urine post-operatively.
It appears that neither the consultant, Mr Thomas, nor the practitioner was notified by any member of the nursing or medical staff of her condition that day and was not advised that the Patient had been kept in hospital overnight.
The next morning, 13 February 2003, at approximately 4 am the Patient's temperature was recorded as 39 degrees Celsius, her pulse was recorded at 126 beats per minute and her blood pressure was 132/79.
At 4.30 am a second bladder scan was carried out and 149 millilitres of fluid in the bladder was recorded.
Between 5.15 am and no later than 6.30 am an in-out catheter was inserted into the Patient's bladder and 150 millilitres of bloodstained urine was recorded on the nursing observation chart.
At approximately 7 am the shift of Nurse Karen Watson began.
At 7.20 am the Patient's pulse was recorded as 128 beats per minute and her blood pressure was 85/60.
At around 8.30 am the Patient's urine sample showed 2,000 white blood cells, 3,100 red blood cells and significant growth of E. coli per microlitre.
Later Mr Thomas, the practitioner, Dr Valibhoy, and the resident, Dr Chetrit, together saw the Patient. Prior to these proceedings, and indeed during the early part of these proceedings, the accepted view was that the consultant, together with the practitioner and the resident, first saw the Patient at about 10 am to 10.30 am on 13 February 2003. However, a question has arisen in these proceedings, initially by reason of the expert opinion of Mr Donald Moss, which the practitioner now supports, as to whether that examination did not take place until as late as 11.30 am to 12 noon. We will return to this factual issue later. However, in general terms the sequence of the events that transpired is not in dispute.
On the morning of 13 February 2003, perhaps as early as 8.30 am, Dr Chetrit, the resident, reviewed the Patient for the first time. During this review, the Patient complained of lower abdominal pain, nausea and tiredness.
Later in the morning, perhaps commencing at about 9.30 am, the resident and the practitioner conducted a ward round and reviewed the Patient.
At 9.45 am it was recorded on the nursing observation chart that the Patient reported lower abdominal pain and was waiting for "doctor review". Whether the resident alone, or the resident and the practitioner, had seen her by this time is not clear from this record. However, at 10.10 am the Patient was orally administered tramadol for pain relief on Dr Chetrit's orders.
Eventually the consultant, Mr Thomas, the practitioner and the resident together saw the Patient.
While there is some lack of clarity as to exactly what Mr Thomas ordered following this examination, all three medical practitioners agree that Mr Thomas orally indicated a treatment plan that included:
•insertion of an indwelling catheter;
•intravenous fluid therapy;
•implementation and maintenance of adequate pain relief;
•arrangements to be made urgently for a computed tomography (CT) scan; and
•"nil by mouth".
The evidence suggests "nil by mouth" was ordered by Mr Thomas because the Patient had been orally administered tramadol on the resident's orders at 10.10 am.
Mr Thomas and the practitioner say that Mr Thomas also ordered the commencement of broad spectrum antibiotics. Dr Chetrit, however, does not recall hearing any such instruction.
Thus a further factual issue arises as to the terms of the treatment plan indicated by Mr Thomas on 13 February 2003; and also whether, if the instructions of Mr Thomas included the commencement of broad spectrum antibiotics, the resident was present; and, if not, whether the practitioner appreciated that Dr Chetrit may not have heard Mr Thomas specify that part of the treatment plan, and so had an obligation to inform her of it.
The practitioner says that soon after this, in the absence of the resident, he had a further discussion with Mr Thomas about the administration of antibiotics in order to clarify just what antibiotics should be administered. It appears the resident may have left the other two at around this point in order to organise the CT scan ordered by the consultant.
No notes were made on the Patient's chart kept at the entrance of the room or in the integrated progress notes normally retained at the nursing station concerning the Patient's treatment plan.
No nurse accompanied the consultant, the practitioner and the resident on the examination of the Patient.
The practitioner did not take or make any notes of the treatment plan following the review of the Patient conducted by Mr Thomas.
Whether or not the practitioner checked if any notes of the treatment plan were written down is an issue raised against the practitioner.
Apart from the practitioner apparently charting one of the antibiotics ordered by Mr Thomas - amoxycillin - he did not take any action in relation to the implementation of the treatment plan during the morning and early afternoon and apparently assumed the resident medical officer was doing so.
Nurses caring for the Patient at relevant times do not appear to have been told of the treatment plan by the practitioner or the consultant. However, there is a question whether the resident informed nursing staff of the plan at about 11.50 am, to which issue we will return.
Returning to the charting of amoxycillin by the practitioner, it appears that at some time prior to 11.50 am he wrote an order for amoxycillin (an antibiotic) 1 gram intravenously. It seems he intended the first dose of the amoxycillin to be given immediately but made no note at the time that it was to be "once and only".
Although it seems that the practitioner intended the Patient to be thereafter placed on a daily dose of antibiotics he did not write a time for amoxycillin to be given, instead writing "tds", meaning three times daily.
At approximately 11.45 am it was recorded on the nursing observation chart that the Patient's pulse was 135 beats per minute and her blood pressure was 76/41.
At about 12 noon the resident ordered 1,000 millilitres of intravenous normal saline to be given "stat" (that is, immediately) and 1,000 millilitres of intravenous normal saline to be given over six hours.
Some time before 12.10 pm, when the amoxycillin was administered by the nurse, the resident amended the prescription on the Patient's medication chart for amoxycillin 1 gram intravenous, to include the date and times for administration of the medication as 13 February 2003 at 8 am, 2 pm and 6 pm.
At some time before 12.30 pm, probably between 12 noon and 12.25 pm, the resident inserted the indwelling catheter in the Patient.
It appears that at some time between about 12 noon and 3.30 pm, the resident wrote an order for Flagyl (another antibiotic) to be given at 8 am and 6 pm.
The resident also charted gentamicin (another antibiotic) to be given at 10 pm. Whenever she did that, Dr Chetrit intended it to be given immediately, although she did not chart it in accordance with her intent.
At 12.10 pm amoxycillin 1 gram intravenous was administered by Nurse Watson.
At 12.25 pm pethidine 100 milligrams intramuscularly was administered by Nurse Watson.
At 12.30 pm the results of an analysis of urine taken from the indwelling catheter were recorded on the nursing observation chart.
Between 12 noon and 1 pm we would presume after the catheter was inserted - the Patient was transferred to the radiology department for the CT scan of her abdomen.
At 1.15 pm a telephone record of the Patient's biochemistry results was transcribed. Her creatinine level was recorded at 290 umol per litre and urea level was recorded at 10.8 mmol per litre.
While the various steps were being taken in connection with the treatment of the Patient, at about 1.30 pm the practitioner left the ward to join Mr Jesvinder Judge, a urological surgeon, in the operating theatre at the hospital to assist with a radical prostatectomy on another patient due to commence at 2 pm.
At various times between the time he commenced rounds with the resident in the morning and about 1.30 pm, the practitioner was probably on the ward and conducting ward rounds. Some of these ward rounds were with Mr Thomas. Others were with Dr Chetrit. We deal with these factual matters further below.
At approximately 2.30 pm the resident accessed the hospital's Lanier system and received a recorded report of the results of the CT scan of the Patient's abdomen. The recorded results indicated three findings:
•the cystogram showed a leak;
•there was much intra- and retroperitoneal fluid; and
•there was an ileus with a very distended stomach.
At approximately 3 pm the resident telephoned the operating theatre and, via a nurse acting as an intermediary, informed the practitioner of the results of the CT scan. We deal with the more detailed evidence concerning what passed between the practitioner and the resident below, but it included an instruction from the practitioner that the Patient be administered 'triple therapy' antibiotics.
At 3 pm it was recorded in the nursing observation chart that the Patient's pulse was 137 beats per minute and her blood pressure was 81/53.
At 4 pm it was recorded on the nursing observation chart that the Patient's pulse was 140 beats per minute and her blood pressure was 78/50.
Following that time the resident gave a nurse a verbal order to increase intravenous fluids to 500 millilitres per hour.
At approximately 5 pm Dr Chetrit met the practitioner as he was coming out of theatre and further informed him of the Patient's condition.
At approximately 5 pm the practitioner attended the Patient and ordered that a nasogastric tube be inserted. He then left the ward to speak to the radiologist, Dr Luke Matar, and to see the CT films.
After the practitioner saw the CT films he spoke to Mr Judge in the hospital's tea room about the Patient.
At approximately 6 pm the practitioner attended the Patient and noted for the first time that while three antibiotics were written on the Patient's chart, only amoxycillin had in fact been administered.
At approximately 6 pm the practitioner wrote a summary regarding the Patient's condition in the integrated progress notes.
The practitioner then ordered that all three antibiotics be given. He crossed out the order for gentamicin that had been written by Dr Chetrit earlier that day and wrote a new order under the section of the chart headed "Once Only and Pre-Operative Medication". He also reduced the dose to 160 milligrams as the Patient had gone into renal failure and gentamicin can affect renal function.
At 6 pm, Flagyl 500 milligrams was administered.
At 6.30 pm, gentamicin 160 milligrams and frusemide 20 milligrams intravenously were administered.
Between 6.30 pm and 6.45 pm the practitioner telephoned the consultant Mr Thomas. Mr Thomas apparently admonished the practitioner for the delay in the administration of adequate fluids to the Patient. It seems the practitioner did not then inform Mr Thomas about the delay in providing the antibiotic treatment.
A second dose of amoxycillin was given at 7.30 pm.
At approximately 8 pm the practitioner of his own volition ordered that ceftriaxone 1gram intravenously be administered.
At 9.20 pm two bags of gelofusion were administered to the Patient.
At approximately 9.45 pm the practitioner telephoned Mr Thomas a second time. Again it seems the practitioner did not inform Mr Thomas that antibiotics had not been given promptly as originally directed. Mr Thomas advised the practitioner to continue the current treatment regime.
Thereafter, at least two unsuccessful attempts to contact Mr Thomas by telephone were made. Indeed, Mr Thomas remained "uncontactable" until approximately 8.10 am the following morning, 14 February 2003. The Patient's condition continued to deteriorate during this period. She was eventually transferred to the intensive care unit at around 1.15 am on 14 February 2003.
On 14 February 2003 at 9.30 am Mr Thomas saw the patient and performed a mini laparotomy. Fluid taken from the abdomen of the Patient was subsequently tested and found to contain E. coli and enterococcus faecalis.
The Patient's deterioration eventually led to cardiac arrest and her death. Her death, the result of septic shock, possibly secondary to a major bowel complication, was certified at approximately 10.30 am on 14 February 2003.

