The Medical Board of Australia v Al-Naser
[2019] ACAT 52
•11 June 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THE MEDICAL BOARD OF AUSTRALIA v AL-NASER (Occupational Discipline) [2019] ACAT 52
OR 11/2018
Catchwords: OCCUPATIONAL DISCIPLINE – MEDICAL PRACTITIONERS – credibility – conflicting evidence – patient record keeping – failure to explore less invasive treatments – failure to take an adequate medical history – failure to obtain informed consent – failure to provide adequate aftercare instructions and treatment
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 7
Subordinate
Legislation:Good Medical Practice: A Code of Conduct for Doctors in Australia
Guidelines for Registered Medical Practitioners who Perform Cosmetic Medical and Surgical Procedures
Cases cited:Briginshaw v Briginshaw (1930) 60 CLR 336
Council of the Law Society v The Legal Practitioner [2010] ACAT 2
Livers v Legal Services Commissioner [2018] NSWCA 319
Tai v Dental Board of Tasmania [2005] TASSC 37
Yeaman v ACT Medical Board [2010] ACAT 27
Tribunal:Senior Member G Lunney SC
Senior Member M Matheson
Date of Orders: 11 June 2019
Date of Reasons for Decision: 11 June 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 11/2018
BETWEEN:
THE MEDICAL BOARD OF AUSTRALIA
Applicant
AND:
DR NATHEM AL-NASER
Respondent
TRIBUNAL:Senior Member G Lunney SC
Senior Member M Matheson
DATE:11 June 2019
ORDER
The Tribunal orders that:
The Tribunal finds grounds (a) to (e) of the application of 29 June 2018 made out.
The application is set down for further orders or directions on Monday 24 June 2019 at 10:30am.
The application for Interim or Other Orders filed by the respondent on 3 December 2018 is dismissed.
The decision on costs is reserved.
………………………………..
Senior Member G Lunney SC
For and on behalf of the Tribunal
REASONS FOR DECISION
This is an application for disciplinary action that was heard in 2018-2019. It arose from a complaint which was made by a female patient of the respondent medical practitioner. She will be referred to as ‘Patient K’ in this decision and he as ‘the respondent’. At the time of the alleged events Patient K was aged in her late twenties.
The respondent was one of two proprietors of a beauty clinic in the ACT, the Canberra Laser Biotherapy Clinic (CLBC), which undertook skin treatments using laser machines. Patient K consulted the clinic on 3, 6 and 7 March 2014 and underwent treatment on 6 March. She was unhappy with the result of the treatment and made a complaint to the Health Services Commissioner of the ACT Human Rights Commission (HRC) dated 5 November 2015.[1] The complaint was forwarded on to the Australian Health Practitioner Regulation Agency on 10 November 2015. The complaint is at page 8 of Exhibit 1.
[1] Exhibit 1 page 8
The application for disciplinary action, dated 29 June 2018 was brought by the Medical Board of Australia. It alleges that the respondent engaged in professional misconduct or alternatively unprofessional conduct. At the time of the conduct alleged, the ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’ (the Code) was in force up to 16 March 2014. After that the ‘Guidelines for Registered Medical Practitioners who Perform Cosmetic Medical and Surgical Procedures’ dated 1 October 2016 was in force. The following breaches of the Code were alleged.
Paragraph of Code Allegation (a) 2.1.1, 3.3.1,.3.3.2 Failure to assess the patient (b) 2.1.2, 2.2.6 Failure to explore less invasive treatments (c) 3.3.3, 3.3.4, 3.3.5, 3.3.6, 3.3.7, 3.5.1, 3.5.2 Failure to obtain informed consent (d) 2.1.3, 2.2.7, 4.3.1, 4.3.2 Failure to provide adequate after-care instructions and treatment (e) 8.4.1, 8.4.2, 8.4.4, 8.4.5 Failure to maintain adequate clinical records
The application also provided a record of the respondent’s disciplinary history. Amendment of this has been notified by email of 3 September 2018, and the applicant advised in the same email that the history would not be relied on in relation to any finding relating to conduct in the proceedings.
Standard of proof
These are disciplinary proceedings, and important issues arise both for the applicant as well as the respondent. The criminal standard does not apply, however a high standard of probability is required due to the gravity of the allegations in issue. This is a principle which finds its origins in the High Court case of Briginshaw v Briginshaw (1930) 60 CLR 336. It has been applied in a number of cases in this tribunal, one of them being Council of the Law Society v The Legal Practitioner [2010] ACAT 2 at paragraph 12 as follows:
Rich J’s test of “comfortable satisfaction” provides a succinct description of the standard to be applied in such cases. Proof beyond reasonable doubt is not required; but the standard requires more than a mere balancing of the scales. The evidence must be weighed, according to the gravity of the facts to be proved, to the extent that a conclusion is reached about those facts with a feeling of comfortable satisfaction that it is just and correct. (footnotes omitted)
Counsel for the respondent submitted as follows in relation to this issue:[2]
It is important at all times to bear in mind the requisite standard of proof to be discharged by the Medical Board in circumstances where it makes a complaint against Dr Al Naser that he failed to comply with professional standards. The requisite standard of proof arises from the seriousness of allegations of failure to comply with professional standards and the gravity of their consequences.
[2] Outline of closing submissions, paragraph 2.1
He cited Yeaman v ACT Medical Board [2010] ACAT 27. The Tribunal agrees with Counsel’s submission.
The Tribunal will apply the above statement of principle in considering the evidence in this case.
Background and evidence
Patient K consulted the clinic on 3 March 2014 to seek assistance with blemishes on her face thought to be due to acne scarring. She had done some online research and chose to attend the clinic due to supervision by a medical practitioner. The enquiry was initially attended to by a clinician, Ms Annie Page, who advised her and prepared a treatment plan. The plan proposed a six week treatment with one treatment per week, followed by review. The treatment proposal was to use a relatively low intensity dual laser, to be followed, presumably if found necessary on review, by “small patches with acne treatment” with a higher intensity laser nominated as an Erbium profractional laser. The treatment was to start on 6 March 2014.
She returned to the clinic to commence the treatment on 6 March 2014, and spoke to Ms Page and Ms Sarah Larkin, a clinician and part owner with the respondent in the clinic. In circumstances about which there is great controversy she received treatment from the Erbium profractional laser. During and after the treatment she said she was in pain and was concerned about the appearance of her face. She telephoned the clinic later that day to speak of her concerns.
The next day, 7 March 2014, she attended the clinic, consulted the respondent and also consulted her family doctor. There is little common ground in relation to the events of 6 March 2014.
Patient K described the events and her concerns in a Statutory Declaration of 24 November 2014. The statutory declaration is at page 12 of Exhibit 1 in the proceedings. A solicitor acting for Patient K wrote to the clinic attaching the statutory declaration and making a claim for compensation. The letter was dated 24 November 2014 and is Exhibit 5. The letter in reply from solicitors acting for the proprietors of the clinic rejecting the claim for compensation is at page 110 of Exhibit 1. Exhibit 1 consists of a solicitor’s affidavit exhibiting relevant documents.
The patient wrote a letter on 24 April 2016 to the HRC providing further information about her complaint in response to a letter of 22 March 2016 from the Commission.[3]
[3] Exhibit 1, pages 122-125
Her claim for compensation was settled and material relating to that is found in an affidavit with annexures of the respondent dated 3 December 2018 which became Exhibit 7. A settlement deed executed by Patient K is annexed to that document.
Patient K gave evidence at the hearing on 12 and 13 December 2018.
Colour photos of the patient’s face taken at relevant times were tendered as Exhibit 6.
Doctor Molton, a cosmetic physician, whose report of 18 October 2018 was Exhibit 13 gave evidence on 10 January 2019 called by the applicant.
The two affidavits mentioned by the respondent were tendered and he was cross examined. Ms Larkin and Ms Page were called by the respondent and their statements tendered.
Prior to the hearing which commenced on 12 December 2018, the respondent on 3 December filed an application for interim or other orders seeking orders that the application of 29 June 2018 be dismissed, and that the applicant pay the respondent’s costs on an indemnity basis. The six grounds for the application included allegations that the application was founded on a fraudulent complaint; the application had been made for an improper purpose; and that there had been excessive delay in bringing the application. The applicant for the interim orders was directed on the first day of hearing to file and serve further and better particulars. This was done. Practical arrangements to manage witnesses and evidence in the principal proceedings prevailed and the application was effectively adjourned until the conclusion of the main application. It awaits determination, which will be dealt with at the end of these reasons for decision.
At the hearing, counsel for each party on the last day filed outlines of their final submissions. Counsel for the respondent raised two issues in his outline and addressed them orally in final submissions. It is convenient to address them at the outset before moving to deal with the principal issues.
Preliminary Submissions (1): Impermissible Findings
In this submission the outline of submissions refers initially to the requirement of section 7 of the ACT Civil and Administrative Tribunal Act 2008, (the ACAT Act) that the tribunal observe natural justice and procedural fairness. The outline goes on to refer to a number of authorities relating to those principles. They include Tai v Dental Board of Tasmania [2005] TASSC 37 and Livers v Legal Services Commissioner [2018] NSWCA 319.
Paragraph 2.16 of the outline says:
2.16 There is no allegation in the Disciplinary Application that Dr Al Naser:
(a)did not assess or examine the patient on 6 March 2014; or,
(b)falsified his clinical notes to show that he consulted with the patient on 6 March 2014 in circumstances where he had not done so.
It is appropriate to deal with paragraph (b) above initially. The Tribunal agrees with this submission. The Tribunal does not understand that the applicant is seeking findings of that nature in the application, and the issue will not be the subject of consideration by the Tribunal. It is otherwise in relation to 2.16(a) above.
In paragraph 2.17 of the outline, counsel expands on the assertion in paragraph 2.16(a) that there is no allegation in the application that the respondent did not examine the patient on 6 March. It reads as follows.
Ground (a) of the Disciplinary Application states that Dr Al-Naser failed to “adequately asses [sic] the patient …. in that he undertook an inappropriate or inadequate examination of her”. This is clearly not an allegation that he did not asses or examine the patient on 6 March 2014. Indeed, paragraph 12 of Attachment A to the Disciplinary Action expressly refers to an “assessment” and “examination” of the patient.
Counsel appears to be alleging that the quoted statement in that part of the tribunal form particularises that there was an examination before treatment which was either inadequate or inappropriate. In doing so it refers to Attachment A to the application.
Attachment A is attached to the standard ACAT form application and sets out in narrative form the particulars of the legislation and associated breach alleged by the applicant. This appears to be a standard approach in disciplinary applications — to provide an attachment which sets out particulars of the conduct alleged to be in breach of the legislation or other provision identified there. Attachment A is headed “Statement in Support of Application for Disciplinary Action”. It identifies the respondent and briefly refers to the making of a complaint by patient K to the ACT Health Services Commissioner, and the nature of it. It gives a brief account of the circumstances of the complaint.
Attachment A under a heading “Breaches of National Law and the Code” gives detail of the breaches of the Code constituting the five grounds for the orders sought against the respondent. The first ground is referred to under the heading “(a) Failure to Assess the Patient”. Paragraphs 2.1.1-2.1.2 and 3.3.1-3.3.2 of the Code are quoted (and are reproduced at Appendix A). Then, in paragraph 11 of Attachment A, particulars are given of breach:
The respondent did not comply with paragraphs 2.1.1 and 3.3.1-3.3.2 of the Code, by failing to adequately examine the Patient prior to treatment being undertaken, including failing to take an adequate medical history.
Paragraph 12 does indeed use the words ‘assessment’ and ‘examination’ but they are used in a generic sense and not with specific reference to the respondent and their use does not appear to be relevant to the submission of the respondent. Significant documents are referred to in the paragraph, the first of which is the complaint by the patient.
It is the view of the Tribunal that the particulars of ground (a) do not support the interpretation of particulars of breach contended for by the respondent based on the printed application statement. The particulars in Attachment A do not allege an examination which was inadequate. They allege a failure to comply with the noted provisions of the code by failing to adequately examine the patient. Those particulars cover a failure to examine the patient at all.
If there is some tension between the information given in the form and the particulars provided in Attachment A, then it is the view of the Tribunal that the more detailed exposition in Attachment A should prevail. The time has long passed when any doubt arising from the wording of the application could have been settled by an interim application, and now a determination must be made. The matter has been conducted on the basis of the particulars as articulated in Attachment A. The complaint document[4] has been admitted into evidence at the outset without objection as was the evidence in chief of the applicant.
[4] Exhibit 1 page 8
That the evidence tendered by the applicant relating to ground (a) would include evidence given by the patient that she had not consulted with the respondent was clear from the filing and service of Exhibit 1, to the conclusion of evidence at the hearing. The issue of whether the patient consulted with the respondent prior to treatment forms a basis for an application to terminate the proceedings brought on 3 December 2018. That issue was put directly to the patient by counsel for the respondent in cross examination on the first day of hearing,[5] and on approximately 11 further occasions during cross examination on the second day. She denied that there was a consultation with him on 6 March 2014 on each occasion that the issue was put to her in cross examination. The issue was fully explored in the course of the hearing.
[5] Transcript of proceedings 12 December 2018 page 62 line 34; page 64 lines 31, 39, 47; page 82 lines 6, 20, 50; page 84 lines 26, 33, 45.
At the end of the section of the outline of submissions referred to, the respondent submits that it is not permissible for the applicant to seek findings that the respondent did not see the patient on 6 March 2014.[6] The Tribunal does not consider that the applicant is doing so. In ground (a) it is seeking findings that the respondent failed to comply with the listed paragraphs of the Code by failing to adequately examine the patient prior to treatment being undertaken, including failing to take an adequate medical history. The applicant tenders evidence of a failure to consult with the patient in support of the findings sought. That evidence is denied and challenged by the respondent. It is evidence of which the respondent has had clear notice. It provokes a factual issue of which the respondent has also had clear notice. The Tribunal will make a factual determination on the factual issue in coming to a decision relating to the findings sought.
[6] at paragraph 2.24
No new issue has been introduced into the proceedings in the way referred to in the authorities relied on by the respondent. Evidence was filed by the parties in accordance with tribunal directions. This made it clear what the applicant’s case was. There was no suggestion that the case of the applicant was that there was a consultation on 6 March 2014 which was inadequate in some respect. If the respondent was in any doubt as to the nature of the applicant’s case an application should have been made in a more timely manner. The applicant’s case is clear and has been met. The Tribunal disagrees with the respondent’s submission noting that the substance of the submission was not incorporated as an order sought in the application for interim or other orders filed on 3 December 2018.
Preliminary Submission (2): Patient K’s Credit
After making the submissions regarding improper allegations of falsification of documents, counsel for the respondent then entered an area of his outline of submissions headed “[Patient K] is not a witness of credit”. He submits a number of bases for seeking that finding, and started by noting that the patient’s evidence came from a number of sources.
The sources were said to be the following.
(a)A statutory declaration of 23 November 2014.[7]
(b)A lawyer’s letter of 24 November 2014 which covered the statutory declaration forwarded to the respondent’s clinic.[8]
(c)Her written complaint.
(d)A letter from the patient to the HRC.[9]
(e)A deed executed by the patient dated 16 May 2017.[10]
(f)Her evidence given at the hearing.
[7] Exhibit 1 pages 12-15
[8] Exhibit 5
[9] Exhibit 1 pages 122-125
[10] Exhibit 7 pages 4-11
Counsel asserts that there are inconsistencies, changes and embellishments in what he describes as Patient K’s various versions of events, in support of his submission. The Tribunal considers it important in considering the blanket finding which is sought, that of the evidence sources listed only the oral evidence, the complaint and the letter to the HRC are authored directly by the patient.
In relation to the deed this appears to have been drawn by the firm of solicitors that had acted for the respondent in writing to the ACT Health Services Commissioner on behalf of the respondent.[11] Counsel submits:[12]
The Deed signed by the plaintiff acknowledges in Recital A that the plaintiff did have a consultation with Dr Al Naser on 6 March 2014.
[11] Exhibit 1 page 108
[12] Submissions 2.31
Recital A says that on 6 March 2014 the patient attended the respondent’s clinic “for a consultation with the [respondent]” Saying that a person attended for an appointment does not connote that the appointment occurred, and is hardly an acknowledgment that a consultation did take place. During the hearing, this issue was put to Patient K and she denied that the statement in the recitals to the deed bore that meaning contended for by counsel for the respondent and again denied that a consultation had taken place.
The Tribunal does not consider that this recital in a document that was not prepared on the instructions of the patient has any bearing on her credit.
In paragraph 2.35 of the submission, counsel refers to ten occasions when he says the patient mentioned evidence for the first time. The Tribunal does not find that unusual since most references are to the oral evidence of the patient when she was able to give detail unrestricted by written delivery of evidence.
The assessment of the Tribunal was that the plaintiff gave her evidence in a forthright and careful manner often in difficult circumstances when being pressed in cross examination. She readily conceded some inconsistencies. Counsel for the respondent expressed his assessment of the patient in the following terms:[13]
In my submission, [the patient] came across as a confident and articulate person. She is mindful of vindicating her rights.
[13] Transcript of proceedings 10 January 2019 page 419 line 1
The Tribunal is not persuaded by counsel’s argument and does not accept his submission that the patient is not a credible witness.
Factual findings generally
There were a number of conflicts of evidence between the respondent and Ms Larkin on the one hand, and Patient K on the other during the hearing. In making factual findings in relation to the five breaches alleged, it will be necessary to resolve a number of those conflicts in order to determine what happened at the clinic on the two occasions, 3 and 6 March 2014 when Patient K presented in relation to laser treatment. It will then be possible to determine the disciplinary issues.
Evidence
Evidence comes from Patient K, the respondent, Ms Page, Ms Larkin and documents from the clinic.
Patient K in her statutory declaration describes her arrival at the clinic on 3 March 2014 when she spoke to Ms Page. There was a discussion about treatment and discussion that prior to treatment she would have a consultation with a doctor, and also a test patch of the skin would be conducted. It is likely that Patient K was given a four page document produced by the clinic headed “Client Details”.[14] The first page contained some personal details which Patient K filled in together with a “Photo Consent” which she also completed and signed.[15] The second page contained a pro forma medical history which could be completed by the patient. It is not clear whether this was completed by Patient K as only the first page of the form is available. The third and fourth pages consisted of a “Laser/Photo Skin Treatment Client Consent” form which Patient K says she did not sign because she had not had the consultation, and the skin patch test had not occurred.
[14] Annexure B to Exhibit 2, the respondent’s first affidavit
[15] Exhibit 1 page 28
She was also given a treatment plan,[16] which recommended six weekly treatments with a dual laser with review after six weeks. The two one-page documents mentioned are the only records that relate to that attendance. She made an appointment for 6 March 2014 to commence treatment.
[16] Exhibit 1 page 24
She next attended on 6 March 2014 and spoke to Ms Larkin and Ms Page on arrival. She was advised by Ms Larkin that she would gain the best result if she had treatment on three consecutive days with the Erbium Profractional Laser. There was further discussion, and she underwent the treatment which she described as very painful. She was upset by her appearance and said that she had expressed to Ms Larkin her concern about having the treatment three days prior to her son’s first birthday party, and was told she would be able to wear makeup the morning after the treatment. She said that the respondent did not enter the treatment room prior to the treatment.
In her formal complaint, she says that the respondent was not in the clinic on the day that she had the treatment, and in a later part of the form that she never saw him prior to or during her treatment.
In her evidence in chief, she expands on her previous descriptions of her arrival at the clinic, discussions with Ms Page and Ms Larkin, having some cream applied to her face, and then the treatment. She says that at some stage whilst in the waiting room, she noticed that all the rooms in the clinic were vacant. The treatment was carried out, and she rested before driving herself home. It was put to her in a variety of ways in cross-examination that she had a consultation and examination with the respondent which she denied.
The respondent’s affidavit set out the system for processing clients for laser treatment and described a consultation between himself and Patient K prior to treatment on 6 March 2014. He said that in the consultation he would have asked his standard questions for cosmetic patients.
At paragraph 17 he said the following.
It was our standard practice at the Clinic to hand out information packs to prospective laser resurfacing patients with the information about the profractional laser resurfacing, how many treatments were required, the pain associated with the treatments the risks the healing process, after care instruction, and treatment outcome. The Profractional Laser Resurfacing information pack also contained a Procedural Consent for Profractional Laser Resurfacing.
He annexed an example of the pack to the affidavit and this is referred to later as the Profractional Laser Resurfacing document. Later at paragraph 33 he said that Patient K had confirmed that she had been given a copy of the pack and had the documents in her hand at the time of his consultation with her.
He described his practice relating to taking notes at the time of consultation, that he made a visual assessment of her scarring, and ensured that she had been provided with written information and that it was his standard practice to ask patients after signing whether they had read and understood the forms. He said:
I would ask the patient whether they had any questions for me or if there was anything they did not understand. Regardless of their response, I would repeat what the patient is consenting to and that they would experience pain, redness, and some bleeding. I did this to ensure that they knew what to expect following the treatment. I would tell them to call and to return the clinic if they had any concerns about their reaction.
He said that he believed that his consultation with the patient was in accordance with his standard practice. He authorised the treatment. He also referred to the note attributed to him in the Complete Record in Exhibit 1 (the computer based patient notes), and said that he had made the entry because the patient had signed a consent form prior to or during his consultation. No consent form is produced and he did not make a contemporaneous note of the consultation he describes.
A statement by Ms Larkin was tendered and she was cross examined. She described the routine for processing laser treatment clients and described in great detail her interaction with Patient K before during and after the treatment. She said that following her initial consultation with Patient K, but prior to the treatment, Patient K saw the respondent. She made no contemporaneous note of her consultation with Patient K. In her statement, she says that Patient K signed the consent form for profractional laser treatment and described its contents She then said the following.
15. I also made sure the Patient had been provided with an information sheet which contained information about the treatment and aftercare instructions.
16. I discussed the Patient Information Form and the Consent Form with the Patient in detail. It is important to discuss the risk factors with patients orally because laser resurfacing is one of the most aggressive treatments available for skin treatment.
17. I also discussed the aftercare instructions with the Patient. I told her that there are different types of wounds. I also told that she must follow a strict regime to ensure the best outcome of the treatment. I told the Patient this regime required:
(a) washing her skin every 30 minutes to an hour;
(b) irrigating her skin with saline;
(c) glad wrapping it overnight;
(d) allowing 4-5 days without applying makeup due to the discharge from the skin; and. applying cream to ensure that it does not dry out.
The wound should stabilise enough the following day to apply natural based make up but it would not hold very well. Due to on-going discharge, powder make up would not hold for 4-5 days after the treatment.
18. I told the Patient that most people take a few days off work because they do not want people seeing them following the treatment. I told the Patient that she would need 4-5 days downtime following the treatment. The Patient did not tell me that she had to organise her child's birthday in a few days’ time. If she had, I would not have recommended the treatment on the basis that it would not be practical for her to be organising a birthday party and washing her face every 30 minutes to an hour. I did not tell the Patient that she could cover the wound with a make up a few days after the treatment.
19.It is important to inform patients fully and bluntly about the downtime required following laser resurfacing. This was always my practice in 2014 and has always been my practice.
20. I ensured that the Patient understood the immediate effects of the treatment and what she was required to do. I was satisfied of this because I asked her a few times if she had questions and she said things like “I understand what I have to do” and also repeated back to me the aftercare that she was required to perform.
Later in the statement she said that she performed the treatment on Patient K after she had seen the respondent. She also said that she did not do a patch test because Patient K did not want it. She said that she did not have a copy of the patient information form or consent form signed by the patient because they were experiencing a problem with their scanner around March 2014 and a number of documents were not scanned into the system.
Ms Page in a statement which became Exhibit 3 described the routine in the clinic. She confirmed that the respondent worked in the clinic three half days per week. Patients were sometimes sent next door to the respondent’s GP clinic if he was not available at the clinic. Most patients were able to return to their daily activities after treatment with the dual laser. She said that prior to any consultation with her, she would ask patients to complete a patient information form. She said that before any treatment with the Erbium laser was carried out on a patient, the patient was provided with an information sheet and had to complete a consent form. She said that she accepted that she saw the patient, but now could not remember her.
There are two records which survive Ms Page’s consultation with Patient K and have previously been referred to. The first is a “Consultation Summary” which recorded the patient’s primary concern and set out a treatment plan with a costing.[17] The second is a document headed “Patient Details”, and contains some formal personal details and a photo consent.[18]
[17] Exhibit 1 page 24
[18] Exhibit 1 page 28
There is a computer generated record headed “Complete Record”,[19] which contains two brief entries for the date of treatment on 6 March 2014 timed 15:14 and 1534 hours. Patient details recorded in the form are minimal. Those entries are as follows:
Thursday March 6 2014 15:14:07
treatment for scaring with the pro fractional laser 250d-11%, skin type 2-3 right cheek and neck and top lip
Thursday March 6 2014 15:34:44
Dr Nathan Al-Naser
acne scarring on face for profractional laser, steps explained. pt signed forms and consents. etc
[19] Exhibit 1 pages 25-27
There was therefore clear conflict of evidence relating to almost all aspects of Patient K’s attendance at the clinic on 3 and 6 March 2014. One significant issue that arises is what assessment was made of her and the medical history taken, in order to determine her suitability for the treatment which was proposed. Another was what information was provided to her about the nature and consequences of the treatment that was proposed and what consent was given by her to the treatment. A number of subsidiary issues as to what happened on those two days fall to be determined. Although minor, resolution of those issues will assist in determination of the principal ones
The following issues arise.
An issue regarding the Client Details and Laser/Photo Skin Treatment Consent form on 3 March 2014
The first page of this form was signed by Patient K[20] and the Tribunal infers that she read it because she said she did not sign the consent on pages 3 and 4 for reasons associated with the first and third dot points on the form. Evidence for the respondent indicates that she did sign that form but it is not produced and the respondent’s evidence relies on the clinical system that it is signed by each new patient. Ms Page who dealt with Patient K that day has no independent recollection. The Tribunal therefore accepts her evidence that she did not sign the form for the reasons she gave. The Tribunal infers from that evidence that she was concerned to read a consent such as the one presented to her and independently decide whether to sign it.
A document issue
[20] Exhibit 1 page 24
There is an absence of documents or information contained in documents to corroborate the respondent’s version of events. Documents absent from the clinic’s records contrary to evidence of their creation are: pages two to four of the Client Details form page one of which was signed by Patient K during her attendance on 3 March 2014; and the Profractional Laser Resurfacing form with “Procedural Consent for Profractional Laser Resurfacing” allegedly signed by the patient on page three.
There is no contemporaneous note of the alleged consultation made by the respondent contrary to what he says is his normal practice of making notes contemporaneously with or just after consultation before the next patient. The note in the Complete Record ascribed to the respondent and timed at 1534 contains no record of assessment and no medical history other than repeating the nature and purpose of the treatment. It does not say that the respondent attended the client in consultation.
In cross examination the respondent gave evidence about his practice of making contemporaneous notes for each consultation, and delivered the following confusing information.
So when a patient comes in for a consultation, so just your general practice in about March 2014, do you have your computer turned on, generally?---Yes.
And do you - is there already information that would be populated for that patient, if they’ve already seen Sarah England say in that - in that scenario? Would there already be information for them in the online patient record, or do you have to create a record?---No, I would create a record.
So you create the record for every patient?---Not me, the receptionist creates a record in - a patient record appears in front of me. Then I start entering medical information…(inaudible)…
So you enter the medical information while the patient is there?---Is there with me in the consultation.
Okay. So - - -?---Apart from what needs to be scanned.
Yes. Yes, okay. So you’re entering it as you’re asking questions. So I know you say that you saw this patient on the 6 March. So is your evidence that she came in to your consultation room? Is that what you say?---Yes.
Yes. And do you say that you entered information about her in to - - -?---While she’s sitting there?
Yes?---No, I can’t say that because that - again, that will differ according to patients. Occasionally I have to duck out to the room and do something and come back and enter my data, so.
Okay. So would you always enter the data, before you see another patient?--- Yes. Because I have to flick the file and - - -[21]
Here the respondent confirms his usual practice. In his affidavit of 27 November 2018 he says that he entered the note in the Complete Record attributed to him and timed at 1534, but does not explain why it was made at that time and, having described his usual note taking practice at paragraphs 27-28, he gives no explanation why the usual practice was not observed in relation to Patient K.[22]
[21] Transcript of proceedings 13 December 2018 page 164 line 22 – page 165 line 6
[22] Exhibit 2 paragraph 35
The respondent alleges that Patient K signed two laser treatment consent forms. The first is a general laser treatment consent headed “Laser/Photo Skin Treatment Client Consent” which Patient K was probably shown by Ms Page on 3 March 2014, but refused to sign on that day. The respondent at paragraph 21 of Exhibit 2 says referring to the form ‘Client Details’ of which the consent was pages 3 and 4:
The patient completed a form and signed a consent in these terms on 6 March 2014.
The second consent form was the one for the profractional laser treatment. In his affidavit the respondent says that to the best of his recollection he believed that Patient K signed that consent on 6 March 2014.[23] However, by paragraph 35 he had become more certain in his recollection because he said he made the 1534 entry in the Complete Record “because the patient had signed a consent form prior to (or during) the consultation with me”.
[23] Exhibit 2 paragraph 18
The respondent attempts to explain the absence of the two signed consent forms by technical failure of a scanning machine although details are vague. No maintenance records or other records relating to equipment failure are produced and the oral evidence is weak and inconsistent. The respondent gives a convoluted explanation of the absence of the signed profractory consent form he says Patient K signed.[24] His explanation is inconsistent and unreliable. The Tribunal does not accept that an equipment failure satisfactorily explains the absence of important documents.
[24] Transcript of proceedings 13 December 2018 page 162 line 26 to page 165 line 6
There is no contemporaneous note made by whomsoever provided the treatment undergone by Patient K. In her statement, Ms Larkin claims to have performed the treatment.[25] However in her oral evidence she claimed that Ms Page performed the treatment,[26] but later stated that she did not know who performed the treatment.[27] There is an anonymous entry in the Complete Record timed at 15:14.[28] Ms Larkin was asked whether it was her note and she said she did not know.[29] Because there is no evidence of the author or why it was entered at such a remote time from the treatment, the Tribunal regards it as unreliable. Ms Larkin’s evidence on this topic is also unreliable.
[25] Exhibit 4 paragraph 35
[26] Transcript of proceedings 14 December 2018 page 263 line 17
[27] Transcript of proceedings 14 December 2018 page 263 line 33
[28] Exhibit 1 page 26
[29] Transcript of proceedings 14 December 2018 page 263 line 8
There was a change on 6 March 2014 in the treatment plan advised to Patient K by Ms Page on 3 March 2014 so that treatment was to be with a more invasive laser and with a change in frequency of treatment. There is no document equivalent to the one issued to Patient K on the earlier date and no claim that one was created to evidence the advice that the patient received and the nature of the treatment proposed.
The Tribunal finds that the documents of the clinic relating to the treatment of Patient K do not support the evidence of the respondent. Absent documents raise issued of credibility in assessment of the evidence of the respondent and the witness Ms Larkin. In the Tribunal’s view there is no conflict between the evidence of Patient K and available documentation.
The breast feeding issue
An issue arose regarding whether Patient K was breastfeeding at the time of the treatment and if so whether that would have impacted on her consent to undertaking of treatment.
The respondent annexes to his affidavit an example of the form used in the clinic headed “Profractional Laser Resurfacing”.[30] The document gives information about use of the profractional laser and does so by asking various questions and for each question giving information about the procedure in answer to the question. One of those questions is “Is everyone suitable for Profractional?”[31] The answer relevantly is “There are certain circumstances in which we may not treat: … Pregnant or breast-feeding women”.
[30] Exhibit 2 Annexure A
[31] Exhibit 2 page 11
Patient K in examination in chief said:[32]
… At the counter when Sarah changed my treatment plan and applied numbing cream to my face, prior to my laser treatment on 6 March, she didn’t ask me whether I was breastfeeding my son, who was with me in the pram and she didn’t ask me about any other medications I was taking before she put something my face. And I’m not aware what the cream was, that was put on my face.
And what was your son being fed at that point?---He was fed breastmilk, solely until 14 months old.
[32] Transcript of proceedings 12 December 2018 page 44 lines 14-22
Patient K attended her family GP the following day, 7 March 2014. His clinical notes of that consultation confirm that she gave a history of breastfeeding at that time.
In addition to the question of suitability for profractional treatment raised in the laser treatment information form, there is another reason for the respondent or staff at the clinic to make the enquiry relating to breast feeding and that is the use of Lignocaine in the clinic as a topical anaesthetic. In his report, Dr Molton says that if Lignocaine is to be used in treatment of a breast feeding patient, mother’s milk should be expressed to feed the infant for 24 hours after treatment.[33] Patient K says that cream was rubbed on her face prior to treatment, and the respondent agreed that Lignocaine was used in the clinic, however there is inadequate evidence to establish that the cream contained Lignocaine.
[33] Exhibit 13 Report page 2
The respondent gave the following rather confused evidence about breastfeeding and its relationship to laser resurfacing:[34]
[34] Transcript of proceedings 13 December 2018 page 161 line 11; page 162 line 25
Okay. Just want to ask you some questions, you’ve got your affidavit there of the 27 November 2018?---Yes.
And you have a list of questions at 24. Do you see that?---I don’t - - -
That’s paragraph 24 on page 5?---Yes.
You’ve said that your standard practice was to ask all of these questions?---To ask - yes, these questions and other - and other questions where are not answered by the other form that patients fill. Patient would fill a form that has a lot of things and if I’m not satisfied there is some extras, I would ask these questions. And if there is some other stuff some consultations relating to something else, because I do very acute(?) things, I would ask more specific questions.
Is use of the erbium laser contraindicated for somebody who’s breastfeeding?---We prefer - it’s not a contraindication but we do prefer not to do it. So we may - we may, we may not but we haven’t encountered a case. I don’t think we would do it. It’s not a real contraindication.
It’s not a real contraindication?---No, not for breastfeeding.
Okay. So at attachment A, annexure A to your affidavit, and if I can take you to page 11, at the bottom of the page it says, “Is everyone suitable for profractional? There are certain circumstances in which we may not treat pregnant or breastfeeding women.”?---Correct. We say “may” yes. And my may is always I wouldn’t treat someone. Haven’t encountered breastfeeding women coming for a resurfacing treatment.
You’ve never encountered a breastfeeding woman come? So have you asked every woman comes, whether she’s breastfeeding?---Well, it’s on the form.
Yes. Could you point me to where it’s on the form?---Breastfeeding, it’s probably not on the form then, just …(inaudible)… I can’t confirm that I ask everyone whether they’re breastfeeding or not really. I can’t confirm that. But I would - - -
So you couldn’t say you - - -?---Not every patient.
MR MOUJALLI: Objection. The witness hadn’t completed his answer.
MS WRIGHT: I’m sorry?---Yes. I can’t confirm that I ask every women but generally I do ask that question if they are breastfeeding or not. But in relevant circumstances I always ask. So I would say if they were coming for resurfacing, I would’ve asked but you asked me whether every one; I can’t really - - -
So if they had recent obstetric history in the last year, would that be a circumstance where you’d ask if they were breastfeeding?---Yes. I would ask breastfeeding about all my other relevant procedures, as I say. But you asked me whether you confirm that every one. I can’t say that I asked - - -
I said every one that’s having erbium laser?---I would’ve asked - I would’ve asked if they were breastfeeding. Can’t confirm that every one. Obviously if they are at an age when they can have babies.
And what age group is that?---Well, any age between 18 and these days 50 I guess.
So your evidence is that anybody between 18 and 50 you probably ask them if they’re breastfeeding if they’re going to have the erbium laser, but you can’t be sure?---Yes.
The respondent’s indecision in answering the questions put to him is not only relevant to his credit, but also to the nature and quality of his assessment of the patient.
The Tribunal accepts the evidence referred to and finds that Patient K was breast feeding at the time of the treatment. Her evidence is supported by the notes of the practitioner she consulted the next day. The age of her son marked by the birthday party the following weekend is consistent with such a finding.
Patient K says that she did not see the Profractional Laser Resurfacing information document let alone sign let alone sign the consent form which was part of it. That evidence if correct would explain its non production. The warning about the suitability of the procedure for breast feeding women contained in the document would render it unlikely that she would have consented to the procedure without at least raising the issue with the respondent or Ms Larkin if their evidence regarding discussing the nature of the procedure with her and her signing the consent is correct. The respondent and Ms Larkin’s evidence does not refer to any reluctance on the part of Patient K to proceed that day. They do not claim to have enquired about breast feeding at the time of treatment.
An issue regarding attending with her son in a pram on 6 March 2014
This issues involves Ms Larkin because in the quote above, Patient K says that she had her son in the pram at the time of her arrival. Ms Larkin says that she could not recall any child being present with Patient K and children were not allowed in the clinic.[35]
[35] Transcript of proceedings 13 December 2019 page 263, line 35
Patient K was challenged in cross examination about having her son with her during her attendance at the clinic on 6 March 2014. The following exchange occurred:
The reason why you mentioned taking your son with you yesterday is because you say it caused you added discomfort because your son saw you in the state that you were?---No, not that reason.
What was the reason? I withdraw that. What do you say is the significance of the fact that you took your son with you on 6 March 2014?---Because it was difficult to look after an infant when I was in pain and I wouldn’t have taken him in the circumstances if I knew I would be bleeding, having headaches. I wouldn’t - I probably wouldn’t have driven myself if I knew I had to drive home in that state.
You say having your son with you added to the discomfort which you experienced?---Yes.[36]
[36] Transcript of proceedings 13 December 2018 page 111 lines 4-16
It was then put to her that saying she had her son with her was not truthful evidence.[37] She denied that suggestion.
[37] Transcript of proceedings 13 December 2018 page 112 line 10
Having found that Patient K was breast feeding at the time of the treatment, the Tribunal also finds that when she attended the clinic on 6 March she had her son in a pram with her. That is consistent with the practical probabilities of the situation that a breastfeeding mother would be accompanied by her child; she had described herself as a “stay at home mother”,[38] and said that her husband took time off work to drive her to the clinic the following day.[39] The Tribunal prefers the evidence of Patient K to that of Ms Larkin and finds that her son accompanied her to the clinic on 6 March 2014. From that finding, The Tribunal infers from her answers to questions put to her referred to above that if she had been presented with the profractional information form and read and understood it and paid attention to the description of the consequences of the procedure that the respondent and Ms Larkin say they gave her, that she probably would have raised the issue of coping with her son that day at the clinic with the respondent or Ms Larkin.
An issue regarding her son’s birthday
[38] Exhibit 1 page 14 paragraph 21
[39] Transcript of proceedings 12 December 2018 page 42 lines 25
In her statement, the patient says that Ms Larkin on 6 March 2014 advised her that she would gain the best results if she had three treatments with the Erbium profractional laser on consecutive days, so she made an appointment, for the next day 7 March.[40] She goes on to say:
Prior to committing to the appointments I did raise my concern to Sarah with having treatment dates so close to my son’s first birthday party. I was assured that make up would sufficiently cover any redness and could be used the morning following treatment
[40] Exhibit 1 page 12 paragraph 3
In her oral evidence on 12 December 2018,[41] the patient said that she said when speaking to Ms Page and Ms Larkin that she couldn’t make appointments for three consecutive days of treatment because of plans already made on the weekend for her son’s birthday.
[41] Transcript of proceedings 12 December 2018 page 41 lines 12-14
Later at paragraph 15 of the statement, Patient K describes her discomfort at the birthday party due to her appearance.
In her statement Ms Larkin denies that Patient K told her about the birthday party but told the patient that she would need four to five days downtime following the treatment.[42] She also denied that she told the patient that she could cover the wound with make up a few days after the treatment. She describes in great detail providing a large amount of information to the patient over a considerable amount of time. Detailed information which, if given, would probably have enabled the patient to have a good idea of the nature of the treatment which was proposed.
[42] Exhibit 4 paragraph 18
The Tribunal accepts that the appearance of her face at the birthday party would have been an important priority for Patient K. If she had read and understood the information sheet to which the consent was attached she would have learned there would be bleeding and a healing process lasting five to seven days with application of cream while a new epithelium grew. The respondent and Ms Larkin also say they informed her of the consequences of the procedure The Tribunal is satisfied that she elected to proceed with what she believed was a non-injurious ‘patch’ investigation but was unlikely to have proceeded with the profractional laser treatment had she been fully informed of the physical consequences for the appearance of her face when the treatment was carried out because of the proximity of her son’s birthday party.
An issue whether Patient K signed the profractional consent form and her consent to the procedure
Patient K denies signing any consent form. She did not sign the general client details form she was given by Ms Page on 3 March 2014. In the reference to Ms Larkin’s statement above she refers to discussing the information document and consent form with Patient K. In the following exchange Patient K denies being given that document on 6 March 2014 (page references are to the numbered pages in Exhibit 2, the first affidavit of the respondent):[43]
Because you did, in fact, [Patient K], sign a consent form in the terms which appear at pages 14 to 17 of the document which I have shown to you?---No.
(Pages 14 to 17 were the Client Details information form the first page of which is at Exhibit 1 page 28, but the complete form is at the pages in Exhibit 2, referred to by counsel above.)
In fact, [Patient K], you were provided with two consent forms. Can I ask you to go to the document at pages 10 to 13. Do you have that in front you, [Patient K]?---Yes.
If I can ask you to look at pages 10, 11, 12 and 13 but, again, there is no suggestion that what I’m giving you is a document signed by you but what I am putting to you is that on 6 March 2014, you were given a document in these terms. Do you accept that?---No.
You signed a document in these terms. Do you accept that?---No.
[Patient K], when you saw Sarah on 6 March 2014, she discussed with you both of the forms which I have shown you, that’s the case, isn’t it?---No.
She discussed with you after care instructions, do you accept that?---Verbally at the counter, yes.
[43] Transcript of proceedings 13 December 2018 page 133 lines 37-41
In his affidavit the respondent says that, to the best of his recollection, he believed that Patient K signed a consent form in the terms of the annexure ‘A’ to his affidavit (the Profractional Laser Resurfacing form).[44] Later at paragraph 22 he says that the treatment would not be carried out unless the patient had signed the Laser Skin Treatment Client Consent Form and the Procedural Consent for Profractional Laser Resurfacing.
[44] Exhibit 2, annexure A
At paragraphs 35 and 36 he says:
My notes taken on 6 March 2015 state “acne scarring on face for profactional laser, steps explained. Pt signed forms and consents” I entered this because the Patient had signed a consent form prior to, or during, the consultation with me. At the very least, she had signed the Laser Skin Treatment Consent Form. It was my standard practice, if the consent forms were signed prior to (or during) the consultation with me to ask the patient whether they read and understand the forms. I would ask the patient whether they had any questions for me or if there was anything they did not understand. Regardless of their response, I would repeat what the patient is consenting to and that they would experience pain, redness, and some bleeding. I did this to ensure that they knew what to expect following the treatment. I would tell them to call and to return to the clinic if they had any concerns about their reaction. I believe that my consultation with [Patient K] was in accordance with my standard practice.
I was satisfied that the Patient was fully informed about the treatment she was having and provided fully informed consent.
Patient K’s signing the profractional consent form and her consent to the procedure which might be termed the consent issue, is central to at least two of the disciplinary breaches alleged. Resolution of the minor issues of breast feeding, presence of son in pram, and proximity of son’s birthday are relevant to this issue since they reduce the likelihood of the accuracy of the evidence brought by the respondent on the consent issue. The evidence of both the respondent and Ms Larkin is that they discussed the profractional information document with her and she signed the consent form. If, as they claim, she was fully informed of the relevance of her status as a lactating mother and of the necessary damage to her face resulting from the treatment, it is highly unlikely in the opinion of the Tribunal that she would have proceeded with the treatment within the timeframe and in the manner described by the two witnesses.
She had previously declined to sign a consent form because in her view two preconditions had not been met. On 6 March 2014 those minor issues provided very valid reasons for not proceeding with profractional treatment at least on that day and not without resolution of the breast feeding issue raised in the clinic’s own document. She said in her oral evidence (T41.27) that when she went into the treatment room she thought she was going to see the doctor and have the test patch. The Tribunal accepts that evidence and prefers the evidence of Patient K relating to the events preliminary to the treatment. The Tribunal rejects the evidence of both the respondent and Ms Larkin relating to their discussions with her prior to treatment and in the respondent’s case his observations. The Tribunal also rejects their evidence that she signed consent forms.
The consultation issue
There is the starkest of conflicts between the respondent and Ms Larkin and Patient K in relation to whether there was a consultation between the respondent and Patient K on 6 March 2014. The evidence of Patient K that there was no consultation has been referred to as has the evidence of the respondent and Ms Larkin.
This issue is relevant to those disciplinary charges relating to quality of the clinical care provided by the respondent to patent K.
In paragraph 24 of his affidavit,[45] the respondent recognises the difficulty in remembering the events of five years earlier. His evidence in that affidavit is a mixture of purported recollection and reliance on a system within the clinic of processing patients which included his own routine. It was evident in cross examination that he had imperfect recall of the events of March 2014 and was very reliant on his clinical routine.
[45] Exhibit 2
A letter of 18 January 2016 was written on his instructions by Vertex Legal Group to the Health Services Commissioner at the ACT HRC. Paragraph 6 commences:[46]
Dr Al Naser maintains as far as he can recollect that he consulted with the patient.
This is an indication that the respondent’s recollection in 2016 regarding a consultation with the patient in 2014 was imperfect. The letter goes on to say that it attaches extracts of a patient’s records which confirms that the respondent was present in the clinic on that day. Those records are not identified as being included in Exhibit 1. Documents available to the Tribunal indicate that the respondent was present in the clinic, but not prior to 15:14.
[46] Exhibit 1 page 109
Ms Larkin in her statement of 5 December 2018 says that after she had consulted with Patient K, the patient saw the respondent. There are some concerns associated with that statement and Ms Larkin’s evidence generally.
Ms Larkin’s confidence that Patient K saw the respondent after Ms Larkin had seen her in Exhibit 4 paragraph 33 is not repeated in her cross examination:[47]
[47] Transcript of proceedings 14 December 2018 page 247 lines 4-39
But when [Patient K] saw you, Dr Al-Naser wasn't next door, was he?---Well, in my clinic, I’m not sure. Dr Al-Naser operates very close by, or his clinic is, and so what we would - what would happen is, if Dr Al-Naser went there, we would send them across for - to be seen by Dr Al-Naser in his clinic and then they - - -
Do you remember what happened with [Patient K]? Did somebody have to - did she have to go across to his clinic?---I - I can't recall, but to my recollection he was on site, was in the clinic.
And was she able to see him straight after you?---Yes. From my recollection, yes.
She didn't have to go away and come back?---You mean on the same day?
Yes?---Well, if she had topical anaesthetic she would have to go away and come back.
No, I’m asking about seeing Dr Al-Naser?---I’m not sure.
You can't recall that?---No.
Okay, so you can’t recall - I just want to be clear. You can’t recall whether Dr Al-Naser was there when she was there or whether she had to go away or come back?---I believe he was there is what I said. I said I can’t be completely certain but I - - -
At the same time?--- - - - believe he was there.
At the same time that you were having the consultation?---Correct.
With her?---Or perhaps she was scheduled to come back at a certain time for our skin cancer hours and that’s why she was requested to come back, I’m not sure, but I remember him seeing her on-site.
Okay, but you don’t know the time of the day?---No.
Ms Larkin shows an imperfect recollection of this important issue, and later evidence indicates that she may have confused Patient K with another patient.[48]
[48] Transcript of proceedings 14 December 2018 page 248 lines 5-7
A firm of solicitors who said they were acting for the respondent wrote a letter to the ACT Health Services Commissioner on 2 December 2015 regarding the complaint that had been made by Patient K. A paragraph approximately mid-way on page 2 of the letter reads:[49]
Ms England [Larkin] informed [the patient] as to her previous consultation with Ms Page, that she would be required to see Dr Al Naser prior to having the Erbium Laser treatment. The patient agreed but was asked to return in an hour as [the respondent] was seeing other patients.
The references to the hour delay, and priority of other patients are unique to this letter. The information in this letter undermines the reliability of Ms Larkin’s evidence in relation to this issue.
[49] Exhibit 1 page 105
For reasons given above, the Tribunal has determined that Patient K was not shown and did not sign the profractional laser treatment consent form contrary to the evidence of the respondent and Ms Larkin. Other issues have been determined contrary to their evidence. The Tribunal has also referred to other minor evidence adverse to the respondent’s credit and that of Ms Larkin. The circumstance that Patient K called the clinic at 1508 expressing concern at the outcome of the treatment so soon after it was carried out, is an indication of the genuineness of her surprise at the severity of the result of the treatment.
The Tribunal consequently has little confidence in the reliability of the respondent’s and Ms Larkin’s evidence. On the other hand the Tribunal has confidence in the veracity of Patient K. She is not a party to the proceedings and any interest she had in parallel proceedings has been settled. The Tribunal also notes that she gave consistent evidence while under methodical and lengthy cross examination during the hearing. Having regard to the material referred to above, the Tribunal prefers her evidence relating to this issue regarding a consultation on 6 March 2014, and is satisfied that the respondent did not consult with Patient K on that date.
Document issue
Ground (a): failure to assess the patient by failing to adequately examine and take an adequate medical history
Particulars of this ground have already been referred to and are as follows.
11. The respondent did not comply with paragraphs 2.1.1 and 3.3.1-3.3.2 of the Code, by failing to adequately examine the Patient prior to treatment being undertaken, including failing to take an adequate medical history.
The Tribunal notes that paragraph 10 of ground (a) cites the provisions of paragraph 2.1.2 of the Code, but paragraph 11 providing particulars of breach alleged does not refer to or allege breach of that paragraph. Under the heading of ground “(b) Failure to explore less invasive treatments”, paragraph 13 also sets out the provisions of paragraph 2.1.2 of the Code, and paragraph 14 gives particulars of breach of it. The Tribunal infers that paragraph 2.1.2 of the Code was included in paragraph 10 in error.
Dr Molton in his report of 31 October 2018, says that a practitioner in the respondent’s position:
would be expected to ensure that a patient was assessed either in person or by a suitably qualified person and if the patient wished to proceed further, then by a registered health practitioner of equivalent level of training and experience would undertake an in-person, formal consultation and examination with the patient.[50]
This is said to have been the standard practice within the clinic, however did not occur on this occasion.
[50] Exhibit 13
The respondent’s evidence that he attended to Patient K in the clinic for 15 minutes on 6 March 2014 is not accepted by the Tribunal.[51] Nor is his evidence that he made a visual assessment of her.[52] Patient K’s account that there was no communication with him prior to 7 March 2014 is preferred. The Tribunal finds that no assessment of Patient K was made by the respondent and there is no evidence that he accessed the information contained in the two documents created on 3 March 2014 prior to treatment.
[51] Exhibit 2 paragraph 23
[52] Exhibit 2 paragraph 30
Ms Larkin claims to have made an extensive consultation with Patient K. During the hearing she said that she does not know who made the note at 15:14 in the Complete Record.[53] She claims in her statement to have a sound recollection of her dealings with Patient K. She made no contemporaneous notes of any assessment she made of Patient K, and her statement is limited to having observed scarring on both sides of the patient’s face. Her evidence that Patient K completed an information form, or that she discussed Patient K’s condition with the respondent, is not accepted by the Tribunal having regard to the absence of any such form, the inherent improbability that any such conversation took place, previous comments on Ms Larkin’s credibility, and the Tribunal’s preference for Patient K’s evidence.
[53] Transcript of proceedings 13 December 2018 page 263, line 8
The clinic’s ‘Complete Record’ relating to Patient K contains the computer’s default response for almost all areas requiring population. There is no reference to an obvious obstetric history. The Tribunal concludes that it does not record an adequate history.
Patient K refers to no formal taking of a history or examination beyond the activities of Ms Page on the first attendance. The Complete Record was apparently not commenced on that occasion and whatever history or assessment that was done was confined to the limited information contained in the two documents that survive that consultation, which would be of extremely limited use to any later practitioner.
Assessment of Patient K appears to have been confined to observation by Ms Page and Ms Larkin of facial scarring and medical history recorded prior to and after treatment was virtually non-existent. Assessment of the patient was inadequate and the medical history taken was inadequate. No overall management plan was formulated, and communication with Patient K was limited in the extreme without any care taken to ensure that she understood what was going on. The Tribunal finds ground (a) established.
Ground (b): failure to explore less invasive treatments
In her statutory declaration and other evidence, the patient described the initial consultation with Ms Page on 3 March 2014. Treatment was discussed after which a treatment plan was devised which involved a low intensity laser for a period of six weeks followed by an assessment and with the possibility of treatment with the Erbium laser after review.
When she attended on 6 March 2014 Ms Larkin advised that treatment with the Erbium Laser would yield a better result. The witnesses do not refer to a discussion comparing the relative merits of the dual laser and the Erbium profractional one. Ms Larkin refers in her statement to a discussion about alternate solutions,[54] however this evidence is not confirmed by Patient K, is not found in any record and the Tribunal rejects it.
[54] Exhibit 4 paragraphs 21-25
Thus there should have been a discussion of lesser modalities than the profractional laser and these have been mentioned in the evidence such as needling and the dual laser. The respondent says in his affidavit that in his opinion there are no treatments for scarring as effective as the Erbium Profractional Laser.[55] His evidence that he discussed this with Patient K prior to treatment is rejected.
[55] Exhibit 2 paragraphs 30-32
Dr Molton says that it would be expected that optional alternatives of treatment would be explored with the patient while holding due regard for the comparative effectiveness, costs and other relevant differences to the proposed treatment plan offered.[56]
[56] Exhibit 13 Report page 3
Dr Molton in his report does not dwell on precisely what alternative modalities there were. At the hearing he said that clinical peels would be a less invasive process and suggests a non-ablative laser:[57]
There is a non-ablative fractionated laser called the Fraxel DUAL Restore, which does not burn the skin and it's at least - and that would be the least invasive laser for resurfacing of the face. I wouldn't agree that the ablative, any ablative laser fractionated by the laser would be less invasive than the Fraxel Restore laser.
There was no comparative analysis provided to a patient whose expectations were of low level treatment when she arrived for treatment. It is not to the point that there were not a long list of alternatives put. The point is that there was no worthwhile discussion of even the initial alternative proposal beyond a recommendation. There was no utility in Ms Larkin’s claimed suggestion that the patient do her own research, including looking at YouTube videos, for a patient who was minutes away from treatment.
[57] Transcript of proceedings 10 January 2019 page 351 line 47 to page 352 line 6
The Tribunal concludes that on 6 March 2014 there was inadequate exploration of alternate modalities for a patient who attended for treatment with a low level Laser and had treatment with an invasive machine without adequate comparative explanation. The Tribunal finds that ground (b) is made out.
Ground (c): failure to obtain informed consent
The provisions of the Code alleged to have been breached are set out in Appendix A.[58] There is what might be regarded as a definition in paragraph 3.5:
Informed consent is a person’s voluntary decision about medical care that is made with knowledge and understanding of the benefits and risks involved.
There is a process of education leading to understanding a proposed modality of treatment so that when a decision is made the patient has all relevant material upon which the decision turns.
[58] Application for Disciplinary Action Appendix A page 4
The decision which was required of the patient was whether or not to submit to invasive treatment, which was not risk free, using a profactional Erbium laser. She was previously invited to make a decision for use of a dual laser of lower power for a different and less invasive course of treatment.
The evidence relating to this topic is referred to under the heading above relating to Signed Consent Forms and Consent Generally at paragraph 87 above and will not be repeated here.
As has previously been observed the information passed to Patient K was so inadequate that when she went into the treatment room she thought she was going to see the doctor and when the laser started that it was commencement of the procedure to take a test patch.[59] She says that the treatment wasn’t what she had expected.[60] The Tribunal has accepted her evidence.
[59] Transcript of proceedings 12 December 2018 page 41 lines 27-29
[60] Transcript of proceedings 12 December 2018 page 42 line 15
The Tribunal concludes that no relevant information was given by the respondent to the patient on 6 March 2014 the day of treatment, and inadequate information was given by members of his staff. The Tribunal is satisfied there was a failure to obtain informed consent. The Tribunal concludes that ground (c) is made out.
Ground (d): failure to provide adequate aftercare instructions and treatment
Patient K underwent invasive treatment with the profractional Erbium Laser. The outcome of the treatment can be seen from the colour photographs that were taken at various times after the treatment.[61] There was some aftercare information in the profractional consent form. The Tribunal has already found that Patient K was not given this form.
[61] Exhibit 6
Ms Larkin, at paragraphs 17 and 18 of her statement, sets our detailed information she says she gave orally to Patient K regarding a strict regime of aftercare.[62] This evidence conflicted with Patient K’s description which was that the only aftercare instructions received from Ms Larkin were brief and verbal while standing in reception after the treatment: Ms Larkin told her to keep it moist. In her complaint form she says that one of her main concerns was the absence of aftercare instructions provided. Ms Larkin’s evidence is not accepted.
[62] Exhibit 4
There was also controversy about an assertion by Ms Larkin that some aftercare cream was provided. Patient K said that repackaged cream was being sold and she was not confident it was hygienic. Patient K said that she called and attended the clinic on the next day when she was concerned about the treatment and her appearance and felt that she was being ‘fobbed off’. Ms Larkin’s evidence is not accepted. It appears to the Tribunal that her evidence is unreliable and based on her recollection of the system applying at the time. Patient K’s evidence is preferred.
On the sixth page of his report, Dr Molton answers a question about aftercare instructions as follows:
A registered health practitioner of an equivalent level of training or experience would personally provide detailed written post-procedure instructions and personally have gone through these instructions before the procedure with the patient to ensure there were not questions regarding after-care and follow up. A registered health practitioner of an equivalent level of training or experience would maintain open communication during the recovery period.
Inadequate concern or assistance was offered on 7 March 2014 when Patient K telephoned the clinic. The respondent provided no aftercare instruction after the procedure and did not see Patient K before it. He provided a script for antibiotics by way of aftercare on 7 March 14, but makes no offer of aftercare beyond that in his affidavit. Ms Larkin’s instructions were informal and off hand. There was no indication of open communication during the recovery period as referred to by Dr Molton.
The Tribunal finds that there was a substantial failure to provide adequate aftercare instructions and treatment, and that ground (d) is made out.
Ground (e): failure to keep adequate records
Inadequacies in the records of the clinic in relation to Patient K have been referred to previously in these reasons for decision. Counsel for the respondent submits that inability to locate documents falls within a tolerable range of human error and does not support a finding of a failure to comply with professional standards. The Tribunal does not agree. The simplest of steps would have overcome any temporary mechanical breakdown. Significant treatment steps were not recorded in documents. The ‘Complete Record’ contained the minimum possible information about the patient and her treatment.[63] There is no contemporaneous record of treatment, or of after care in the clinic. It contained no record at all of the consultation on 3 March 2014. There has been previous reference to inadequacy of documentation in these reasons for decision.
[63] Exhibit 1 pages 25-27
The respondent candidly admits that there had been a significant issue with his record keeping.[64]
[64] Transcript of proceedings 13 December 2018 page 167 line 30
The Tribunal finds that ground (e) is made out.
Interlocutory application
It follows from the findings made in the principle proceedings that the interlocutory application must be dismissed. In relation to the Ground 4 that there has been excessive delay in bringing the application, the Tribunal is not satisfied that there has been excessive delay. The events occurred in March 2014, and a complaint made to the respondent’s business in November the same year. The patient’s complaint upon which these proceedings have been based was made in November 2015 and time has been taken in the usual procedural steps leading to the filing of the initiating application in June 2018. In the opinion of the Tribunal any delay has not been excessive.
………………………………..
Senior Member G Lunney SC
For and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | OR 11/2018 |
PARTIES, APPLICANT: | The Medical Board of Australia |
PARTIES, RESPONDENT: | Dr Nathem Al-Naser |
COUNSEL APPEARING, APPLICANT | Ms S Wright |
COUNSEL APPEARING, RESPONDENT | Mr D Moujalli |
SOLICITORS FOR APPLICANT | Australian Government Solicitor |
SOLICITORS FOR RESPONDENT | McInnes Wilson Lawyers |
TRIBUNAL MEMBERS: | Senior Member G Lunney SC Senior Member M Matheson |
DATES OF HEARING: | 12 December 2018 13 December 2018 14 December 2018 10 January 2019 |
4
0