Medical Board of Western Australia v Richards - [2010] WASAT 94

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: MEDICAL PRACTITIONERS ACT 2008 (WA)

CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA and RICHARDS [2010] WASAT 94

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
DR L FARRELL (SENIOR SESSIONAL MEMBER)
DR B MENDELAWITZ (SENIOR SESSIONAL MEMBER)
MS H MCGLADE (SESSIONAL MEMBER)

HEARD: 15 JUNE 2010

DELIVERED : 30 JUNE 2010

FILE NO/S: VR 191 of 2009

BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant
AND
CAROLYN MARGARET RICHARDS
Respondent

Catchwords:

Professions Disciplinary proceedings Medical practitioner Allegation of acting carelessly in course of practice as a medical practitioner General practitioner Failure to refer patient for further investigation Presumptive diagnosis reasonably open Words and phrases 'acting carelessly'

Legislation:

Dental Act 1939 (WA), s 30(1)(e)
Interpretation Act 1984 (WA), s 19(1)
Licensed Surveyors Act 1909 (WA)
Medical Act 1894 (WA), s 13, s 13(1)(c)
Medical Practitioners Act 2008 (WA), Pt 6, Div 4, Div 5, s 3, s 3(a), s 76, s 83, s 84, s 89(1), s 96(3) s 116, s 116(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr P Tottle
Respondent: Mr P Quinlan

Solicitors:

Applicant: Tottle Partners
Respondent: Panetta McGrath Lawyers

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

Jemielita v The Medical Board of Western Australia (unreported, SCWA Library No 920584, 13 November 1992)
Land Surveyors Licensing Board of Western Australia and Neale [2007] WASAT 176
Ong v The Dental Board of Western Australia (unreported, SCWA Library No 950442, 10 August 1995)
Pillai v Messiter (No 2) (1989) 16 NSWLR 197
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerns an allegation by the Medical Board of Western Australia that Dr Carolyn Richards acted carelessly in the course of her medical practice when she failed in April 2009 to refer a patient for further investigation in relation to a complaint of rectal bleeding. The patient had initially reported the symptoms to Dr Richards in December 2008. The patient was subsequently diagnosed with rectal cancer.
The Tribunal considered the meaning of the expression 'acted carelessly' in the context of disciplinary proceedings under the Medical Practitioners Act 2008 (WA). It concluded that the expression does not encompass an error of judgment where the practitioner acts with care and diligence, unless the judgment involves a departure from elementary and generally accepted standards.
Having considered the views of experienced general practitioners who gave expert evidence, and examined the conduct of the practitioner on the occasion in question, the Tribunal concluded that Dr Richards had not acted carelessly in the treatment of the patient.

Allegations

The Medical Board of Western Australia (Board) alleges that the respondent Dr Carolyn Margaret Richards acted carelessly in the course of her practice as a medical practitioner in failing to order further investigations into the cause of rectal bleeding that was of over four months' duration in a 33yearold female patient.
The more particular allegations were set out in the substituted application filed by the Board on 25 March 2010. As a result of the conferral of the expert witnesses to be called by each party, and the joint report prepared by them, the Board abandoned some of the allegations against Dr Richards. The precise allegations pursued at the hearing were as follows:
(i)By reason of the matters set out in the following paragraphs (ii) and (iii), taken either individually or collectively, the respondent … has acted carelessly in the course of her practice as a medical practitioner … in the management and treatment of [M] (the patient) who was treated by the respondent at the Metceni Health Centre in Aldgate Street, Mandurah and later diagnosed with rectal cancer on or about 7 May 2009.
(ii)During the respondent's consultation with the patient on 15 April 2009, the respondent failed to be vigilant to other potential causes of the patient's symptoms.
(iii)At the respondent's consultation with the patient on 15 April 2009, the respondent should have:
AOrdered further investigative tests, including one or more of the following, but failed to do so:
(a)colonoscopy;
(b)a barium enema examination; and/or
(c)sigmoidoscopy.
BRefer the patient to a colorectal surgeon and/or a gastroenterologist, but failed to do so.
Dr Richards acknowledges that she treated the patient in relation to rectal bleeding on 15 April 2009 and that she did not order further investigative tests or refer the patient to a colorectal surgeon or a gastroenterologist. She denies, however, that she was not vigilant to other potential causes of the patient's symptoms. She maintains that her decision not to refer the patient for further investigation on 15 April 2009 was a reasonable clinical decision based upon her presumptive diagnosis, albeit that she acknowledges that it subsequently transpired that that diagnosis was incorrect. She denies that her conduct amounts to carelessness.
The issue to be determined by the Tribunal is whether Dr Richards' failure to order further investigative tests or make an appropriate referral was, in all the circumstances, careless. Resolution of that issue first requires that the meaning of the expression 'acted carelessly' where it appears in s 76(1)(b)(i) of the Medical Practitioners Act 2008 (WA) (MP Act) be determined.