Earlier inquiries

In 2004, following the death of the Patient, two separate though related inquiries were conducted concerning events surrounding the Patient's death. The two inquiries overlapped to an extent.
The first inquiry to be commenced was that of the Medical Board of Western Australia (prior to establishment of the State Administrative Tribunal) into the conduct of the consultant Mr Thomas, pursuant to the provisions of the Medical Act. The Board initially conducted hearings on 11, 12, 18 and 30 March 2004. The inquiry concerned allegations that the conduct of Mr Thomas in relation to four patients, including the deceased Patient, constituted improper conduct in a professional respect or gross carelessness and/or incompetency. The practitioner in these proceedings before the Tribunal, Dr Valibhoy, and the resident, Dr Chetrit, together with Mr Thomas, all gave evidence in the Medical Board proceedings.
Then, in April 2004, the State Coroner, Mr Hope, commenced an Inquest into the death of the Patient. In the course of that inquest, the telephone records of Mr Thomas were produced and evidence was given concerning Mr Thomas' whereabouts on the evening of 13 February 2003 when he was "uncontactable". This evidence had not been given at the earlier Medical Board hearing.
As a result, on 25 May 2004, an application was made by counsel assisting the Board to re-open the proceedings before the Medical Board to take account of the additional evidence given to the Coroner's Inquest. The Board decided to exercise its discretion to re-open the proceedings before it and take that evidence.
The State Coroner handed down his findings following the Inquest in a report dated 17 June 2004. The Coroner concluded as follows:
"The deceased was a healthy 41 year old woman who went to the Joondalup Health Campus with a very minor health problem.
I am satisfied that biopsies performed by Dr Valibhoy, a most inexperienced registrar, were much deeper into the bladder wall than should have been the case and that in at least one site the depth of the penetration allowed for infection to go from the bladder through into the extra-peritoneal space into the peritoneal cavity. The deceased suffered from extensive inflammation in the abdominal cavity (peritonitis) which developed over the course of the following two days.
Unfortunately although the condition of the deceased deteriorated over the day of the procedure and the early morning of the next day, it was not until the morning of 13 February, 2003 that the deceased was seen by medical practitioners.
By that stage the deceased had experienced a pain score of 8, a temperature as high as 39 degrees C, there had been an absence of urinary output, nausea, vomiting and an anomaly in bladder scans.
In the light of these complications I am satisfied that at the time of the review of 10:00 am on 13 February, 2003 the deceased was already suffering from sepsis.
In the light of the fact that infection had gone from the bladder through into the intraperitoneal and extraperitoneal space by that time it would have been necessary for a laparotomy to be conducted to take out the infected fluid from the abdomen and repair the defect in the bladder at the earliest practicable opportunity.
The need for laparotomy should have become obvious at the time of the CT cystogram results.
Before the laparotomy could be conducted it was necessary for the deceased to have received intravenous fluids and antibiotics to get her into the best possible clinical condition for the laparotomy to take place.
Even before the results of the CT cystogram were known, it was clear that intravenous fluids were required as were antibiotics and these had both been ordered. Unfortunately there were significant delays in the provision of both the fluids and the antibiotics.
The delay in taking aggressive action in this case was inexcusable and resulted in the death.
I find that the death arose by way of Misadventure."
The Coroner's jurisdiction did not and does not involve the exercise of any disciplinary jurisdiction against medical practitioners. That responsibility at material times in 2003 and 2004 fell to the Medical Board. Since 1 January 2005, the State Administrative Tribunal has exercised ultimate disciplinary supervision in such cases.
In those circumstances the Coroner's report did not purport to impose any disciplinary sanctions against the consultant, Mr Thomas, or the practitioners otherwise involved in the treatment of the Patient at material times.
However, the Coroner took the opportunity to comment on a number of public health and safety issues and made recommendations to the following general effect:
•better writing of medication charts;
•the need for a morbidlymortality conference procedure at Joondalup Health Campus; and
•review of hospital contracts with consultants.
The Medical Board handed down its decision and written reasons for it on 26 April 2005, following the completion of the hearing nearly a year earlier on 25 May 2004. In so far as the allegations made against Mr Thomas concerning his treatment of the Patient were concerned, the Board found that a number of allegations were established and constituted gross carelessness for the purposes of the Medical Act. These allegations included the following:
•Following receipt of the CT scan results at approximately 6.30 pm on 13 February 2003, which results clearly noted that:
"there is evidence of bladder perforation with evidence of intraperitoneal and extraperitoneal rupture. A markedly distended fluid filled stomach and proximal duodenum is noted",
he failed to attend on the Patient and make a personal assessment as to how serious her condition actually was.
•At 9.30 pm on 13 February 2003, he received a further report as to the Patient's progress and was informed that there had been no change in the findings on abdominal examination with generalised tenderness persisting and with tachycardia and low blood pressure. It was confirmed 1200 cc had been drained from the nasogastric tube and the Patient's pulse rate was 148158, her temperature 38.7 and her oxygen saturation was depressed with a respiratory rate of 38, yet he provided no further advice other than to continue fluid resuscitation and antibiotic therapy and he again failed to attend and make a personal assessment of the Patient's condition.
•Having been contacted at 6.30 pm and again at 9.30 pm, and being aware of the Patient's serious medical problems, he was uncontactable at midnight when a decision was made by the staff at Joondalup Hospital to transfer the Patient to ICU, and he remained uncontactable until approximately 8.15 am on 14 February 2003 at about which time the Patient developed respiratory and cardiac arrest.
In dealing with these allegations the Board necessarily had regard to the overall treatment and course of conduct involving the consultant Mr Thomas, the practitioner and the resident on 13 February 2003. In the course of so doing the Board necessarily formed a view of certain factual matters.
In the light of its findings, the Board later imposed disciplinary penalties on Mr Thomas.
The proceedings in the State Administrative Tribunal (the Tribunal) against the practitioner were then commenced by the Medical Board on 23 May 2006, nearly a year after the Board handed down its findings concerning Mr Thomas.
In the proceedings in the Tribunal the findings of the Coroner, and the findings of the Medical Board in the earlier proceedings concerning Mr Thomas, do not bind the Tribunal. The Tribunal is bound to deal with the proceedings against the practitioner, Dr Valibhoy, afresh and form its own view of facts pertaining to the allegations made against the practitioner. The proceedings in the Coroner's Court did not, of course, involve specific allegations against the practitioner (or the consultant or resident) of a professional nature. Nor did the proceedings in the Medical Board concerning the conduct of Mr Thomas involve formal allegations by the Board against the practitioner or the resident. Nonetheless, the actions of the consultant, the practitioner and the resident were relevant to each of those earlier inquiries.
As a result, in the proceedings in the Tribunal the parties agreed that the transcript of evidence of a number of persons given in both the Coroner's Inquest and in the earlier Medical Board proceedings concerning Mr Thomas should go into evidence. Accordingly, for example, the Tribunal received into evidence in the proceedings in the Tribunal transcript of the evidence of the practitioner, the resident, some of Mr Thomas' evidence, and the evidence of Nurse Watson. It also received transcript of the evidence of the Patient's partner, Mr Robert Ettridge.
The parties did not seek to call afresh, therefore, all of the witnesses who had given evidence in the earlier proceedings, but rather relied on the Tribunal's entitlement to have regard to the evidence given by these various persons to those earlier proceedings. The Tribunal is able to inform itself as it thinks fit and have regard to reliable information, such as the transcript of evidence from earlier proceedings: s 32(4), State Administrative Tribunal Act 2004 (WA) (SAT Act). Whilst the Tribunal is not bound by the rules of evidence, it is bound to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and to abide by the rules of natural justice: s 32(1) and s 32(2), SAT Act.
The Tribunal did however receive direct testimony from Dr Valibhoy, Dr Chetrit and Mr Thomas in the proceedings.

The Tribunal's approach to fact finding

In disciplinary proceedings of the nature brought against the practitioner, in assessing the evidence and making findings, the Tribunal applies what is commonly referred to as the Briginshaw approach. The description of the approach is drawn from the decision of the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449 450, Mason CJ, Brennan, Deane and Gaudron JJ explained this approach when they observed:
"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (footnotes omitted)
This Tribunal, as have former adjudicators, consistently applies this approach in the context of vocational or disciplinary inquiries where serious allegations of professional or occupational misconduct have been made and the reputation of a person or their capacity to engage in their registered livelihood is at stake. See for example the decision of this Tribunal in Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163 at [64] and the other decisions there referred to.
The Tribunal is bound to say that its task in finding facts relating to events that occurred in February 2003, nearly five years before the hearing in this Tribunal, and some three and a half years after the two earlier hearings in the Coroner's Court and the Medical Board, is not made any easier by the effluxion of time and the reliance made in a number of respects on the recorded testimony of witnesses given at the earlier proceedings.
Nonetheless, the Tribunal has paid close regard to the direct evidence given in the course of the hearing in this Tribunal as well as the documentary evidence, including transcript of testimony given by witnesses at the earlier hearings.

The question of the time of the examination of the Patient by Mr Thomas, together with the practitioner and the resident, on 13 February 2003; and whether the resident heard the order for antibiotics

