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  • Unreported Judgment

Health Ombudsman v Bryant

 

[2020] QCAT 218

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Bryant [2020] QCAT 218

PARTIES:

DIRETOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

MICHAEL JAMES BRYANT

(respondent)

APPLICATION NO/S:

OCR089-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 July 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

Assisted by:

Dr T Chamberlain

Dr D Khursandi

Ms J Felton

ORDERS:

  1. The Tribunal decides that the respondent behaved in a way that constitutes unsatisfactory professional performance.
  2. The Tribunal reprimands the respondent.
  3. The parties bear their own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT –DEPARTURE FROM ACCEPTED STANDARDS – where registrant admitted conduct in relation to three patients the subject of the Referral – where parties agreed conduct in relation to three patients was unsatisfactory professional performance – where registrant has practised for some years subject to voluntary mentoring and changed approach – evidence of rehabilitation and fitness – where parties agreed sanction – whether the sanction is appropriate

Health Ombudsman Act 2013 s 103(1)(a), s 104

Attorney-General v Bax [1999] 2 Qd R 9

Health Ombudsman v Field [2018] QCAT 416

Medical Board of Australia v Bird [2019] QCAT 148

Medical Board of Australia v Blomeley [2018] QCAT 163

Medical Board of Australia v Bourke [2015] QCAT 400

Medical Board of Australia v Davis [2018] QCAT 215

Medical Board of Australia v de Silva [2016] QCAT 63

Medical Board of Australia v Gallery [2013] QCAT 224

Medical Board of Australia v Lockie [2012] QCAT 34

Medical Board of Australia v Martin [2013] QCAT 376

Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92

Pharmacy Board of Australia v Thomas [2011] QCAT 637

REPRESENTATION:

Applicant:

A Forbes of TurksLegal solicitors

Respondent:

K Mellifont QC, instructed by Moray & Agnew, solicitors.

APPEARANCES:

This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. In accordance with the Act I sat with assessors Dr T Chamberlain, Dr D Khursandi and Ms J Felton.[1]
  2. [2]
    The respondent was at the relevant times a registered medical practitioner, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld). The applicant now alleges that the respondent engaged in unsatisfactory professional performance, in that there were deficiencies in relation to his treatment of three particular patients on whom he operated. That there were deficiencies is admitted by the respondent.
  3. [3]
    The parties have provided the Tribunal with an agreed statement of facts, and an agreed bundle of documents. There was an affidavit by the respondent filed in the Tribunal, and other material relied on by him. The respondent has been legally represented in this proceeding, and the parties have provided the Tribunal with joint submissions as to the appropriate outcome.

Facts

  1. [4]
    The Tribunal accepts the facts set out in the agreed statement of facts. They, and some additional information from the documents before the Tribunal, may be summarised as follows: The respondent was born in 1960 and is now 49. He was first registered as a medical practitioner in 1997 and subsequently qualified as a specialist neurosurgeon. He was practicing as such at the relevant time.

First patient

  1. [5]
    The first patient consulted the respondent in about September 2011 about neck and back pain. He ordered CT and bone scans, and diagnosed marked facet joint disease with multi-level, active facet cervical arthritis. This was discussed with her on 5October 2011. On 18 October 2011 a pain specialist advised the respondent that the patient had previously suffered from Methicillin Resistant Staphylococcus Aureus infections post-operatively. On 28 October 2011 the patient signed a consent form, and the respondent performed C2-C7 lateral mass fusion and decompression surgery. The patient was given Vancomycin 1 gram intra-operatively, and for three days post-operatively. She was discharged on 5 November, but on 16 November saw her GP and was given antibiotics for wound swelling.
  2. [6]
    The first patient was admitted to hospital on 30 November 2011 with neck and chest pain, tachycardia, difficulty breathing and fever. The next day the respondent saw her, and on 7 December 2011 performed a wound washout and debridement, on the recommendation of an Infectious Disease Specialist. This was the first time the respondent had consulted an Infectious Disease Specialist about the patient. On 3January the respondent reopened the wound and performed a debridement and spinal decompression. On 1 March he performed a partial laminectomy and spinal cord decompression, and wound debridement. He saw her for the last time on 20April 2012 and noted that her wounds had closed over. He referred her for review by a Plastic Surgeon, and for upper limb nerve conduction tests. On 14 August 2012, the patient died from unrelated causes.
  3. [7]
    Following an investigation and a report from an independent expert, it is agreed by the parties that the respondent’s clinical documentation for the first patient was inadequate, as:
    1. (a)
      there were insufficient records of the pre-operative discussions between the respondent and the patient regarding the risks, complications, and possible outcomes of the proposed surgery;
    2. (b)
      there was no documented evidence of an informed consent discussion having taken place between the respondent and the patient in relation to the surgery, aside from the use of a generic consent form which did not adequately note her co-morbidities;
    3. (c)
      the operation notes taken by the respondent were too brief.

