MEDICAL BOARD OF WESTERN AUSTRALIA and WRIGHT - [2010] WASAT 48

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: MEDICAL ACT 1894 (WA)

CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA and WRIGHT [2010] WASAT 48

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MS M CONNOR (MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
DR M LEVITT (SENIOR SESSIONAL MEMBER)

HEARD: 15 MARCH 2010

DELIVERED : 12 APRIL 2010

FILE NO/S: VR 117 of 2008

BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant
AND
JONATHAN WRIGHT
Respondent

Catchwords:

Medical practitioners - Disciplinary hearing - Allegations of gross carelessness - Failure to refer to hospital - Failure to arrange blood and urine tests - Whether failures depart from acceptable standards - Practitioner undertaking appropriate examinations and forming reasonable diagnosis - Whether gross carelessness

Legislation:

Interpretation Act 1984 (WA), s 37
Medical Act 1894 (WA), s 13(1)(c)
Medical Practitioners Act 2008 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Ms F Stanton
Respondent: Mr P Tottle

Solicitors:

Applicant: McCallum Donovan Sweeney
Respondent: Tottle Partners

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Jemielita v Medical Board of Western Australia (unreported, SCWA) Library No 920584, 13 November 1992)
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Proceedings were brought before the Tribunal by the Medical Board of Western Australia alleging that Dr Jonathan Wright was guilty of gross carelessness in the treatment of a patient. The patient had consulted Dr Wright on two occasions on 27 February 2007 when he examined her and formed a diagnosis of gastroenteritis. He assessed her level of dehydration at less than 5% which he considered to not require hospitalisation. The patient went home, and was seen later that night by a locum doctor. The following morning she collapsed and died later that day. The Board alleged that Dr Wright should have referred the patient to a tertiary hospital for presentation of her symptoms, that he should have assessed her pulse rate and blood pressure and the rate and character of her respiration. In failing to do those things, the Board alleged that Dr Wright was grossly careless.
The Tribunal heard from a number of witnesses, including five expert witnesses who expressed opinions as to whether Dr Wright's conduct departed from acceptable standards expected of an experienced general practitioner. Four of the five experts did not consider that Dr Wright had failed to meet acceptable standards in any of the respects alleged by the Board.
The Tribunal determined that Dr Wright had undertaken appropriate examination and had formed a diagnosis reasonably open to him. It did not consider that the failure to refer the patient to hospital, nor to undertake any of the further tests suggested in the complaint against him was capable of constituting gross carelessness for the purpose of disciplinary proceedings. Accordingly, the complaint against Dr Wright was dismissed.

The Issues

The Medical Board of Western Australia (Board) alleges that a medical practitioner, Dr Jonathan Wright, is guilty of gross carelessness in relation to the treatment of a patient, Ms Lee Rebecca Halford (Lee) when she consulted him on 27 February 2007. Lee saw Dr Wright at 8.45 am and again at approximately 3.15 pm on that day. At about 4 pm on the same day, Lee's mother, Ms Pamela Halford, spoke to Dr Wright by telephone from Esperance about her daughter's condition. Tragically, Lee died as a result of diabetic ketoacidosis at 12.52 pm on 28 February 2007.
The Board alleges that Dr Wright acted with gross carelessness in that he:
1.Failed as a result of the patient's presentation during the second consultation or as a result of the telephone conversation with Mrs Halford, to refer the patient to a tertiary hospital notwithstanding:
a)the evidence of the severity of her illness at the time of the second consultation;
b)the duration of the patient's vomiting by the time of the second consultation;
c)the fact that the patient was continuing to vomit despite the intramuscular injection of metochlopramide;
2.Failed during the second consultation to assess the patient's pulse rate;
3.Failed during the second consultation to assess the patient's blood pressure; and
4.Failed during the second consultation to assess and record the rate and character of the patient's respiration.
The primary issue for determination is therefore whether Dr Wright's conduct in relation to Lee, and in particular his failure to refer her to a tertiary hospital and to assess her pulse rate, blood pressure and record her respiration rate constitutes gross carelessness within the meaning of those terms under s 13(1)(c) of the Medical Act 1894 (WA) (1894 Act).

Applicable legislation

These proceedings were commenced on 13 June 2008 under the 1894 Act. That Act was subsequently repealed by the passage of the Medical Practitioners Act2008 (WA) (2008 Act), which came into force on 1 December 2008. The 2008 Act contains no transitional provision in relation to proceedings commenced in the Tribunal but not concluded under the 1894 Act. By virtue of s 37 of the Interpretation Act 1984 (WA), these proceedings may be continued as if the 2008 Act had not been passed. In other words, the provisions of the 1894 Act continue to be applicable to these proceedings.

