Medical Board of Australia v Bourke
[2015] QCAT 400
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- Unreported Judgment
- Medical Board of Australia v Bourke[2015] QCAT 400
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Medical Board of Australia v Bourke[2015] QCAT 400
Medical Board of Australia v Bourke[2015] QCAT 400
CITATION: | Medical Board of Australia v Bourke [2015] QCAT 400 |
PARTIES: | Medical Board of Australia (Applicant/Appellant) |
v | |
Christopher Joseph Bourke (Respondent) |
APPLICATION NUMBER: | OCR043-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Hon JB Thomas, Judicial Member Assisted by: Dr E J Maguire Dr H Moudgil Dr W Sanderson |
DELIVERED ON: | 6 October 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
| |
CATCHWORDS: | Professions and trades – health care professionals – medical practitioners – disciplinary proceedings – error of clinical judgment – unsatisfactory professional conduct conceded – reprimand Health Practitioner Regulation National Law Act 2009 (Queensland) s 193. | |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Jurisdiction
- [1]This is a referral under s 126(1) of the Health Practitioners (Disciplinary Proceedings) Act 1999 (“the Disciplinary Proceedings Act”).
- [2]The former Board commenced dealing with a notification dated 8 March 2010 from the Office of the State Coroner concerning the conduct of Dr Bourke. It did so prior to 1 July 2010, which was the operative commencement date of the Health Practitioner Regulation National Law Act 2009 (“the adopted National Law”).
- [3]Accordingly, under s 289 of the adopted National Law, the notification is to be dealt with the under the Disciplinary Proceedings Act.
- [4]The grounds on which disciplinary action may be taken in such matters are set out in s 124 of that Act.
- [5]The decisions and orders that may be made by QCAT are relevantly prescribed in sections 240 to 244 of that Act.
Charge
- [6]The ground specified in the charge is unsatisfactory professional conduct namely:
- Professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant’s professional peers; and/or
- Professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of the registrant’s profession.
- [7]The particulars presently relied on are that the registrant failed to appropriately clinically manage and treat his patient prior to and post surgery on 18 July 2008, in that he
- Failed to take a swab of the lesion prior to surgery;
- Failed to administer prophylactic antibiotics prior to surgery.
Facts and circumstances
- [8]Dr Bourke was awarded a Bachelor of Medicine and Bachelor of Surgery in 1990. He is currently registered to practice in Australia as a specialist general surgeon and paediatric surgeon. He was so registered at material times.
- [9]He has not previously been disciplined by the Medical Board of its predecessor.
- [10]His registration is not subject to any endorsements, notations or conditions.
- [11]The present proceedings are the aftermath of the unfortunate death of a child, Luke Wilson then aged 4, following surgery conducted by Dr Bourke at Wesley Hospital on 18 July 2008. The child died two days later from “sepsis due to, or as a consequence of, streptococcus pyogenes soft tissue infection of the right neck”.[1]
- [12]A considerable body of medical evidence and opinion has been presented, containing a range of opinions as to steps and procedures that might have prevented the death, and whether a practitioner would reasonably have been expected to perform them. Some of the evidence relates to allegations that are no longer pursued by the Board. The evidence also includes details of the extensive coronial inquiry and report that followed the child's death.
- [13]It will not be necessary to canvass the evidence in detail. The parties presented a statement of agreed facts, and made joint submissions on sanction. The following agreed facts are sufficient for present purposes.
- [14]It is common ground that Dr Bourke did not take a swab of the neck legion and that he did not administer prophylactic antibiotics.
- [15]He also concedes that notwithstanding his pre-operative diagnosis of the cause of infection as mycobacterium avium intracellurare scrofulafium (MAIS), he should have taken a swab pre operatively to exclude the more serious infection caused by streptococcus pyogenes.
- [16]Professor Kesson opined that “an ulcerated erythematous lesion with serious discharge deserved to be swabbed for routine pyogenic bacteria prior to surgery if only to exclude a superficial pyogenic infection prior to surgery”.
- [17]Associate Professor Harvey, while recognising that other views were possible, stated “I feel it would have been appropriate to take a swab from the ulcer to ascertain the presence of pyrogenic bacteria which may have represented a secondary infection”.
- [18]The overall opinion from all 3 experts is that a swab should have been taken, and Dr Glasson and Professor Kesson considered that antibiotics were indicated.
Discussion
- [19]Dr Bourke’s admissions that his conduct amounted to unsatisfactory professional conduct are not necessarily binding on this Tribunal which must come to its own conclusion. There is evidence that could justify such a conclusion, and it seems to be a reasonable one. He made a diagnosis and did not change it despite some signals that called for reconsideration. It is noted that there is a deal of variation in the medical opinions that have been expressed concerning his conduct and that a contest could have been mounted as to whether his conduct should necessarily lead to these conclusions, and no one questioned his approach at the time. However, submissions that could arguably have lead to a different conclusion have not been made or pressed. In the present sad circumstances Dr Bourke chose not to defend himself against an adverse finding, and indicated his acceptance of it.
- [20]In these circumstances, aided by the assessors I am prepared to make the necessary findings which lead to the ultimate conclusion that Dr Bourke was guilty of “unsatisfactory professional conduct” as defined in the Disciplinary Proceedings Act.
- [21]Dr Bourke has not been before the Board previously. His deficiency was not part of any pattern of practice or dubious approach. His failures in this case are best characterised as an isolated error of clinical judgment.
- [22]Three precedents were cited, namely Medical Board of Australia v Lockie [2012] QCAT 34, Medical Board of Australia v Rosenboum [2013] QCAT 722 and Medical Board of Australia v Fitzgerald [2014] QCAT 425. The sanctions in those cases ranged from a reprimand (without record on the public register) to a reprimand together with conditions to be performed by the practitioner, along with an order for payment of the Board's costs.
- [23]The parties propose in the present case that there be a reprimand and that it be recorded in the Board’s register for a period of 12 months from the date of the Tribunal’s decision.[2]
- [24]No further sanction seems necessary. It is noted that Dr Bourke has addressed this isolated error of judgment by proactively taking steps to inform the profession and to change the practice in procedures of this kind so that an incident of this kind does not occur again.
- [25]Costs are not sought in the present matter. This no doubt stems at least partly from the fact that Dr Bourke was not notified of the original hearing, which prompted his election to refer the matter to the Tribunal.
Orders
- (1)The Tribunal finds that the respondent has behaved in a way that constitutes unsatisfactory professional conduct;
- (2)The respondent is reprimanded;
- (3)The reprimand is to be noted on the register for a period of 12 months from the date of this order.