The meaning of acted carelessly

The MP Act was proclaimed to come into operation on 1 December 2008. The MP Act repealed the Medical Act 1894 (WA) (1894 Act).
By s 116 of the MP Act, the State Administrative Tribunal was given power to impose certain disciplinary penalties if the Tribunal was of the opinion that a disciplinary matter exists. What constitutes a disciplinary matter is found in s 76 of the MP Act. Section 76(1) provides:
76. Disciplinary matters
(1)The following are disciplinary matters
(a)that a person has contravened a condition applying to that person's registration or the practice of medicine by that person;
(b)that a person in the course of his or her practise as a medical practitioner
(i)acted carelessly;
(ii)acted incompetently;
(iii)acted improperly;
(iv)breached this Act;
(v)failed to comply with an undertaking given to the Board under this Act;
(vi)provided services that were excessive, unnecessary or not reasonably necessary for the recipient's wellbeing;
(c)that a person has been convicted of an offence the nature of which renders the person unfit to practise as a medical practitioner;
(d)that a person has engaged in conduct in a professional respect that falls short of the standard
(i)that a member of the public is entitled to expect of a medical practitioner; or
(ii)that a member of the medical profession would reasonably expect of a medical practitioner;
(e)that a person has engaged in sexual misconduct.
It can be seen that s 76(1)(b)(i) includes as a disciplinary matter a circumstance where a medical practitioner, in the course of his or her practice as a medical practitioner, acted carelessly. The 1894 Act did not use the expression 'acted carelessly' as a basis for disciplinary action. Section 13 of the 1894 Act identified the types of conduct which might attract disciplinary action. Section 13(1)(c) of the 1894 Act enabled allegations to be made to the Tribunal where a medical practitioner may be 'guilty of gross carelessness or incompetency'. 'Gross carelessness' is an expression the meaning of which was well settled. The explanation of its meaning is found in the often quoted passage in Owen J's judgment in Jemielita v The Medical Board of Western Australia (unreported, SCWA Library No 920584, 13 November 1992), (Jemielita) where his Honour said (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 meaning of the expression 'acted carelessly' for the purposes of the MP Act has not yet been the subject of any decision in the Tribunal. The issue arises, therefore, as to the extent to which the meaning of the expression differs from the expression 'gross carelessness' used in the 1894 Act.
As both parties appropriately accepted, the starting point in statutory construction is the language used in the statute, which should be given its ordinary and natural meaning, considered in the context of the purpose or object of the act as a whole Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at [69].
Carelessly is the adverb derived from the adjective careless. Careless is defined in the Macquarie Dictionary (4th ed, 2005 at 226) as:
(a)not paying enough attention to what one does;
(b)not exact or thorough: careless work;
(c)done or said heedlessly or negligently; unconsidered: a careless remark;
(d)not caring or troubling; having no care or concern; unconcerned.
The Compact Oxford English Dictionary (3^rd ed, 2005 at 143) describes careless as:
(a)not giving sufficient attention or thought to avoiding harm or mistakes;
(b)(careless of/about) not concerned or worried about; he was careless of the truth;
(c)showing no interest or effort.
The objects of the MP Act are found in s 3. That section provides:
The objects of this Act are
(a)to ensure that only properly qualified and competent persons practise medicine and to regulate the practice of medicine by those persons; and
(b)to establish, maintain and promote suitable standards of knowledge and skills among medical practitioners,
for the purpose of protecting consumers of medical services provided by medical practitioners in Western Australia.
