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- Unreported Judgment
Medical Board of Australia v de Silva QCAT 63
Medical Board of Australia v de Silva  QCAT 63
Medical Board of Australia
Indunil Shiranth de Silva
Occupational regulation matters
15 February 2016
Judge Suzanne Sheridan, Deputy President
Dr G Kelly
Dr G Powell
Mr G Lawrence
30 May 2016
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where it is alleged and admitted that the respondent engaged in unsatisfactory professional conduct – where the conduct arose from postoperative care and treatment of a patient – where a statement of agreed facts and joint proposal on sanction are submitted – whether the sanction is appropriate – whether the disciplinary action should be recorded on the register
Health Ombudsman Act 2013 (Qld), ss 314 and 321
Health Practitioners (Disciplinary Proceedings) Act 1999, ss 124, 241, 242 and 255
Health Practitioner Regulation (National Law) Act 2009
The Commonwealth of Australia v CFMEU  HCA 46
Medical Board of Australia v Fitzgerald  QCAT 425
Medical Board of Australia v Karam  QCAT 198
Medical Board of Australia v Leggett  QCAT 240
Medical Board of Australia v Martin  QCAT 376
Medical Board of Australia v Ong  QCAT 54
APPEARANCES AND REPRESENTATION (if any):
Mr A R Forbes of Lander & Rogers
Mr D Atkinson, instructed by Ashurst
REASONS FOR DECISION
- Dr Indunil de Silva is a medical practitioner holding specialist registration as a physician under the Health Practitioner Regulation (National Law) Act 2009. On 6 July 2015, the Medical Board of Australia (Board) referred disciplinary proceedings to the Queensland Civil and Administrative Tribunal (Tribunal) against Dr de Silva.
- The referral was made under the Health Practitioners (Disciplinary Proceedings) Act 1999 (Disciplinary Proceedings Act). That Act has now been repealed. However, by operation of s 314 of the Health Ombudsman Act 2013 (Qld), the Tribunal can hear and determine the proceeding as though the Disciplinary Proceedings Act had not been repealed.
- The referral alleges that Dr de Silva has behaved in a way that constitutes unsatisfactory professional conduct as defined in the Disciplinary Proceedings Act. Dr de Silva has conceded that he has engaged in unsatisfactory professional conduct, and the matter has proceeded before the Tribunal by way of a statement of agreed facts and a joint proposal as to sanction.
- The grounds set out in the referral relate to conduct engaged in by Dr de Silva as part of the team responsible for the care of patient VW at the Mater Hospital Mackay (Mater Mackay) in early January 2009.
- On 5 January 2009, general surgeon Dr William Fitzgerald performed a laparotomy and adhesionlysis on VW at the Mater Mackay. During that procedure, Dr Fitzgerald perforated the duodenum. He repaired two small perforations, but it would seem left one unrepaired. By the morning of 9 January 2009, VW appeared to have developed peritonitis. By 10 January 2009, Dr Fitzgerald considered it was resolving, but VW’s husband requested a second opinion. It was at that point that Dr Fitzgerald consulted Dr de Silva.
- From the records it is unclear in what capacity Dr de Silva was consulted, but it seems to be accepted that his role was to be a consultant physician to assist with the patient’s postoperative care.
- Dr de Silva first saw VW at 1.30pm on 10 January 2009. He reviewed VW and ordered Lasix and blood tests. These tests reported VW’s white cell count was 9.7 and her c-reactive protein was 456mg per litre.
- At 1.30pm on 11 January 2009, Dr de Silva again reviewed VW. He ordered further blood tests, which reported a white cell count of 19.8 and a c-reactive protein result of 460mg per litre. These results were far in excess of the normal range, being 3.5 to 10 and less than 10mg per litre respectively. The pathology report included an observational finding of “neutrophilia and monocytosis suggesting bacterial infection or inflammation. Neutrophilis showed toxic changes.”