The facts

Lee Halford was born on 26 September 1989, and so was 17 years old when she consulted Dr Wright at the general practice at which he works. She had previously attended the practice, but had not seen Dr Wright.
Lee saw Dr Wright at approximately 8.45 am on 27 February 2007. She was accompanied by a male friend, Mr Kyle Grieves, although he remained in the waiting room during that consultation. She carried an empty plastic bucket with her.
There is no challenge to Dr Wright's account of that consultation. He said that Lee stated she had been unwell since the morning of 26 February 2007. She had suffered nausea and vomiting and told him that she 'couldn't keep anything down'. She also described a mild headache with some episodes of crampy abominable pain.
Dr Wright enquired whether she suffered from any other problems or symptoms. She told him that she had experienced sweats during the previous night.
In order to exclude urinary tract infection, Dr Wright asked Lee whether she had experienced dysuria (pain on micturition) or increased frequency of micturition. Lee answered no to both questions.
Dr Wright enquired about recent food which Lee had consumed, and was told that she had eaten at a Subway fast food outlet prior to becoming unwell.
Dr Wright enquired about her recent travel history, to which Lee replied that the furtherest she had travelled had been to Esperance. She told him that her only medication was an oral contraceptive pill, and that her last menstrual period had been normal and had been approximately three weeks before the consultation. She told Dr Wright that bowel frequency was increased, but that her stool consistency was normal.
On examination, Lee was afebrile with a temperature of 36 degrees C. Dr Wright assessed her hydration as adequate due to the fact that her mucus membranes were moist and she was not sunken-eyed. Her abdomen was soft to palpitation with no evidence of abdominal tenderness. Her bowel sounds were slightly increased. No rashes were evident and she did not appear to have any neck stiffness.
Dr Wright formed the view that Lee was probably suffering from viral gastroenteritis, which was likely to be selflimiting within 24 to 48 hours. He administered an intramuscular injection of 10 mg of metoclopramide (maxolon) and gave her a script for 5 mg tablets of an antinausea medication (stemetil). Dr Wright asked Lee to come back and consult him the next day if her vomiting was not settling.
No criticism is levelled at Dr Wright in relation to his treatment of Lee at that consultation.
Later the same day, at approximately 3.15 pm, Lee again consulted Dr Wright at his practice. She was again accompanied by Mr Grieves and carrying a plastic bucket. On this occasion, Mr Grieves was present during the consultation.
At the second consultation, according to Dr Wright, Lee informed him that she still had not been able to keep anything down. Mr Grieves' account was that Lee told Dr Wright that she was still vomiting. We do not consider that anything turns on the precise words used. Dr Wright asked about the frequency of her vomiting to which she responded that she had vomited twice since he had seen her that morning.
Dr Wright asked Lee how many times she had passed urine, how much, and to describe the colour. He did this in order to assess the likelihood of dehydration. Lee replied that she urinated twice, producing a reasonable volume and her urine had been light in colour.
On examination, Dr Wright observed Lee's tongue to be drier than normal, but noted that it still had some moisture. He measured her skin turgor by compressing the tissue of her abominable wall. The turgor was normal as the tissue resumed its normal appearance quickly after he released pressure between his fingers and thumb. Dr Wright recalls that Lee was not sunkeneyed. From these observations, he assessed her state of dehydration to be less than 5% of total body fluids, and considered it appropriate to manage that level of dehydration without the need for intravenous rehydration. Although not noted, Dr Wright said that he recalled that Lee was not tachypnoeic, and that her respiratory rate was normal.
Dr Wright did not observe or note a distinctive odour on Lee's breath during either of her two presentations. The significance of that is that a distinctive breath odour is a sign of ketoacidosis.
Dr Wright gave Lee a second injection of Metoclopramide (Maxilon) intramuscularly and provided her with a script for Gastrolyte rehydration fluid.
The events described above in relation to the second consultation are not in dispute. There is, however, a conflict on the evidence as to any discussion about the possibility of Lee going to hospital.
Dr Wright's evidence was that there was a discussion about how to manage Lee's symptoms. He said that he explained that hydration was the important issue. He said that he informed Lee that should she continue to vomit through the night, or if she felt herself in danger of becoming dehydrated, she should present to an emergency department of a major hospital for intravenous rehydration.
As mentioned, Kyle Grieves was present during the second consultation. He gave evidence that he asked Dr Wright if Lee needed to go to hospital. His evidence was that Dr Wright replied that Lee had two options to go to hospital and have a drip, in which case she would have to wait four to five hours, or to stay at home and sip ice and water. Mr Grieves said that he took it from the doctor's tone that it was definitely not necessary to go to hospital. He said that Lee then said that she was not up to waiting four to five hours in hospital. Mr Grieves said that he asked what else he could do for Lee, and Dr Wright suggested Gastrolyte.
In crossexamination, Mr Grieves said that the conversation about the hospital was prior to Dr Wright administering the injection. He confirmed that there was a discussion about the need for hydration, and that Dr Wright said that it was important. He maintained that Dr Wright had said that there would be a four to five hour wait if Lee were to present to an emergency department of a hospital. He rejected the suggestion that he might have confused what Dr Wright said with what was said by a locum who attended Lee later that night. Mrs Halford gave evidence that the locum said that there would be a four to five hour wait if Lee were to present to an emergency department at hospital.
In relation to Dr Wright's manner, Mr Grieves said that 'he came across as someone you could trust' and that he was neither mean nor dismissive in his treatment of Lee.
Mrs Halford also gave evidence that, in a telephone conversation she had with Lee at approximately 4 pm, Lee told her that she had told Dr Wright she wanted to go to hospital but that he had replied, 'Well, you will have to sit in casualty for four to five hours and at the end they could put you on a drip for half an hour and then they will discharge you'. She said that Lee told her that 'I'm not up to sitting in casualty vomiting in front of everybody'.