Part 6 of the MP Act deals with disciplinary, competency and impairment matters. That part of the Act is directed to the achievement of the object described in s 3(a). The MP Act establishes for the Board a Complaints Assessment Committee (CAC) and a Professional Standards Committee (PSC). Complaints are received by the Board (s 83) and referred to the CAC (s 84). In relation to disciplinary matters, the CAC may recommend to the Board rejection of the complaint in circumstances where it considers no further action is warranted, or may refer the complaint to the Board for action under Div 4 or 5. Having received the CAC's recommendation, the Board may refer a complaint to the PSC for investigation (s 89(1)). The PSC must then investigate a complaint and submit a report in writing to the Board detailing its findings and making a recommendation. Amongst the recommendations which the PSC may make is that the Board take no further action in relation to the complaint, impose various sanctions on the medical practitioner concerned, or in serious cases make an allegation to this Tribunal (s 96(3)). The Board is empowered to act on the recommendation of the PSC.
Where matters are referred to the Tribunal, and the Tribunal forms the opinion that a disciplinary matter exists, it is given power by s 116(1) to impose a number of sanctions, but also to decline to make an order or a requirement under that subsection.
The Board submits that the discretion conferred on the Board (on recommendation of the CAC or PSC) and the Tribunal either to reject a complaint or not to impose a sanction, reflects an acceptance of the proposition that not every act of carelessness warrants disciplinary sanction. The Board acknowledges that vocational disciplinary penalties are not generally imposed where a licensed person simply makes an error, or, as sometimes said, where there is 'mere negligence'. It submits, however, that 'acting carelessly' should not be construed as encompassing only failures of sufficient gravity that other medical practitioners of good repute would consider to be of a scale deserving of disciplinary action, because the facility to avoid penalty in cases of error not assuming that level of gravity can be found in the provisions which enable the Board of the Tribunal to decline to impose a penalty.
The respondent submits, on the other hand, that the expression 'acted carelessly' should be construed as requiring more than mere negligence sufficient to create civil liability, and must refer to behaviour which warrants disciplinary action in the sense of deserving the denunciation of professional peers.
For present purposes, the most obvious difference between the 1894 Act and the 2008 Act is that the word 'gross' is not used in the MP Act to describe carelessness which might attract disciplinary action. The immediate suggestion is that a broader range of less serious conduct is caught by s 76 of the MP Act than was caught by s 13 of the 1894 Act. Does that mean that, regardless of the triviality of a careless act, the Act nevertheless constitutes a disciplinary matter for the purposes of s 76?
The meaning of 'carelessness' in the context of a vocational regulatory statute, unqualified by the adjective gross, was discussed by Murray J in Ong v The Dental Board of Western Australia (unreported, SCWA Library No 950442, 10 August 1995). That case concerned the Dental Act 1939 (WA). Section 30(1)(e) of that Act provided that the name of a dentist may be struck off the register if the Board, after due enquiry, was satisfied that the dentist 'is guilty of misconduct in a professional respect by reason of carelessness, incompetence, impropriety, infamous conduct, or a breach of the provisions of this Act'.
Murray J referred to Owen J's acceptance in Jemielita that the expressions 'carelessness' and 'incompetence' are terms that can be contrasted, but also have some similarity of meaning. He went on to say (at 11):
But the primary consideration is the need for the protection of the public, involving the control of those who do not meet up to professionally recognised standards of competence so that high standards and the good reputation of the profession may be maintained. An adverse judgment, if made, will be made by a Board comprised overwhelmingly of persons who are members of the same profession as the person against whom the complaint is made. They will be persons of good standing and repute: Dental Act, s 5. It is proper that it should be by their judgment that a conclusion is reached that a professional colleague has been guilty of behaviour or a level of performance which so far falls short of the standards of professional skill and competence they consider appropriate in the circumstances as to warrant disciplinary action for the protection of the public.