As noted above, until quite recently, in the course of these proceedings, persons who have been called to give evidence about the events of 13 February 2003 concerning the Patient, have consistently suggested or accepted that the examination of the Patient conducted by Mr Thomas, with the practitioner and the resident, occurred in the morning at about 10 am - 10.30 am. While the question of the timing of this examination was raised in the Coroner's Inquest in April 2004 - because the mobile telephone records of Mr Thomas suggested that he may not have arrived at the Joondalup Health Campus until closer to 12 noon - relevant witnesses maintained a belief or did not challenge the statements of others that the examination occurred earlier in the day than the telephone records of Mr Thomas suggested.
If the Tribunal were to make a finding concerning the time of Mr Thomas' examination based on the recollections of relevant witnesses both at the Medical Board hearing in March 2004 concerning the conduct of Mr Thomas, and at the Coroner's Inquest in April 2004, then it would find that the clear view of some, accepted by others, was that the examination occurred between 10 am and 10.30 am, with Dr Chetrit apparently carrying into effect aspects of the treatment plan later in the morning, just before and soon after 12 noon.
However, if the Tribunal were to make a finding by reference to the times at which Dr Chetrit or nursing staff carried into effect the relevant parts of the treatment plan - which, as noted above, tend to occur just before and just after 12 noon, with the Patient being transferred to the radiology department for a CT scan between about 12 noon and 1 pm - and the mobile telephone records of Mr Thomas which suggest that he drove north along the Mitchell Freeway to the Joondalup Health Campus late in the morning and arrived at the hospital at around 11.45 am, then the Tribunal would conclude that it is most likely, indeed probable, that the relevant examination of the Patient did not occur until shortly before 12 noon.
Senior Counsel for the Medical Board, as previously had counsel assisting the Coroner at the Coroner's Inquest, suggested that Mr Thomas possibly left his mobile telephone at his home in Dalkeith earlier in the day before leaving the house and arriving at the hospital at around 10 am and, following examination of the Patient at around 10 am - 10.30 am, rushed home to retrieve his mobile telephone before returning to the hospital at around 11.45 am. This was a suggestion effectively forced on counsel by the documentary evidence concerning the times various aspects of the treatment plan were implemented by the resident, Dr Chetrit, and nursing staff.
The trouble with this suggestion concerning Mr Thomas' retrieval of his mobile telephone, however, is that it is unsupported by any evidence, unless one views the mobile telephone records of Mr Thomas, which indicate a lack of use of the mobile telephone by him for making outgoing telephone calls between 7.52 am and 11.15 am - a little over three hours - as supporting an inference that Mr Thomas was at some location distant from his mobile telephone. We find it difficult to draw the inference that Mr Thomas attended the hospital twice in the morning of 13 February 2003, as suggested by Senior Counsel for the Board. It is an inference the Board is forced to contend for from the established facts as to when the treatment plan was implemented in part just before and just after 12 noon. It is not an inference that can be drawn from any evidence that Mr Thomas has given because he has not said anything to suggest that he in fact did, or would have had reason to, rush home to collect his mobile telephone after earlier arriving at the Joondalup Health Campus and examining the Patient.
It is also complicated by the fact that on 13 February 2003 Mr Thomas had prior appointments to attend a hearing at the Family Court of Western Australia at 2.15 pm, and, before then, to meet senior counsel who was to represent him in those proceedings at 1.45 pm. If, it might be asked, Mr Thomas had left his mobile telephone at his home in Dalkeith when he left to first attend the hospital at about 10 am, why would he have rushed home to get the mobile telephone when he knew that later in the morning he would be travelling to the Perth Central Business District for his Family Court appointments? He would relatively easily have been able to detour by his home to collect his mobile telephone if he felt he needed it later in the day. Equally, if he was concerned to promptly attend the Family Court appointments, why would Mr Thomas have interrupted his hospital duties to make a round trip to his home in the middle of the morning when to do so might well compromise his ability to get to court on time?
It is appropriate then to consider in a little more detail the sequence of events at material times during the morning and early afternoon of 13 February 2003.
Dr Chetrit was asked to prepare a statement concerning her dealings with the Patient soon after the Patient's death. She apparently drafted a statement on Sunday, 16 February 2003, but did not settle and sign it until 18 February 2003, after obtaining some legal advice. The legal advice resulted in Dr Chetrit writing on the statement, "Legally privileged - prepared in anticipation of legal action".
In her statement, Dr Chetrit says that she first met the Patient at 8.30 am on 13 February 2003. She says that after she started her ward round that day the Patient was the second person she saw. When giving evidence at the Coroner's Inquest over a year later, in April 2004, Dr Chetrit explained how that came about. She said that in surgical jobs, "we start the ward rounds either at 7.30 or 8 o'clock, usually, because often the registrar has to go to theatre, I may even have to go to theatre" (Exhibit 1 at 558). The "we" referred to included the surgical registrar, who, in this case, was the practitioner, Dr Valibhoy.
Dr Chetrit recalled that on the morning in question, she was waiting for her registrar at 8 am and eventually decided to start the rounds herself without him. She stated to the Coroner:
"I always started on 2 east surgical and so I think I would have been there by about 8.30 [am], and so I would have started my round then. And I would have seen her shortly after 8.30 [am]." (Exhibit 1 at 558)
It seems that Dr Chetrit then charted tramadol, an oral medication, for the Patient's pain relief. She told the Coroner's Inquest that "… I thought that the nurse asked me to chart something else, and I charted some tramadol, which is also an oral medication" (Exhibit 1 at 558 - 559). The tramadol was, in fact, administered, according to the medication chart (Exhibit 1 at 1049), by Nurse Watson at 10.10 am.
The Tribunal would observe at this point that Dr Chetrit's estimation of time is generalised. She believes she started her round on her own at around 8.30 am. She believes that the Patient was the second person she saw on the round. On that basis, she thinks that she saw the Patient "shortly after 8.30 [am]" (Exhibit 1 at 558). However, if the times are a little out, for example, because she waited for a little longer after 8.30 am for her registrar, the practitioner, to arrive before setting off on the ward round on her own, and if the first person she saw on the ward round took a little longer to deal with than she later recalled, then she may well have seen the Patient much closer to the 10.10 am time when the tramadol was actually administered by the nurse. Unfortunately the tramadol order that Dr Chetrit gave does not show the time at which she ordered that medication.