Dr Wright firmly denied that he did, or would ever, discourage a patient from attending hospital because they would have to wait for a considerable period of time.
In approaching disputed issues of fact, we are mindful that the Medical Board bears the burden of proving the material facts on the balance of probabilities, but that by reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449.
Because, in the Board's submissions, the events which followed later on 27 February should inform a conclusion as to what was said at the second consultation, it is appropriate to recount the later events before returning to a finding as to what was said about hospitalisation at the second consultation.
It is common ground that, following the second consultation, Mrs Halford telephoned Dr Wright at his surgery. The call to Dr Wright was prompted by Mrs Halford's telephone discussion with Lee at about 4 pm, Mrs Halford's account of which is set out above. She said that she was put through to Dr Wright and said to him, 'Why is my daughter not in hospital?' She said that he responded, 'I see no need. She has either severe food poisoning from the Subway sandwich for her meal on Sunday night or it's gastro. She is not dehydrated. I have checked her for that'. Mrs Halford said that Dr Wright told her that he had an appointment for Lee at 8.30 in the morning. That was the extent of the conversation.
Mrs Halford was in Esperance when she made the call, and had not seen Lee since the onset of her illness.
Dr Wright's version of the telephone conversation differs slightly. He said that Mrs Halford telephoned him expressing concern about his daughter's illness because she was geographically separated from her daughter. He said that he explained his diagnosis of gastroenteritis and told Mrs Halford that he was reviewing Lee first thing in the morning. Dr Wright did not recollect any discussion about why Lee was not in hospital.
Mr Jeffery Halford, Lee's father, was in the kitchen at the family home in Esperance when his wife made the call to Dr Wright. He said that he heard his wife on the phone questioning why Lee was not in hospital. He said that he remembers his wife listening for a while to what was being said by the other person on the phone, and his wife responding, 'We're 700 kilometres away'. He said that after the telephone conversation, Mrs Halford told him that the doctor had said there was no need for Lee to go to hospital.
After some further discussion between Mr and Mrs Halford, they decided that Mrs Halford should travel to Perth, and she was able to obtain a flight to Perth that evening.
In our view, it is likely, and we find, that Mrs Halford did enquire of Dr Wright why Lee had not been referred to hospital. It is clear from her conduct that Mrs Halford was very concerned for Lee's welfare. It would be surprising if the option of hospitalisation was not discussed between Mrs Halford and Lee, or that Mrs Halford would not raise it as a possible course of action when she spoke with Dr Wright. The unchallenged evidence of Mr Halford was that he overheard discussion about hospitalisation. Dr Wright's evidence stopped short of a denial of any discussion about hospitalisation, but rather was couched in terms that he had no recollection of any such discussion.
We find that Mrs Halford did make an enquiry of Dr Wright as to why Lee had not been referred to hospital. Apart from that issue, the evidence to what otherwise occurred in the telephone conversation is uncontroversial. That is, Dr Wright explained his findings from the examination of Lee, his working diagnosis and his planned follow up the following morning. On the basis of his examination and findings, Dr Wright considered that hospitalisation was not, at that point at least, necessary. That conclusion provided a basis for Dr Wright's response to Mrs Halford's question about hospitalisation.
When Mrs Halford arrived in Perth by air, her other daughter, Sheree, picked her up from the airport and took her straight to Lee at her Claremont unit. She went immediately to see Lee who was in bed, having not long before had a shower. Mrs Halford thought that Lee looked very unwell. She decided she needed to do something more rather than wait till the next morning. When Mrs Halford went into the bedroom, Lee thanked her for coming, having earlier told her mother by telephone not to bother coming to Perth. Mrs Halford said that that was typical of Lee, that 'she was not the sort of girl to complain'.
There was a discussion between Mrs Halford, Lee and her sister Sheree, about what should be done. On the back of Dr Wright's medical practice's card was a telephone number for a locum service. They decided to ring a locum. Mrs Halford thought that, by ringing the locum, he could arrange hospitalisation if necessary and thus avoid waiting in the queue at hospital. She said that is the way things operate in the country, and she assumed that it would be the same in Perth.
The locum arrived and examined Lee in Mrs Halford's presence. According to Mrs Halford, he assessed that Lee was not dehydrated. There was a discussion about whether Lee should be hospitalised, and according to Mrs Halford, the locum said that with stroke victims, heart attack victims and car accident victims, Lee would be put to the end of the queue, would wait four to five hours, and might not even be seen that night. Mrs Halford said that the locum said that 'Your daughter is not as sick as you think she is'. Mrs Halford attested that the locum said that Lee had gastro, and that he had seen five other patients that night with exactly the same symptoms.
After the locum left, Mrs Halford had a conversation with Lee, Sheree and Mr Grieves, in which the suggestion by the locum of a wait of four to five hours was discussed, which Mrs Halford said made Lee's resolve not to go and sit in the waiting room even stronger.
The following morning, Lee collapsed. An ambulance was called and she was taken to hospital. As already noted, Lee passed away only a few hours later.
Against that background, the Board invites the Tribunal to conclude that Dr Wright did not, as he claims, advise Lee to go to hospital if she continued to vomit through the night or felt in danger of becoming dehydrated. The Board submits that there are four reasons why Dr Wright's evidence on this point should not be accepted. They are:
1)Mr Grieves' evidence that he asked about the need for Lee to go to hospital and was told it was not necessary to go;
2)Dr Wright did not make a note of the advice to go to hospital if the vomiting continued and she became dehydrated;
3)Dr Wright did not repeat the advice during his telephone discussion with Mrs Halford (notwithstanding his evidence that, had Mrs Halford been present at the second consultation, he would have mentioned that advice to her); and
4)In the context of the high level of attentiveness by Kyle Grieves, Mrs Halford and Sheree Halford, if they had been told to present to hospital in those circumstances, they would have done so without more.