- Dr de Silva was contacted by nursing staff on the night of 11 January 2009, because VW had developed rapid atrial fibrillation. Dr de Silva prescribed an anti-arrhythmic drug, and VW reverted to a normal rhythm. He did not personally attend upon VW. In a letter to the Mater Mackay on 20 January 2009, Dr de Silva said he did see VW on the evening of 11 January because “I saw her on the same day at 1330 hours and I was quite happy with her progress”.
- Dr de Silva accepts that as at 11 January 2009, he was aware VW had unresolving peritonitis and a small bowel leak. He agrees sacral and peripheral oedema was present, and that VW’s urine output was greater than 50mL per hour with the Lasix infusion.
- Dr de Silva accepts that he ought to have brought the clinical signs, symptoms, diagnostic results and VW’s complaints, along with the findings reported in the available CT scan and the comparison of the two blood tests, to the attention of Dr Fitzgerald on 11 January 2009. He did not do this. Instead, Dr de Silva noted VW’s clinical signs, symptoms and diagnostic results in her notes, and instructed nursing staff to bring these matters to Dr Fitzgerald’s attention.
- Although it is agreed between the parties that the care of VW was the primary responsibility of Dr Fitzgerald as the treating surgeon, Dr de Silva accepts that the delay in addressing VW’s condition by her health care team, of which he was a part, compromised VW’s health. By 12 January 2009, VW had developed life threatening peritonitis. She was transferred to the Mackay Base Hospital for emergency surgery.
- Expert reports regarding VW’s care have been obtained from consultant physicians Associate Professor Llewellyn Davies and Dr Ted Ringrose.
- In his report of 16 March 2009, Dr de Silva’s expert Associate Professor Davies details the treatment administered by Dr de Silva at his first attendance upon VW on 10 January 2009. He says:
These steps appear to me to be appropriate, and for a consultant physician caring for a post-surgical patient with complications described above, to capture the problems within the physician’s remit.
- Associate Professor Davies said that by the time of Dr de Silva’s second attendance on 11 January 2009, VW’s condition “included features which would generally be regarded as of concern”. Nevertheless, he considered the steps taken by Dr de Silva at that time “were reasonable and appropriate, and within the remit of the consultant physician.”
- Associate Professor Davies notes there appears to have been an assumption by the Mater Mackay nursing staff that Dr de Silva would physically attend VW on the night of 11 January 2009. He said while it “might have been preferable to attend the patient then, at least for reassurance”, Dr de Silva’s attendance that night “probably would not have resulted in any alteration in treatment open to him”.
- In terms of Dr de Silva’s role as part of VW’s health care team, Associate Professor Davies said:
[I]n my experience, the accepted role of a consultant physician when asked by a surgeon to assist in the care of a post-surgical patient, is to monitor medical aspects of the case such as respiratory, cardiac, and metabolic complications, but not to be the primary manager of surgical complications of the operative procedure.
- He considered Dr de Silva’s management of VW’s condition to have been satisfactory, and said the range of options for treatment available had been “almost fully utilised”. However, Associate Professor Davies said, “If placed in Dr de Silva’s situation my other option as a physician would have been to raise concerns about the patient directly with the responsible surgeon.”
- Nonetheless, Associate Professor Davies said:
What I do not understand is why the patient appears not to have been physically seen on the 11th by the responsible attending surgeon when it appears obvious she had serious, persistent, and dominantly surgical complications.
[T]he pivotal and underlying problem was the increasing intra-abdominal sepsis. This is clearly in the remit of the attending surgeon, and its definitive management would not generally be regarded as the responsibility of the assisting consultant physician.
- The Board’s expert Dr Ringrose essentially agrees with the findings of Associate Professor Davies. In his report dated 16 June 2011, Dr Ringrose said that over the course of his involvement with VW, “Dr de Silva gave appropriate treatment from a physician’s point of view to the medical problems which were occurring.” He affirmed this opinion in his later report dated 19 May 2014.