If, as appears to be the case, Dr Chetrit ordered tramadol before the practitioner joined her for the ward round, then it is quite possible - on this scenario - that he did not join her until around 10 am. Against this, though, in her written statement dated 18 February 2003, Dr Chetrit says:
"At 9.30 [am] and 10 [am], the registrar, Dr Arif Valibhoy, and the consultant, Dr Thomas, respectively, joined me for a ward round. They both saw the patient whose pain had now worsened and whose pulse was rapid but regular."
This suggests that the practitioner and Dr Chetrit commenced ward rounds together at about 9.30 am, and together saw the Patient soon after; and then at 10 am, Mr Thomas joined the two of them in order to examine the Patient.
The Tribunal accepts that the timing suggested by Dr Chetrit in her statement dated 18 February 2003 is not meant to be precise. That this is so is probably confirmed by a document completed by nursing staff and entitled "Critical pathway: hernia" (the critical pathway document) (Exhibit 1 at 1293A) in respect of a male patient, who was also a patient of Mr Thomas and also a patient being looked after by the practitioner. It shows "Review by Surgeon" on 13 February 2003 at 10.15 am.
There was much discussion and debate at the hearing in the Tribunal as to whether "Review by Surgeon" should be read literally so that the document should be seen as conclusive proof that Mr Thomas saw this male patient at the hospital at 10.15 am on 13 February 2003; or whether, in fact, the reference to "Surgeon" might be a reference to the practitioner.
In the Tribunal's view the critical pathway document, when it refers to "Review by Surgeon", is not to be taken as necessarily referring to a review by the consultant looking after a patient, and may well refer to a review by a registrar. In this particular context, the Tribunal considers that the critical pathway document, where it refers to review by surgeon at 10.15 am, is as likely to be a reference to a review by the practitioner, in the course of conducting his round that day, as it is to Mr Thomas as consultant. In other words, no helpful inference can be drawn from the critical pathway document on its own concerning Mr Thomas' presence at the Joondalup Health Campus at 10.15 am, and certainly no conclusive inference can be drawn from the document in that regard.
Indeed, the critical pathway document tends to be more consistent, in the Tribunal's view, with the view that the practitioner and the resident were actually engaged together in carrying out a ward round on the morning of 13 February 2003 at about 10.15 am. The document is consistent with the evidence of Dr Chetrit that she first saw the Patient on her own and was later joined by the practitioner to carry out further rounds of patients.
The practitioner's evidence is that when he conducted rounds at Joondalup Health Campus, he ordinarily started on the first floor and finished on the second floor, where the Patient was located. If that is correct - and if the practitioner and Dr Chetrit, once they caught up with each other, commenced or continued the round in the way that the practitioner says he normally did - then they would not at 10.15 am have yet reached the Patient. A patient list of 26 names was produced at the hearing. A cursory glance suggests that, after removing names of patients whose treatment post-dated the events and other patients who were in other areas of the hospital, approximately 20 patients were seen or to be seen (see Exhibit 1 at 546AF) by the practitioner and the resident.
Even on Dr Chetrit's best recollection - that she and the practitioner saw the Patient early on after they caught up - it must have been after 10.30 am. We say this because we also know that, at 10.30 am, the practitioner and Dr Chetrit together saw another patient (referred to in the hospital records as Case E) and wrote out a plan that suggested that she should not be discharged that day. A note was made that the consultant (not Mr Thomas) asked that the patient be transferred to the Mount Hospital. From the nursing observation chart (Exhibit 1 at 546AH), and the integrated progress notes completed by Dr Chetrit (Exhibit 1 at 546AI), the Tribunal infers that both the practitioner and Dr Chetrit saw patient Case E at 10.30 am on 13 February 2003.
This sequence of events tends to support the view that the practitioner and Dr Chetrit were indeed on a round that had them seeing, perhaps amongst others, the patient referred to in the critical pathway document at 10.15 am and the patient referred to as Case E at 10.30 am.
When one bears in mind that the evidence of Dr Chetrit (which we accept) is that, after Mr Thomas identified the treatment plan for the Patient, including the requirement for an urgent CT scan, she (Dr Chetrit) then proceeded to implement that plan, first by going off to organise the CT scan with the radiology department, and was not thereafter engaged in doing the round with the practitioner, then it seems unlikely that the rounds suggested by the evidence of patients reviewed at 10.15 am and 10.30 am on 13 February 2003, were conducted after the examination of the Patient conducted by Mr Thomas with the practitioner and the resident. In other words, in the view of the Tribunal, it is much more probable that at the time the patient Case E was seen during the ward round of the practitioner and Dr Chetrit, the examination of the Patient by Mr Thomas, the practitioner and Dr Chetrit had not yet occurred.
The patient files provided to the Tribunal include one other entry which seems to shed some light on the time of the ward round. At about 10.50 am, a nurse completed the nursing discharge sheet for another male patient of Mr Thomas, Mr S. The nurse wrote that the discharge was authorised by "Dr Thomas". In a timeline of events prepared by the Board, the Board notes this event (Exhibit 6(2)), but says that it was Dr Chetrit who authorised Mr S's discharge. However, the medical records do not indicate whether Mr Thomas personally reviewed Mr S. We are unable to draw much from this entry and have received no other evidence explaining it.
In competition with our indicative view of the objective facts, Senior Counsel for the Medical Board suggests that by about 10.45 am, Mr Thomas must have decided to leave the hospital to return to his home in Dalkeith to retrieve his mobile telephone, which he must have left behind that morning before leaving for the hospital. Given, as we will see in a moment, that Mr Thomas, according to the mobile telephone records, seems to have "returned" to the hospital at around 11.45 am, he would need to have travelled quite quickly in exiting the hospital premises, returning to his motor vehicle, driving from the hospital south along the Mitchell Freeway and then to his home in Dalkeith, retrieving his mobile telephone from his home, returning to his motor vehicle, and then driving back along the freeway to the hospital, all within one clear hour.
Senior Counsel for the Medical Board asked the Tribunal to rely on its own knowledge of the roadways concerned and the likely time it would take to execute these manoeuvres. Counsel for the practitioner did not quibble with this suggestion. Relying on our own knowledge and drawing on Google Earth on the internet and the maps there provided, the distance from the Joondalup Health Campus to the residence of Mr Thomas in Dalkeith is approximately 36.8 kilometres by the most direct route along the freeway, which suggests a driving time of approximately 46 minutes, if one were driving conservatively. If one allows a little time for Mr Thomas to get to his car from the hospital premises in the first instance, to drive home, to exit his car to retrieve his mobile telephone from his home and return to his car, and to drive back to the hospital, then one might say that usually the return trip, if made conservatively, would take approximately 100 minutes. However, if Mr Thomas drove quickly - something which his mobile telephone records suggest he was capable of - then perhaps the suggested manoeuvre could be carried out within about one hour. However, it would be an impressive performance.
As noted above, the Tribunal struggles with the inference Senior Counsel for the Medical Board suggests it should draw in this way, especially in the absence of any supporting evidence from Mr Thomas himself that he was at Joondalup Health Campus at around 10 am 10.30 am, realised he did not have his mobile telephone and then, at about 10.45 am, rushed home to get it before returning to the hospital at about 11.45 am. As we observed earlier, why he would in the circumstances need to rush home to get his mobile telephone is not clear to us. If he needed his mobile telephone to assist his plans in relation to his Family Court appointments later in the day, then one would have thought it would prove convenient for him not to rush back in the middle of hospital ward rounds in the morning, but rather to collect the mobile telephone on the way to his Family Court appointments once his ward rounds were completed.
In any event, the submission made on behalf of the Medical Board depends on a number of inferences being drawn from the observable facts. The mobile telephone records of Mr Thomas in question for 13 February 2003 (Exhibit 1 at 546AN) and other direct evidence from Mr Thomas show that he made a telephone call at 7.25 am to a friend. He spoke to that friend for more than 26 minutes. The records disclose that because he was on the telephone, a voice mail was deposited to the message bank at 7.25 am. There are then no outgoing telephone calls made by Mr Thomas until 11.15 am when he telephoned the Joondalup Health Campus. So, from about 7.50 am - when the telephone call to the friend would have ended - until 11.15 am - a period of over three hours - Mr Thomas does not make any outgoing calls on the mobile telephone. However, at 10.09 am and at 10.42 am, voice mails are deposited on the mobile telephone. In other words, he did not take two calls received at that time. This leads the Medical Board to suggest that it was during that period that Mr Thomas was at the Joondalup Health Campus examining the Patient.
The 11.15 am telephone call to the Joondalup Health Campus seems to have been made either from the home of Mr Thomas or, more likely, from his motor vehicle, as the base station used for the purposes of making the call was "Dalkeith N". The home base station appears to be just "Dalkeith". Further, the next call after 11.15 am is at 11.27 am from the base station at West Perth. This was to the telephone of Mr Thomas' solicitors handling the Family Court proceedings. He then makes further calls at 11.37 am, using the Warwick base station, for directory assistance, and then he makes a call at 11.40 am, using the Wanneroo base station. At 11.41 am, he uses the Woodvale base station to telephone a mobile telephone number, and then at 11.44 am, he uses the Edgewater base station to telephone his parents, who live not far from Joondalup at Kingsley. While he is speaking to his parents (for three and a half minutes), a voice mail is deposited on his mobile telephone at 11.45 am, using the Joondalup base station.
After 11.45 am, the next entry on the mobile telephone records of Mr Thomas is at 12.43 pm, using the Padbury base station and seeking directory assistance. Mr Thomas then appears to make a number of calls as he travels south in his car, including numbers that use the Warwick base station, the Stirling base station, the West Perth base station and the "Tunnel W" base station. The last of these entries is at 12.54 pm. The next entries after that involve deposits to voice mail at 1.56 pm and 3.16 pm. We know that Mr Thomas was to meet his barrister at 1.45 pm and was due to appear in the Family Court "not before 2.15 pm". It would appear that he turned his mobile telephone off at those relevant times.
(We should note in passing that Mr Thomas' mobile telephone records only record outgoing calls or incoming calls logged to message bank. They do not otherwise record calls received.)
From these records, the Tribunal can reliably conclude that Mr Thomas left his home in Dalkeith at some time not long before 11.15 am in order to travel to Joondalup Health Campus, and probably arrived at Joondalup at about 11.45 am.
We can also reliably infer that he left the Joondalup Health Campus at some time before 12.43 pm and was travelling through or near the Graham Farmer Tunnel, in the vicinity of the Perth CBD at around 12.54 pm, hardly 15 minutes after the call for directory assistance at 12.43 pm using the Padbury base station.
From these records, one might perhaps reasonably infer that on 13 February 2003, Mr Thomas was travelling fast. It at least seems reasonable to infer that he may well have been able to cover the distance from his home in Dalkeith to the Joondalup Health Campus in a little over half an hour. That, in turn, suggests that it may have been possible for Mr Thomas to have made the return journey from the Joondalup Health Campus to his home and back in around an hour.
But as we have stated above, this possibility does not, of itself, lead to an inference that that is what Mr Thomas did on the day in question. As we have said, there is no other objective evidence to support the inference that that is what Mr Thomas did on that day. For example, neither the practitioner nor Dr Chetrit has given any evidence that in any way supports an inference that Mr Thomas, having examined the Patient, decided to rush home to get his mobile telephone. Mr Thomas did not say anything to suggest that he, in fact, did that. One would think it would be something that Mr Thomas would have recalled, if he did do it, on the important day of his Family Court proceedings. In evidence, he acknowledged that he did not invariably carry his mobile telephone with him. But he did not give evidence that it was his invariable practice to return home for his mobile telephone when he forgot it.
In the result, the Tribunal is far from satisfied that it can or should draw an inference that at about 10.45 am on 13 February 2003, Mr Thomas left the Joondalup Health Campus, travelled to his home in Dalkeith, collected his mobile telephone, which he had left behind earlier in the morning, and then returned to the Joondalup Health Campus at around 11.45 am. The suggestion that Mr Thomas did this is, in our view, sheer speculation.
What we think more likely, on the objective facts before us, is that Mr Thomas telephoned the practitioner upon his arrival at the Joondalup Health Campus, probably around 11.45 am, the time that the mobile telephone records suggest he arrived in the Joondalup vicinity. We think the estimate given by the practitioner and Dr Chetrit that Mr Thomas arrived to meet them and see the Patient some five minutes or so after that telephone call, is probably accurate. The impression we hold from the evidence is that Mr Thomas made his way to see the Patient rather quickly upon learning that she was still in hospital following the expected day-only procedure the day before. We think the evidence that he examined her, admonished the practitioner and Dr Chetrit for allowing the Patient to take fluid or medication by mouth, and then orally specified a treatment plan, probably did not take all that long, despite some evidence from the practitioner that it may have taken 30 - 40 minutes. We consider that the entries then made and the steps then taken for intravenous fluids and the antibiotic amoxycillin to be administered, at around 11.50 am or just before then, are consistent with Mr Thomas having seen the Patient, ordered urgent steps be taken, and for some initial notations to be made in the records concerning amoxycillin and the administration of fluids. The catheter was then inserted probably soon after, say, between 11.50 am and 12.25 pm. The results of a urine sample were available at 12.30 pm. The CT scan was then organised it seems no later than 1 pm.
We know that following the examination by Mr Thomas of the Patient, Mr Thomas and the practitioner continued on their round to see other patients of Mr Thomas, unaccompanied by Dr Chetrit. The nursing observations (Exhibit 1 at 1293) show that another patient, Mr H, was discharged by Mr Thomas at 12 noon. The nursing observation record (Exhibit 1 at 1293) has an entry for 12 noon which states "S/B Mr Thomas for discharge". That entry is generally understood to mean "seen by Mr Thomas" who authorised discharge.
This sequence of events is consistent with the evidence we have heard, namely, that, following examination of the Patient, Mr Thomas and the practitioner proceeded to do the rounds of other patients of Mr Thomas.
It is primarily the recollection of Dr Chetrit that seems to contradict this documentary-based assessment of when Mr Thomas, the practitioner and Dr Chetrit together first saw the Patient on 13 February 2003. However, the Patient's partner, Mr Ettridge, is another whose evidence seems to be at odds with this documentary account. At the Coroner's Inquest he recalled having been with the Patient at around 10 am 10.30 am when she was first seen by Mr Thomas. He then recalled that later - at around 12 noon or so - steps were being taken for the catheter to be inserted. At that point he decided to go downstairs where he purchased some flowers for the Patient. He was able to produce to the Coroner's Inquest a printout of the transaction for the purchase of the flowers which shows he bought them at 12.28 pm.
This evidence is entirely consistent with much of what we have laid out. That is, just after 12 noon, Dr Chetrit took steps to arrange for the insertion of the indwelling catheter in the Patient. It seems on the best assessment of the evidence that the catheter was inserted soon after 12 noon and probably by 12.15 pm. The only real inconsistency between the view that the initial examination was later in the morning and Mr Ettridge's evidence is his recollection that the initial examination by Mr Thomas was some two hours earlier than the time Dr Chetrit was organising for the catheter to be inserted.
Mr Ettridge was asked by the Coroner whether the time of 10 am was something that he specifically recalled and not something he had just picked up from reading the reports or statements of other people. He responded:
"No, it’s actually the reason I recall it is because at that stage, I did have my phone in case there was any calls from work … We'd just started up a business and it did get quite busy and my partner was running it at that time, so that was about the time that I checked, when all the doctors came in whether there was any - - any calls I needed to do." (Exhibit 1 at 853)
While the practitioner seems to have thought that the whole period of discussion and consultation may have taken about 30 40 minutes, Mr Ettridge thought that Mr Thomas was in the room with the Patient "for about five minutes" (Exhibit 1 at 853). He recalled that Mr Thomas "had stern words" with the other doctors. This seems to be consistent with other evidence that the practitioner and Dr Chetrit gave that Mr Thomas was not happy that the Patient may have taken fluids or medication orally when she required "nil by mouth". When the three medical practitioners left the room, Mr Ettridge did not see where they went, although he added (Exhibit 1 at 854) "that [he was] pretty certain that they all stopped outside the door together".
It is also important to note the evidence of Nurse Watson given at the Coroner's Inquest. She said that morning up to 11.50 am she believed no doctor had seen the Patient, for whose welfare she was concerned. She said that about then Dr Chetrit came into the Patient's room and advised her to arrange "fluid, IV antibiotics, pain relief, catheter" (Exhibit 1 at 710-711).

