S v Director of Proceedings designated under the Health and Disability Act 1994
[2017] NZHC 643
•5 April 2017
ORDER PROHIBITING PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF APPLICANT IN ORDER TO GIVE EFFECT TO SUPPRESSION ORDERS MADE BY THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2017-404-000549 [2017] NZHC 643
BETWEEN S
Applicant
AND
THE DIRECTOR OF PROCEEDINGS DESIGNATED UNDER THE HEALTH AND DISABILITY ACT 1994
Respondent
Hearing: 5 April 2017 Appearances:
A H Waalkens QC and H Stuart for Applicant
N Wills and J Herschell for RespondentJudgment:
5 April 2017
JUDGMENT OF LANG J
[on application for leave to appeal out of time]
This judgment was delivered by me on 5 April 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
S v THE DIRECTOR OF PROCEEDINGS [2017] NZHC 643 [5 April 2017]
[1] Dr S is an obstetrician and gynaecologist. The Director of Proceedings for the Office of the Health and Disability Commissioner (the Director) laid a charge of professional misconduct against him before the Health Practitioners Disciplinary Tribunal (the Tribunal).1 The charge comprised two separate but interrelated allegations. First, it was alleged that Dr S had failed to proceed to perform an emergency caesarean section on a patient, Ms T, in a timely manner. Secondly, it
was alleged that he had failed to communicate adequately regarding the situation with Ms T and her husband.
[2] Dr S defended the charge on the basis that any established shortcomings in his performance did not meet the required threshold of misconduct. The Tribunal took a different view. In a decision delivered on 16 May 2016, the Tribunal determined that the charge had been established (the liability decision).2 On
27 September 2016, the Tribunal censured Dr S and ordered him to pay a fine in the sum of $7,000 (the penalty decision).3 The Tribunal also imposed two conditions on Dr S’ practising certificate, and required him to pay a 30 per cent contribution towards the Director’s costs. The Tribunal made a permanent order suppressing Dr S’ name and identifying particulars from publication.
[3] Dr S did not initially appeal against either the liability decision or the penalty decision. Subsequently, however, the Director filed an appeal in this Court against the Tribunal’s penalty decision. At that point Dr S changed his mind and decided to challenge the liability decision. The Director has now modified her stance and seeks to challenge only the Tribunal’s decision to grant Dr S name suppression. This does not satisfy Dr S. He now seeks an order under s 106(4)(b) of the Health Practitioners Competence Assurance Act 2003 granting him leave to appeal out of time in respect of the liability decision. The Director opposes the application.
[4] Dr S has filed an affidavit in support of the application. To the extent that it contains material at variance with what was before the Tribunal I have not taken that
material into account in reaching my conclusion.
1 Health Practitioners Competence Assurance Act 2003, s 100(1)(a) and (b).
2 The Director of Proceedings v Dr S HPDT 850/Med 15/318D, 16 May 2016 (Liability decision).
3 The Director of Proceedings v [S], 15 August 2016, (Penalty decision).
Relevant principles
[5] As Ms Wills for the Director points out, Dr S is no longer exercising a right of appeal. Rather, he is seeking an indulgence from the Court.4 He must therefore explain the delay, and possible prejudice to the other party will be relevant. The Court may also consider the merits of the proposed appeal, although that is necessarily a difficult exercise at such an early stage of the appeal process.5
The allegations underpinning the charge
[6] The charge was based on a series of events that occurred on the evening of
15 October 2011. They occurred during a period of approximately 45 minutes between 9.14 pm, when Dr S arrived in Ms T’s room in the birthing suite, and 9.58 pm when Ms T’s baby was delivered stillborn.
[7] On that day Dr S was rostered as both the on call consultant and the on call registrar at the North Shore Hospital. This meant he was the senior obstetrician and gynaecologist responsible for the birthing suite, to which Ms T had been admitted. He was therefore the obstetrician responsible for Ms T’s care that day whilst she was in labour to give birth. Ms T’s child birth procedure had earlier been identified as being high risk.
[8] At 9.12 pm Dr S received a call to come to the birthing suite, and he arrived there at 9.14 pm. He had been called by the charge midwife because of concerns about the baby’s heart rate, commonly known as the fetal heart rate (FHR).
[9] A normal heart rate for a fetus is between 110 and 160 beats per minute (bpm). When the FHR falls below 100 bpm, bradycardia occurs. This condition creates cause for concern because it indicates the fetus is being starved of oxygen. Bradycardia that occurs for more than five minutes is very serious, and requires
immediate attention in order to avoid serious injury to, or the death of, the fetus.
4 Hillary v Todd [2008] NZCA 103 at [14].
5 My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224; (2009) PRNZ 518 at [19]; Tunnicliff v A Professional Conduct Committee of the Nursing Council [2015] NZHC 1092 at [5]; Y v Director of Proceedings [2016] NZHC 2054 at [36].
[10] FHR is measured by a machine called a cardiotocograph (CTG), which provides a printout of the FHR. Prior to Dr S being called to Ms T’s room there had been deceleration of the FHR, and there was also some loss of contact with the FHR so that it was not recorded on the CTG. Furthermore, there were some difficulties reading the CTG.
[11] Where bradycardia has been in existence for more than five minutes, the only appropriate response is to deliver the baby as soon as possible. In such a case an emergency caesarean will be required, and no other option is appropriate. The Tribunal found in the present case that prolonged bradycardia was evident by
9.20 pm at the latest.
[12] The submissions for the Director in opposition to the present application describe the essential events that underpinned the charge as follows:
12.During the 29 minutes that Dr S was in Ms T’s room, until he called for the emergency caesarean at 9.43 pm, Dr S had every opportunity to make the correct decision (there was no clinical basis to conclude Ms T was about to deliver) but did not. Dr S reviewed the CTG again at 9.21 pm and 9.28 pm but still did nothing. He decided to wait until Dr Y, an obstetric registrar, came on duty at 9.30 pm. When Dr Y arrived she immediately identified that an urgent caesarean section was required and told Dr S. Dr S demurred and decided to carry out a lactate instead. That took around another five minutes. The results (at 9.43 pm) indicated that the fetus was severely starved of oxygen. Dr S accepted that performing a lactate was not only unnecessary but was contraindicated in this case. It was only on receipt of the lactate results that Dr S called for an emergency caesarean. At 9.59 pm the baby was delivered stillborn.
[13] Throughout this period Dr S did not communicate with Ms T and her husband regarding the events that were occurring.
The arguments
[14] For Dr S, Mr Waalkens QC points out that, had this been a criminal proceeding, Dr S would not have been able to file an appeal against conviction until after he had been sentenced.6 However, appeals against decisions of specialist disciplinary tribunals are not governed by the same procedure as criminal appeals.
Because they are civil appeals, the respondent must file any appeal within
20 working days from receipt of the decision.7 Dr S would therefore have been required to file any appeal against the liability decision no later than 14 June 2016.
[15] Once the penalty decision was delivered on 27 September 2016, Dr S filed his appeal against the liability decision on 11 November 2016. This was just two days after the Director filed an appeal against the order suppressing Dr S’ name from publication.
[16] Mr Waalkens relies on the affidavit filed by Dr S as providing a reasonable explanation for the delay. This is to the effect that, although Dr S was disappointed with the liability decision, his counsel advised him that appeals against liability decisions were often not lodged after the penalty decision had been given. He therefore decided to wait until the penalty decision was given before making a decision whether or not to appeal. Mr Waalkens submits it was reasonable in the circumstances for Dr S to act in that way.
[17] When Dr S received the penalty decision, he was initially prepared to live with it largely because he had obtained an order suppressing his name from publication. The non-publication of his name was an issue that was particularly important to him. Matters changed, however, on 9 November 2016 when the Director filed an appeal to this Court against the Tribunal’s penalty decision. At that point he decided he would challenge the liability decision.
[18] Mr Waalkens also points out that the Tribunal’s decision has had major ramifications for Dr S. He has not been able to work in the field of acute obstetrics and gynecology since the Tribunal’s liability decision. There is also a prospect he may lose his employment. Finally, Mr Waalkens points out that there is no prejudice to the Director if an extension of time is given.
[19] Ms Wills for the Director submits that it would be a futile exercise for leave to be granted because there is no prospect of Dr S succeeding on any appeal against the liability decision. She submits that the facts of the matter are plain. Regardless
of how the state of affairs came about, Dr S failed to make a straightforward clinical decision when the answer was obvious. The consequences of Dr S’ error were catastrophic because they resulted in the death of the fetus. That was a highly traumatic event for Ms T and her husband. Furthermore, the Director will be put to the further expense of opposing an appeal that has no prospect of success. In those circumstances Ms Wills submits that the Court should decline to grant leave to appeal.
Decision
Explanation for delay
[20] I agree with the Director that Dr S’ explanation for his failure to file an appeal against the liability decision within the required time limit is not particularly convincing. Dr S has been represented throughout by Mr Waalkens QC, who has considerable experience representing defendants in medical disciplinary hearings. Mr Waalkens would have been well aware of the time limit for filing any appeal against the liability decision, and it is surprising to learn that he advocated an approach that was at odds with the requirements of the Act. The overall tenor of Dr S’ evidence is that Dr S was initially prepared to accept the liability decision even though he may have found the result disappointing.
[21] As Dr S accepts, his decision to challenge the liability decision arose as a direct result of the Director filing an appeal against the penalty decision. Although Dr S can be criticised as a matter of principle for altering his stance in that way, I consider his reaction to be understandable at a human level.
The merits
[22] Any appeal against the Tribunal’s liability decision would be by way of re- hearing.8 This Court would therefore be required to reach its own decision regarding the level of culpability of Dr S’ conduct on 15 October 2011.9 Other than in respect
of a question of law, the Court’s decision will be final.10
8 Health Practitioners Competence Assurance Act 2003, s 109(2).
9 Austin Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3].
10 Section 110.
[23] Although the basis of the proposed appeal was not evident from Dr S’ affidavit or Mr Waalkens’ written submissions, Mr Waalkens filed supplementary submissions dealing with this issue. He explains that Dr S will ask this Court to revisit the Tribunal’s conclusion that his conduct warranted a finding of professional misconduct. Mr Waalkens contends that an error of clinical judgment by a health professional will not generally give rise to a finding of professional misconduct, and that the Tribunal erred in reaching the conclusion that Dr S’ conduct reached the required threshold to warrant disciplinary action being taken against him.
[24] During the hearing before the Tribunal Dr S frankly conceded that his actions fell below acceptable standards in several respects. By way of example, Mr Waalkens made the following concessions on Dr S’ behalf in his closing submissions to the Tribunal:
180.Dr S is charged with failing to respond to the abnormal and progressively pathological CTG. In particular, he is charged with failing to proceed to a caesarean section in a timely manner, failing to respond to concerns raised by Dr Y regarding the CTG trace, awaiting the arrival of Dr Y before collecting a Fetal Blood Sample (lactate) and deciding to obtain a lactate when this was contraindicated.
181.Dr S accepts that he failed in all of the above respects. He has acknowledged this from the outset. He has also acknowledged that, by failing as particularised, he has fallen below the accepted standard of care.
[25] Dr S had told the Tribunal that he was used to working long hours and in stressful situations. He also said that on 15 October 2011 everything had been going well until 9.12 pm. He said that after he went to the birthing suite he seemed to “hit a wall” and lost confidence in himself. He said that from that point on he could not make decisions correctly.
[26] Mr Waalkens asked the Tribunal, and will ask this Court on appeal, to accept that a lapse or lapses of clinical judgment over a relatively short period should not amount to professional misconduct given the particular circumstances in which they occurred in the present case.
[27] The Tribunal considered several New Zealand and Australian authorities relating to the test for professional misconduct.11 These included McKenzie v Medical Practitioners Disciplinary Tribunal, in which Venning J observed:12
[71] In summary, the test for whether a disciplinary finding is merited is a two-stage test based on first, an objective assessment of whether the practitioner departed from acceptable professional standards and secondly, whether the departure was significant enough to attract sanction for the purposes of protecting the public. However, even at that second stage it is not for the Disciplinary Tribunal or the Court to become engaged in a consideration of or to take into account subjective consideration of the personal circumstances or knowledge of the particular practitioner. The purpose of the disciplinary procedure is the protection of the public by the maintenance of professional standards. That object could not be met if in every case the Tribunal and the Court was required to take into account subjective considerations relating to the practitioner.
[28] Taking those authorities into account, the Tribunal did not accept that extenuating circumstances meant it should not make a finding of professional misconduct. It said:13
142.The Tribunal has challenged itself about whether the late call to an urgent situation, tiredness and understaffing, are sufficient to find that in all the circumstances, Dr S’s [Dr S’] serious failures should not amount to professional misconduct. However, having examined the evidence we consider the Director has established the charge of professional misconduct to the necessary threshold.
143. The Tribunal is satisfied, on the balance of probabilities, that as from
9.20 pm, Dr S’s continuing failures are so seriously negligent that they fall well below the range of acceptable standards for a medical professional in his position on that day.
144.The Tribunal is satisfied that this is not a decision made with the wisdom available with hindsight. The errors made by Dr S, as from
9.20 pm, were basic decision making errors for a consultant obstetrician, as acknowledged by each of the three experts and Dr S.
They amount to such basic and serious acts of negligence that they cannot be excused by the previous conduct of the midwifery staff, tiredness or understaffing.
145. The Tribunal is not satisfied that the external factors raised by Dr S
are sufficient to avoid a finding of professional misconduct. The
11 Collie v Nursing Council of New Zealand [2001] NZAR 74 (HC); Ongley v Medical Council of New Zealand (1984) 4 NZAR 369 (HC); Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 (NSWCA); McKenzie v Medical Practitioners Disciplinary Tribunal [2004] NZAR 47 (HC); B v Medical Council [2005] 3 NZLR 810 (HC); Dr E v The Director of Proceedings (2008) 18
PRNZ 1003 (HC).
12 McKenzie v Medical Practitioners Disciplinary Tribunal, above n 12.
13 The Director of Proceedings v Dr S, above n 2.
Tribunal did not consider any of these factors were out of the expected range experienced, from time to time, by senior consultants. These are all matters that a senior obstetric consultant is expected to be able to overcome, when making straightforward clinical decisions. The Tribunal accepts the evidence of Mr Sangalli and Mr Baird in this regard.
…
148.The Tribunal was satisfied that Dr S was capable of making decisions once he came into the patient’s room at 9.14 pm that evening. He unfortunately made the wrong decisions. Dr S had an obvious and urgent clinical decision to make to order an urgent caesarean section. From 9.20 pm, he compounded this negligent decision, by failing to act in a way that would have assisted him to come to the correct decision more promptly. In particular:
(a) Dr S failed to perform a lactate himself, instead waiting for a further ten minutes when Dr Y arrived;
(b) He failed to call an immediate Code Red caesarean section, when Dr Y arrived at 9.30 pm and she advised him that this was needed urgently;
(c) Dr S failed to alter his decision, even after Dr Y challenged him that performing the lactate was contraindicated;
(d) Dr S failed to discuss the options available with the patient and her husband as from 9.20 pm.
149.The misconduct was so seriously negligent that, while not deliberate, it does unfortunately portray an indifference and abuse of the privileges that accompany registration as a medical practitioner. It is for this reason that Dr S’s conduct warrants a disciplinary sanction.
150.The Tribunal is satisfied that particulars 1 and 2, both separately and cumulatively amount to professional misconduct under s 100(1)(a) and s 100(1)(b) of the Act. The conduct established is both serious negligence and inevitably brings discredit to the medical profession.
[29] I agree that the Tribunal’s reasoning appears to be convincing. All of the witnesses appear to have accepted that Dr S was not faced with a difficult clinical decision once protracted fetal brachycardia was evident. The only appropriate decision to make at that point was to immediately undertake a caesarian section. Furthermore, the delay by Dr S in undertaking that procedure was caused because he made a series of wrong decisions. These errors were compounded when Dr S failed to advise Ms T and her husband of what was occurring. That in itself was also a serious breach of professional responsibility.
[30] These factors all suggest that the Tribunal was entitled to conclude that the charge of professional misconduct had been established. As against that, however, the Tribunal’s decision was not based on a point of law or a finding of fact that was determinative of the issue it was required to determine. Rather, it was an evaluative decision based on a series of largely undisputed facts. This Court is well able to reach its own decision on those facts as to whether the Tribunal was correct in concluding that the identified errors warranted disciplinary sanction. It is impossible at this early stage to say that the appeal is so devoid of merit that leave should be denied.
[31] Furthermore, the consequences of the Tribunal’s findings on liability are likely to have ramifications for Dr S well beyond the penalties it imposed. His current employment may be at risk, and there will be significant limitations on his ability to practise in his chosen field. Furthermore, although the delay in filing the appeal was significant and has not been satisfactorily explained, it cannot be described as gross.
[32] Although there will be prejudice to the Director if leave is granted, that will take the form of further costs incurred in opposing an appeal. For Dr S, the prejudice if he is not permitted to prosecute the appeal will be much more significant. He will have no right of appeal against the Court’s decision not to grant leave, and he will thereby lose forever the opportunity to challenge the finding of professional misconduct.
[33] All of these factors persuade me that the interests of justice require leave to appeal out of time to be granted. Dr S should have the opportunity to persuade this Court that, even considered cumulatively, his identified errors do not cross the threshold required for a finding of professional misconduct.
Result
[34] The application for leave to appeal is granted. Dr S is to file his notice of appeal in final form no later than Friday 7 April 2017.
Costs
[35] Although Dr S has technically been the successful party, he has effectively been granted an indulgence by the Court. Furthermore, the Director was entitled to oppose the application because Dr S did not provide a convincing explanation for the delay, and the basis of his proposed appeal has only recently been clarified.
[36] My tentative view is that costs should lie where they fall. If either party takes a different view, brief memoranda (ie of no more than four pages in length) are to be filed and I will determine the issue of costs on the papers.
Further directions
[37] I direct that the present appeal is to be heard along with the Director’s appeal
in CIV-2016-404-2701. Both appeals will be heard at a fixture commencing on
24 July 2017 at 10 am (two days allocated).
[38] In anticipation of that fixture I now make the following directions:
(a) The Director shall file and serve no later than 26 June 2017 a paginated and indexed common bundle of documents in respect of both appeals. This is to contain the documents listed at para 9 of the consent memorandum dated 10 November 2016 filed in CIV-2016-
404-2701.
(b)Submissions in support of each appeal are to be filed and served no later than 3 July 2017.
(c) Submissions in opposition to each appeal are to be filed and served no later than 17 July 2017.
Lang J
Solicitors/Counsel:
A H Waalkens QC, Auckland
HDC, WellingtonDLA Piper, Wellington
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