On all versions of the evidence as to the events at the second consultation, there was some discussion about Lee going to hospital. We find, therefore, that the question of attending an emergency department of the hospital was raised at the second consultation. It is most likely that the topic was raised in the course of what Dr Wright described as a discussion about how to manage Lee's symptoms. It was Mrs Halford's evidence, which we accept, that Lee had returned to see Dr Wright as a result of discussions which she had had with Lee, and then with friends in Perth, about taking Lee to hospital. Those discussions ended with a suggestion by a pharmacist, the daughter of one of Mrs Halford's Perth friends, who suggested that it would be preferable to go back to the GP, rather than go to hospital. We think it most probable that, in those circumstances, Dr Wright would have been asked at the second consultation whether there was a need for Lee to attend hospital, and we accept Mr Grieves' evidence that he asked that question.
We are satisfied that, in response to that question, Dr Wright indicated that he did not consider that there was a need at that point for Lee to attend hospital. That was, after all, the clinical decision which he had made having examined his patient. We also consider it most likely, however, and we so find, that Dr Wright said words to the effect that intravenous rehydration in hospital would be appropriate if she continued to become dehydrated.
Mr Grieves denied that suggestion of going to hospital if the condition worsened had been made. We think it more likely, however, that he was focused on the question of whether or not immediate hospitalisation was necessary, and we accept his evidence that Dr Wright answered no to that question. He accepted, however, that there was a discussion about the importance of hydration, and we think it likely that he has simply failed to recall the full extent of the discussion about hospitalisation.
We do not consider that Dr Wright's failure to note advice that hospitalisation may be necessary if the condition worsened as determinative of the issue. Against the diagnosis which Dr Wright made, he planned a management regime of the intravenous antinausea injection, the administration of Gastrolyte, and follow up at 8.30 the following morning. Those matters were noted. Management by way of referral to hospitalisation was something which, on the diagnosis he had made, he did not expect to be necessary. It was mentioned, as he said in his evidence, because one can never completely predict the future.
Nor do we think that Dr Wright's failure to repeat the advice in his discussion with Mrs Halford is determinative of the issue. Undoubtedly, it would have been preferable had that advice been repeated. The purpose of Mrs Halford's call was, as we have found, to understand why Lee had not been referred to hospital. The call was only shortly after Dr Wright's attendance on Lee. He had formed his diagnosis, and the view that hospitalisation was not necessary. He explained that diagnosis in response to Mrs Halford's query. While it would have been desirable for him to mention the contingency if the condition were to worsen, we do not think that his failure to do it, in the context of that conversation, is a reason for concluding that he had not provided that advice to Lee.
Finally, the fact that Lee was not immediately taken to hospital later that evening, despite having continued to vomit, does not provide a basis for concluding that Dr Wright did not tell Lee that hospitalisation would be appropriate were her condition to worsen. It is quite apparent that, consistent with her general character, Lee was not keen to attend hospital, with the prospect of being sick in the emergency department waiting area. As Mrs Halford's evidence discloses, calling the locum in the evening of 27 February was seen, at least in part, as a way of facilitating a speedy access to hospital, avoiding the waiting area problem. In other words, it was consistent with the idea that hospitalisation would be appropriate if Lee's condition deteriorated, or her vomiting continued.
Even if our conclusion as to the thrust of what was said about hospitalisation at the second consultation is wrong, we do not consider that, on the evidence, it is possible to conclude that anything said by Dr Wright had the effect of effectively discouraging Lee from going to hospital. Dr Wright expressly, and firmly, denies that he said that there would be a wait of four to five hours if Lee were to go to hospital. As Dr Wright said in evidence, there is absolutely no reason why a doctor would discourage a patient from attending emergency department. He said that there would be nothing to be gained by taking that approach. It would be surprising if both Dr Wright, and the locum, made precisely the same comment about waiting time in an emergency department. Mrs Halford was quite adamant that the locum referred to a four to five hour waiting time, and she was able to vividly recall the context in which that was said by the locum.
On 21 March 2007, Mrs Halford wrote to the Medical Board with a complaint concerning both Dr Wright and the locum. In that letter, she made reference to the comment by the locum concerning a wait of four to five hours. She made no reference to that comment being made by Dr Wright. Mrs Halford said that she did not mention Dr Wright's comment about waiting at the hospital. She thought that, if matters went further, she would provide full details subsequently.
In May 2007, Mrs Halford, with the assistance of a friend, prepared written statements for each of herself, Sheree, and Kyle Grieves. Those statements were prepared to provide full details of what had occurred for all purposes, including a coroner's inquest. In her statement, she said that, when she spoke to Lee by telephone after the second consultation, Lee said that she had been told 'she would have to wait four to five hours in casualty' and as she was continuously vomiting, 'was not up to that'. Mrs Halford denied that she might have been mistaken in her recollection on that point.
We are not satisfied, to the requisite standard, that we should act on Mrs Halford's or Mr Grieves' evidence that Dr Wright made reference to a wait of four to five hours. Mrs Halford's evidence makes it clear that Lee was concerned that she might vomit whilst waiting in the emergency department. That concern might well have arisen in the absence of any comment by Dr Wright about the extent of the likely waiting time. Whilst we have no doubt that all of the witnesses who gave evidence at the hearing did their best to recount an accurate recollection, we consider that there is scope for the witnesses to have a faulty recollection on this point, especially given the inevitable grief and trauma of Lee's death. There is a risk that, in the discussions between the relevant participants after the event, some inaccuracy as to precisely what was said about waiting times may have resulted. The fact that precisely the same comment is attributed to both Dr Wright and the locum is significant in the doubts which we have about Mr Grieves and Mrs Halford's evidence on this point. In the end, bearing in mind the level of satisfaction required to satisfy the Briginshaw standard, we are unable to conclude that Dr Wright made reference to a waiting period of four to five hours, or that anything he said might be properly construed as a disincentive to attend hospital if the need arose.