Taking all the evidence into account, we consider that Mr Thomas probably concluded his examination of the Patient over a short period of time - in the order of five minutes - as suggested by Mr Ettridge, rather than a longer period of time as suggested by the practitioner. However, we also accept that most probably the three practitioners did also meet briefly outside the Patient's room and that soon enough Dr Chetrit went off urgently to organise the taking of the CT scan. Probably, after she left, the practitioner had the further conversation with Mr Thomas that he says he had, concerning precisely what antibiotics should be administered. The charting by the practitioner of amoxycillin, probably not long before 11.50 am, is consistent with these events.
For our part, we have great difficulty understanding why, if Mr Thomas' initial examination was at about 10 am to 10.30 am, it would have taken Dr Chetrit between one and a half and two hours to complete the task of arranging the indwelling catheter. There is some evidence - mainly emanating from the practitioner - that Dr Chetrit was a little slow in completing that task and was admonished by Mr Thomas for not having completed the job. Dr Chetrit had a vague recollection about that, as she explained at the Coroner's Inquest. However, even if there were some delay, it may have been, from Mr Thomas' point of view at the time (because he has no recollection of admonishing Dr Chetrit), that he considered a delay between giving the instruction for the insertion of the catheter at about, say, 11.50 am, and discovering a little after 12 noon - perhaps after he had seen the male patient, Mr H, at 12 noon and had discharged him - that it was an unnecessary delay. Any such remark may have hurried Dr Chetrit up in completing that task. In any event, there is no evidence suggesting a delay of up to two hours in arranging for the indwelling catheter to be inserted.
The Tribunal appreciates that in the Medical Board proceedings involving Mr Thomas' conduct in March 2004, as well as in the Coroner's Inquest proceedings in April 2004, the (largely) unchallenged view was that Mr Thomas examined the Patient at about 10 am - 10.30 am. However, notwithstanding that view, and notwithstanding the subsequent passage of time that has resulted in witnesses not now being able to recall events with the same degree of clarity as they could in 2004, we are not at all satisfied that the time of the examination of the Patient alleged by the Medical Board of between 10 am and 10.30 am on 13 February 2003 is reliable. In fact, we think it far more likely, for the reasons we have explained above, that the examination occurred 10 - 15 minutes before 12 noon on 13 February 2003, and that the antibiotic order was made soon afterwards, the fluids were soon put up, the indwelling catheter was soon inserted in the Patient, and the Patient soon enough had the CT scan, most of these things done or supervised by the resident.
Accordingly, we think the documentary evidence is quite strongly in support of the view that the examination in question most probably occurred later in the morning, near noon, rather than earlier in the day at 10 am - 10.30 am. We are not at all convinced that we are obliged to draw, or can draw, an inference that Mr Thomas must have been at the hospital earlier in the day and then rushed home to collect his mobile telephone, which explains the mobile telephone record of calls made en route from Dalkeith to Joondalup Health Campus between 11.15 am and 11.45 am. In any event we are not comfortably satisfied that the examination in question took place earlier in the morning at around 10 am - 10.30 am.
As to the prescribing of the broad spectrum antibiotics, Mr Thomas is clear that he initially ordered them. In evidence to the Tribunal, consistent with earlier evidence to the Board and Coroner, he thought he probably ordered "triple therapy". However, in a report prepared for the Coroner in early 2004, he stated he ordered amoxycillin and gentamicin only.
The evidence of the practitioner over the various hearings is that he was unsure exactly what antibiotics were required, and raised that with Mr Thomas, in the absence of Dr Chetrit - who had probably gone off to order the CT scan - who advised him that amoxycillin and gentamicin should be administered.
The Tribunal considers that it is most probable that Mr Thomas did not specifically nominate those two drugs, at least initially, and probably mentioned "triple therapy", as he now says he did. The fact that he wrote the names of the two drugs in his report to the Coroner in early 2004, is probably to be explained by the fact that, at that point, Mr Thomas would have reviewed the nursing observation chart and the medication chart from 12, 13 and 14 February 2003 and, having noted that those drugs were administered, probably assumed that he had expressly mentioned them at or immediately following the review of the Patient on the morning of 13 February 2003.
The Tribunal accepts that Mr Thomas most probably did initially include broad spectrum antibiotics in his generally stated treatment plan following examination of the Patient. However, the Tribunal also accepts that, on further enquiry from the practitioner, he may also have mentioned amoxycillin and gentamicin specifically.
As to why the practitioner then wrote up amoxycillin, but not gentamicin, on the medication chart, we are at a loss to explain, as is the practitioner.
As to whether Dr Chetrit was present when the order concerning broad spectrum antibiotics was given by Mr Thomas, we are less certain. She has consistently said that she did not hear any such order made. She has consistently maintained that it was only after 12 noon when she saw the colour of urine from the Patient that she realised that antibiotics needed to be administered and at that point she consulted the medication chart. At that point Dr Chetrit says she noted amoxycillin had already been written up. Dr Chetrit did not believe that she had already written gentamicin in the medication chart before the practitioner wrote in the amoxycillin. She maintained that she did not hear any order from Mr Thomas for broad spectrum antibiotics and decided, of her own accord, to administer them, or at least gentamicin and amoxycillin in the first instance.
Dr Chetrit gave evidence to the Coroner's Inquest (Exhibit 1 at 645) that she remembers looking at the amoxycillin entry and being surprised that it had been written and asking why it had not been given.
Nurse Watson commenced a shift at 7 am on 13 February 2003. She administered the tramadol to the Patient at about 10.10 am following Dr Chetrit's order. Nurse Watson apparently did not have any further contact during the morning with Mr Thomas, the practitioner or Dr Chetrit. Then in about the middle of the day she saw Dr Chetrit. She could recall opening the medication chart, with another nurse and Dr Chetrit present, and asking, "Oh, there's amoxycillin written up. When was that written up?" Nurse Watson recalls Dr Chetrit replying, "Just a moment ago". Nurse Watson then proceeded to administer the amoxycillin at 12.10 pm (Exhibit 1 at 709).
Nurse Watson's initial recollection was that only amoxycillin was entered and not gentamicin. Her recollection was that the amoxycillin was a new entry "standing on its own when I opened the chart, because I recognised that it was a new entry" (Exhibit 1 at 709). Nurse Watson did not believe that Dr Chetrit ordered any more medications at that time (Exhibit 1 at 710).
Nurse Watson in her evidence to the Coroner's Inquest emphasised that right up to about 11.50 am, she believed that no doctor had seen the Patient and she was still anxious that a doctor should see the Patient. She said (Exhibit 1 at 710 - 711):
"I was just trying to get a doctor to see Cheryl, and - - all morning. And then I came out finally at 11.50, still believing that no doctor had seen Cheryl, so I went to the desk and myself, and as I said [sic] in there 'will a doctor please see Cheryl?' At that point, Stephanie [Chetrit] walked into Cheryl's room and then came back and said, 'fluid, IV antibiotics, pain relief, catheter' … I didn't see her write any - - I didn't see her write it. It was written. I clearly remember opening the chart and seeing a new entry … And that was the Amoxycillin."
Nurse Watson was insistent (Exhibit 1 at 711) that the Flagyl, written below the amoxycillin, was not recorded at the time when she saw the amoxycillin entry for the first time.
As to the gentamicin entry, which was at the foot of the earlier page of the medication chart, Nurse Watson said she could not "honestly" remember seeing gentamicin there.
In any event, Nurse Watson was quite clear that the only antibiotics she then administered after speaking with Dr Chetrit was the amoxycillin.
If one accepts the evidence of Nurse Watson as constituting a reasonably reliable recollection of the course of events, it suggests that at 11.50 am Dr Chetrit had a reasonably clear understanding of what the treatment plan was: fluids, IV antibiotics, pain relief, catheter. They of course were the instructions Mr Thomas had earlier given following the examination of the Patient.
We can see no reason to doubt Nurse Watson's account of the course of events. It is further evidence, in context, that suggests Mr Thomas' instructions had only recently been transmitted to the practitioner and the resident. The instructions also rather suggest that IV antibiotics were indeed required by Mr Thomas.
The Tribunal does not doubt that before long the resident also observed the discoloured urine of the Patient and probably considered that antibiotics were called for or justified. But we suspect that the sequence of events was that: Mr Thomas gave the instructions, including in respect of antibiotics; the practitioner entered up amoxycillin; gentamicin should have been entered at that point but was not; oral instructions were given by Dr Chetrit to Nurse Watson; later Dr Chetrit realised that gentamicin needed to be administered and that entry was then made in the records and placed at the foot of the page preceding the amoxycillin entry; and then later on in the afternoon Flagyl was ordered by Dr Chetrit.
As we have already noted, following the examination of the Patient by Mr Thomas together with the practitioner and Dr Chetrit, the practitioner and Mr Thomas proceeded to complete the round in respect of other patients of Mr Thomas. Dr Chetrit, however, was not engaged in the continuance of the round. Rather, she had urgent jobs to do in respect of the Patient, including arranging an urgent CT scan and the administration of the treatment plan as she understood it.
In these circumstances, having regard to the notations made in the hospital records and the oral evidence of Nurse Watson we have referred to, the resident seems to have set about her tasks appropriately and promptly. Of course, the gentamicin was not listed as soon as it should have been, and was not entered appropriately. It should have been charted for immediate administration and then at prescribed intervals. Instead it was only charted for 2200 hours (10 pm) daily.
The Tribunal notes that, in the record of investigation into death in relation to the Patient conducted by the Coroner, the Coroner concluded that:
"It is not now possible to determine whether Dr Chetrit was present when Mr Thomas referred to antibiotics in the morning of 13 February 2003 and she states that she has no recollection of their being mentioned." (Exhibit 1 at 113 114)
The Medical Board in its reasons for decision in the proceedings concerning Mr Thomas (Exhibit 1 at 215) noted that:
"Dr Chetrit gave evidence that she had been absent from the room for five to ten minutes when she left to organise the CT scan. She gave evidence that after [the Patient] left for the CT scan later that afternoon (the two series were taken at 1.29 pm and 1.47 pm), she wrote some notes about the instructions she heard and why the steps to be taken had been ordered. Those notes do not appear in the hospital documentation. When asked to explain this Dr Chetrit said she must have written the notes on a separate sheet of paper and that she does not know why these are not in the hospital records."
In the earlier proceedings concerning Mr Thomas in the Medical Board, the Medical Board (Exhibit 1 at 215 - 216) also noted the observation and treatment steps taken from 11.45 am to when the indwelling catheter was inserted. Incorrectly, the reasons of the Board state that the catheter was not inserted until 2.30 pm. Plainly the notes record that it was inserted at 12.30 pm. However, the comment of the Board concerning the delay in the insertion of the catheter remains relevant:
"No explanation was advanced by any witness to explain the delay in the implementation of this aspect of the treatment plan ordered by [Mr Thomas]."
In her evidence to the Tribunal, Dr Chetrit agreed that Mr Thomas had asked for the Patient to have intravenous fluids and a catheter and that she had instructed the nurses on duty to do these things. When asked whether she thought that there had been a delay in putting up the fluids, Dr Chetrit answered "No" (T:46).
Dr Chetrit could only remember that once she had been given the instructions by Mr Thomas she went to organise the CT scan. It appears that she did this by telephone. She thought that there might have been some delay in telling the nurse to put the fluids up while she ordered the scan.
As to the insertion of the catheter, Dr Chetrit said that she had had her memory jogged at the Coroner's Inquest by the practitioner's evidence to the effect that Mr Thomas had admonished her about not inserting the catheter immediately. However, she also agreed that Mr Thomas was not on the ward for terribly long. She indicated that she had been with him when he gave the instructions and they had also had a conversation about the Patient, but there was not much of a gap between those two conversations (T:55).
However, Dr Chetrit could not say that she had put the catheter in soon after that conversation with Mr Thomas because she could not remember when she put the catheter in. However, she did recall seeing Mr Thomas leave the ward, because she was still "talking on the phone" (T:55). She explained that Mr Thomas and the practitioner left the ward together to see Mr Thomas' other patients. She said she saw them leave "as I was doing something else" (T:55). She explained that she was still working on organising the CT scan at that stage (T:56).
We think it likely that after organising the CT scan Dr Chetrit attended to other aspects of the instructions she had heard from Mr Thomas, including instructing Nurse Watson to put up the fluids, administer antibiotics and insert the indwelling catheter.
There is no evidence before the Tribunal, or previously given to the Coroner's Inquest or the Medical Board, that suggests that Dr Chetrit spent between two hours and an hour and a half (between 10 am or 10.30 am and just before 12 noon) organising a CT scan. Rather the evidence suggests that having left Mr Thomas and the practitioner to organise the CT scan she returned and, at some point, possibly was chastised for having taken a little while to proceed to insert the catheter. The Tribunal considers that possibly the proper inference to be drawn is that, after the initial examination of the Patient or during that examination, Dr Chetrit went off to organise the CT scan. When she returned Mr Thomas was in the vicinity of the Patient's room. If he did admonish her concerning the slow insertion of the catheter, it was at that time. It may be inferred that he expected the catheter to be inserted almost immediately. When this did not happen he may have commented on the perceived delay.
There is though no proper basis to infer that the organisation of the CT scan took one and a half to two hours. Dr Chetrit set about organising it immediately after Mr Thomas required it. The patient was taken to the radiology department for the CT scan between 12 noon and 1 pm. The first series of the CT scan occurred at just before 1.30 pm.
Nor is there any other evidence to suggest that having organised the CT scan following Mr Thomas' examination of the Patient, Dr Chetrit went off on the ward round with the practitioner and Mr Thomas indeed, the evidence is to the contrary. There is no other evidence to suggest that Dr Chetrit conducted any other rounds on her own or engaged in any other activities save in relation to the treatment of the Patient.
All of these factors lead us to believe that Mr Thomas, the practitioner and Dr Chetrit must have seen the Patient much closer to 12 noon in the late morning, rather than between 10 am and 10.30 am. We also tend to think that Dr Chetrit became aware of Mr Thomas' initial instruction for broad spectrum antibiotics either because she heard the instruction or because it was later relayed to her by the practitioner in what he said was his usual practice. We also accept, however, that the oral instruction concerning antibiotics, one of the number of orders made verbally by the consultant, may not have been fully understood by the resident, just as it apparently was not by the practitioner who soon after sought to clarify that order.

Ground 1 - Treatment plan not recorded adequately or in a timely manner

In the substituted grounds of application dated 16 August 2007 the Medical Board alleges that the practitioner may be guilty of gross carelessness and incompetence in the care of the Patient on 13 February 2003 at the Joondalup Health Campus in relation to five particularised facts, individually and cumulatively. The first factual allegation is that the treatment plan was not recorded by the practitioner adequately and in a timely manner.
As we have noted above, there is no dispute between the parties that the practitioner did not record the treatment plan devised by the consultant, Mr Thomas, on the morning of 13 February 2003. The practitioner's position is that he relied on Dr Chetrit, his resident medical officer, to make an adequate and timely record of the treatment plan.
The facts as we have found them are materially as follows:
•The practitioner and his resident were both present, subject to what we say below, when Mr Thomas gave his instructions for treatment of the Patient.
•The treatment plan included fluids, broad spectrum antibiotics, insertion of an indwelling catheter and arrangement of a CT scan of the abdomen and pelvis.
•However, the instructions concerning broad spectrum antibiotics were not so clear that the registrar and the resident would necessarily have understood or appreciated what particular antibiotics should be administered. Indeed, in a series of verbal instructions the instruction could have been unclear or even overlooked.
•This is emphasised by the fact that the practitioner says he made further enquiries of Mr Thomas concerning the administration of antibiotics and was advised that gentamicin and amoxycillin should be prescribed.
•It is not clear that the practitioner took steps to ensure that the additional instructions clarifying what antibiotics should be administered were passed on to his resident; although he may have done so in accordance with what he says was his usual practice at the time.
•The resident did not hear Mr Thomas clarify with the practitioner that gentamicin and amoxycillin should be administered.
•The resident was absent at some point during, but most probably just after, Mr Thomas' examination of the Patient in order urgently to arrange the CT scan.
The parties called expert witnesses to express their opinions as to the responsibilities of the practitioner in relation to the treatment of the Patient and the supervision of the resident, Dr Chetrit, and generally in respect to the allegations made against the practitioner. Mr Moss and Dr Patrick Hertnon were called by the Medical Board. Professor David Fletcher, Mr Stan Wisniewski and Dr Bradley Power were called by the practitioner. Each of the experts was well qualified to address the matters in issue.

Mr Moss is a urologist. His qualifications include Fellowship of the Royal Australasian College of Surgeons from 1974. He has had supervisory roles for the training of urologists over almost 20 years. He has served as Chairman of the Board of Urology. He was President of the Urological Society of Australasia. He has an awareness of the levels of expertise that are necessary in trainee registrars and in urology and urologist training.
Dr Hertnon is a member of the Royal College of General Practitioners, the Royal New Zealand College of General Practitioners and the Royal Australasian College of General Practitioners. He has had 10 years' experience in post-graduate medical education at Fremantle Hospital. He has served on the executive of the Confederation of Postgraduate Medical Councils. He was recently awarded the Geoffrey Morrell Medal for outstanding service to postgraduate medical education. His area of expertise is in pre-vocational training although he has also had considerable experience at the undergraduate level and also in the vocational training of general practitioners.
Professor Fletcher is the foundation professor of surgery at Fremantle Hospital since 1994. He is a fellow of the Royal Australasian College of Surgeons, also since 1974. He also holds a doctorate in medicine. His research interest is in surgical outcomes and epidemiology. He has published numerous papers and presented numerous papers. He conducts a number of research projects. He is currently the Clinical Director of Surgical Services at Fremantle Hospital and Head of the Department of Surgery. He is the Supervisor of Surgical Training. He is also on the West Australian Board of General Surgery which supervises all surgical trainees.
Mr Wisniewski is a urologist practising in Perth. He is Vice President of the Urological Society of Australia and New Zealand. He is an examiner for the Royal Australasian College of Surgeons and has practised urology for 25 years.
Dr Power is a graduate of the University of Western Australia in 1981. He qualified as a general physician in 1987. Since 1991 he has worked as a specialist in intensive care. His work predominantly has been at the coalface. He has spent a significant portion of time interacting with junior staff and watching consultants interact with patients and other consultants. As well as working clinically he has an interest in safety and quality matters with the Australia and New Zealand Intensive Care Society and sits on a number of educational committees.
The expert witnesses produced separate reports which went into evidence. In accordance with the Tribunal's usual practices, the experts, save for Mr Wisniewski who was not available on the day set for the taking of expert evidence concurrently, gave their evidence concurrently at the hearing in the Tribunal. Mr Wisniewski gave his evidence separately before the others.
Prior to the hearing all the experts produced a joint report setting out the matters upon which they agreed and those on which they disagreed and the reasons for their disagreement.
In Part 4 of the joint report (Exhibit 1 at 956CL), the experts dealt with the question of responsibility of the practitioner in the absence of Mr Thomas, and asked the question whether the responsibility of the practitioner was altered by the fact that Mr Thomas was going to be in the Family Court on the day in question. The experts expressed the view that they did not think Mr Thomas could delegate his responsibility as the doctor in charge to the more junior doctor (the practitioner), and if he was to be unavailable he should have made another consultant aware of his unavailability. The experts did not feel that the decision of Mr Thomas to make himself unavailable in the Family Court changed the responsibility of the practitioner. The experts confirmed their joint view when they gave evidence concurrently at the hearing.
The Tribunal accepts that the absence of Mr Thomas from the hospital during the afternoon of 13 February 2003 did not mean that the practitioner became "the most senior medical practitioner responsible for the care of the patient". That practitioner was still Mr Thomas. In broad terms the responsibility of the practitioner as a surgical registrar remained the same throughout 13 February 2003, as it would have been if Mr Thomas had remained at the hospital or had remained available to provide advice.
There are a number of particulars given in respect of Ground 1. The first is:
"(a)The Treatment Plan comprised interalia, the commencement of broad spectrum antibiotics comprising Gentamicin, Amoxycillin and Metronidazole (Flagyl), insertion of an indwelling urethral catheter, administration of narcotic analgesia and arrangement of a CT scan of the abdomen and pelvis."
It is agreed all round that the "treatment plan" was a series of oral instructions given by Mr Thomas after he examined the Patient on the morning of 13 February 2003.
No contemporaneous note of Mr Thomas' instructions has been produced in any of the proceedings. Dr Chetrit, as noted earlier, said she made notes, probably on the patient list that day, but they never found their way onto the medical records. The evidence of her notemaking is a little unclear. It seems that she made the notes later that day and not at the time the review was conducted or completed by Mr Thomas (Exhibit 1 at 570).
In Part 2 of the joint report (Exhibit 1 at 956CJ 956CK), under the heading "The responsibilities of Doctor Valibhoy with regards to documentation", the experts dealt with the question of whether it was the practitioner or Dr Chetrit who was obliged to record Mr Thomas' instructions. They agreed:
"The experts considered that the responsibility for such documentation generally lay with the RMO [resident]." (Exhibit 1 at 956CK).
The practitioner accepts that while this is the general rule, the resident can only be obliged to record those parts of a consultant's instructions of which they are aware. Thus if a registrar in the practitioner's position appreciates that the resident is not aware of all the instructions given by the consultant then the registrar has an obligation to pass relevant instructions on to the resident.
As noted above, the Tribunal tends to think Dr Chetrit possibly heard Mr Thomas' initial instructions for broad spectrum antibiotics; but not clarification of those instructions that Mr Thomas later gave the practitioner. We accept the practitioner's evidence that he, at some point - when Dr Chetrit was not present - sought to clarify with Mr Thomas what antibiotics should be administered. Mr Thomas advised him to administer gentamicin and amoxycillin.
The Tribunal considers that in circumstances in which the practitioner found it necessary to seek clarification from the consultant, it was incumbent upon him to convey the clarifying instructions to the resident.
This is emphasised by the facts, which are agreed all round, that broad spectrum antibiotics were not initially recorded in the medication chart by anyone, although the practitioner entered amoxycillin and later the resident, Dr Chetrit, entered gentamicin; and at some time later again Dr Chetrit ordered Flagyl.
The failure of the practitioner and/or the resident to chart the relevant antibiotics at material times was a most unfortunate event in the course of the treatment of the Patient.
The practitioner assumes that he would have followed his usual practice and in fact conveyed to the resident Mr Thomas' instructions once clarified. However, on all the evidence before us, we are unable to make a positive finding that he did so. By the same token, we are unable to conclude that he did not. As a result we accept he may have done so.
As we have noted earlier, particularly by reference to the evidence of Nurse Watson, which is not contested before the Tribunal and which we find helpful, just before 12 noon the resident seems to have been aware of the need for antibiotics to be administered.
As we have noted, the practitioner wrote up amoxycillin. Most probably he did this around 11.50 am. We think it most probable, and find accordingly, that when the practitioner wrote up the amoxycillin in the medication chart, Dr Chetrit had not by then written up the gentamicin or Flagyl. It is confusing and troubling, as we have said, that the practitioner did not chart all the necessary antibiotics at that point. However, in light of our consideration of the likely knowledge of the resident, we consider, on balance, that it was reasonable for the practitioner to expect that the resident would appropriately chart the required antibiotics.
Even if one can be critical of the practitioner's failure to complete the charting of the required medication having commenced on that task, as we are, we do not think, in all of the circumstances, that his failure to do so - given the reasonableness of the understanding that the resident would follow through with the implementation of the treatment plan - constitutes "gross carelessness" and/or "incompetence".
In Jemielita v Medical Board of Western Australia (unreported; WASC; Library No 920584; 13 November 1992), Owen J held that these words mean gross carelessness or inability by a medical practitioner to attend to the requirements of a patient with reasonable skill and care, where the level of carelessness or incompetency has reached a level which other practitioners of good repute or competence would regard as intolerable and deserving of disciplinary action for the protection of the public.
Justice Owen accepted that gross carelessness is conduct which reflects a greater departure from the standards demanded of a reasonable and competent practitioner exercising reasonable skill, care and diligence. It is more than conduct which is described as "merely" careless or that degree of want of due care which will satisfy the description of "negligence" for the purposes of civil liability.
We do not think that in the particular factual circumstances described, it can reasonably be found that the practitioner was guilty of gross carelessness or incompetency by failing himself to complete the charting of the antibiotics in accordance with the instruction given by the consultant. We say this because of our view that a positive finding cannot be made that the practitioner failed to convey the consultant's clarification of his instructions concerning antibiotics to the resident. He may well have done so.
We have also found that it is most probably the case that the review by the consultant of the Patient on 13 February 2003 took place between about 11.45 am and 12 noon. We accept that the practitioner must have recorded the amoxycillin on the chart around 11.50 am. Dr Chetrit then recorded the gentamicin, it seems at about 12 noon. In these circumstances it is difficult to say that the charting of the amoxycillin and the gentamicin did not happen or did not happen in a timely fashion.
Accordingly, we do not consider that it is open to the Tribunal to find that the practitioner did not record the treatment plan in an adequate and timely fashion as alleged.