In Land Surveyors Licensing Board of Western Australia and Neale [2007] WASAT 176, the Tribunal considered an allegation that a surveyor had, in the course of surveying practice, been guilty of incompetence or negligence. In relation to the expression 'negligence' as used in the Licensed Surveyors Act 1909 (WA), the Tribunal referred to Jemielita, and said (at [65]):
The LS Act uses the expression 'negligence' rather than 'gross carelessness'. In the context of a vocational regulatory statute, the expression 'negligence' should not be construed as encompassing any error. There must be some failure of sufficient gravity that surveyors of good repute would consider to be of a scale deserving of disciplinary action.
Section 19(1) of the Interpretation Act 1984 (WA) permits extrinsic material to be taken into account to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in the written law and the purpose or object underlying the written law. The material that may be considered includes any relevant report tabled in Parliament before the provision was enacted, any explanatory memorandum relating to the bill, and the second reading speeches in relation to the bill. The explanatory memorandum in relation to the Medical Practitioners Bill 2006 is of no assistance in relation to the construction of s 76 of the MP Act. Likewise, the second reading speech is of no assistance, save that it refers to a review of the 1894 Act undertaken by a working party chaired by Professor Bryant Stokes (Stokes review) as forming the basis of the Bill. Although reference was made to the different approaches to disciplinary, competency and impairment matters under the Bill, no reference was made to the terms used to describe disciplinary matters.
The Stokes review was tabled in Parliament by the then Minister for Health in June 2003. It deals with the regulation of medical practice in chapter 8. It is apparent that the review's recommendations in relation to the types of 'unsatisfactory professional conduct' which should be dealt with by disciplinary action was effectively adopted by s 76 of the MP Act, although the expression 'unsatisfactory professional conduct' is not used. The chapter recommends the creation of 'informal' and 'formal' mechanisms for dealing with disciplinary matters through the establishment of the PSC and an independent tribunal. It recommends that the new Act should incorporate 'broader options for disciplinary action'. Whilst the report makes recommendations for the creation of less formal methods of dealing with less serious cases of unsatisfactory professional conduct, it does not suggest that the expression 'gross carelessness' was too high a standard of misconduct to warrant disciplinary action. In our view, it is not possible to derive any assistance from the Stokes report in construing the meaning of the expressions used in s 76 of the MP Act.
In our view, acting carelessly for the purposes of the MP Act still requires that the carelessness requires that the conduct complained of assumes a scale of gravity which is sufficiently serious to warrant, in the eyes of professional colleagues of good repute and competence, punishment and disciplinary action for the protection of the public. That is because s 76 is concerned with professional disciplinary proceedings. The objects identified in s 3 of the MP Act are designed 'for the purpose of protecting consumers of medical services'. That object is the traditional object of professional regulatory legislation. The MP Act is not concerned with civil redress. The notion of carelessness for the purposes of s 76 differs from what is sometimes described as 'mere negligence' - see Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at 200 201 (Pillai v Messiter). Acting carelessly involves, for the purposes of the MP Act, not giving sufficient attention or thought to avoiding harm or mistakes or showing no care or interest or effort in the treatment of a patient, but does not include trivial error not warranting disciplinary action.

In our view, the term 'acted carelessly' does not encompass an error of judgment where the medical practitioner acts with care and diligence, but simply makes a wrong decision unless, to use the words of Kirby P in Pillai v Messiter, the decision involves a departure 'from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant'.
In identifying whether a medical practitioner has acted carelessly, the assessment must be undertaken without the benefit of hindsight, and must be determined from the nature of the conduct and not from its consequences.
We are mindful that the MP Act enables both the Board and the Tribunal to refrain from taking any action, notwithstanding that it may have found that a disciplinary matter exists. We do not consider, however, that that fact leads to the construction of the words 'acted carelessly' as encompassing any error or lack of attention that might be described as careless, no matter how trivial. There is a wide range of conduct which constitutes a disciplinary matter. In our view, the capacity of the Tribunal to decline to make an order or requirement under s 116 of the MP Act is intended simply to provide the Tribunal with a wide discretion to deal with a matter in a way which appropriately meets the particular circumstances of that matter.

The facts

Dr Richards is a general practitioner practising from 'Metceni Health', a general practice in Mandurah.
M first attended Metceni Health on 14 May 2008. She was seen by another medical practitioner. The first occasion on which Dr Richards saw M was 26 June 2008. She saw her again on 28 July 2008. According to Dr Richards, M did not raise any complaint of rectal bleeding at either of those consultations. Rather, she said, the first mention of rectal bleeding was made by the patient at an attendance on 5 December 2008, and was raised again at an attendance on 15 April 2009.
In her oral evidence, M maintained that she had discussed rectal bleeding at one or both of the initial consultations with Dr Richards in June and July 2008. In support of that assertion, M said that when she attended the appointment on 5 December 2008, Dr Richards commenced the consultation with words to the effect 'How is your problem with your rear end?' M suggested that that question was asked because the topic had been the subject of discussions at previous consultations.
Dr Richards' notes of the consultations in June and July 2008 make no mention of anything related to rectal bleeding. As mentioned, Dr Richards had no recollection of rectal bleeding having been raised any time before the consultation on 5 December 2008. Dr Richards said that it was her practice, if time permitted, to review the patient's file prior to a consultation. She said that, as a result of that review, she would on occasions make an enquiry of a patient concerning matters that had been noted at previous consultations. Her evidence was that she would generally note something about each problem that a patient raised at a consultation. She considered that the fact that no note had been made about rectal bleeding in the notes for the June and July consultations suggests that the issue was not raised with her at that time.
Dr Richards gave evidence that, five months after a consultation, she would be unlikely to recall the details of a consultation unless those details were contained in the patient's notes. Against that background, Dr Richards said that it was most unlikely that she would have enquired about rectal bleeding as an opening remark to the consultation on 5 December 2008.
On the question of whether rectal bleeding was discussed at either the consultation on 26 June 2008 or on 10 July 2008, we prefer the evidence of Dr Richards. Notification of her complaint to the Medical Board completed by M in May 2009 asserted that Dr Richards had been treating M for approximately six months, in which time M had seen her approximately three or four times. In fact, M had only consulted Dr Richards on two occasions in the previous six months, but had seen her four times in the previous 11 months. The notification form was completed without the benefit of notes, and was no doubt intended to be as accurate as possible. It demonstrates, however, that M's independent recollection of the sequence of events might be unreliable. On the other hand, Dr Richards' evidence was that it is her practice to note all significant issues discussed at a consultation. The absence of any reference to rectal bleeding in her notes of the first two consultations suggests that there was no discussion concerning rectal bleeding at those consultations. We accept that it is quite unlikely that, in the absence of any prompt from notes, Dr Richards would have asked about rectal bleeding as the first comment in the meeting on 5 December 2008, and we consider M's evidence to that effect should not be accepted as reliable.
There is no issue that, at the consultation on 5 December 2008, the subject of rectal bleeding was raised by M. There was no significant issue between Dr Richards and M as to what occurred at that consultation. Rectal bleeding was one of two matters in respect of which M requested advice and assessment. M described having intermittent per rectal bleeding with bowel actions. Dr Richards asked whether she had any history of bleeding before and M described having had haemorrhoidal bleeding after the birth of her child some 18 months previously. Dr Richards elicited that there was no significant family history. She enquired as to whether there was pain associated with bowel actions, to which the patient responded that they were not painful. Dr Richards enquired as to the colour of the blood, to which the patient responded that it was sometimes darker in colour and not always fresh. She elicited that there was no description of malena or mucus.
Dr Richards then performed a digital examination of the patient which did not detect any blood or any mass. Dr Richards advised the patient that her clinical impression was that the bleeding was haemorrhoidal or due to a small anal fissure. She prescribed a cream which could be bought without a prescription. She provided advice as to the way that M used her bowels so as to relax the muscles of the anus so that the fissure could heal. Dr Richards told M that she should return if the condition did not settle.
M applied the cream prescribed by Dr Richards for approximately three weeks after the appointment of 5 December 2008, but it resulted in a burning sensation and headaches so she discontinued its use.
M next consulted Dr Richards on 15 April 2009. She had not attended any doctor in the intervening period. It was common ground that she presented with multiple issues, but, according to M's evidence, which we accept, her principal concern was the continued rectal bleeding.
There is a conflict on the evidence as to what M told Dr Richards about the bleeding. According to M, the bleeding had become much worse and that the blood was 'old looking', and contained clots. Dr Richards' evidence was that, in response to a question from Dr Richards, M told her that she was still getting some bleeding but less frequently. Dr Richards' evidence was that she formed the impression that the condition had settled after the December consultation, but had flared up again more recently.
Dr Richards' notes make reference to 'no alarm symptoms', which she explained is a reference to questions which she asked the patient in order to elicit whether the very low risk of cancer or any other sinister cause of her rectal bleeding, such as inflammatory bowel disease, should be further investigated. She said that the entry indicates that, in accordance with her usual and invariable practice in such circumstances, she asked the patient a series of questions. Those questions included:
•whether she was getting any pain, to which M reported that there was pain if she was constipated;
•whether she had experienced any unexplained weight loss, to which the patient said no;
•whether she had any fevers or night sweats, to which the patient said no;
•whether she was getting mucus with her bowel motions or had any changes in bowel habit, such as diarrhoea, to which the patient said no;
•whether the blood was mixed in the stool or on the outside, to which the patient said it was not mixed in the stool; and
•whether she was feeling well within herself, to which the patient replied that she was otherwise well.
Dr Richards said that she was given no indication by the patient that her condition had deteriorated. On the basis of her questioning of the patient, Dr Richards decided that it was not necessary to perform a further rectal examination and decided to continue a 'wait and see approach' given her impression that things seemed to be improving. She maintained her likely diagnosis as haemorrhoids or a small fissure.
Dr Richards said that she discussed the possibility of surgical treatment in the event that the haemorrhoids persisted and were troublesome and various alternatives were discussed. She said that she advised M to return to her if the symptoms did not settle or worsened. The consultation then turned to the patient's various other health issues.
M confirmed that at the appointment on 15 April 2009 she was asked a series of questions by Dr Richards, and in particular being asked about the colour of the blood, the frequency of the bleeding, and whether it was associated with pain. She recalled on one occasion, but could not remember which, being asked whether she had lost weight. Save for a disagreement about whether M told Dr Richards that the bleeding had become worse, there is no significant inconsistency between the evidence of Dr Richards and the evidence of M as to the questions asked, nor the answers given.
Although M could not recall all of the questions which Dr Richards said were asked at the consultation on 15 April 2009, she did not deny that the questions were asked. It is not surprising that all of the questions asked during a consultation may not be remembered. On the other hand, we accept Dr Richards' evidence that she asked a number of routine questions to investigate a condition like rectal bleeding and that they are the questions which she identified in her evidence. We are satisfied that she did interrogate the client in the manner which she described.
The resolution of the conflict between M's evidence that she told Dr Richards her condition had become worse, and Dr Richards' evidence that she was led to understand that the condition had improved after the December consultation but subsequently flared up, is not easy to resolve. Each of the applicant's and respondent's counsel submitted, and we accept, that both M and Dr Richards were honest witnesses doing their best to give an accurate account of events. Having carefully considered the evidence, we accept Dr Richards' evidence that, following her questioning of the patient, she genuinely held the view that the patient's condition had improved following the December appointment, but that there had been a recent flare up of the symptom of rectal bleeding.
We form that view on the basis that the patient had not sought further advice for over four months after the 5 December consultation. The doctor's note that there were 'no alarm symptoms' explained as it was, is consistent with the impression which Dr Richards said she gained from the exchange with the patient.
M said that she said to Dr Richards words to the effect of 'I am sick of bleeding, can't something be done?' That question, she said, led to the explanation of the alternatives that are available to treat a fissure or haemorrhoids. Dr Richards agrees that she discussed those alternatives. M's evidence was that, in response to being told of the alternatives, she said that she would think about it and consider her options. That exchange does indicate that M did express concern about the ongoing nature of her bleeding. That expression of concern is not inconsistent with the impression formed by Dr Richards that there had been a recent flare up of the condition. In light of what subsequently transpired, it may well be that M's recollection of the level of concern expressed by her on 15 April may be inaccurate. Whether or not that is the case, we are not satisfied, to the requisite standard, that Dr Richards' evidence as to her understanding as to improvement of the patient's condition should be rejected. To the extent that Dr Richards may have misunderstood the message which the patient was trying to convey (it that was the case), we cannot say that that misunderstanding resulted from carelessness.
M had a further consultation at the clinic on 1 May 2009. Dr Richards thought she saw the patient briefly at that visit, which was for the purpose of an immunisation by a nurse, but there was no discussion regarding her rectal bleeding on that occasion. M's evidence was that she did not see Dr Richards on that occasion at all, and accordingly nothing turns on the appointment on 1 May 2009.
On 6 May 2009, M experienced rectal bleeding to a far greater degree than she had ever experienced before. She went to the emergency department of a hospital. She was subsequently transferred to Fremantle Hospital, and on 14 May 2009, Dr Richards received a report advising that M had undergone a colonoscopy and that a rectal tumour had been found to be the cause of the bleeding.