Gross carelessness

The conduct of Dr Wright as particularised in the four allegations is said to amount to gross carelessness. The parties were agreed that the explanation of gross carelessness for the purpose of the Medical Act by Owen J in Jemielita v Medical Board of Western Australia (unreported, SCWA) Library No 920584, 13 November 1992) remains the accepted description. In that case, his Honour accepted the approach of the Medical Board, saying (at 19 20):
In relation to gross carelessness or incompetency, the respondent had this to say:
'The Board is of the view that gross carelessness or incompetency in s 13(c) of the Act means gross carelessness or inability by the practitioner to attend to the requirements of a patient either at all or with reasonable skill and care. In the context of s 13 it is necessary that the carelessness or incompetency should assume a scale of gravity which is sufficiently serious to warrant denunciation by professional colleagues of good repute and competence and have reached the scale that such other practitioners regarded as intolerable and deserving of punishment and disciplinary action as falling so short of an acceptable standard of clinical care that disciplinary action is warranted for the protection of the public'.
… The concept of gross carelessness involves unacceptable conduct without any intention or wrongdoing on the part of the practitioner. It also suggests that the practitioner is unable to give the care required or is indifferent to the need for such care notwithstanding that he may have the intellectual and technical ability to supply the care that is required.
In my view, the Board has correctly identified the appropriate meanings of those phrases as they apply to disciplinary proceedings and to standards of professional conduct required of medical practitioners. I should add one small point. The concept of 'carelessness' may not be endemic to the practitioner's affairs generally. It may be limited to individual, perhaps sporadic incidents. However, the concept of incompetency seems to suggest a more generalised deficiency in the way in which a practitioner handles his professional affairs.