- In terms of Dr de Silva’s failure to attend upon VW on the night of 11 January 2009, Dr Ringrose agreed with Associate Professor Davies that attendance was not necessary. He said:
[T]here was no point in him attending in my opinion. … I do not think his attendance at that time would have made any difference to [VW’s] condition over that night. He had already solved the problem.
- In the circumstances, Dr Ringrose did not consider that Dr de Silva had acted inappropriately in failing to contact Dr Fitzgerald directly on 11 January 2009. He said:
It was not Dr de Silva’s function to inform Dr Fitzgerald of pathology results. Dr de Silva would have assumed that Dr Fitzgerald would see the patient that day and see the results for himself. I think the implication that Dr de Silva has done something wrong is incorrect.
- Dr Ringrose had “no doubt” Dr de Silva assumed Dr Fitzgerald would review VW on 11 January 2009. He considered Dr de Silva would only have been required to act if Dr Fitzgerald had notified him that he was going to be away on 11 January 2009, and thereby gave control of the case to Dr de Silva.
- Nevertheless, it does seem that a direct communication between Dr de Silva and Dr Fitzgerald on 11 January 2009 may have resulted in an earlier, more aggressive intervention in VW’s postoperative care. Associate Professor Davies refers to this contact as another option which would have been open.
- Dr de Silva admits that his failure to bring certain matters to the attention of Dr Fitzgerald on 11 January 2009 contributed to a delay in VW’s treatment and amounts to unsatisfactory professional conduct as defined by s 124(1)(a) Disciplinary Proceedings Act. More particularly, Dr de Silva admits that conduct was of a lesser standard than that which might reasonably be expected of him by the public and his professional peers. The Tribunal accepts the admission made by Dr de Silva and on that basis finds a ground for disciplinary action is established.
- Dr de Silva does not, however, admit his unsatisfactory professional conduct amounts to professional conduct that demonstrates incompetence or a lack of adequate knowledge, skill, judgment or care in the practice of his profession. The Board did not press for a finding in that regard. Both Associate Professor Davies and Dr Ringrose support the position taken by Dr de Silva in that regard. Their opinions confirmed that Dr de Silva had undertaken all appropriate medical treatment from a physician’s point of view.
- Having determined that the conduct amounted to unsatisfactory professional conduct, in accordance with s 241(1) of the Disciplinary Proceedings Act, the Tribunal must decide the appropriate sanction to be imposed.
- By agreement, the parties have proposed a sanction comprised of a caution and an undertaking by Dr de Silva to the Board that he will complete an education course in professional communication. At the hearing, the parties indicated that Dr de Silva had already made the undertaking to the Board. Consequently, the parties are seeking the Tribunal approve this undertaking.
- The determination of sanction in disciplinary proceedings remains a discretionary matter for the Tribunal, notwithstanding any agreement between parties. Nevertheless, where parties have reached a joint position that should only be disturbed for a compelling reason. As stated by Deputy President Judge Horneman-Wren:
The Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside of the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.
- His Honour noted that there were important public policy reasons why a jointly proposed sanction within the permissible range ought not be departed from by the Tribunal:
It would be an unfortunate consequence, detrimental to the system of just and timely resolution of proceedings of this kind, facilitated as they are by the encouragement of parties to participate in alternative dispute resolution, if the parties were to conclude that proper agreements reached might be upset by the Tribunal simply taking a different view of what may be an appropriate sanction in a particular matter. This is particularly so given that a party proposing the agreed sanction will be a National Board charged with the functions of registering suitably qualified and competent persons in the relevant health profession; imposing conditions on their registration; and developing and approving appropriate standards, codes and guidelines for the health profession.
- Medical Board of Australia v Fitzgerald relates to the disciplinary action taken by the Board against Dr Fitzgerald as VW’s treating surgeon. In that case, Dr Fitzgerald made a number of admissions that are relevant to the Tribunal’s determination of an appropriate sanction in the instant case.
- Dr Fitzgerald admitted VW remained under his care and management up until her transfer to the Mackay Base Hospital. He admitted he did not personally review VW on 11 January 2009. He admitted he did not personally review or request VW’s test results on 11 January 2009. Significantly, the Tribunal observed:
He admits that on 11 January 2009 until the early hours of 12 January 2009, Dr de Silva was placed in a position where he maintained responsibility for the care of the patient, which was inappropriate. He admits that he ought to have directly maintained and monitored the patient’s health and care throughout 11 January 2009 and the early hours of 12 January 2009, including reviewing the tests obtained and actively seeking reports from hospital staff and Dr de Silva about the patient’s condition during that period.
- The Tribunal found Dr Fitzgerald had behaved in a way that constitutes unsatisfactory professional conduct. He was reprimanded and conditions were imposed requiring mentoring for a period of two years.
- The severity of Dr Fitzgerald’s conduct is clearly in excess of Dr de Silva’s. In Fitzgerald, Dr Fitzgerald had ultimate responsibility for the welfare and care of VW as her treating surgeon: this has been acknowledged by the experts in this case, Associate Professor Davies and Dr Ringrose, and indeed by Dr Fitzgerald himself. Conversely, Dr de Silva was involved over a treatment period of only 48 hours, and was responsible only to the extent of a reasonable physician. Furthermore, while Dr de Silva did not directly contact Dr Fitzgerald, he did make notes on VW’s records and directed the nursing staff to speak with Dr Fitzgerald.
- Further, as noted above, Dr Ringrose did not consider Dr de Silva did anything wrong and, at its highest, Associate Professor Davies said that direct contact may have been another option open to him. Associate Professor Davies also referred to attendance by Dr de Silva that night and said “it might have been preferable at least for reassurance and to exclude other medical issues”. He opined, however, it probably would not have resulted in any alteration in treatment open to him. Certainly, Dr de Silva’s level of culpability is very different to that of Dr Fitzgerald.
- In Karam, a number of allegations were made against the practitioner concerning his communication with colleagues, his record keeping and, with respect to two patients, his clinical competence. Dr Karam conceded his conduct in these respects amounted to unsatisfactory professional conduct. The Tribunal imposed conditions requiring him to complete a course on professional responsibility and communication, and he was precluded from performing obstetric or gynaecology work except in the case of genuine emergency. Those conditions were recorded on the public register.
- Here, however, there is no question of Dr de Silva’s clinical competence, and again, the severity of Dr Karam’s conduct is clearly distinguishable from that of Dr de Silva. Dr de Silva’s conduct was an isolated event. Dr Karam was found to have engaged in a pattern of conduct. This distinction is conceded by the Board in its submissions.
- It is well established that disciplinary penalties are not imposed as punishment, but rather for the protection of the community. Orders imposed should be those that the Tribunal considers necessary to protect the public and the reputation of the profession. Personal deterrence will often play a role. If it is considered that a registrant may in the future engage in similar misconduct, orders deterring him or her from doing so will be appropriate.
- Dr de Silva was first registered as a medical practitioner in or about April 2000. He has had no disciplinary issues prior to or since the events of January 2009. In these circumstances, deterrence is not a significant factor.
- Dr de Silva has accepted his conduct amounts to unsatisfactory professional conduct. He has been frank, honest and cooperative with the Board throughout these disciplinary proceedings. This cooperation has allowed the parties to put before the Tribunal a comprehensive statement of agreed facts such as to obviate the need for a contested hearing of the facts.
- In all the circumstances, the Tribunal is satisfied that the sanction proposed by the parties falls well within the appropriate range and serves the intended purpose of disciplinary proceedings.
- Having made orders under s 241 of the Disciplinary Proceedings Act, the Tribunal must determine, pursuant to ss 242(1)(b) and (d), whether or not the disciplinary action is to be recorded in the Board’s register. This remains the issue in dispute between the parties. The Board contends that the disciplinary action should be recorded in the Board’s register for a period of 12 months, while Dr de Silva submits his conduct does not warrant the disciplinary action being recorded in the register at all.
- In resolving that issue, consideration needs to be given to the purpose of a sanction being recorded in the Board’s register. That purpose must be protective and not punitive. It must be to give notice to the public. Given the age of these events, the fact of there being no communication or disciplinary issues either prior to or subsequently, and the very limited culpability of the practitioner in the circumstances, there can be no protective purpose served by the disciplinary action being recorded in the Board’s register.
- In their written submissions, both parties seek no order as to costs.
- Pursuant to s 255(1) of the Disciplinary Proceedings Act, the Tribunal may make any order about costs it considers appropriate. Having regard to the parties’ agreed position, and all the circumstances of this proceeding, the appropriate order is that each party bear its own costs.
- Accordingly, the Tribunal orders that:
- Pursuant to s 124(1)(a) of the Disciplinary Proceedings Act, the respondent has behaved in a way that constitutes unsatisfactory professional conduct.
- Pursuant to s 241(2)(a) of the Disciplinary Proceedings Act, the respondent is cautioned.
- Pursuant to s 241(2)(c) of the Disciplinary Proceedings Act, the undertaking entered into between the respondent and the applicant is approved.
- Pursuant to s 242(1)(b) and (d) of the Disciplinary Proceedings Act, the disciplinary action taken is not to be recorded in the Board’s register.
- Each party to bear their own costs.
 Health Ombudsman Act 2013 (Qld), s 321.
 Statement of agreed facts, para 8.
 Ibid, para 10.
 Report Associate Professor Davies dated 16 March 2009, Tab 4 Agreed Bundle of Documents, p. 2.
 Letter Dr de Silva to Mater Mackay dated 20 January 2009, Agreed Bundle of Documents, p. 4.
 Statement of agreed facts, para 9.
 Ibid, para 11.
 Ibid, para 12.
 Ibid, para 13.
 Ibid, para 5.
 Associate Professor Davies provided a further report on 13 April 2014 in response to a letter from the Board’s solicitors. In his subsequent report, Associate Professor Davies confirmed his earlier comments and said, “I cannot see that I would wish to materially alter the opinions express in that [initial] report”.
 Report Associate Professor Davies dated 16 March 2009, Tab 4 Agreed Bundle of Documents, p. 2.
 Ibid, pp. 2-3.
 Ibid, pp. 1-2.
 Ibid, pp. 3.
 Ibid, pp.2-3.
 Report Dr Ringrose dated 16 June 2011, Tab 5 Agreed Bundle of Documents, p. 315.
 Report Dr Ringrose dated 19 May 2014, Tab 8 Agreed Bundle of Documents, p. 1.
 Report Dr Ringrose dated 16 June 2011, Tab 5 Agreed Bundle of Documents, pp. 314-315.
 Ibid, p. 316. Dr Ringrose confirms this opinion in his report dated 19 May 2014.
 Report Dr Ringrose dated 19 May 2014, Tab 8 Agreed Bundle of Documents, p. 4.
 Statement of Agreed Facts, para 14.
 Ibid, para 1.
 Board’s written submissions, para 12.
 See, for example, Medical Board of Australia v Martin  QCAT 376 and Medical Board of Australia v Fitzgerald  QCAT 425.
 Medical Board of Australia v Martin  QCAT 376 at .
 Ibid at .
  HCA 46.
  QCAT 240 at .
  QCAT 54 at -.
  QCAT 425.
  QCAT 198.
 Medical Board of Australia v Fitzgerald  QCAT 425 at .
 Ibid at .
 Report Associate Professor Davies dated 16 March 2009, Tab 4 Agreed Bundle of Documents, pp. 2-3.
 Board’s written submissions, para 43.
 See, for example, Chinese Medicine Board of Australia v Garvin  QCAT 244 at ; Medical Board of Australia v Jones  QCAT 362 at ; and Nursing and Midwifery Board of Australia v Buckby  WASAT 19 at 102.
 Chinese Medicine Board of Australia v Garvin  QCAT 244 at .
- Published Case Name:
Medical Board of Australia v Indunil Shiranth de Silva
- Shortened Case Name:
Medical Board of Australia v de Silva
 QCAT 63
30 May 2016