Ground 2 - Adequate and timely communication of the treatment plan

In the substituted grounds of application the Medical Board alleges that the practitioner may be guilty of gross carelessness and incompetence in the care of the Patient on 13 February 2003 at the Joondalup Health Campus in that the treatment plan was not communicated in an adequate and timely way to the medical and nursing staff caring for the Patient.
Having regard to the Tribunal's finding in respect of when Mr Thomas examined the Patient with the practitioner and Dr Chetrit in the late morning, and the other findings made in respect of Ground 1, the Tribunal is unable to find that it was necessary for the practitioner to do anything else than what he did in respect of Mr Thomas' instructions.
In Part 1 of the joint report of the experts (Exhibit 1 at 956CH 956CJ), the experts propose the question "Did Dr Valibhoy have a responsibility to ensure that Dr Chetrit understood the treatment plan?". The experts felt that the practitioner did have a responsibility to supervise the resident and that he had a responsibility to ensure that the resident knew the care that she was required to provide.
The experts considered that if Dr Chetrit was present for the whole of the discussion with Mr Thomas and the ward round then they felt it would be an acceptable standard of conduct to take it at "face value" that a second year resident understood the treatment plan (Exhibit 1 at 956CI).
However, the experts considered that if Dr Chetrit was not present for the whole of the discussion, then they felt that the practitioner had a responsibility to reasonably form the view that Dr Chetrit understood and was able to carry out that that was required of her (Exhibit 1 at 956CI).
We have already found that we tend to the view that Dr Chetrit possibly did hear the initial instructions given by Mr Thomas for the administration of broad spectrum antibiotics. We have also said that we cannot conclude that the practitioner did not convey the later clarification provided to him by Mr Thomas that amoxycillin and gentamicin should in particular be administered.
Having regard therefore to the evidence of the expert witnesses we find that it is not appropriate to conclude that the practitioner failed to meet his responsibility that Dr Chetrit understood the treatment plan late in the morning of 13 February 2003. In the circumstances we also find that it was not necessary for the practitioner separately to convey the instructions concerning the treatment plan to the nursing staff, as he could reasonably expect that the resident would do that.
Indeed, having regard to the evidence of Nurse Watson, to which we referred earlier, the resident did purport to convey the treatment plan to nursing staff.
In these circumstances we do not consider that it is open to the Tribunal to find that the treatment plan was not communicated to medical and nursing staff caring for the Patient in an adequate and timely manner as alleged.

Ground 3 - Failure to make clear, timely and unambiguous record in the medication chart

In the substituted grounds of application the Medical Board alleges that the practitioner may be guilty of gross carelessness and incompetence in the care of the Patient on 13 February 2003 at the Joondalup Health Campus as a medical practitioner prescribing drugs, by failing to record a precise, clear and timely order for the administration of the antibiotics required by the consultant, Mr Thomas, in the treatment plan in the Patient's medication chart. Specifically it is alleged that the manner in which the respondent charted amoxycillin for the Patient was inadequate and he should also have charted gentamicin and Flagyl.
The experts in the joint report in Part 1, however, make it clear that the practitioner's charting of amoxycillin for the Patient did not fall below an acceptable standard. They said:
"With regard to the charting of amoxycillin, by Dr Valibhoy, the experts considered that this had been charted or prescribed at an average standard. The experts felt that whilst the annotation of specific times would have brought the prescription to a 'gold standard' failure to do so was not unacceptable. The experts noted that it had been administered in a timely fashion." (Exhibit 1 at 956CJ)
The Tribunal is unable to make any positive findings that Mr Thomas expressly instructed that Flagyl be administered. He says he originally ordered "triple therapy" which we accept he did. However, as explained above, we also accept the evidence of the practitioner that he clarified the instructions of Mr Thomas that broad spectrum antibiotics be administered and was told that amoxycillin and gentamicin in particular be given. Thus, while the initial instruction may possibly have included Flagyl, and it seems later in the early afternoon the resident administered Flagyl, the specific instruction from Mr Thomas was to administer amoxycillin and gentamicin.
The practitioner charted amoxycillin. Shortly afterwards the resident charted gentamicin. Some time later - it seems between 12 noon and 3 pm - the resident also charted Flagyl.
We have earlier stated that we find that the amoxycillin was charted by the practitioner before the gentamicin was entered. We in particular rely on the evidence of Nurse Watson. Although Nurse Watson in the Coroner's Inquest qualified to some extent her evidence in this regard, we are satisfied, having regard to the evidence as a whole including that of Dr Chetrit, the practitioner and Nurse Watson, that the amoxycillin was entered first and that the gentamicin was entered subsequently. In these circumstances the Tribunal tends to think that while there is no clear explanation for why the practitioner did not proceed to chart all necessary antibiotics at the time he charted amoxycillin, the relevant antibiotics were in fact charted and were charted in a timely way and in a manner which did not fall below an acceptable standard.
On the probable sequence of events as we have found them, where we consider Dr Chetrit charted the gentamicin after the practitioner entered the amoxycillin - all between 11.50 am and around 12 noon - and where the practitioner then went off on other rounds with Mr Thomas before going to theatre with Mr Judge at 1.30 pm, there was no other reasonable opportunity for the practitioner to note the incorrect record the resident made in respect of the gentamicin, which required the administration of that drug at 2200 hours (10 pm) instead of immediately and thereafter at stated periods.
Accordingly, we do not consider it is open to the Tribunal to find that the practitioner did not make a clear, timely and unambiguous record in the medication chart as alleged.

Ground 4 - Failure to oversee the implementation of the treatment plan

In the substituted grounds of application, the Medical Board alleges that the practitioner may be guilty of gross carelessness and incompetence in the care of the Patient on 13 February 2003 at the Joondalup Health Campus, as the most senior medical practitioner responsible for the care of the Patient, by failing to properly oversee the implementation of the treatment plan by other medical and nursing staff caring for the Patient.
We have already dealt with the allegation that the practitioner was the "most senior medical practitioner caring for the patient". That person was and remained at all material times the consultant, Mr Thomas.
The allegation in other respects, however, has four primary components to it:
•The practitioner failed to review the Patient or check on her condition prior to leaving the ward to go to theatre.
•When telephoned by Dr Chetrit in theatre about 3 pm, he failed to provide her with clear instructions as to what he expected her to do next in the implementation of the treatment plan.
•When telephoned in theatre by Dr Chetrit at 3 pm and given the CT scan results, he failed to seek sufficient other information from Dr Chetrit to enable him to make his own assessment of the Patient's condition.
•When telephoned in theatre by Dr Chetrit at 3 pm and told of the Patient's condition he failed immediately to leave theatre and review the Patient.
We have already found that most probably the last review of the Patient conducted by the practitioner before going to theatre at about 1.15 pm - 1.30 pm, was when the practitioner was in the company of Dr Chetrit and Mr Thomas during his examination of the Patient at about 11.45 am - 11.50 am.
In the joint report of the experts, the experts addressed the question:
"Should Dr Valibhoy have reviewed Ms Edmiston before going to theatre after 1315 hours? Did Dr Valibhoy have a responsibility to review Ms Edmiston at this time?"

The experts felt the responsibility to provide a further review of the Patient was significantly affected by the timing of the morning ward round. They expressed these alternative views:
•If the ward round was between 10 am and 10.30 am, then the experts felt that failure to provide some further review of the Patient before departure for theatre would fall below a minimum standard.
•If the ward round was between 11.30 am and 12.30 pm, the experts felt that failure to make any review before departure to theatre would not necessarily fall below a minimum standard. (Exhibit 1 at 956CH)
In light of the findings we have made as to the timing of the review by Mr Thomas between about 11.45 am and 12 noon, we accept the opinion of the experts expressed jointly, having regard to all of the facts we have already mentioned, that the failure of the practitioner to conduct a further review of the Patient did not fall below a minimum standard.
The evidence of both Dr Chetrit and the practitioner about Dr Chetrit's telephone call to the practitioner in theatre about 3 pm is that Dr Chetrit did not speak directly to the practitioner over the telephone but spoke to a nurse who relayed her messages to the practitioner and relayed the practitioner's responses to Dr Chetrit. Mr Judge, who was the surgeon conducting the procedure, could not contradict that evidence, although initially he thought that the telephone may have been held to the practitioner's ear. We accept that the telephone call made by Dr Chetrit was a relay through the intermediary in a manner the practitioner suggests.
We also find that there is no substantial dispute between Dr Chetrit and the practitioner about the nature and clarity of the instructions which he gave to her via the intermediary. They were to ensure that the Patient was on "triple therapy" - amoxycillin, gentamicin and Flagyl. Whatever shorthand expression was used both the practitioner and the resident understood what was being said. Dr Chetrit says she responded to that instruction from the practitioner by saying she had already administered triple therapy.
We conclude there is no basis for a finding that there was any lack of clarity of the instructions which the practitioner gave to Dr Chetrit over the telephone from the theatre.
Both Dr Chetrit and the practitioner said that when Dr Chetrit telephoned the practitioner in theatre she read out the results of the CT cystogram which indicated that the Patient had a perforated bladder, a distended stomach and paralytic ileus. Dr Chetrit said that although she was concerned by those results, the Patient did not seem particularly unwell at that time and was quite stable. Although neither she nor the practitioner could remember it, we accept it seems likely she communicated that information to the practitioner as well.
The practitioner said he could not recall exactly what questions he asked Dr Chetrit or what information she provided other than the results of the CT scan. However, he said he concluded that the Patient had not deteriorated since he had reviewed her with Mr Thomas earlier in the day. In those circumstances he believed he could finish his task in theatre assisting Mr Judge and review the Patient later.
In Part 5 of the joint report of the experts (Exhibit 1 at 956CL 956CM), the experts addressed the question of the responsibility of the practitioner to leave theatre and directly attend the Patient. The experts commented that:
"A decision to remain in theatre would require that some confirmation be sought regarding the other components of the treatment plan. It was considered that despite the difficulties of phone communication in such cases, a decision to remain in theatre would require that sufficient questions should be asked to ensure that the patient was 'stable enough' to not come to harm from the anticipated period of delay. It was felt that specific questioning of the RMO, by Dr Valibhoy would have been required at this stage." (Exhibit 1 at 956CM)
The experts in giving evidence concurrently expanded considerably on their view. The surgeons in particular confirmed the difficulty that a medical practitioner experiences when receiving telephone calls in this way in theatre. They confirmed that often such conversations are short and that information is provided in an abbreviated way. Mr Moss said that to achieve an acceptable standard it was necessary only for the practitioner in theatre to ascertain the Patient on the ward was stable and had not deteriorated since they had last seen the Patient.
Having regard to the evidence of the expert witnesses, particularly the surgeons, Mr Moss, Mr Wisniewski, and Professor Fletcher, the Tribunal is satisfied that the practitioner understood from the communications with Dr Chetrit that the Patient was stable and not deteriorating. In those circumstances we do not think that his immediate decision to stay in the operating theatre should be criticised. The experts also acknowledge that it is a difficult decision to make, especially for a surgical registrar, whether to remain in theatre or to go to a patient in such circumstances. They said that it was a decision which was difficult to make even if the registrar had many years of experience. It would have been more difficult for a practitioner such as the respondent who had very limited surgical and urological experience.
The procedure which the practitioner was assisting with was a radical prostatectomy, which was a major procedure. Although the practitioner had virtually no surgical or urological experience he said that Mr Judge had telephoned him the week before and had asked him whether he would be able to assist him in the surgery. Mr Judge agreed that he would have done that. This suggested that Mr Judge at least believed that he required the assistance of the surgical registrar. All the expert witnesses, particularly the surgeons, confirmed that assistance of a surgical registrar is appropriate. If the registrar is not available then another registrar should be called or possibly a resident could assist. The assistance of a nurse would be a last resort.
In all the circumstances the Tribunal accepts that it was appropriate for the practitioner to form a judgment as to whether or not his role in theatre was required.
Of course it may have been different if the surgeon the practitioner was assisting in theatre had made it quite clear to him that he need not remain and indeed should leave theatre to attend the patient. In this regard there is evidence from the practitioner that when the results of the CT scan were conveyed from Dr Chetrit, Mr Judge said words to the effect:
"That's not my patient is it?"
Mr Judge could not recall saying that but did concede that he may have said something along those lines at the time, or possibly later in the day after theatre when the practitioner consulted him about the results of the CT scan in the tea room.
It is not unreasonable to say that if an experienced surgeon such as Mr Judge had merely observed in the theatre that he hoped the patient was not his, but had not expressed any other form of guidance as to what the practitioner should do, in terms of ceasing to assist the surgeon, leaving theatre and reviewing the Patient, that is a factor that any experienced surgical registrar was entitled to take into account along with other factors that day. It is also reasonable to bear in mind - as the expert witnesses, especially the surgeons, Mr Moss, Mr Wisniewski, and Professor Fletcher, emphasised - that the registrar and the resident, following the examination of the Patient by Mr Thomas in the morning, would not have been left with the impression that the Patient's condition was likely to deteriorate as a result of a perforated bladder. While the practitioner had initially been concerned about perforation when Mr Thomas examined the Patient, the evidence suggests that Mr Thomas to a considerable extent allayed those concerns. It is not unreasonable to think, as Professor Fletcher emphasised in his evidence to the Tribunal, that the practitioner would need to overcome that deficit before considering, upon learning the results of the CT scan, that he must rush to review the Patient. This would especially be so in light of information from the resident that the Patient's condition appeared to be stable, or at least had not deteriorated. Nonetheless by the time the practitioner made more detailed notes in the integrated progress notes at about 6 pm, he had made a careful and reliable assessment of the Patient's condition, as Mr Moss emphasised in his evidence.
In the joint report of the experts, they said this:
"The experts felt that a decision to request that the surgeon excuse him from theatre would be the preferred course of action in this case. The experts felt that a more expedient departure from theatre was the 'gold standard' despite the subsequent failure of Dr Thomas to change management in response to the CT scan findings.
Drs Hertnon, Power and Fletcher deferred to the expertise of Drs Wisniewski and Moss in discussions regarding the actual importance of Dr Valibhoy staying in theatre. Drs Wisniewski and Moss outlined that the surgery Dr Judge was performing can be complex and skilled surgical assistance is valuable at certain stages of it." (Exhibit 1 at 956CM)
The Tribunal accepts the substance of the evidence of the experts that a decision to leave surgery in such circumstances is a difficult balancing exercise, even for an experienced surgeon. In the event, the Tribunal does not believe that the decision of the practitioner to remain in theatre, in all the circumstances, was conduct that fell below a minimum standard.
Accordingly, we do not consider it is open to the Tribunal to find that the practitioner failed properly to oversee the implementation of the treatment plan by other medical and nursing staff caring for the Patient as alleged.

Ground 5 - Failure to supervise the resident medical officer

In the substituted grounds of application the Medical Board alleges that the practitioner may be guilty of gross carelessness and incompetence in the care of the Patient on 13 February 2003 at the Joondalup Health Campus as the most senior medical practitioner responsible for the care of the Patient, by failing adequately to supervise the resident medical officer, Dr Chetrit. In making this allegation, the Medical Board relies on the particulars to the preceding four grounds of complaint.
Because none of the earlier grounds, in our opinion, can be made out, this ground alleging overall failure adequately to supervise the resident must fail.
Accordingly, we do not consider it is open to the Tribunal to find that the practitioner failed adequately to supervise his resident medical officer.

Conclusion and Order

For the reasons given above, the Tribunal is not satisfied that the conduct of the practitioner Dr Valibhoy at material times on 13 February 2003 fell below the minimum standards expected of him as a surgical registrar at the Joondalup Health Campus having responsibilities for the care of the Patient, Ms Edmiston, and the supervision of his resident medical officer, Dr Chetrit, and other relevant nursing staff.
In so finding, the Tribunal should not be understood to have found that there were not serious shortcomings in the overall treatment provided to the Patient on that day, which cumulatively and tragically led to her death.
We have noted the findings earlier made by the Medical Board in 2004, following an inquiry into the conduct of Mr Thomas, the consultant surgeon responsible for the overall care of the Patient.
We have also noted the findings and recommendations of the Coroner following his Inquest into the death of the Patient, which report was handed down in 2004.
We consider the various suggestions made by the Coroner to be warranted and sensible so far as improvements in the administration of medical, nursing and hospital procedures are concerned.
Undoubtedly, the death of the Patient was avoidable. The failure of the system to work adequately is indefensible.
However, on the factual evidence before us we do not think it reasonable to conclude that the surgical registrar, Dr Valibhoy, conducted himself in ways that fell below the minimum standards expected of a surgical registrar in all of the circumstances.
Accordingly, the application of the Medical Board concerning the conduct of the practitioner should be dismissed.
The Tribunal therefore makes the following orders:
1.The application of the Medical Board of Western Australia is dismissed.

I certify that this and the preceding [262] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT