Rajagopalan v Medical Board of South Australia No. Scgrg-96-22318 Judgment No. S6667

[1998] SASC 6667

RAJAGOPALAN  v  MEDICAL BOARD OF SOUTH AUSTRALIA

Full Court
Coram:  Cox, Mullighan and Williams JJ  

Mullighan J

The appellant is a specialist ear, nose and throat surgeon and has practised in that capacity for about 38 years.  His public practice has mainly been at the Royal Adelaide Hospital and the Lyell McEwin Hospital but he held visiting appointments at other hospitals and he conducted a private practice.

On 23rd December 1993 he undertook a surgical procedure upon the late Mr Trevor McDonald under general anaesthetic.  I shall refer to him as “the patient”.  He was aged 60 years and had a node just to the left of the mid-line of the posterior pharyngeal wall in his throat.  This node had been increasing in size and, upon the appellant’s advice, the patient agreed that an excision biopsy should be performed.  There is no suggestion that this advice and procedure was in any way inappropriate.  During the course of the procedure, the appellant dissected the node and the left internal carotid artery was ruptured.  In consequence of the response of the appellant, which was eventually to ligate the artery, the patient suffered a stroke and later died.  The appellant claimed that he believed that he had ruptured, and later clamped, the ascending pharyngeal artery, not the carotid artery.

The Medical Board of South Australia investigated the incident and laid a complaint against the appellant on 21st March 1996 alleging that he had been guilty of unprofessional conduct during the course of the procedure. The complaint was heard by the Medical Practitioners Professional Conduct Tribunal in July and August. The Tribunal gave its decision on 27th November 1996 and found that the appellant was guilty of unprofessional conduct and suspended his registration as a medical practitioner by removing his name from both the General Register and the Specialist Register of medical practitioners for a period for six months pursuant to s58 of the Medical Practitioners Act 1983. The Tribunal also ordered that, after the period of suspension, a condition be imposed upon his right to practice, namely that he should not, in future, perform certain specified surgical procedures.

Pursuant to s66 of the Act, the appellant appealed to this Court against the orders made by the Tribunal which appeal was heard by Debelle J and was dismissed on 11th September 1997.  The appellant now appeals against the decision and order of Debelle J.

Before mentioning the grounds of this appeal and the issues raised by them, it is appropriate to recount the factual matters which gave rise to the complaint and what happened before the Tribunal.

The surgical procedure was undertaken through the mouth and the patient was placed under general anaesthetic.  The appellant incised the patient’s throat close to the mid-line and medial to the posterior pillar on the left side.  He dissected the medial aspect of the node and then began to dissect the lateral aspect.  At this stage the artery ruptured.  There was considerable bleeding into the mouth and the site of the procedure could not be seen.  The appellant claimed that he thought that there was a blood vessel feeding into a tumour.  He attempted to control the bleeding by the application of pressure with a tampon.  The bleeding was eventually controlled with a clamp and a sucker was used to remove the blood from the mouth of the patient.  A little later the appellant sutured the ruptured artery.

The anaesthetist, Dr Andrew, and the theatre sister, Mrs O’Dowd, raised the possibility that the ruptured artery was the internal carotid artery.  Dr Andrew said so more than once.  Mrs O’Dowd told Dr Andrew that “we have the carotid artery clipped here”.  Dr Andrew modified the anaesthetic procedure in case that is what had happened.  The appellant responded to Mrs O’Dowd by telling her that it was not the carotid artery.

The blood pressure of the patient dropped considerably and then recovered following intravenous fluid treatment.  Upon stopping the bleeding, the appellant attempted to obtain assistance from a vascular surgeon.  He contacted the Royal Adelaide Hospital by telephone but was informed that no vascular surgeon was available.  In his evidence the appellant explained that he sought his assistance because the repair of vascular tissue was not within his common experience and he wanted expert opinion.  The appellant then sought assistance from within the Lyell McEwin Hospital.  Three other practitioners were called into theatre.  Dr Hing, who qualified as a dentist and was an oral surgeon, was employed at the Hospital as an intern.  He had previously assisted on some occasions of ear, nose and throat surgery.  Dr Bessell was an accredited general surgical trainee and, at the time, was working at the Lyell McEwin Hospital.  He had studied vascular surgery at the Flinders Medical Centre for about six months but he had no previous experience of observing arteries in the pharyngeal region exposed through the mouth.  He had no expertise in ear, nose and throat surgery.  These two men, along with Dr Seglenieks, who was also a surgical registrar at the Hospital, went to the operating theatre and observed the patient in response to an urgent call for assistance which had been made by the appellant.  A suitably qualified vascular surgeon was not available at the Hospital at the time.  Dr Hing and Dr Bessell gave evidence before the Tribunal, but not Dr Seglenieks.  There were discussions between the medical practitioners.  Dr Bessell and Dr Hing looked into the mouth of the patient.  Their opportunity to inspect was limited as they were not sterile.  Dr Bessell did not express any opinion and told the appellant that he did not have sufficient expertise.  Dr Hing ventured the opinion that the ruptured artery was the ascending pharyngeal artery.  There is no finding by the Tribunal as what, if anything, was observed by Dr Seglenieks or if he formed and expressed any opinion.

The subject internal carotid artery of the patient at the site of the rupture was in an unusual position.  It was in an “S” shape and the appellant did not expect that it would be in that position.  Also, when it was observed by the appellant and Dr Hing, it was in the range of 3mm to 6mm in diameter whereas the internal carotid artery is usually larger in diameter, between 5mm and 8mm.  However, if an artery is in spasm, which is to be expected if it has ruptured, the diameter may reduce.   The Tribunal found that unusual shape or track of the artery was not a sufficient reason to exclude the possibility that it was an internal carotid artery.

Ligation of a ruptured ascending pharyngeal artery is an appropriate form of treatment.  The closing of blood supply in that artery is not life threatening.  Not so with the internal carotid arteries.  There are two such arteries known as the left and the right.  They supply blood to the brain and closure of either of them cuts off the supply of blood to the brain on that side and is life threatening.  In this case, the ligation procedure caused the death of the patient.  However, it was not known that it was in fact the carotid artery that was ligated until the patient was in the recovery room at the Lyell McEwin Hospital.  He was then transferred to the Royal Adelaide Hospital and kept in intensive care but no surgical treatment was appropriate or indicated.

According to the evidence before the Tribunal of Mr Guerin, a specialist ear nose and throat surgeon, the ascending pharyngeal artery and the left internal carotid artery are close together.  The former lies on top of, or is adjacent to, the latter.  However, the two arteries are obviously different in appearance.  The ascending pharyngeal artery is about 1mm in diameter and the internal carotid artery is about 6mm externally and 3mm internally in diameter.  According to Dr Manock, a pathologist who conducted an autopsy upon the body of the patient, there was nothing anomalous about the left internal carotid artery of the patient.

At all times before the Tribunal, the appellant maintained that he always believed that the ruptured artery was the ascending pharyngeal artery and this opinion was confirmed by Dr Hing.  In fact, he said that all of the three practitioners expressed the same view but it appears that the Tribunal did not accept that evidence.  The ligation procedure would have been appropriate if the artery was the ascending pharyngeal artery.  At the outset of the hearing before the Tribunal, the appellant admitted that he was guilty of unprofessional conduct in that he failed to identify the internal carotid artery but he stated, through his counsel, that at the time of the rupture and of the ligation of the artery, there was no uncertainty in his mind that it was the ascending pharyngeal artery.  Later, at that hearing, it was acknowledged that the appellant had admitted negligence and the issue was the degree of that negligence.  The appellant accepted that he had made a mistake in the identification of the artery.

The Tribunal rejected the appellant’s assertion.  It found that if he had been certain that the artery was as he asserted, there would have been no point in suturing it as ligation was the appropriate procedure if it was not the carotid artery.  Also, there would have been no point in seeking assistance from the three practitioners.  The Tribunal found that the appellant was uncertain of his identification of the artery and as to what step to take.  The Tribunal also found that both Dr Andrew and Mrs O’Dowd raised the possibility that it was the internal carotid artery that had been ruptured and that Dr Andrew did so more than once.  The appellant claimed not to have heard these queries and there was no specific finding as to whether that evidence was accepted.  However, the members of the Tribunal did say that the appellant did not impress them when he gave his evidence and also:

“The practitioner asserted throughout the hearing that he had been confident at all times that the damaged artery was the ascending pharyngeal artery, but we do not accept his evidence on this point.  In our finding, he was at the time uncertain in his identification of the artery and unsure as to what step to take next.  Had he been certain that the vessel was the ascending pharyngeal artery, there would have been no point in suturing it at all.  The obvious thing to have done would have been to ligate it at once.  There were, of course, good reasons why he should have recognised the possibility that the damaged vessel was the internal carotid artery and not the ascending pharyngeal artery.  A great deal of blood had been lost over a short period of time.  The patient’s blood pressure had dropped.  Whatever the precise size of the damaged vessel was at that time (and the evidence satisfies us that it was in the range of from 3mm to 6mm in diameter), it is clear that it was of sufficient dimensions to raise concern as to its identification.  If the vessel was in spasm its natural size would have been larger.  The possibility of its being the internal carotid artery should have been considered notwithstanding the tortuous nature of the path of the vessel.

Furthermore, had the practitioner been as confident at the time as he now asserts, there was no point in his seeking the contribution of the youthful practitioners in the hospital to the discussion of the identification of the vessel and as to what steps to take.  We have no doubt that there was discussion as to the identity of the vessel after the other practitioners entered the operating theatre.  We accept that the practitioner expressed the view that he thought that the vessel was the ascending pharyngeal artery.  There was general agreement expressed with that view.

......

We are satisfied that the practitioner had insufficient basis for his determination that the damaged artery was the ascending pharyngeal artery.  There were far too many indicators that it might well have been the internal carotid artery for him to come properly to the conclusion that he did.  It was a grievous error for the practitioner to have ligated the artery if there was any real possibility at all that it was the internal carotid artery.  The consequences of ligating that vessel are so serious that identification of the vessel concerned  was a matter of primary importance.

We accept the opinion of Mr Guerin that the appropriate course for the practitioner to have adopted was to make an incision in the patient’s neck so that he could obtain better access to and vision of all relevant structures.  He could then have located and identified both arteries with certainty.  It was not as if there was insufficient time or that the patient’s condition did not allow him to take that course.  The patient’s bleeding had been controlled and there was no hindrance to the practitioner’s proceeding to locate and identify both arteries positively.”

Mr Guerin told the Tribunal that in such a procedure considerable care should be taken to avoid damage to the internal carotid artery and that if a large blood vessel was encountered, it would almost certainly be the internal carotid artery as the ascending pharyngeal artery could be expected to be a much smaller vessel.  The Tribunal appears to have accepted his opinion that upon rupture of a large blood vessel with blood spurting from an unknown source, where the procedure was being conducted through the neck, it would be appropriate to open the patient’s neck so that the artery could be accurately identified.

The Tribunal also found that the appellant was not frank in giving his evidence and that he was stubborn in his refusal to acknowledge the seriousness of the errors he had made.  The Tribunal said:

“He persists in denying the doubt that was in his mind at the time of the mis-identification of the vessel concerned.  Of course, to admit the doubt would be to admit that he should have done more, either to resolve the doubt himself by exploring the neck or to transfer the patient without delay to the Royal Adelaide Hospital where all necessary facilities were available.”

The Tribunal concluded that the patient should have been transferred to the Royal Adelaide Hospital immediately the problem arose and not to have done so amounted to a significant departure from the standards of proper patient care.  Furthermore, the appellant, and the other practitioners for that matter, did not give consideration to the possibility that the internal carotid artery had a different anatomical configuration from the normal  They found that the appellant had been grossly negligent and also what was a matter of “great concern” was his “present attitude to what was his clear inadequacies at the time of the ill-fated procedure with which this case is concerned”.

The Tribunal said that it was not their primary function to punish the appellant and accepted that their over-riding concern was the protection of the public.  They said:

“In the present case, the practitioner’s conduct fell far below the professional standard of a specialist practitioner.  Notwithstanding the practitioner’s previous reputation, we consider that the protection of the public requires that we bring home forcibly to the practitioner, and to others who might be tempted to take unnecessary risks with the well-being of their patients, that conduct of the nature found here cannot be tolerated under any circumstances.  In our opinion, the practitioner’s misconduct has been of such a nature that, notwithstanding his past reputation, the Tribunal must suspend him from practice.  Gross negligence which leads to the death of a patient could rarely be met by any less sanction in the interests of the public.  Indeed, we have considered whether we should remove the practitioner’s name from the Register altogether.  In the final result, however, we have decided that that course is not necessary.”

The appeal to Debelle J raised five grounds which may be summarised as follows:  that the Tribunal had erred in finding the appellant guilty of gross negligence when no such allegation was made in the complaint, that the Tribunal applied the wrong standard of proof, that it erred in the exercise of its discretion in punishing the appellant in that it exceeded its jurisdiction by taking into account matters beyond the scope of the complaint, misunderstood its role in punishing the appellant and failed to take into account sufficiently, or at all, relevant considerations.  Also, it was alleged that the proceedings before the Tribunal miscarried as it was wrongly constituted and the penalty imposed by the Tribunal was manifestly excessive.

Debelle J rejected all of those grounds and dismissed the appeal.  There was no challenge before him of any of the findings of fact which had been made by the Tribunal.

The grounds of the present appeal are many but may be summarised as follows:

1. The suspension from practice for six months was manifestly excessive.

1. Debelle J erred in his conclusion that the standard of proof was not beyond reasonable doubt or a standard approaching that standard.

1. That the learned Judge erred in concluding that matters of aggravation being in dispute need not be proved beyond reasonable doubt or at a standard close to that standard.

1. That suspension from practice in the circumstances was not justified in view of the restrictions on practice which had been imposed given that punishment is not the primary purpose of disciplinary proceedings.

1. That the learned Judge erred in concluding that protection of the public did require personal, as well as general, deterrence and that the suspension from practice would have reasonable effect in terms of general deterrence given the highly unusual circumstances of the error of the appellant.

1. That the learned Judge gave no, or insufficient, weight to matters favourable to the appellant.

1. That the learned Judge erred in not concluding that the Tribunal had exceeded its jurisdiction in finding that the appellant had been guilty of gross negligence.

In reaching his conclusions, Debelle J adopted the findings of fact made by the Tribunal as there was no challenge to those findings before him.  At the outset of the present appeal, it became apparent that the appellant wished to challenge some of those findings.

The principle findings which the appellant wished to challenge were that he was uncertain as to the identity of the artery and unsure as to the course he should follow.  Of course, those findings were based upon other findings of fact.  We decided that the appellant should not be permitted to challenge upon the present appeal any findings of fact by the Tribunal which were not challenged before Debelle J and the hearing of the appeal proceeded on that basis.

This is, of course, an appeal against the decisions of Debelle J and not of the Tribunal.  However, in considering the issues raised by the grounds of appeal, it is necessary to consider some of the decisions and conclusions of the Tribunal as well as those of the learned Judge.

It is convenient to commence the consideration of the grounds of the appeal with the ground relating to the standard of proof.

It was contended before Debelle J that the appropriate standard of proof which should have been applied by the Tribunal was proof beyond reasonable doubt when making findings of fact.  Debelle J rejected that contention and concluded that the correct standard of proof was the standard in civil proceedings as explained in Briginshaw v Briginshaw (1938) 60 CLR 336 which, of course, means that in deciding whether a fact has been proved on the balance of probability, the seriousness of the allegation, the inherent unlikelihood of an occurrence of the particular type under consideration or the gravity of the consequence of a particular finding, must affect whether the fact has been proved: see Dixon J at p362. On this appeal the Tribunal did not mention what standard of proof was applied. It is contended by the appellant that if the standard of proof beyond reasonable doubt was applied, the Tribunal could not have reached the conclusions adverse to the appellant which have been mentioned. The appellant contends that if it is appropriate to make an order which is punitive or in part punitive, the standard of proof must be proof beyond reasonable doubt. However, if there is to be no punitive element in the order, the appropriate standard is proof on the balance of probability on the basis explained in Briginshaw.

In my view, Debelle J was correct in his conclusion.  The matter was considered by the Full Court in In re Ward [1953] SASR 308 in the context of disciplinary proceedings before the Physiotherapists Board. Napier CJ, with whom Ligertwood J agreed, said at p313:

“It follows, in my opinion, that counsel (appearing before the board) erred in assuming that, in relation to the incidents of pleading and proof, the board was bound to act as a court of law would act when trying the charges of a criminal offence.  The charge of unprofessional conduct is a serious matter.  It involves serious consequences and the accused must have an opportunity of making his defence.  For that purpose he must have notice of the charge, with reasonable particulars of the conduct which is charged as ‘unprofessional’ (Leeson v General Council of Medical Education & Registration (1889) 43 ChD 366 at p385), and it is not to be supposed that the board would find against the respondent, unless they were fully convinced of the fact, but I think that it is wrong to say that the charge requires the same strictness of proof - secundum allegata et probata - as in the case of a criminal charge (see In re Kennely (1912) 12 SR(NSW) at pp326-327).”

Abbott J expressed the same view at p321. In that case one aspect of the conduct of the physiotherapist was the prescribing of a drug which was an offence pursuant to regulations under the Food and Drugs Act. The same approach was taken by O’Bryan J in Basser v Medical Board of Victoria [1981] VR 953. He said at p969:

“Standard of Proof

I am satisfied that the civil standard of proof is applicable here.  The decision in Mercer v Pharmacy Board of Victoria, [1968] VR 72 requires that, where the allegations are serious and grave, involving professional misconduct and incompetence, the court should not be satisfied that the allegations are true unless the evidence is precise and can survive careful scrutiny. That is proof on the balance of probabilities, the civil standard of proof, with the proviso that the evidence must produce a reasonable state of satisfaction in one’s mind: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334. The matter must not be approached with hindsight or by drawing indirect inferences.”

That is the view adopted in most of the recent cases in this Court:  see Heinrich v Medical Board of South Australia (unreported, Full Court, 11th December 1996, Jd No S5899). In that case it was accepted that the relevant standard of proof was on the balance of probability with due consideration to what is sometimes referred to as the Briginshaw approach.  In view of the issues raised, Cox J felt it necessary to make it plain that the Briginshaw  “gloss” as he expressed it was not a separate standard of proof.  There are only two standards recognised in this country, the criminal standard and the civil standard.  The same view was taken by the Full Court in Kerin v The Legal Practitioners Complaints Committee (1996) 188 LSJS 125, by Olsson J in T v The Medical Board of South Australia (1992) 58 SASR 382 and by me in Versteegh v The Nurses Board of South Australia (1992) 60 SASR 128. Whilst it is true that the Medical Board adopted the criminal standard in In Re Frederick [1957] SASR 149 and in Hoile v The Medical Board of South Australia (1960) 104 CLR 157, the Courts in those cases were not required to consider whether that approach was correct. Matheson J in T v The Medical Board of South Australia (supra), when considering a charge against a medical practitioner of sexual misconduct with a patient, held that the appropriate standard was proof beyond reasonable doubt and he left open for further consideration whether proof so strict is required when the charge does not involve moral turpitude.  In my view, that approach is not correct.  It follows that the issues in the instant case had to be resolved by proof on the balance of probability.  It is well established that the purpose of proceedings of this nature is not punitive but to protect the public, even though in the course of imposing discipline, some sanction in the nature of punishment may be ordered, such as a fine or suspension.  This disciplinary power is protective.  The true position is appropriately expressed by Kirby P and O’Keefe AJA in Richter v Walton (unreported, SC of NSW, Court of Appeal, 15th July 1993).

“The purpose of an order under s32R of the Act is to protect the public, not to punish the practitioner.  The disciplinary power is, as the High Court said in New South Wales Bar Association v Evatt ((1968) 117 CLR 177 at 183), ‘entirely protective’. In no sense is the order to be regarded as punitive or imposed to conform to notions of due punishment for the conduct which is found. Removing the name of a medical practitioner from the Medical Register is the ultimate professional sanction, in the same way as is the disbarring of a barrister. Again as the High Court has said ‘when such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege’ (Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201 to 202).

Necessarily, the exercise of a disciplinary power in respect of a professional person may have a consequence that seems punitive and that has results for the person that are burdensome and hard.  But that is not their purpose in the eye of the law.  In a case such as the present, punishment can be left to the application (if any) of the criminal law, to the consequences for the practitioner’s practice, to any civil action that may be taken and to the shame of the publicity that has attended these proceedings.  Punishment is not the purpose of the proceedings.  That purpose remains, from first to last, ....... the protection of the public who deal with medical practitioners upon the assumption of their integrity and ethical behaviour, including those who deal with this practitioner.”

See also Chan v Medical Board of South Australia (1986) 41 SASR 434 per Cox J at pp440-441. The nature of such disciplinary measures does not require other than the civil standard of proof to be applied, with application of the Briginshaw principle in appropriate circumstances.

In my view, the contention on this appeal that Debelle J erred in his conclusion that the standard of proof to be applied was not the criminal standard is, in itself, erroneous and that ground of appeal fails.  As Debelle J observed, the Tribunal did not expressly refer in its reasons to the standard of proof which it applied.  He noted that the presiding officer of the Tribunal was a Judge of extensive experience who had presided over the Tribunal on a number of occasions and concluded that it was reasonable to infer that he would have been alert to decisions to the effect that the “standard of proof is the civil onus as explained in Briginshaw” and that it was apparent from the reasons of the Tribunal that it had adopted the civil standard of proof as explained in Briginshaw.

The learned Judge was correct in that conclusion.  It was the civil standard which had to be applied and the Tribunal was correct in doing so.  There is no basis to challenge any of the findings of fact of the Tribunal on the ground of the application of the wrong standard of proof.

It is convenient to now consider the seventh matter in my summary of the grounds of appeal.  This ground needs to be explained in view of the manner in which it was argued by the appellant.  It is contended that the Tribunal embarked upon an enquiry and found and acted upon facts which had not been particularised in the complaint laid by the Board with the consequence that there was a denial of natural justice in that the Tribunal enquired into matters which were not charged and the appellant was found guilty of unprofessional conduct on matters in relation to which he had not been charged.  It is on this basis that it is contended that the Tribunal acted beyond its powers and thereby exceeded its jurisdiction.

The Complaint laid by the Board, as amended, was as follows:

“MEDICAL PRACTITIONERS ACT, 1983

COMPLAINT PURSUANT TO SECTION 54

TO:   THE MEDICAL PRACTITIONERS PROFESSIONAL

CONDUCT TRIBUNAL

The Medical Board of South Australia hereby makes complaint pursuant to the provisions of Section 58 of the Medical Practitioners Act, 1983, that a registered medical practitioner, namely PALAIUYR VENKATRAMAN RAJAGOPALAN of 76 Le Fevre Terrace, North Adelaide is guilty of unprofessional conduct.”

The grounds upon which the complaint is made are as follows:

“1....... On the 23rd December, 1993, at Lyell McEwin Hospital, the respondent commenced a pharyngeal biopsy procedure upon Trevor McDonald under general anaesthetic.  In the course of that procedure, the respondent perforated the internal carotid artery.

2......... After clamping the artery, the respondent failed to correctly identify the artery notwithstanding that Nurse O’Dowd had alerted him to the likelihood of it being the internal carotid artery and bearing in mind the significant blood loss from it once perforated.

3......... If there was any uncertainty about identification of the blood vessel, the respondent was negligent when he ligated it, given the seriousness of the consequences in the event of error.

4......... If there was any uncertainty about identification of the blood vessel, the respondent failed to make urgent arrangements for transfer of the patient to the Royal Adelaide Hospital for angiography.”

.................. At the outset of the hearing, the appellant, through his counsel, informed the Tribunal that:

“...... he accepts his guilt of unprofessional conduct with respect to ground one, as amended, and on the basis that the artery was ruptured and not perforated as the result of any cut by the scalpel in the artery itself.  Secondly, he accepts he is guilty of unprofessional conduct as far as particular two is concerned, that is to say after clamping the artery the respondent failed to correctly identify the artery.”

He said that the appellant did not hear what Nurse O’Dowd said.  His counsel went on:

“With respect to paragraphs three and four, it is the [appellant’s] case that at the time of ligation, there was in his mind no uncertainty at all it was incorrect ... no uncertainty about the identification of the blood vessel.  Similarly in paragraph four, there was no uncertainty about the identification of the blood vessel.

We say that all in the light of the submission that he was wrong and clearly wrong in relation to the identification of the internal carotid but that it was his state of mind that he was not at all uncertain at that time about that artery which had been ruptured.

I hope that’s a helpful explanation to you.  As I understand it the Crown wishes to proceed in relation to 3 and 4 and the issues between us are whether there was in his mind any uncertainty.  It is our case that there was not.”  (emphasis added)

Thus far it may be seen that the appellant was aware of the charge and the particulars of conduct which allegedly supported it and he acknowledged that he understood the issues of fact.

After evidence had been given by Dr Guerin and the appellant and the evidence before the Coroner had been placed before the Tribunal, the following interchange occurred:

“HIS HONOUR:  The problem as I see it from the tribunal’s point of view is we’ve got as it were a plea but we need to know the basis on which it’s been made because then it depends on what we have to clarify in terms of evidence on fact it seems to me.

MR HALLIDAY:  I can tell you in simple terms what it is and that is that the doctor made a mistake.  He always thought he was dealing with the ascending pharyngeal, he never thought he was dealing with the internal carotid.  Right from the very beginning he made that mistake albeit with disastrous consequences.  But the purpose of calling the other doctors in was really to give as he says support for the view that he had already taken, that confirmed his view and he acted accordingly.  My instructions aren’t to minimise the effect of that at all.

HIS HONOUR:  Yes.  It would seem that it’s pretty clear as to what caused the death of the patient.  I suppose by the plea, what you’ve admitted is negligence if I can put it that way.  I suppose though, the question is the degree, if there can be degrees to this.  Certainly it becomes important in terms of what penalty or sanction the tribunal imposes.

MR HALLIDAY:  Yes.

HIS HONOUR:  I accept that you say the plea was made on the basis that a mistake was made; it’s obviously a mistake that shouldn’t have been made.  That is implicit in the plea.  Of course if the decision at the time was made in the face of other warnings, whether they be from professional colleagues or matters that should have been noted and weren’t, or were noted and given the wrong interpretation.  I guess we’ve got to have a basis for reaching a decision on all that.”  (emphasis added)

.................. At this stage it may be seen that the degree of negligence was an issue which had arisen which was understood by the appellant.  Then the three medical practitioners and Nurse O’Dowd were called to resolve these issues.

.................. The evidence at the hearing continued and the Tribunal made the findings which have been mentioned, including the finding of gross negligence.

.................. The first matter in respect of which the appellant contends that the Tribunal was in error in this way is that the Tribunal found that the appellant was uncertain of his identification of the artery but decided upon the ligation procedure despite that uncertainty.  It was the appellant’s case that he was never uncertain about the identity of the artery, only mistaken.  There was no allegation in the complaint that the appellant was uncertain and nevertheless proceeded as he did.  Consequently, it is contended that the Tribunal exceeded its jurisdiction in making that finding.

.................. In my view, there is no substance in this contention.  The matters set out in grounds 1 and 2 of the Complaint are factual matters.  Ground 3 raises the issue of uncertainty of the identity of the artery.  It is alleged that if there was any such uncertainty, the appellant was negligent when he ligated the artery.  Despite the argument to the contrary, it is difficult to see how that uncertainty could not, at the least, include uncertainty on the part of the appellant.  Furthermore, it became plain at the outset of the hearing before the Tribunal that the appellant was maintaining that he had no such uncertainty and the issue arose whether that stance was truthful.  Indeed, as has been mentioned, his counsel acknowledged that the Board (wrongly referred to as the Crown) did not accept the appellant’s position and that the issue was whether there was, in his mind, any uncertainty.  Clearly, if the appellant was uncertain but nonetheless ligated the artery the degree of his negligence would be greater than if he genuinely made an error of judgment which, in the circumstances, amounted to negligence.  In determining the true nature of the unprofessional conduct, it is appropriate that the matter be investigated.  In my view, it was clearly raised by the Complaint and also at an early stage of the hearing before the Tribunal and the appellant well understood the nature and particularity of the case against him.

.................. The appellant contends that the Tribunal should not have made various findings of fact because those matters were not alleged in the complaint.  They are that he was unsure what to do after the artery was ruptured and that if he was confident in his identification of the artery as the ascending pharyngeal artery, there was no point in seeking the assistance of Dr Hing, Dr  Bessell and Dr Seglenieks.  There is no substance in this criticism.  As has been mentioned, the issue had been defined and acknowledged by the appellant at the outset of the hearing before the Tribunal and at a later stage and these matters were facts and circumstances which went to the resolution of that issue.  Particularisation of them was unnecessary.  The same argument was made with respect to the acceptance of the evidence of Dr Guerin that the appropriate course to be adopted by the appellant was to make an incision in the patient’s neck to obtain a better view.  It was not alleged in the complaint that the appellant should have undertaken the procedure in that way or that upon the rupture having occurred he should have carried out that procedure.  There is no reason why particulars of that nature should have been given.  The issue was whether the appellant was uncertain and that he pressed on despite that uncertainty.  Having found that he was uncertain, the Tribunal was merely making an observation as to an appropriate procedure which could have resolved that uncertainty which was a matter relevant to the appellant’s reaction to the emergency.  There is no reason to suppose that the Tribunal made a finding adverse to the appellant on the basis that he did not undertake the operation through the neck.

.................. Other matters of evidence upon which findings were made by the Tribunal which were not particularised.  They are essentially matters of evidence relevant to the issue of the state of mind of the appellant and particularisation was not required.  They are that when the appellant was interviewed by an investigator of the Coroner, he admitted that he entertained doubts as to the identity of the artery at the time of the procedure and that the notes as to the operation made by the appellant were superficial and misleading.

.................. The next matter is the finding that the appellant did not undertake a full physical examination of the patient or ensure that it had been done by another practitioner.  The Tribunal made this observation in the context of there being no evidence in the autopsy report of a tumour anywhere in the patient’s body and that the examination of the patient by the appellant was limited.  This observation, in the nature of a finding, is puzzling.  The Tribunal does not explain its relevance.  It may be that the Tribunal thought that it was some evidence of lack of due care of the patient.  However, it is not appropriate to speculate.  It is a matter of no consequence.  At all events, it is not a matter that needed to be particularised.

.................. The Tribunal did make a finding adverse to the appellant about the notes which he made about the operation.  What the Tribunal said and the context in which it was said is:

“The practitioner did not impress us favourably when giving his evidence.  It seemed to us that he was endeavouring to suggest that he had made one serious, but understandable, mistake when the truth of the matter is that he had made a number of serious errors of judgment and of medical procedure.  He was not frank in giving evidence.  When he was interviewed by a Coronial investigator, he admitted that he had entertained doubts as to identification at the time of the incident.  He now seeks to tell a different tale, but we are satisfied that the truth of the matter is that he was uncertain at the time.  There may also be some significance in the fact that the notes as to the operation made by the practitioner were superficial and misleading.  They were particularly misleading in that they suggested that there had been consultation with a vascular surgeon at the time.  We just do not accept the practitioner in his protestations as to the certainty in his mind at the relevant time.”

......... The only evidence about the notes was the notes themselves which were admitted as part of the material before the Coroner.  The appellant was not questioned about them and was not put on notice that the Tribunal was minded to be critical of him because of the notes.  Consequently he was not given the opportunity of making any relevant explanation.  The Tribunal did err in failing to give the appellant that opportunity but, in my view, it is a matter of little consequence.  It may be seen that the notes are referred to in the context of findings made by the Tribunal about their impressions of the appellant.  They refer to other matters which led them to their conclusion and in the context of all of the evidence, the part played by the inadequacy and misleading aspects of the notes must have been very small indeed.

......... Next the appellant complains about the finding of gross negligence.  It is argued that each of the matters which were not particularised were built upon each other to reach that conclusion and also that there was no allegation of gross negligence in the Complaint.  The first argument has been answered.  Particulars of those matters were not required.  Also, an allegation of gross negligence was not required.  The nature of the unprofessional conduct was negligence in the care and treatment of the patient.  The definition of unprofessional conduct in the Act includes negligence:  see s5 of the Act.  For the purpose of discipline, it was necessary for the Tribunal to make findings as to the gravity of the conduct.  If the appellant ligated the carotid artery whilst uncertain as to its identity, given the inevitable serious consequences, the finding that his negligence was of a most serious kind was inevitable.  Gross negligence is an appropriate description in those circumstances.  The grounds of the charge against the appellant had been particularised and it was unnecesary that an allegation of the degree of negligence be made.

......... In my view the Tribunal acted within jurisdiction and ground 7 fails.

......... I now turn to the remaining grounds of appeal which may be considered together.  There is no complaint on this appeal about the conditions of practice imposed by the Tribunal to be observed after the completion of the period of suspension.

......... The appellant contends that in the manner of discipline imposed, the Tribunal acted contrary to well recognised principle that the primary function of disciplinary procedures under the Act is not to punish the practitioner but to protect the public.

......... It may not be doubted that the power of the Court to discipline in this context is to protect the community.  In New South Wales Bar Association v Evatt (1968) 117 CLR 177, the High Court was concerned with the power to discipline a barrister. The Court said, at pp183-184:

“The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved.  This has already been pointed out by this Court in Clyne v N.S.W. Bar Association (1960) 104 CLR 186 at pp201-202. The respondent’s failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser.”

Mention has been made of that approach having been taken by the New South Wales Court of Appeal in Richter v Walton (supra) which was a case involving the discipline of a medical practitioner for sexual misconduct with a patient.

In my view, both the Tribunal and the learned Judge correctly understood this principle and applied it correctly.  The learned Judge said at p598:

“The Tribunal was concerned to remind the practitioner of his obligations always to adhere to proper surgical procedures.  In its reasons, it had expressed its concern that the practitioner had been stubborn in his refusal to acknowledge the seriousness of the error he had made.  The practitioner had taken what the Tribunal believed to be an unnecessary risk and did not acknowledge that fact.  When read as a whole, the reasons of the Tribunal show why it believed that the protection of the public required that it bring home to the practitioner the seriousness of his misconduct so as to ensure that he would not engage in like conduct again.  It is also apparent that it wished to assure the public that this extremely serious lapse from professional standards would not lightly be passed over.  An order for suspension has punitive aspects in that it disqualifies the practitioner from the financial rewards of practising during the period of suspension.  However, it is apparent that the Tribunal’s primary concern was to protect the public.  The Tribunal had thought that the protection of the public required that it cancel the practitioner’s registration, but it stepped back from that course.  It is apparent that the Tribunal took the view that, once the practitioner had had an opportunity to reflect upon the gravity of his conduct and understand the seriousness of his error, it would be appropriate to permit him to practise in a restricted way.  The Tribunal also believed that there are areas where the practitioner will be a fit and proper person to practise and, if restricted to those areas of practice, will not be in a position to endanger the public.”

I agree entirely with those observations.  There was no error on the part of the Tribunal or the learned Judge.  I reject the contention that the primary purpose of the Tribunal was to punish the appellant and that the learned Judge erred in not reaching that conclusion.

During the course of argument, our attention was drawn to observations of Higgins and Foster JJ in Re Nelson and the Legal Practitioners Act 1970 (1991) 106 ACTR 1 at p24:

“The object of protection of the public includes not only striking off those who are unfit, suspending those currently unfit but likely to become fit at the conclusion of that period of suspension, but also meting out proper punishment to those who though generally fit to practise, have committed acts of misconduct.  The protection of the public includes imposing penalties which represent both general and particular deterrence to solicitors and an assurance to the public that serious lapses in the conduct of solicitors will be met with severe but appropriate responses.”

These observations were adopted by Legoe J in Re Maidment, A Legal Practitioner; Re Legal Practitioners Act 1981 (1992) 92 ATC 4450 at p4462. For present purposes, it is unnecessary to express a view about whether those observations are entirely correct. I doubt whether it is a legitimate purpose of disciplinary proceedings to mete out proper punishment fixed upon the well known principles of sentencing in the criminal law of general and particular deterrence. Appropriate disciplinary measures may have that consequence incidentally, but I question whether punishment in that sense is appropriate. However, as I say, that issue does not properly arise in this appeal as that approach was not taken by the Tribunal or the learned Judge.

Was the order of suspension manifestly excessive?  In Richter v Walton (supra), Kirby P and O’Keefe AJA posed the question:

“Should the services of such a highly qualified and caring medical practitioner be lost to the public (whose welfare we must by s32U(3) of the Act take into account) because of this event of a few moments?”

They answered their question in the negative and based their decision on psychiatric evidence which satisfied them that, in effect, it was improbable that similar conduct would not recur.  Also, the practitioner was regarded by his colleagues as a caring, kindly and compassionate man.

The appellant contends that the Tribunal was in error in not taking the same approach with respect to him and that the learned Judge erred in not so deciding.  I do not agree.  The serious conduct of the appellant could not be regarded in such a manner.  There was no error in the approach of the Tribunal in deciding the appropriate method of discipline or in the decision of the learned Judge to that effect.  There was no mistaking of the evidence.  The conclusions of fact were justified by the evidence and there was no error of law in the application of them.

In my view, neither the Tribunal nor Debelle J fell into error in the approach taken to discipline.  Debelle J said at pp598-599:

“A period of suspension may be ordered so that the Tribunal can direct a practitioner to acquire or renew skills and practices to avoid the risk of a repetition for the same misconduct.  Chan v Medical Board of SA (supra) provides an example.  The position was different in this case.  The Tribunal was concerned to remind the practitioner of his obligations always to adhere to proper surgical procedures.  In its reasons, it had expressed its concern that the practitioner had been stubborn in his refusal to acknowledge the seriousness of the error he had made.  The practitioner had taken what the Tribunal believed to be an unnecessary risk and did not acknowledge that fact.  When read as a whole, the reasons of the Tribunal show why it believed that the protection of the public required that it bring home to the practitioner the seriousness of his misconduct so as to ensure that he would not engage in like conduct again.  It is also apparent that it wished to ensure the public that this extremely serious lapse from professional standards would not lightly be passed over.  An order for suspension has punitive aspects in that it disqualifies the practitioner from the financial rewards of practising during the period of suspension.  However, it is apparent that the Tribunal’s primary concern was to protect the public.  The Tribunal had thought that the protection of the public required that it cancel the practitioner’s registration, but it stepped back from that course.  It is apparent that the Tribunal took the view that, once the practitioner had had an opportunity to reflect upon the gravity of his conduct and understand the seriousness of his error, it would be appropriate to permit him to practise in a restricted way.  The Tribunal also believed that there are areas where the practitioner will be a fit and proper person to practise and, if restricted to those areas of practice, will not be in a position to endanger the public.”

With respect, I also agree with those observations.  This was a very serious departure from the proper standard of the surgical practice.  The appellant is a very experienced specialist surgeon.  To ligate the carotid artery whilst uncertain as to its true identity is almost unthinkable given the likely consequences.  To refuse to acknowledge the true position before the Tribunal is an added feature of seriousness.  The view taken by the Tribunal and their reasons for it accord with commonsense and principle as was correctly accepted by Debelle J.

Obviously an order of this nature operates as a type of punishment of the appellant as would other forms of discipline such as a fine.  However, that consequence does not mean that the purpose is punishment and not protection of the public.  The latter may be achieved by a manner of discipline which causes the particular offender to re-appraise his or her professional conduct and make suitable changes.  In the present case the manner of discipline was obviously directed to protection of the public.  Suspension from practice is designed to achieve that object during the period of the suspension.

In my view, there is no substance in any of these remaining grounds of appeal.  Suspension from practice was justified in the circumstances.  The learned Judge did not err in any consideration of deterrence.  At all times he acknowledged that the purpose of discipline is the protection of the public.  He considered the personal circumstances of the appellant including his age, 67 years, his extensive training and experience and his sound reputation within the profession.  It is clear from his reasons for judgment that the learned Judge considered all of the matters favourable to the appellant and there is no reason to suppose that he gave inadequate weight to them.

In my view, the learned Judge was correct in his view that suspension from practice for a period of six months was not manifestly excessive in the circumstances.  Furthermore, it is appropriate to recognise that two of the three members of the Tribunal which imposed that measure of discipline are specialist medical practitioners.  As Cox J acknowledged in Chan (supra) at p446:

“It must have been intended that the professional members [of the Tribunal] would use their knowledge and experience when interpreting the evidence led at the enquiry or forming a judgment about a medical practitioner’s allegedly unprofessional conduct or determining what kind of order should suitably be made in the case of a practitioner who has been found guilty of such conduct.”

I would dismiss the appeal.

Cox J

In my opinion this appeal should be dismissed.  I agree with the reasons of Mullighan J.

Williams J

I agree that the appeal should be dismissed for the reasons given by Mullighan J.