The expert evidence

The Tribunal was assisted by the evidence of three expert medical practitioners. They were Professor Bernard PearnRowe, Dr Joe Kosterich and Dr Peter Maguire. All are highly experienced and well qualified in general practice.
There was much in the evidence of the experts on which they agreed. None of them expressed any criticism of Dr Richards' conduct of the consultation with M on 5 December 2008. They also agreed that there was no obligation on Dr Richards to revisit the issues relating to M's complaints of bleeding during the consultation on 1 May 2009 for the purposes of administering a vaccination. Their disagreement arose, however, in relation to the conduct of the consultation on 15 April 2009.
In relation to that consultation, the experts agreed that, from her line of questioning, Dr Richards had considered the possibility of an underlying serious illness, and that she had taken an appropriate history from M. There was also agreement that the presumptive diagnosis of an anal fissure or haemorrhoids was reasonable given the patient's presentation on 15 April 2009. Where they disagreed was as to whether, given the duration of the bleeding since the first presentation in December 2008, referral for further investigation was a mandatory step to take in the circumstances. Professor PearnRowe considered that further investigation was mandatory. Drs Maguire and Kosterich considered that it was reasonable for Dr Richards to adopt a 'wait and see' approach before referring the patient for further investigation.
There was substantial agreement between the experts as to the context in which decisions are made in medical practice. Dr Maguire put the matter this way:
Before turning to the specific allegations raised by the Medical Board I would like to discuss some aspects of the diagnostic process in medical practice and the related issues of uncertainty and probability. In general practice, there are relatively few clinical presentations where there is near certainty in the diagnosis. For many common presentations, the patient's description of the illness, coupled with the doctor's understanding of the pattern of disease in the community, allows the doctor to arrive at the most likely diagnoses and to discount those which appear highly unlikely. Investigations are then chosen on the basis of those probable diagnoses. It is simply not possible to investigate all symptoms to the point of absolute certainty the health system and the budget would collapse under the weight of a huge increase in investigations, with a clearly unfavourable costbenefit analysis. Diagnosis therefore comprises a constant tension between underinvestigation, and missing serious diagnoses, and overinvestigation, exposing the patient to unnecessary risk and unnecessary procedures. In most clinical encounters there remains an element of uncertainty.
A logical consequence of this uncertainty is that some diagnoses with very low probability will inevitably be missed. To take an extreme example as an illustration, tuberculosis (TB) is very rare in Australia in 2010. One of its symptoms is productive cough. Thousands of people are treated every day in Australia for productive cough, and in most cases the diagnosis of TB is not considered by the doctor because of its very low probability. There are a few cases of TB occurring each year in Australia, and there is often significant delay in diagnosis, since the attending doctors do not include TB as a probable diagnosis. This does not imply that every patient who presents with a cough should be tested for TB.
A further issue, which has not been raised adequately in the reports, is that general practitioners tend to use time to assist in this diagnostic process. Many potentially serious problems resolve in a relatively short time frame, so the GP will often wait to see how the disease process evolves, rather than moving straight to invasive investigation. The pattern of symptoms over a number of encounters may alert the GP that the case requires more serious attention.
Professor PearnRowe agreed with Dr Maguire's observations, saying:
To 'wait and see how the disease process evolves' is a technique that is correctly used by competent practitioners on a daily basis. As Dr Maguire points out, the alternative of progressively investigating every presentation would be a costly and wasteful process that would not, in my view, constitute good general practice.
Dr Kosterich also noted that, whilst investigations can be freely ordered in Australia, there needs to be sufficient clinical justification to do so to be acceptable practice. He said that it is not regarded as good medical practice where sending patients for investigations 'can be seen as practice of defensive medicine to rule out every possible sinister cause in every possible patient every time you see them'.
It was on the basis of those considerations that each of the experts considered that Dr Richards' treatment of the patient at the appointment on 5 December 2008 was entirely appropriate and that, at that time, Dr Richards' failure to refer the patient for further investigations was entirely justified. As Professor PearnRowe noted, in women, colorectal cancer becomes progressively more likely with age, reaching a peak of approximately 500 new cases per 100,000 people at the age of 85, but in the age group 35 to 39, the incidence is stated by the Australian Bureau of Statistics as being zero new cases per 100,000 population of women. M was 33 years of age at the time of her presentation to Dr Richards.
The critical point of difference between the experts is the significance of the fact that the bleeding had continued over a period slightly in excess of four months. It was that fact which Professor PearnRowe considered gave rise to a mandatory requirement for further investigation. He considered that after having taken a 'wait and see' approach following the initial consultation in December 2008, a further period of waiting before further investigation could not be justified when the patient represented in April 2009.
Dr Maguire considered that the question came down to a clinical judgment which involved balancing probabilities. He noted that Dr Richards thought that the bleeding was settling, and that given the low probabilities of colorectal cancer in a woman of 33 years of age, and Dr Richards' conclusion that there were no 'alarm symptoms', a decision to delay referral was reasonable.

Dr Kosterich also considered that the clinical decision taken not to refer M for further investigations on 15 April 2009 was a reasonable clinical decision. He considered that the fact that bleeding was still present four months after the December consultation is not, of itself, determinative as to whether a patient should be referred for further investigation. He considered that all of the factors elicited by appropriate questions needed to be taken into account to form a clinical judgment. He gave the example of frequency and extent of bleeding as being important factors that would be taken into consideration. He was satisfied that Dr Richards, having appropriately questioned M about her symptoms, made a reasonable clinical decision not to further investigate at that time.
All of the experts agree that, had M been referred for colonoscopy on 15 April 2009, the outcome would have been no different from that which became evident when, a relatively short time later, M suffered far more severe symptoms leading to her hospitalisation. That fact does not, however, affect our consideration of the proper characterisation of Dr Richards' conduct.

Conclusion

In our view, the evidence does not support a conclusion that Dr Richards acted carelessly in her treatment of M on 15 April 2009. It is apparent from the questions which she asked that Dr Richards turned her mind to alternative more serious diagnoses, including bowel cancer and inflammatory bowel disease. The significant risk factors of family history and age were not present with M. Dr Richards' notation, 'no alarm symptoms' explained as it was, demonstrates that, having considered more serious diagnoses, Dr Richards formed a clinical judgment that her presumptive diagnosis of December 2009 remained most likely. We have accepted Dr Richards' evidence that she did not understand the patient's condition to have worsened over the previous four months, but rather formed the impression that it had improved but subsequently flared up. That impression was consistent with the fact that the patient had not returned earlier for followup, despite being advised to do so by Dr Richards in December 2009. Although rectal bleeding may have been the primary matter discussed at the appointment on 15 April 2009, it was nevertheless only one of four matters raised by the patient in the consultation. All of the experts agree that the presumptive diagnosis of an anal fissure or haemorrhoids was reasonably open on the information provided by the patient.
Had Dr Richards not considered alternative possibilities, or been unduly dismissive of the possibilities of more serious conditions, then her actions might be described as careless. That was not, however, the case. She considered alternatives, made a diagnosis which was reasonably open, and left the patient to consider alternative treatments for the diagnosed condition. Contrary to statistical probabilities, her clinical judgment proved to be wrong. In our view, however, the error in judgment was not a result of carelessness. In his report of 5 March 2010, Dr Kosterich said, 'In using judgment in medical practice, which is done with foresight not hindsight, there is always a possibility (of) subsequent developments showing that judgment to have been wrong'. In our view, this is an example of one of those unfortunate cases.
In reaching this conclusion, we are mindful of the fact that the presentation on 15 April 2009 differed from the presentation on 5 December 2008 in that, at the second presentation, there was then an additional factor of continued bleeding during the intervening period. We accept that that factor should heighten concern about the diagnosis. The question of whether that heightened concern leads to the conclusion that referral for further investigation is mandatory is, as the conflicting evidence of the experts reflects, a matter on which genuinely held views amongst medical practitioners may differ. In that context, where a medical practitioner has addressed and considered alternative diagnoses, and made a clinical judgment reasonably open on the presentation, we do not consider that that judgment can be described as careless.
For those reasons, the application should be dismissed.

Order

The application is dismissed.

I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT