De Lacy v Medical Board of Australia
[2016] QCAT 53
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- De Lacy v Medical Board of Australia[2016] QCAT 53
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De Lacy v Medical Board of Australia[2016] QCAT 53
De Lacy v Medical Board of Australia[2016] QCAT 53
CITATION: | De Lacy v Medical Board of Australia [2016] QCAT 53 |
PARTIES:
| GEOFFREY DE LACY (applicant) v MEDICAL BOARD OF AUSTRALIA |
APPLICATION NUMBER: | OCR191-15 |
MATTER TYPE: | Occupational Regulation Matters |
HEARING DATE: | 16 and 17 March 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Suzanne Sheridan, Deputy President Assisted: Dr E Maguire Dr G Powell Mr M Halliday |
DELIVERED ON: | 18 March 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE:
|
|
CATCHWORDS:
| PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – OTHER MATTERS – where the Board imposed conditions on the registration of the practitioner – where practitioner applied for removal and/or variation of conditions Health Practitioner Regulation National Law (Queensland), ss 125, 156 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Mr G Diehm QC of counsel, instructed by Ashurst
RESPONDENT: Mr R Devlin QC of counsel, instructed by Lander & Rogers
REASONS FOR DECISION
- [1]On 29 November 2013, the Medical Board of Australia (Board) decided to take immediate action against Dr De Lacy under s 156 of the Health Practitioner Regulation National Law (Queensland) (National Law). Pursuant to its powers under s 156, the Board imposed conditions on the registration of Dr De Lacy.
- [2]A review of that decision was brought before QCAT. The parties reached a negotiated position whereby the decision of the Board made on 29 November 2013 was set aside and the registration of Dr De Lacy was made subject to conditions set out in a schedule to the consent order of the Tribunal. The consent order was made on 20 March 2014 and forms part of the Agreed Bundle.
- [3]The conditions imposed by consent included a condition that ‘The Board will review these conditions upon receipt of the investigation report’. The investigation report was received by the Board and on 10 December 2014 the Board decided that Dr De Lacy had engaged in more than one instance of unprofessional conduct in his treatment of 11 patients.
- [4]Despite the Board’s decision, no further action was taken by the Board in relation to that decision until 3 March 2016, at which time the Board filed an application or referral of disciplinary proceedings. That application is separate proceedings to these proceedings.
- [5]In the interim, on 24 July 2015 Dr De Lacy applied to the Board pursuant to s 125 of the National Law for the removal of the conditions imposed pursuant to the consent order dated 20 March 2014.
- [6]On 15 September 2015, the Board considered Dr De Lacy’s application. Of particular relevance to these proceedings was the Board’s decision to refuse to grant the application for removal of conditions. It was that decision which formed the basis for the application by Dr De Lacy filed on 20 October 2015.
- [7]In these proceedings, expert reports have been provided by Professor Padbury and Dr Franz. An experts’ conclave was held on 10 March 2016. Prior to the conclave, an Agreed Issues List being Exhibit 1 and a background document being Exhibit 2 were filed. Both Professor Padbury and Dr Franz appeared at the conclave by phone. The joint report prepared following the conclave is Exhibit 3.
- [8]The parties agreed in accordance with Practice Direction 4 of 2009 of this Tribunal that there remained certain issues which the experts needed to address in oral evidence.
- [9]By agreement, leave was granted for Professor Padbury to give evidence by telephone. Both experts gave evidence in the presence of each other. Prior to the experts being called, the parties had provided to the Tribunal details of their proposed conditions, which proposed conditions were amended by each party following the oral evidence of the experts. The final proposed conditions of the applicant are Exhibit 11 and of the Board are Exhibit 10.
- [10]In considering the expert evidence, it is relevant as referred to in Exhibit 2, that since the retirement due to ill health of Dr De Lacy’s supervisor, Dr Anderson, in December 2014 Dr De Lacy has not been able to perform colorectal, bariatric and/or complex intra-abdominal procedures. The conditions previously imposed by consent required supervision for those types of procedures; though there seems some dispute as to the actual level of supervision required. That is not an issue which needs to be determined in these proceedings.
- [11]In the joint expert report, the experts agree that a consequence of Dr De Lacy not performing those types of procedures since December 2014 has potentially resulted in Dr De Lacy becoming de-skilled in those types of procedures. Both experts seemed to be in agreement that if Dr De Lacy wanted to return to the performance of that type of surgery, he would require some supervision. Where there is some divergence in the expert opinion is the level of supervision which would be required and what aspects of Dr De Lacy’s practice had given rise to the need for supervision. Relevantly, both experts agreed in giving oral evidence that concerns as to case selection and patient rescue were historical concerns and since the imposition of the conditions in March 2014 there were no longer continuing concerns in that regard.
- [12]In oral submissions made on behalf of the Board there seemed to be some suggestion that Dr Franz gave oral evidence contrary to that view.
- [13]Both experts agree that at the time when the previous conditions were imposed by the Tribunal ‘Dr De Lacy’s technical skills were not in question.’ Further, from an examination of the procedures performed whilst subject to the conditions and having regard to the affidavit of Dr Anderson sworn 19 February 2016, during his period of supervision there were no questions as to Dr De Lacy’s technical skills; nor in fact the management or the selection of any of those cases. Importantly, Dr Anderson supported the removal of the conditions on Dr De Lacy’s registration.
- [14]However, both experts called in these proceedings agree that as Dr De Lacy has now not performed colorectal, bariatric and/or complex intra-abdominal surgery since late 2014, there may have been some deterioration in his skill level. In the joint report, it was said that the extent of deterioration and the rate of re-skilling is not well known and depends on a number of factors. The factors referred to included whether the surgeon was ‘doing something’ in the period and whether Dr De Lacy had ‘overlearnt’ his skill.
- [15]It was in discussing that issue that both experts considered that re-skilling would extend to case selection and post-operative care. That need, however, was not associated with the past concerns but rather that Dr De Lacy had not performed complex surgery for the past 15 months.
- [16]In the joint report, it was said that the supervision which the experts considered would be required to achieve the necessary re-skilling would be three months of fortnightly direct supervision moving to monthly direct supervision for the next three months. When asked in oral evidence what was meant by ‘direct supervision’, both experts said that ‘direct supervision’ would require the supervisor being present.
- [17]In the course of questioning, counsel for Dr De Lacy outlined a potential regime of supervision and asked each expert to indicate as to whether that regime was acceptable in their view. In terms of the regime, the following exchange occurred between counsel for Dr De Lacy and Dr Franz as the expert for the Board:
Mr Diehm: Dr Franz, just to clarify. What you are indicating is acceptable in your view would be a regime of supervision firstly over a period of 6 months that involved at the outset the supervising surgeon being physically present to supervise 1 or 2 lists –
Mr Devlin: Just stop there.
Mr Diehm: Yes. Can I start with that. Is that the first part of the process?
Dr Franz: Correct.
Mr Diehm: That thereafter, the supervision of the surgical procedures and management be by the combination of, firstly, video and audio recording of procedures with those recordings to be available for review by the supervisor.
Dr Franz: Correct.
Mr Diehm: Secondly, that there be prospective auditing carried out over that 6 month period.
Dr Franz: Correct.
Mr Diehm: And that there be weekly telephone conferences between the registrant and the supervisor over that 6 month period.
Dr Franz: Correct.
Mr Diehm: So that completes the regime of supervision that you have in mind for that 6 months?
Dr Franz: Correct.
Mr Diehm: But to continue for another year and a half making up a total 2 years you would think that it would be appropriate to have the prospective auditing going on.
Dr Franz: Correct.
Mr Diehm: And that’s it for that supervision regime.
Dr Franz: Providing there was satisfactory progress in those periods of course –
Mr Diehm: Yes.
Dr Franz: And there were no issues raised. With the prospective auditing, that is also part of our normal practice. So whilst it might seem that it is – two years is a long time, it’s what most of us would practice routinely for our whole professional life.
- [18]Mr Diehm QC then raised the question of that regime with Professor Padbury, as the expert for Dr De Lacy. Mr Diehm QC asked ‘… did that description that I’ve just outlined with Dr Franz meet with what you were agreeing to earlier?’, to which Professor Padbury answered ‘it does.’
- [19]Subsequently it was suggested by Mr Devlin QC as counsel for the Board that the position taken by Dr Franz both at the conclave and in giving oral evidence, was a compromise position and that the best outcome was a three month period of supervision in a metropolitan hospital. Dr Franz accepted that proposition, a proposition he had adverted to earlier in evidence, but Professor Padbury did not.
- [20]Given the evidence of both Professor Padbury and Dr Franz and the position taken by both parties, the Tribunal is satisfied that it is necessary to impose some conditions on Dr De Lacy’s practice in relation to the performance of colorectal, bariatric and/or complex intra-abdominal surgery.
- [21]The Tribunal has taken into account the draft conditions proposed by both the Board and Dr De Lacy and considers that conditions in terms of the attached are appropriate. The Tribunal has had the benefit of the insight of the assessors.
- [22]In the opinion of the Tribunal, public health can be properly protected by the proposed regime, which is slightly more onerous than the one that both experts regarded as acceptable. The slight variation is that it would be preferable for Dr De Lacy to have his supervisor present when he performs for the first time each of the procedures in respect of which it is considered Dr De Lacy may have become de-skilled, with the supervisor having reporting obligations to the Board, including immediate reporting obligations if any matters were to arise in the course of the performance of the said procedures at that time.
SCHEDULE OF CONDITIONS
- The practitioner is to nominate one or more supervisors for the purposes of these conditions to the Board for its approval (the supervisor), it being acknowledged that a different supervisor may be necessary for colorectal and bariatric procedures.
- Any supervisor for the purposes of these conditions, including for the purposes of paragraph 5 below, must be a registered General Surgeon of more than 10 years standing and whose curriculum vitae must accompany the nomination.
- The Board must approve or reject any nominated supervisor, including for the purposes of paragraph 5 below, within 14 days of the nomination.
- The practitioner is not to perform colorectal, bariatric and/or complex intra-abdominal surgery other than in compliance with these conditions until he has performed a period of 6 months of supervised practice, which period shall commence on the date of approval of the supervisor in accordance with paragraph 3 above (Commencement Date), which supervision is to be performed by:
- (a)in person supervision, with the supervisor present and scrubbed, of each of colorectal, bariatric and complex intra-abdominal procedures (‘the said procedures’), the first time each of the said procedures is performed by the practitioner after the Commencement Date;
- (b)the performance of each of the procedures in subparagraph (a) must have been the subject of the weekly telephone discussions with the supervisor pursuant to paragraph 8 below and must have been approved by the supervisor before being agreed to be performed;
- (c)the supervisor in sub-paragraph (a) attending for the whole list of the practitioner for the particular day on which each of the said procedures is to be performed;
- (d)the supervisor attending additional in person supervision of subsequent lists containing the said procedures, if the supervisor determines such attendance is necessary;
- (e)each of the said procedures being video and audio recorded and submitted to the supervisor, except where:
- (i)there is an open procedure and:
A. in the opinion of the supervisor provided to the practitioner in writing prior to the surgery, having regard to the nature of the procedure and the progression of the practitioner during the supervision, it is not necessary to record the particular procedure; or
B. the supervisor is physically present during the surgery; or
- (ii)it becomes necessary during a laparoscopic procedure to convert to an open procedure;
- (f)the supervisor reviewing such video and audio recordings, to the extent the supervisor considers it appropriate and necessary to do so; and
- (g)the supervisor providing the reports required by these conditions to the Board.
- In the alternative to paragraphs 4(a) to (d) above, the practitioner may attend 3 weeks intensive training with a General Surgeon or General Surgeons in the Brisbane Metropolitan area, as approved by the Board on the practitioner’s nomination, which training must include performing and/or assisting in each of the said procedures. The practitioner must provide a report to the Board of the surgery observed, containing the details listed in paragraph 7(a) below. The General Surgeon or Surgeons must provide a report to the Board, containing the details listed in paragraph 7(c)(i) below.
- The practitioner must:
- (a)provide a written report to the Board within 7 days of the end of each calendar month which chronologically details in respect of each surgery performed in that month (‘the monthly report’):
- (i)the date of the surgery;
- (ii)the name of the patient and the patient’s identification number;
- (iii)the hospital at which the surgery was performed;
- (iv)the presenting condition of the patient;
- (v)the type of surgery performed;
- (vi)the name of the supervisor under these conditions for the surgery;
- (vii)the outcome of the surgery, including any complications (particularly post-operative returns to theatre, infection rates and unplanned readmissions);
- (viii)the date and outcome of each post-operative consultation with the patients for a period of 6 months from the date of the surgery;
- (b)for 6 months from the Commencement Date, provide a copy of the monthly report to the supervisor at the same time as the report is provided to the Board; and
- (c)provide a written authority and direction to the supervisor, within 7 days of the supervisor being approved by the Board, to:
- (i)prepare a written report each month for 6 months which details, in respect of each surgery for which the supervisor was consulted:
A. the date of the surgery;
B. the name of the patient and the patient’s identification number;
C. the hospital at which the surgery was performed;
D. the presenting condition of the patient;
E. the type of surgery performed;
F. the outcome of the surgery, including any complications;
- (ii)within 7 days of the end of each calendar month, provide a copy of the report to the Board;
- (iii)immediately notify the Board if the supervisor holds a concern regarding the practitioner’s competency or fitness to practice the profession in any respect, including competency or fitness to perform any of the said procedures; and
- (iv)include in the final monthly report an opinion as to whether it is necessary for supervision in accordance with these conditions to be extended and the reasons for same.
- If the supervisor opines pursuant to 6(c)(iv) herein that supervision should be extended, the conditions set out in paragraphs 4, 6, 8 and 9 herein shall continue to apply and be read as if the period of time for supervision was such extended period as recommended by the supervisor, to a maximum of a further 3 months.
- The practitioner is to confer weekly by telephone or in person with the supervisor for a period of 6 months from the Commencement Date about any matters pertaining to his practice as the supervisor shall determine including discussion about prospective patients, the indications for surgery and the occurrence of and the management of patients post-surgery.
- The practitioner is to otherwise confer with the supervisor by telephone or in person whenever is reasonably necessary, including during the performance of surgery.