The expert evidence

Five experts gave evidence at the hearing. They were Dr Stephen Wilson, Prof George Jelinek (via video link), Dr Garry Wilkes and Dr Peter Winterton, all of whom were called by the respondent, and Prof Frank Mansfield who was called by the Medical Board. In accordance with the Tribunal's usual procedures, directions were made for the expert witnesses to confer, prepare a joint report, and to give their evidence concurrently. Compliance with those directions appears to have presented logistical difficulties. Dr Wilson was apparently unable to confer with the other witnesses, and Prof Jelinek and Prof Mansfield conferred separately. Dr Winterton, Dr Wilkes and Prof Mansfield conferred and prepared a joint report shortly prior to the hearing. Prof Mansfield and Dr Winterton had also met in late 2009 and prepared a brief report of that conferral.
Dr Wilson had expressed an opinion at the request of Dr Wright's lawyers in February 2009. He had been given Dr Wright's account of the two consultations on 27 February 2009 but no other information. In particular, he had not been told of the sequel to those appointments. He was asked to consider whether the management of the patient accorded with his expectations of how a general practitioner exercising reasonable skill and care would manage a patient presenting in the manner described. The Board objected to reliance on Dr Wilson's opinion on the basis of his limited instruction, and the fact that he had not participated in the conferral process. The Tribunal, after hearing from the parties, determined that it would receive Dr Wilson's evidence on the basis that his evidence in chief was limited to the contents of his letter of opinion dated 13 February 2009, which had been in the possession of the Board for some time. Against that background, Dr Wilson was called separately, and did not participate in the concurrent evidence presented by the other four experts.
The instructions to Dr Wilson contained details of the examination and observations by Dr Wright in the first and second consultations. The instructions included the fact that Dr Wright had explained that hydration was an important issue, and told the patient that if she continued to vomit through the night or if she felt herself in danger of becoming dehydrated she should present to the emergency department of a major hospital for intravenous rehydration. Given our conclusion as to that having been said, we are satisfied that, in expressing his opinion, Dr Wilson was apprised of the relevant underlying facts, save for the fact that he was not instructed about the telephone conversation between Mrs Halford and Dr Wright shortly after the second consultation.
Dr Wilson concluded that:
It is difficult to fault either the quality of the medical record or the obvious cognitive approach the treating practitioner has followed in the management of this case.
He considered that there had been adequate assessment of such matters as hydration, and that the administration of medications was consistent with commonly accepted practice. He considered the conclusions drawn to be clear and consistent and that management and communication reflected currently accepted practice.
During crossexamination Dr Wilson was asked whether Lee's respiratory rate should have been checked. He responded that most GPs would be inspecting the patient throughout a consultation, and that their attention would be sparked if there was an increased or abnormal rate of respiration. If no abnormality were observed, then he did not consider that respiration would be the subject of a note, and that respiration is mostly assessed simply by passive observation.
Dr Wilson considered that a phone call from the parent would normally heighten concern about leaving the patient at home overnight, and that he would generally repeat to a mother who called any advice concerning going to hospital if the situation continued or deteriorated. He did not, however, consider it a deficiency of care if that advice was not repeated to a patient's parent. He considered that he would have checked blood pressure and pulse, but that that is a matter for assessment by each practitioner, and he would not, in the circumstances of this case, consider it a deficiency in practice not to assess blood pressure and pulse.
Prof Mansfield considered that, at the second consultation, taking a pulse rate and blood pressure would have given relevant information about Lee's state of hydration. Given the duration of the vomiting at that point in time, he considered oral hydration was not without risk. He considered that referral to a hospital should have been seriously considered because there were historical and clinical indications for further assessment with urine testing and probably blood tests as well. He considered that Dr Wright ought to have appreciated that it was unsafe to send the patient home rather than to hospital, given the length of her illness and her failure to improve. He considered that the telephone call from Mrs Halford to Dr Wright following the second consultation was significant and should have provided an 'alarm bell for Dr Wright' and have caused him to reconsider his management. He did not consider that Dr Wright ought to have diagnosed diabetic ketoacidosis but, rather, considered that there was a risk that Lee would continue to vomit overnight and may become severely dehydrated. He, along with the other experts, was asked to consider in their conferral process the level of seriousness of any deficiency which they considered existed in the care provided by Dr Wright to Lee. Dr Mansfield considered that the aggregation of his criticisms of Dr Wright's care supported a belief that 'the processes of diagnosis and management have been at variance with acceptable practice (in general practice)' and that 'there has been a degree of unacceptable practice'.