Second patient

  1. [8]
    The second patient was a nurse who consulted the respondent informally, on a ward where she worked at a hospital where he operated, on a number of occasions in 2012, about pain in the right forearm and elbow, and pins and needles in the right arm. The respondent arranged for an MRI of the patient’s cervical spine and told her she had three bulging discs for which she required surgery. A more technical explanation was also given. A targeted motor and sensory examination of the upper limbs was undertaken at the patient’s workplace, but not documented. No targeted motor and sensory examination of the lower limbs, and no full neurological examination, was undertaken. The respondent did not undertake pre-operative nerve blocks on the patient, which would have allowed him to determine more accurately the location of the pathology of her symptoms. He did not consider that they were necessary.
  2. [9]
    On 13 September 2012 the patient signed a consent form and the respondent performed a C5 and C6 corpectomy with removal of the C4/5, C5/6 and C6/7 discs, decompression of the cervical cord and C5, C6 and C7 nerve roots, anterior reconstruction for degeneration and arthritic changes, and central canal and disc stenosis. Twelve days later she was seen by a different neurosurgeon, complaining of swelling in the neck and pain in the neck, left shoulder and left arm. He ordered a CT scan which revealed that the strut graft fusion was oblique, with the top screws to the left and the bottom screws only partially inserted into the vertebral body. The level of fixation concerned him, and he arranged for the patient to be admitted to hospital. The next day he performed revision surgery, a revision anterior cervical discectomy and graft fusion with nerve root release and anterior fixation, followed by cervical laminotomy, with lateral mass screws (C4, C7 and T1) and posterior fixation, and posterior and posterolateral graft. During the revision surgery, when the anterior fixation was exposed, the bottom screws inserted by the respondent were found to be loose.
  3. [10]
    Following an investigation, it is agreed that the respondent’s clinical documentation for the second patient was inadequate as:
    1. (a)
      he used a generic consent form that did not contain any reference information specific to the second patient’s surgery;
    2. (b)
      it did not appropriately document that the respondent informed the patient of:
      1. the risk of construct failure;
      2. pre-operative discussion of risks;
      3. alternative procedures or options for further pre-operative investigations;
      4. information provided prior to surgery.
    3. (c)
      it did not note the preoperative neurological examinations conducted;
    4. (d)
      notes of the surgery lacked detail.
  4. [11]
    It is also agreed that the respondent’s clinical care in relation to the second patient was inadequate as:
    1. (a)
      he did not perform a full neurological examination before performing the surgery;
    2. (b)
      he did not perform a full physical examination before performing the surgery.
  5. [12]
    The respondent also agreed that it was inappropriate for him to consult the patient on the ward, and the consultations ought to have taken place in a more appropriate setting.
  6. [13]
    The independent expert who reviewed the case expressed the opinion that:

The surgery performed was probably excessive in the management of [the patient’s] problems. …By his own admission [the respondent] did not undertake any preoperative nerve blocks in order to more accurately determine the location of the pathology which accounted for the majority of [the patient’s] symptoms. If the spinal level of maximal pain generation could have been determined preoperatively, she could have been treated with a less aggressive procedure, one that would have had a low risk of complications. …A more prudent, and less risky course of action would have been to undertake preoperative nerve root sleeve injections in order to determine the site or sites of radicular pain generation, and these then could have been treated with surgery (if this was felt indicated by the patient) by way of anterior discectomy and fusion, or alternatively posterior cervical foraminotomy.

  1. [14]
    He acknowledged that there may be other practitioners that would be less critical of the respondent’s operative management of the second patient.
  2. [15]
    The respondent acknowledges that corpectomy for decompression of radiculopathy is an aggressive surgical option, and that, in hindsight, anterior cervical discectomy, or alternatively a posterior cervical foraminotomy and fusion, would have been a more reasonable option. The independent expert also observed:

There is evidence on the Xrays taken on 15 September 2012 [two days after surgery] that placement of the screws at the inferior [end] of the cage (into the body of the C7 vertebra) was suboptimal, and that the screws most likely had fairly tenuous purchase on the bone. It is my opinion that [this] would have ordinarily raised concern that the structural integrity of the construct may be suspect and that a higher rate of failure could be expected. There was however no indication that the construct had come loose or that the screws had migrated at that time.

  1. [16]
    At the time of surgery, the respondent believed that inadequate purchase into the C7 vertebral body was not evident. The respondent now acknowledges that the loosening of screws following surgery is a recognized and published risk and accepts that longer screws into the C7 vertebral body, as well as intra-operative medical imaging following insertion of the construct, would have likely avoided complications. The respondent also considers that posterior stabilisation as well as the anterior fusion should have been considered. At the time of the surgery the respondent believed that off-midline fusion graft or minor skew of the fusion graft does not make any difference to the structural integrity of the graft that has been placed or the construct that has been associated with it. Support for this belief was obtained in the report of an expert.

Third patient

  1. [17]
    The third patient had undergone a decompression laminectomy of his cervical spine, performed by a different surgeon, nine months before the respondent saw him with complaints of bilateral para-cervical muscle spasm and pain. He ordered pain relief and organized an MRI and bone scan. Two days later he saw the patient again, noted that he had severe degenerative changes in multiple cervical spine levels, and discussed a possible spinal fusion of C3 to C7. His note that day was “if not settling may benefit from further (anterior) surgery”. The following day the pain was continuing, and he noted “? Theatre later this week”. After a further discussion two days later, it was decided to perform a lateral mass fusion C3 – C7, which occurred two days later. The patient continued to complain of pain and was sleeping in a chair rather than in a bed.
  2. [18]
    Three days later, after complaints of left shoulder pain, the respondent organized a CT scan of the patient’s neck, which satisfied him that none of the screws he had inserted were impinging on any nerves, and arranged for him to be seen by an orthopaedic surgeon, who considered the pain to be neuropathic related to the C5 level. Two months later the patient consulted a different neurosurgeon, complaining of worse pain since the surgery. That surgeon considered that the patient had a kypotic neck posture with the neck stiff in all directions, and that the C7 screws inserted by the respondent had failed to maintain a solid hold allowing the patient’s neck to slip into kyphosis. He thought there was some instability, and that the movement at the fusion was likely to be causing pain. He thought further corrective surgery needed to be performed, but the patient, understandably, declined further surgery.
  3. [19]
    The respondent accepts that his clinical documentation of the third patient was inadequate, as:
    1. (a)
      he used a generic consent form that did not refer to the risks of major neurological deficit, tetraplegia or death as a result of such surgery;
    2. (b)
      he did not appropriately document that the respondent informed the patient of risks in a pre-operative discussion, alternative procedures for the management of the pain, or options for further pre-operative investigations or procedures, or document information provided prior to surgery;
    3. (c)
      he failed to adequately document pre-operative medical records and the surgery undertaken.
  4. [20]
    An independent expert has expressed the view that the third patient had significant comorbidities that would make one concerned about a major cervical operation, and that a majority of surgeons would not advise surgery. He considered however that the surgery performed was both appropriate and reasonable. He said that few surgeons were advise surgery after only a week of observation with pain relief, and he would have persisted with a pain management programme longer.
  5. [21]
    The respondent accepts that surgery of this type is an aggressive treatment option with variable success, but considers that it was a reasonable option for a patient with debilitating pain who did not want to continue with medication in the long term. The respondent concedes that:
    1. (a)
      a pain specialist should have been consulted;
    2. (b)
      age is a comorbidity that ought to have been taken into account;
    3. (c)
      long term steroid prescription (as in the third patient’s case) increases the risk of screw loosening through osteoporosis which should have been taken into account more by him;
    4. (d)
      he should have allowed a longer period of conservative treatment of the patient’s symptoms before performing surgery in the light of his comorbidities.

Report of the Performance and Professional Standards Panel

  1. [22]
    On 22 July 2015 a Performance and Professional Standards Panel was established by the Board to hear the allegations concerning the three patients. The Panel generally found the allegations with respect to the second and third patient to have been established, and formed what it considered to be a reasonable belief that the respondent may have behaved in a way that constitutes professional misconduct as defined in the National Law.[2] In view of its findings about the second and third patients, it did not go on to make any findings about the first patient.
  2. [23]
    In respect of the second patient, the Panel was critical of the extent of the physical examination, and the fact that it was carried out on the ward while the patient was caring for others. It regarded this as inadequate and incomplete in every respect and substantially below the standard expected of a doctor of an equivalent level of training and experience.[3] This inadequate assessment led to inappropriate decision-making in relation to undertaking a surgical procedure.[4] There was no documented evidence that a history had been taken, an examination performed or the consenting practice undertaken. The documentation was totally inadequate.[5] The Panel regarded the surgery performed as excessive and inappropriate, and said it failed for many technical reasons. The practitioner had agreed that the failure to check the length of the screws was likely to have contributed to the failure of internal fixation. The Panel stated that they were not convinced that the respondent understood the biomechanics of implant insertion and potential failure.[6]
  3. [24]
    In respect of the third patient, the respondent had admitted during the hearing that in hindsight surgery was never indicated, and that revision surgery would be very complicated.[7] The Panel regarded the respondent’s documentation as very poor throughout, and that he did not consider alternatives to surgery, or allow a reasonable period of conservative management prior to surgery.[8] The Panel was not convinced that the respondent discussed the whole surgical process with the patient, nor did he demonstrate that he understood that the operation was likely to cause significant harm, and did not communicate that to the patient.[9] The Panel found that the respondent’s conduct with respect to the second and third patients was substantially below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.[10]
  4. [25]
    The matter was referred to the applicant in October 2015 and referred to the Tribunal in March 2019. There was no explanation in the material before the Tribunal for this delay, which seems extraordinary, since there was apparently no need for further investigation by the applicant. There is evidence that in the interim the respondent has taken significant steps to improve a number of aspects of his practice, but there was at the time no guarantee that that was going to happen.

The respondent’s material

  1. [26]
    The respondent filed an affidavit in this proceeding. He said he had sought advice from his insurer, and undertook a Risk Assessment Audit in July 2013, which made a number of recommendations which he had implemented. He had reviews since then on three occasions, and in October 2019 the insurer’s risk adviser said that there had been a significant improvement to his practice and to his patients’ outcomes. He had changed his practice in relation to consent forms, and now uses individualised consent forms, particularly detailed for patients at higher risk. Patients are given the opportunity to document any questions or concerns they have, and he does not proceed until these have been answered to the patient’s satisfaction.
  2. [27]
    The respondent said he now documents all consultations and interactions with patients, takes notes by hand during consultations which are filed, documents discussions about options for management, even if he considers one particular strategy best for the patient, and dictates a letter to the referring doctor immediately after each consultation. He does not book surgery in any week before he will be away on leave. He reviews relevant medical literature, and medico-legal publications such as those produced by his insurer, and attends meetings with groups of colleagues where complications and other relevant matters are discussed.
  3. [28]
    The respondent said that he acknowledges the limitation of multilevel spinal fusion surgery for degenerative conditions, and his practice is now consistent with the prevailing Australian approach. If he considers such a fusion necessary, he insists on a review by a pain specialist first, with any recommendations exhausted first, and that a second opinion is obtained, and that any surgery is carried out in conjunction with the second surgeon. A second surgeon is also involved in all but the most basic intra-cranial cases. He now uses intra-operative imaging after the insertion of instrumentation in all spine surgery.
  4. [29]
    In the period 2015 to 2019 he arranged an Orthopaedic Spinal surgeon, Dr S Yang, to take on a mentor role, involving regular meetings to discuss cases including any complications. He also discussed medico-legal matters regularly with Professor Coyne. He has been a Staff Neurosurgeon at the Royal Brisbane and Women’s Hospital from 2016 to 2019, where he worked collaboratively with orthopaedic surgeons. In that role he participated in multidisciplinary meetings to discuss management decisions, surgical indications, complications and medico-legal concerns. Complex cases and surgical options were discussed, and cases reviewed and critiqued. He established, and for two years ran, a Neurosurgical Spinal Fracture Clinic at the hospital, and was involved in reviewing and updating spinal surgery consent forms at the hospital. He has taken on a mentoring role himself for a junior colleague and lectured to groups of GPs on medico-legal issues.
  5. [30]
    The respondent said that he had recently moved to a regional area, where he is involved in establishing a Public Neurosurgical Service at the local hospital, and is involved in collaboration with a University in providing opportunities for teaching and research. He gave an undertaking to continue to attend certain meetings of specialists, whenever practicable, for twelve months from the date of the joint submissions.
  6. [31]
    Exhibited to the respondent’s affidavit are letters from the risk adviser of his insurer of 23 October 2019 and 17 December 2019. The latter details the changes made by the respondent since June 2013, along the lines set out in the respondent’s affidavit. She also detailed changes in processes within the group of surgeons to which he belongs, which she thought would further support the respondent in his practice. She commented that he had stated that in the past he had performed surgery that in hindsight he assesses he should not have performed, and that she had been impressed by his willingness to improve his practice significantly both clinically and surgically, and to be open with others about the mistakes he had made in the past.
  7. [32]
    Dr S Yang, an Orthopaedic Spine Surgeon, in a letter exhibited to the respondent’s affidavit, confirmed that he had fulfilled a mentoring role for the respondent during the period 2015 to 2019. He said that his practice was largely surgery on the spine, as was the respondent’s, and they would meet regularly to discuss treatment of patients, and any problems that had arisen. He was able to assist the respondent from his experience of doing revision surgery and dealing with failed spine cases from other surgeons. He said that he and the respondent operated together on multiple occasions. He said that the respondent has changed and developed during their working relationship, and that the respondent’s rate of conversion to surgery had reduced over that time, so that it was now consistent with the others in their group. He said that the respondent attended the Complex Spine meetings at the RBWH, which had changed the way he practised, and provided a forum for discussion of complex patients. He said that the respondent had improved and developed substantially during that period, and he is now providing very high-level care. He also said that the respondent is diligent and honest in discussing his patients and any complications.
  8. [33]
    There was affidavit evidence provided by the solicitors for the respondent from another neurosurgeon, Professor T Coyne, who has been in a group of neurosurgeons in Brisbane with the respondent. Dr Coyne knew the respondent from 2001 when he was a PHO, and later for two years while he was a trainee registrar, and said that on completion of his training and fellowship in 2009 he joined the group, the existing members having been impressed by his capacity as a surgeon and characteristics as a person. He said that the group had a practice of discussing adverse events, as a result of which he became aware of the matters the subject of this proceeding. He said that since these events, the respondent has become more circumspect with recommending complex spinal surgery and has demonstrated improvement in his processes. He said the respondent was chastened by the complaints and accepted the need for change in his practice. He has also taken an interest in medico-legal matters, and in how to avoid difficulties of that kind. He regards the respondent as a responsible and competent surgeon.
  9. [34]
    In early February Dr Coyne advised that in January 2020 he had discussed with the respondent cases involving the issues raised by the complaints against him, and that he made appropriate comments identifying the root causes leading to adverse situations, and identified changes he had made in his practice in the interest of patient safety. He expressed the opinion that the respondent has over the past six to seven years practiced neurosurgery responsibly and competently, and that the complications with his patients in recent years are consistent with competent neurological practice.

Characterisation of conduct

  1. [35]
    I am conscious of the definitions of professional misconduct, unprofessional conduct and unsatisfactory professional performance in s 5 of the National Law. The parties are agreed that certain conduct of the respondent, namely the inadequate patient documentation referred to at [7], [10] and [18] above, the failure to involve an infectious diseases physician in the care of the first patient at an earlier stage, the inadequate clinical care of the second patient set out in [11] above, the failure to undertake pre-operative nerve blocks on, and the pursuit of an unduly aggressive surgical option for, the second patient, the failure to use intra-operative medical imaging, and the deficiencies in care of the third patient set out in [20] above, amounted to unsatisfactory professional performance.
  2. [36]
    The joint submission points out that there is authority for the proposition that “unsatisfactory professional performance” is particularly appropriate for a situation where there has been some inadequacy of a practitioner in the practice of the relevant health profession, where the practitioner has failed to meet the standard which such a practitioner ought to be achieving.[11] Unprofessional conduct, on the other hand, can cover a much wider range of matters, including conduct quite independent of the practice of the health profession.
  3. [37]
    The effect of a joint submission as to sanction was discussed by Horneman-Wren DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91]-[93] by reference to authorities in terms with which I respectfully agree. I would merely add reference to the later decisions in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, in particular at [59], and Medical Board of Australia v de Silva [2016] QCAT 63 at [29]-[31]. Ultimately, it is a matter for the Tribunal to determine the correct characterisation of the conduct in question, and what sanction to impose.
  4. [38]
    One matter which concerns me, as it did the Professional Panel, is the examination of the second patient only on the ward. This was her workplace, and occurred at a time when the second patient and the respondent ought to have been attending to the care of other patients. The risk this runs is that the examination will not be as thorough as it ought to be, and that there will be insufficient care in deciding on an appropriate course of treatment to follow, both of which materialised with this patient. There is however the difficulty that the examination of the second patient on the ward is not as such one of the particulars set out in the applicant’s referral. It follows that this aspect as such cannot be taken into account by the Tribunal, although the inadequacy of the examination, and the failure to pursue other steps before surgery, are covered by the particulars and are relied on, and accepted.
  5. [39]
    The various matters making up the relevant conduct did not involve seriously wrongful conduct, or serious errors of judgment, even if the procedures adopted on two of the patients can be seen, with the benefit of hindsight, to have been inappropriate. Complications from surgery, such as post-operative infections, can always occur, and the procedures performed were not medically indefensible. Collectively however they suggest a degree of overconfidence at that time on the part of the respondent, which led him to undertake major surgical procedures which were not really appropriate, at least at that time, for the second and third patients. This overconfidence could also have led to a lack of careful attention to detail in matters such as physical examinations, and documentation. The more carefully and thoroughly the patient is assessed, the better prepared the surgeon will be to exercise a skilful judgment as to the appropriate procedure. Viewed in this way, the respondent’s conduct can be seen, in the relevant respects, to have amounted to unsatisfactory professional performance. Such a conclusion is consistent with the outcome in the various earlier decisions discussed below.

Sanction

  1. [40]
    In imposing a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include both personal and general deterrence,[12] the maintenance of professional standards and the maintenance of public confidence. Insight and remorse on the part of the respondent are also relevant to the assessment of the risk to the public.[13] A list of factors which may, in a particular case, be relevant to this issue was given by the State Administrative Tribunal of Western Australia in Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55].
  2. [41]
    In Pharmacy Board of Australia v Thomas [2011] QCAT 637 the practitioner had stolen a significant sum from his employer. He had been convicted of stealing part of the sum, and did not report this to the Board, as required. The relevant conduct occurred almost six years before the Tribunal hearing, and there was no evidence of unsatisfactory conduct since this. He had worked elsewhere, and provided a favourable reference from a later employer, and favourable reports from psychologists who had been treating him since for underlying psychological problems. He had also paid restitution. Kingham DCJ, then Deputy President of the Tribunal, said at [31]:

Mr Thomas was dishonest over a sustained period. That calls into question his character. Good character and honesty bear directly upon professionalism. In assessing what disciplinary sanction it should impose, the Tribunal must assess Mr Thomas’ fitness to practise at the time of the hearing, not at the time of the conduct. The evidence before the Tribunal suggests that his dishonesty, as sustained and serious as it was, does not reflect his character now.

  1. [42]
    Much the same point was made more recently in Health Ombudsman v Field [2018] QCAT 416 at [43], a very different case from this one, where Sheridan DCJ, then Deputy President of the Tribunal, said:

Central to the determination of sanction must be an assessment of the ongoing risk posed by the practitioner and the likelihood of the practitioner reoffending. On the facts here, evidence of insight, remorse and rehabilitation will be critical.

  1. [43]
    In that case there was no evidence of insight, remorse or rehabilitation, and the registration of the practitioner was cancelled. The point in both of these decisions is that the protective nature of the Tribunal’s function means that any sanction must take into account any change in the character, behaviour and approach of the practitioner between the time when the relevant conduct occurred and the time of the hearing. That is of importance in a case like the present, where there is evidence of efforts on the part of the respondent to deal with and overcome the underlying causes of the relevant unsatisfactory performance, so as to avoid any recurrence.
  2. [44]
    In the present case, there is considerable evidence that, following these events, the respondent has engaged in extensive rehabilitation. He obtained appropriate expert guidance as to correct documentation of cases, and there is evidence that he has given effect to it. He put in place a formal mentoring arrangement with a more experienced surgeon doing similar work, and became more consultative in his practice generally, and on the evidence is much less aggressive in his approach to complex surgery. The evidence suggests that he is no longer overconfident in his approach and is generally more cautious about what he can achieve. That is shown, for example, by his frank concessions before the Professional Panel, and in the agreed statement of facts. Overall the evidence summarised earlier, and in the joint submission, indicates that the respondent has demonstrated insight into the matters that led to the relevant conduct, and has taken appropriate steps to rehabilitate himself. The Tribunal need not be concerned about personal deterrence.
  3. [45]
    The respondent regularly attends meetings with other surgeons and has undertaken to continue to do so. That is also an encouraging sign of a willingness to learn from others, consistent with his overcoming earlier overconfidence. He has apologised to the second and third patients, participated in training courses, and demonstrated an understanding of the complaints against him, and he has used these cases in talks to other practitioners about things that can go wrong, which also shows a change in attitude. The respondent has in general already undertaken voluntarily the sort of steps by way of rehabilitation which might have been required by way of sanction by the Tribunal had the matter been dealt with more quickly.

Other cases

  1. [46]
    The parties referred the Tribunal to a number of earlier decisions. In Medical Board of Australia v Fitzgerald [2014] QCAT 425 the practitioner was a surgeon who had failed properly to manage a post-operative complication and infection in the patient. The Tribunal endorsed a joint submission that the practitioner had behaved in a way that constituted unsatisfactory professional conduct, reprimanded him and imposed conditions on his registration for mentoring and further education. In that case there was no evidence of the sort of rehabilitation undertaken voluntarily by the practitioner which the respondent has shown in the present case.
  2. [47]
    In Medical Board of Australia v Bird [2019] QCAT 148 a psychiatrist admitted errors of judgment in the treatment of three patients, involving misdiagnosis and inappropriate treatment, extending in one case over a number of years. The Tribunal adopted an agreed finding that this conduct amounted to unsatisfactory professional performance, and an agreed sanction that the practitioner be cautioned, and would have imposed conditions on his registration, but refrained from doing so because he had been practising subject to an undertaking in similar terms to the proposed conditions for some years already.[14] This decision provides some guidance for the appropriate sanction in the present case.
  3. [48]
    In Medical Board of Australia v Gallery [2013] QCAT 224 a surgeon conceded that his treatment of two patients had involved errors of judgment amounting to unsatisfactory professional conduct. In one case this involved operating at a remote hospital on a patient who ought to have been referred to a larger hospital where better support was available. The Tribunal said that, had he been younger and wished to continue to practice, it would have suspended him for a period and imposed conditions requiring education and mentoring. In fact, the practitioner had permanently retired, and gave an undertaking never to seek registration.
  4. [49]
    In Medical Board of Australia v Bourke [2015] QCAT 400 a surgeon conceded unsatisfactory professional conduct in failing to take a swab of a neck lesion prior to surgery to identify any infection, and in failing to administer prophylactic antibiotics, as a result of which the patient, a young child, died. The practitioner was reprimanded, but no other sanction was imposed, in circumstances where this was an isolated error of judgment, and he was already taken steps to change his practice in such case, to avoid any recurrence.
  5. [50]
    In Medical Board of Australia v Lockie [2012] QCAT 34 a surgeon who was removing a large pedunculated polyp had difficulty with his equipment, but persisted and removed the polyp, although without realising he had perforated the patient’s bowel in the process. The patient later died from post-operative complications. The surgeon agreed that he should not have continued with the procedure when he encountered difficulties with the equipment, and that this was unsatisfactory professional conduct. It was an isolated case, the practitioner had demonstrated insight into the incident, cooperated with the investigation and the proceeding, and complied with voluntary undertakings concerning limiting his practice and supervision, and his supervisors had reported favourably. He was reprimanded but no other sanction was imposed.
  6. [51]
    These decisions show that the proposed orders are consistent with the general range of outcomes in broadly similar cases in the past.

Conclusion

  1. [52]
    The pattern of behaviour in respect of these patients shows that at the time the respondent was not sufficiently thorough in his pre-operative assessment, his documentation and in his discussing with the patients the risks of complex surgery on the spine. Because of the importance of maintaining professional standards it is appropriate that the respondent be reprimanded for this behaviour, as the parties propose. In view of the evidence of his subsequent behaviour during the time that has passed, the Tribunal is satisfied that no further sanction is required in this case.
  2. [53]
    Accordingly, the decision of the Tribunal is as follows:
  1. The Tribunal decides that the respondent behaved in a way that constituted unsatisfactory professional performance.
  2. The Tribunal reprimands the respondent.
  3. The parties bear their own costs of the proceeding.

Footnotes

[1] Health Ombudsman Act 2013 s 126. For their function, see s 127.

[2] Statement of Reasons of Performance and Professional Standards Panel of the Medical Board of Australia, 22 July 2015, p 12, para 3.18; Hearing Book p 270.

[3] Ibid, p 10, para 3.4; HB p 268.

[4] Ibid, p 10, para 3.6; HB p 268.

[5] Ibid, p 11, para 3.8; HB p 269.

[6] Ibid, p 10, 11 para 3.7; HB p 268, 269.

[7] Ibid, p 12, para 3.15, 3.16; HB p 270.

[8] Ibid, p 11, para 3.11, 3.12; HB p 269.

[9] Ibid, p 11, para 3.13, 3.14; HB p 269.

[10] Ibid, p 12, para 3.19; HB p 270.

[11] Medical Board of Australia v Davis [2018] QCAT 215 at [33]; Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203 at [126]; Medical Board of Australia v Roberts [2014] WASAT 76.

[12] See Attorney-General v Bax [1999] 2 Qd R 9 at 17, concerning analogous provisions involving a legal practitioner.

[13] Medical Board of Australia v Blomeley [2018] QCAT 163 at [142].

[14] Medical Board of Australia v Bird (No 2) [2019] QCAT 149.

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Bryant

  • Shortened Case Name:

    Health Ombudsman v Bryant

  • MNC:

    [2020] QCAT 218

  • Court:

    QCAT

  • Judge(s):

    Judicial Member D J McGill SC

  • Date:

    21 Jul 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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