Prof Jelinek expressed the view that 'in view of Dr Wright's clear attempt to determine the hydration status clinically (with at least assessment of amount of vomiting, frequency of micturition and colour of urine, state of the tongue and tissue turgor, and possibly whether the eyes were sunken), failure to test blood and urine was not outside the bounds of reasonable practice. He did, however, consider that he would expect a reasonable and competent general practitioner to assess the pulse rate of a patient presenting for the second time on the same day with a presumed diagnosis of gastroenteritis and possible dehydration.
Prof Jelinek differed from Prof Mansfield as to the significance of Mrs Halford's telephone call. He, like all the experts, agreed that a telephone call from a parent expressing concern as to their child's health was a significant matter to be considered by a treating medical practitioner. However, he considered that, because Mrs Halford was in Esperance, and had not actually seen her daughter during the illness, not much weight could be placed on the mother's feeling about the severity of the illness. He considered that it was not unreasonable for Dr Wright not to place particular emphasis on the phone call in his consideration of the decision whether to refer Lee to hospital. Dr Wilkes and Dr Winterton agreed with Prof Jelinek's view on that point.
In relation to the question of whether or not Dr Wright should have referred Lee to a hospital, Prof Jelinek said:
While some doctors may have opted to refer the patient to an emergency department on the second presentation, an experienced GP making a considered assessment of hydration status in a patient with likely gastroenteritis could reasonably decide to continue to monitor the patient out of hospital. In my view, this is within the bounds of normal, acceptable practice.
He considered that persistent nausea and vomiting would cause a competent and careful general practitioner to have a heightened suspicion of significant dehydration, and of alternative diagnoses, but given that Dr Wright made a considered assessment of urine output and of hydration status, he gave himself the opportunity of discovering significant dehydration due to persistent vomiting had it been present.
Dr Wilkes' opinion was substantially consistent with the opinion of Prof Jelinek. He considered the initial diagnosis of gastroenteritis was reasonable and would be expected on the information given. He was very significantly influenced in his view by Lee's report that she had passed urine twice during the course of the day between the two assessments. He considered that that was a strong indication that Lee was not significantly dehydrated when she saw Dr Wright at the second consultation, although Dr Wilkes considered that the reported urine output probably gave a false sense of adequate hydration. He considered Dr Wright's assessment and treatment to be appropriate with the information available to him at the time, and that it accorded with the standards he would expect of a competent and careful general practitioner.
Dr Wilkes expressed the same view in relation to the telephone call from Mrs Halford as Prof Jelinek expressed, namely that, because no new information appeared to have been given by Mrs Halford to Dr Wright, the telephone call would not cause a competent and careful general practitioner to have referred Lee to a tertiary hospital, having examined her and made his clinical assessment of the patient shortly prior to the telephone call.
In relation to the taking of a pulse rate and blood pressure in the second consultation, Dr Wilkes considered that it would have been a reasonable course to take, but a reasonable practitioner would have been reassured by the urine output, and a failure to take blood pressure or pulse 'would not amount to incompetence'.
Dr Wilkes agreed with Dr Winterton that the respiration rate of patients is usually assessed in a general preliminary examination of a patient and is often not recorded if normal.
Dr Winterton's opinions on the various issues were substantially the same as the opinions of Prof Jelinek and Dr Wilkes.

Conclusions

There is no suggestion that the examination of Lee by Dr Wright at either the first or second consultation was other than appropriate, or that the working diagnosis which he formed was not a reasonable diagnosis. Nor is it alleged that the treatment administered was in any way inappropriate. The history taken at the initial consultation was appropriately directed to consideration of various alternative possibilities. Except in relation to the question of a referral to hospital, the complaint is not what Dr Wright did, but whether he should have done more.

There are four alleged failures on Dr Wright's part which are said to constitute gross carelessness.
The allegation of a failure to assess and record the rate and character of the patient's respiration substantially fell away as a result of the expert evidence. All of the experts agreed that respiration rate is something included in the ordinary observations of a patient, and in the absence of any apparent abnormality of respiration rate, a failure to precisely assess and record respiration rate is not a departure from any acceptable standard of practice. The allegation in relation to assessment of respiration is not made out.
Similarly, the allegations of gross carelessness by failing to assess pulse rate and blood pressure at the second consultation are not supported by the evidence. Views differed as to whether those assessments should have been undertaken. Prof Mansfield considered that making those assessments would have given relevant information about Lee's hydration. Prof Jelinek and Dr Wilkes would have assessed blood pressure and pulse rate, but did not consider a failure to do so reflected unacceptable practice, and Dr Winterton considered that whether or not blood pressure and pulse rate should be taken would depend upon the patient's general appearance. Although Dr Wilson said that he would have checked blood pressure and pulse, as he does with all patients in his practice, that is a matter for assessment by each practitioner. He did not consider it a deficiency in practice not to assess blood pressure and pulse. Dr Wright said that he was aware that a rapid pulse rate and low blood pressure can be indicative of dehydration, but was also aware that young people often maintain a normal pulse rate and normal blood pressure even though they may be severely dehydrated. He considered the examinations he had undertaken provided a confident basis for his assessment as to Lee's level of dehydration.
The Tribunal accepts the evidence of Drs Wilson, Winterton and Wilkes, and Prof Jelinek that, in the circumstances of Lee's presentation at the second consultation, Dr Wright's failure to take pulse rate and blood pressure do not constitute an unacceptable departure from proper clinical standards expected of a general practitioner. While it may have been good practice to take blood pressure and pulse, the failure to make those assessments does not amount to gross carelessness as that expression is explained in Jemielita. There is, of course, no evidence that pulse or blood pressure readings would have provided a basis to alter the diagnosis.
Nor do we consider that Dr Wright's failure to refer Lee to a hospital constitutes gross carelessness. Dr Wright, by appropriate interrogation and clinical assessment, formed a diagnosis which, all the experts agreed, was reasonably open to him given his findings on examination. He made an assessment as to the level of dehydration. There was no issue that an assessment of dehydration less than 5% is generally accepted as being capable of management without the need for intravenous rehydration. Apart from Prof Mansfield who considered that the second presentation would have caused him to refer Lee to hospital for more comprehensive testing, the other experts considered that Dr Wright's management in light of his conclusion of less than 5% dehydration was appropriate. All of the experts agreed that clinical assessment is critically important to the process of diagnosis and management.
In this case, Dr Wright made a reasonable clinical assessment. His assessment was that reference to a tertiary hospital was not necessary unless the patient's condition was to worsen. He explained the importance of hydration to his patient. We have found that, in the course of his discussion with Lee as to the management of her case, he said words to the effect that intravenous rehydration in hospital would be appropriate if she continued to become dehydrated. With the benefit of hindsight, referral of Lee to a tertiary hospital may well have changed the course of events and the tragic outcome which ensued. No one, however, suggests that Dr Wright should have diagnosed the diabetic ketoacidosis which rapidly led to Lee's death. In approaching an assessment of the nature and standard of Dr Wright's care of Lee, hindsight must be avoided.
In our view, the evidence supports the conclusion that Dr Wright's decision not to refer Lee to hospital was one which was reasonably open to him on the information available to him, and the outcome of his appropriate examination of the patient. As we have identified above, gross carelessness involves conduct which 'assumes a scale of gravity which is sufficiently serious to warrant denunciation by professional colleagues of good repute and confidence and has reached the scale that such other practitioners regarded as intolerable or deserving of punishment and disciplinary action as falling so short of an acceptable standard of clinical care and disciplinary action is warranted for the protection of the public'.
We do not consider that Dr Wright's failure to alter his decision as to hospitalisation in light of the telephone call from Mrs Halford elevates that failure to a level of gross carelessness. Dr Wright had made his clinical assessment shortly before the telephone call. Mrs Halford asked why her daughter had not been referred to hospital. The explanation given was entirely consistent with the clinical assessment Dr Wright had made a short time before. No new information was given to him by Mrs Halford who had not seen Lee since she became ill. Whilst the telephone call might reasonably have caused Dr Wright to again consider his diagnosis and management, the continued reliance on his clinical assessment cannot, in our view, be said to be carelessness of sufficiently serious gravity to amount to gross carelessness.
It follows that, in our view, the allegations against Dr Wright are not made out, and the application should be dismissed.

Orders

1.The application is dismissed.

I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT