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Health Ombudsman v Mainwaring[2022] QCAT 351

Health Ombudsman v Mainwaring[2022] QCAT 351

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Mainwaring [2022] QCAT 351

PARTIES:

director of proceedings on behalf of the health ombudsman

(applicant)

v

Paul Norman Mainwaring

(respondent)

APPLICATION NO/S:

OCR142-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

15 September 2022 (ex tempore)

HEARING DATE:

15 September 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Robertson

Assisted by:

Associate Professor M Byrne

Dr J Cavanagh 

Mr K Murphy

ORDERS:

  1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), that the respondent is reprimanded.
  3. There is no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondents diagnosis and treatment of a patient was not clinically appropriate or accurate  – where the failings of the respondent resulted in significant health implications for the patient and whereby the patient later died – where the respondent voluntarily surrounded his registration and has evinced intention to not practice again – where parties agreed as to the conduct that occurred and provided joint submissions on sanction – whether the sanction proposed is appropriate in all the circumstances

Health Ombudsman Act 2013 (Qld) s 107

Health Practitioner Regulation National Law (Queensland) s 5

Medical Board of Australia v Lewis [2019] SAHPT 14

Medical Board of Australia (Tasmania) v Daware [2012] TASHPT 3

Health Care Complaints Commission v Mooney [2022] NSWCATOD 44

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    On 31 May 2021, the applicant referred two health service complaints concerning the respondent to the Tribunal.  The respondent was at all material times registered as a medical practitioner and practising as a medical oncologist.
  2. [2]
    The respondent was born on the 19th of July 1965, so is presently 57 years of age.  The respondent surrendered his registration to the Medical Board of Australia (the Board) on the 18th of February 2019 and has not practised as a health service provider since.  He has evinced an intention not to practice again. 
  3. [3]
    The complaints concern the respondent’s treatment of a patient, PB, from approximately 7 December 2017 to 11 May 2018.  As a direct consequence of the side effects of the respondent’s initial treatment of PB by immunotherapy using ipilimumab commencing on 4 January 2018 with four doses by infusion, with the final infusion being administered on 8 March 2018; PB developed known complications of the therapy which led to serious health complications (unrelated to his original presenting health conditions) and his untimely death in hospital on 25 May 2018.  During his treatment of PB, the respondent admits that he acted in a manner that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience.
  4. [4]
    Paragraph 27 of the annexure to the referral[1] summarises the relevant facts relied on by the applicant and relevant conclusions from a clinical perspective based on the evidence.  In part, 27 is in these terms:
    1. (a)
      Treatment of ipilimumab was not appropriate for the patient’s melanoma, regardless of the diagnosis, ie, whether stage IIB or stage IVa , because:
      1. (i)
        There is no evidence that adjuvant therapy such as ipilimumab is of any benefit in a stage IIB melanoma or a resected stage IVa melanoma;
      1. (ii)
        If the melanoma was a stage IVa (ie. metastatic melanoma from an unknown primary), where adjuvant therapy may assist, single agent nivolumab is superior to single agent ipilimumab, has a smaller adverse event profile, and would have been an accepted standard of care;
    2. (b)
      The practitioner did not seek an opinion from a gastroenterologist in relation to the patient’s refractory colitis;
    3. (c)
      The practitioner did not request a sigmoid colonoscopy for the patient;
    4. (d)
      The practitioner did not administer infliximab during the period that the patient was admitted to Canossa Private Hospital;
    5. (e)
      The practitioner did not seek a second opinion from a colleague as to the patient’s colitis and response to ipilimumab;
    6. (f)
      The practitioner failed to keep adequate notes of the patient’s progress, or of the practitioner’s visits to and consultations with the patient, or of the practitioner’s discussions with and instructions to nursing staff at Canossa Private Hospital.
  5. [5]
    In his response filed on 24 August 2021[2], the respondent admits the facts alleged in paragraph 27(a) – (f)  of the annexure to the referral. 

Relevant agreed facts[3]

  1. [6]
    On 29 November 2017, PB had a lesion excised from his scalp.  Due to the absence of an epidermal deposit, it was unclear whether the excised lesion was a nodular melanoma or a metastatic deposit to the skin. 
  2. [7]
    On 7 December 2017, Positron Emission Tomography (PET) and Computed Tomography (CT) scans of the patient did not reveal any radiological evidence of metastatic disease.
  3. [8]
    Without the benefit of definitive sentinel node biopsy at the time of surgical excision to confirm or exclude nodal involvement, the patient’s melanoma could be staged as either stage IIB or stage IVa. 
  4. [9]
    On or about 4 January 2018, the practitioner commenced treating the patient with ipilimumab, an immunotherapy treatment.  PB received four doses of the treatment, at a rate of three mg per kg at 21 day intervals, the final infusion being administered on 8 March 2018.
  5. [10]
    Ipilimumab was not the appropriate treatment for the patient given the patient’s melanoma was either a stage IIB or stage IVa; has known side effects due to its high toxicity, including colitis and diarrhoea, and in either event (stage IIB or stage IVa melanoma), the appropriate approach to the patient’s condition was to “wait and see”, or to offer adjuvant therapy with PD-1 base therapy if the practitioner believed the pathology represented resected stage IVa disease. 
  6. [11]
    The patient developed severe diarrhoea, a known side effect of ipilimumab, commencing on or about 15 March 2018, approximately one week after the final infusion of ipilimumab.  A PET scan on 26 March 2018 revealed that the patient was suffering from colitis, which is inflammation of the lining of the colon. 
  7. [12]
    On 27 March 2018, the practitioner reviewed the patient and noted that he was suffering from colitis due to the treatment with ipilimumab.  He noted that the patient was experiencing grade 3 diarrhoea (seven or more motions a day), and advised him to commence treatment with high-dose oral steroids (Prednisolone 100 milligrams/day), and to maintain a stool diary.
  8. [13]
    After seeing the patient on 27 March 2018, the practitioner did not explain to him the risks associated with his severe diarrhoea, including the potential for a perforated gastrointestinal wall.
  9. [14]
    On 10 April 2018, the practitioner saw the patient.  The practitioner advised him to continue treatment with high-dose oral steroids.  On 26 April 2018, the practitioner saw PB again and arranged for him to be admitted to Canossa Private Hospital for treatment of his colitis, which was causing severe diarrhoea.  At that time, the practitioner was a consultant medical oncologist to Canossa Private Hospital.
  10. [15]
    At the time of PBs admission to the hospital on 26 April 2018, he was able to walk unaided.  While he was being treated in the hospital, frank rectum blood was noted on 28 April, 6 May and on 9 May.
  11. [16]
    On 11 May 2018, he was discharged from the hospital with continuing loose bowel motions.  At the time of his discharge from Canossa Private Hospital, the patient was unable to walk unaided and required transport to his home in an ambulance.
  12. [17]
    On 12 May 2018, the patient presented to Redland Hospital, where he was diagnosed as suffering a perforated viscus, which is the part of the gastrointestinal wall, and sigmoid colitis.  On 12 May 2018, he was transferred from Redland Hospital to Princess Alexandra Hospital. 
  13. [18]
    After admission to Princess Alexandra Hospital, PB underwent an exploratory laparotomy on 13 May 2018, and a sub-total colectomy with formation of a  ileostomy on the same day and was then transferred to ICU.  He then developed tachycardia and tachypnoea, and suffered poor renal function and developed streptococcus constellatus and tragically died on 25 May 2018. 
  14. [19]
    The practitioner’s treatment of PB comprised unsatisfactory professional performance for the reasons, he accepts, as set out in paragraph 27 of the annexure to the referral. 

Characterisation

  1. [20]
    It is for the applicant to prove that the admitted conduct amounts to professional misconduct.  The respondent’s initial position (at the time of filing his response and the agreed statement of facts) was that his conduct amounted to unsatisfactory professional performance.  The parties have filed a joint submission with the Tribunal and by that submission the respondent now accepts that the various failures in treatment decision-making, failure to seek other specialist opinions, and failure to keep notes, are behaviours that constituted unprofessional conduct in each instance amounted to professional misconduct when considered as a whole. 
  2. [21]
    The joint submission summarises the relevant opinions of expert medical witnesses retained by the applicant or from whom the applicant has obtained statements.  Dr Benjamin Brady is a specialist oncologist at the Peter MacCallum Centre in  Victoria.  Associate Professor Atkinson is a senior staff specialist, medical oncologist, at the Princess Alexandra Hospital.  Dr Brian Bell is the Executive Director of Medical Services at the same hospital.  To understand the admitted failings of the respondent over an extended period, it is instructive to refer to various extracts from the joint submission: 

The patient had a lesion excised from his scalp on the 29th of November 2017.  The pathologist was unable to differentiate in his report between the two possibilities, ie, a nodular melanoma or metastatic deposit to the skin due to the absence of an epidermal component within the lesion. 

The surgeon who performed the excision, Dr Ingram, a plastic and reconstructive surgeon, referred the patient to the respondent on the 5th of December 2017, noting that he was arranging a PET and CT scan.  A PET scan report undertaken on the 7th of December 2017 noted that there was “no primary or metastatic melanoma” demonstrated elsewhere.  The patient had not undergone sentinel lymph node biopsy at the time of the local resection to assess the possibility of micrometastatic disease which is undetectable on either a PET or a CT scan.

The nature of the excised lesion is important in determining the appropriate approach to the patient’s treatment.  As described by Dr Bell, the patient had either a stage IIB or a stage IVa melanoma.  Dr Bell noted that the treating clinicians at the Princess Alexandra Hospital considered that in the face of a clear PET scan, standard practice where there is doubt about the true stage of the excised lesion would have been observation, ie, “watch and wait”. 

  1. [22]
    Dr Brady provided advice to the applicant.  Dr Brady considers that the respondent’s diagnosis of the patient’s presentation as being a metastatic melanoma was neither clinically appropriate nor accurate.  Dr Brady observes that usual management of IIB melanoma is regular clinical review.  He notes there was no evidence that adjuvant therapy (in this case the immunotherapy comprising ipilimumab) is of any benefit in a stage IIB melanoma.  In his opinion, if the patient had a metastatic melanoma from an unknown primary melanoma, than adjuvant therapy may assist.  However, in his opinion, accepted by the respondent, other immunotherapies are superior, for example, nivolumab.  In his opinion, if the respondent considered the excised lesion to be an in-transit metastasis, as he stated in his response to the applicant dated the 4th of July 2018:

The logic is difficult to understand because there must be a defined primary lesion, which is absent.

  1. [23]
    Dr Brady rejects the proposition that the patient had an in-transit metastasis.  Specifically, Dr Brady notes that the AJCC Cancer Staging Manual (prepared by the American Joint Committee on Cancer), defines an in-transit metastasis as being one which spreads through a lymph vessel and begins to grow more than two centimetres away from the primary tumour but before it reaches the nearest lymph node.  Dr Brady states that the patient condition was either a primary melanoma or a dermal deposit, that is, secondary metastasis.  In Dr Brady’s opinion, in the circumstances, the respondent could reasonably have been expected to speak with the pathologist and “interrogate the confidence of the pathologist” and/or arrange a multidisciplinary meeting to review the case. 
  2. [24]
    Dr Atkinson, senior staff specialist and medical oncologist at Princess Alexandra Hospital also states that ipilimumab is not standard care for a resected stage IIB or stage IVa melanoma.  She notes that the patient’s wife and son related that the respondent had described ipilimumab therapy (when proposed) as being recommended to “mop up any circulating tumour cells”. 
  3. [25]
    The respondent, in his submission to the applicant dated the 4th of July 2018, stated that due to the uncertainty in the histopathology reporting and high-risk features of the lesion and subsequent metastasis, combined with the absence of sentinel lymph node biopsy or primary resection, he was concerned for the potential of nodal involvement and/or micrometastatic disease.  Out of an abundance of caution, the respondent proceeded at the time on the basis that the patient’s presentation represented an in-transit metastasis.  As noted earlier, Dr Brady rejects that hypothesis. 
  4. [26]
    Dr Brady considers that the choice of ipilimumab as a treatment was not clinically appropriate.  That opinion is shared by Dr Bell and Dr Atkinson.  Dr Brady notes that the respondent, in his submission to the applicant dated 4 July 2018, quotes an article by Eggermont et al in the New England Journal of Medicine (November 2016) to support the treatment.  Dr Brady notes that the patient group the subject of that study were patients with stage III melanoma, who received a higher dose at shorter intervals.  There was also a follow up of quarterly doses over the next three years. 
  5. [27]
    Ipilimumab was not widely adopted in Australia, nor put on the PBS scheme, because of the high cost and the high level of toxicity in patients with grade 3 and above melanomas.  Dr Brady considered that for a 76 year old such as PB, that would involve unnecessary risk.  Dr Brady also considers that on the information available to him, the risks and benefits of the treatment were not adequately emphasised to PB. 
  6. [28]
    As noted earlier, towards the end of the patient’s treatment with the immunotherapy prescribed by the respondent, he began to suffer from severe diarrhoea.  The last of the four cycles of immunotherapy were given on 8 March 2018.  A PET scan performed in March 2018 showed no sign of metastatic disease but did indicate colitis.  On 27 March 2018 when the respondent saw the patient, it was noted that PB was suffering from grade 3 diarrhoea and the respondent prescribed oral steroids.  On a review on 10 April 2018, the diarrhoea had apparently moderated to grade 2, four to six motions per day, and the oral steroids were continued.
  7. [29]
    On 26 April 2018, the diarrhoea had not improved and the patient was admitted to Canossa Private Hospital for treatment with intravenous steroids and fluids.  The patient was noted by the respondent as having severe diarrhoea with up to 22 bowel movements per day.  On 29 July 2018, the respondent noted that the patient was “slowly improving”.  On 6 May 2018, the patient passed a large amount of blood, but the respondent’s note later that day was the patient was “better” with “bowels open x2”.  The respondent’s note recorded that the patient had lost 11 kilograms in weight.
  8. [30]
    The respondent’s notes of his attendance upon treatment of the patient during his admission to the private hospital are unsatisfactory.  Similarly, he did not keep notes of his consultation with the patient and his wife or nursing staff regarding the patient’s self-discharge from hospital on the 11 May 2018.  The respondent has acknowledged that his failure to document these issues is suboptimal. 
  9. [31]
    Dr Bell in his complaint to the applicant noted that the management of side effects at Canossa:

…would seem appropriate, noting that Canossa is a sub-acute facility. 

Dr Bell stated:

We would have expected that he should have had infliximab to prevent progression of colitis.  This did not occur and this resulted in the patient having a perforated colon.

  1. [32]
    Dr Brady does not consider that the management of the patient’s colitis was appropriate whilst he was admitted to Canossa Private Hospital.  Dr Brady notes that the respondent himself has submitted a review article on the management of immune-related adverse events associated with immunotherapy, and that the article describes therapeutic guidelines which:

I think all medical oncologists adhere to, albeit with a patient-to-patient variation.

  1. [33]
    The guideline describes commencing oral steroids if grade 1 or grade 2 diarrhoea or for grade 3 diarrhoea to admit the patient to hospital, commence methylprednisolone, as was done.  The guideline continues to describe that the practitioner should seek a gastroenterologist’s opinion and:

Ensure a sigmoidoscopy – colonoscopy is requested.

  1. [34]
    Further, the guideline suggests that if there is no improvement within 72 hours, to administer infliximab. 
  2. [35]
    Dr Brady notes that the respondent failed to ask a colleague for a second opinion or for any help in managing the patient’s treatment.  Dr Brady considers that the treatment history by 26 April 2018, which disclosed no infectious cause for diarrhoea, provided a:

…differential for (the respondent) to be certain that the bloody diarrhoea is more likely to be secondary to immune-related colitis.

  1. [36]
    No imaging was performed during the patient’s two-week admission.  Dr Brady considers that a sigmoidoscopy or a colonoscopy was indicated, or at least an opinion from a general surgeon or gastroenterologist.  Dr Brady notes that:

Almost every nursing entry from admission until the day before discharge mentions diarrhoea not improving and frequently with blood.

  1. [37]
    Further, Dr Brady notes that the nursing entries in the medical records were very clear that the diarrhoea was not settling.  Dr Brady observes that as he read through the medical records:

There was a disconnect between what I read in the nursing notes and the bowel chart reported, and the practitioner’s hospital clinical notes and subsequent discharge letter to the local doctor.

  1. [38]
    On the day that the patient discharged himself from hospital on 11 May 2018, Dr Brady notes the respondent’s email to the ward nurses, stating:

PB good, home today, see Tuesday with bloods, please, keep diet, exercise going, Prednisolone 100.

  1. [39]
    Dr Brady observes that this is at odds with the patient’s history, the fact that he is continuing to experience diarrhoea, and requires an ambulance to transfer to his home. 
  2. [40]
    Dr Brady considers that the decision to commence the patient on ipilimumab in the first instance was “flawed”, and that the subsequent management of the related colitis “inadequate”.  Dr Brady opines that in relation to both matters, the respondent’s:

…knowledge and judgment is below the standard reasonably expected of an associate professor of medicine and medical oncologist.

  1. [41]
    As to the treatment with ipilimumab, Dr Brady observes that the PET and CT scans in December 2017 were clearly devoid of any evidence of metastatic disease.  The right decision, in Dr Brady’s opinion, would have been to watch and wait. 
  2. [42]
    In summary, Dr Brady considers that the patient had an avoidable and unnecessary death.  His opinion is shared by Professor Atkinson, who considered the patient:

…had at worst, a completely resected stage IVa melanoma and had a very high likelihood that he would be cured from his cancer –

and that his death could have been prevented if he had been managed in accordance with the appropriate standards of care for melanoma and colitis. 

  1. [43]
    As noted in the joint submission, the expert evidence against the respondent is overwhelming. 
  2. [44]
    The respondent’s multiple failures and, in particular, his initial treatment decision are therefore very serious.  He was subject to the Codes or guidelines approved by the Board as to what constitutes appropriate professional conduct or practice for the medical profession, including the board’s Good Medical Practice:  A Code of Conduct for Doctors in Australia (Code of Conduct) provides:
  1. (a)
    Providing good care – which includes that the care of the patient is the practitioner’s “primary concern”, formulating procedural management plans, including investigations, treatment and advice, referring to another practitioner when in the patient’s best interests, recognising and respecting the patient’s rights to make their own decisions.
  1. [45]
    It is not necessary to characterise each separate component of the respondent’s conduct.  The opinions of the two expert oncologists referred to above, coupled with the respondent’s failure to comply with a fundamental provision of the Code of Conduct, satisfies the Tribunal to the requisite standard that the respondent has engaged in professional misconduct.

Sanction

  1. [46]
    Disciplinary proceedings of this nature are protective and not punitive in nature.  The disciplinary jurisdiction is exercised for the protection of the health and safety of the public and the protection of the profession.
  2. [47]
    Protection of the public has various aspects.  In Craig v Medical Board of South Australia (2001) 79 SASR 545 at [48], the South Australian Full Court stated:

The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable. 

  1. [48]
    In the exercise of the protective jurisdiction, it is appropriate for the Tribunal to consider a range of factors to the extent to which they arise in the particular case.  These include:
    1. (a)
      the nature and seriousness of the conduct; 
    2. (b)
      whether the practitioner acknowledges his or her misconduct and has expressed contrition or remorse; 
    3. (c)
      whether there is a need for specific deterrence or general deterrence; 
    4. (d)
      evidence of rehabilitation and other medical factors, such as family or other personal circumstances; and
    5. (e)
      cooperation with the disciplinary process.
  2. [49]
    An assessment of the ongoing risk posed by the practitioner is essential to any determination of sanction.  In performing that assessment, the degree to which the practitioner has acquired insight into the conduct will be relevant. 
  3. [50]
    The parties here agree that the respondent is remorseful for his conduct and has previously expressed his contrition and deep regret regarding the tragic circumstances surrounding PBs death and sympathises with his family.  In addition, his insight and remorse is reflected by his engagement during the applicant’s investigation of these proceedings, and his recent acknowledgement that the totality of his conduct amounts to professional misconduct. 
  4. [51]
    The cases referred to in the joint submission such as Medical Board of Australia v Lewis [2019] SAHPT 14, Medical Board of Australia (Tasmania) v Daware [2012] TASHPT 3 and Health Care Complaints Commission v Mooney [2022] NSWCATOD 44, do not provide much guidance.  Probably the closest is Daware but that case was described as a “difficult case” and Dr Daware’s treatment of a 16 year old child who tragically died was only over a period of two days. 
  5. [52]
    The respondent has not practised for over three years and surrendered his registration effective 18 February 2019.  Prior to surrendering his registration, he had permanently retired from his position as medical oncologist at Canossa Private Hospital and has no intention to return to practice.
  6. [53]
    The parties agree that but for his voluntary cessation of practice in 2019, the seriousness of the conduct would ordinarily warrant the respondent be disqualified from practice for a lengthy period to send an appropriate message of denunciation to the medical profession and the community at large.  The tribunal agrees with the parties in that regard.
  7. [54]
    Given the fact that he has surrendered his registration and has expressed remorse and says that he has no intention to return to practice, the need for specific deterrence is diminished, and an order disqualifying him from apply for registration is not required.  If he does change his mind, as people do, the Board will be in a position to deal with his application for re-registration, bearing in mind the paramount principle. 
  8. [55]
    The parties agree that a reprimand is appropriate, and submit that it would achieve the objective of general deterrence in circumstances in which the respondent has surrendered his registration and has not practised for over three years.  A reprimand is no trivial sanction and represents a public denouncement of the conduct in that it has the effect of maintaining public confidence in the profession by deterring other members of the profession that may be minded to act in a similar way.

Orders

  1. [56]
    In those circumstances, the findings and orders of the Tribunal are as follows.  The tribunal finds:
    1. (a)
      pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct;
    2. (b)
      pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), that the respondent is reprimanded; and
    3. (c)
      there is no order as to costs.

Footnotes

[1]  Hearing Brief (HB) page 8.

[2]  HB page 14.

[3]  HB page 16-30.

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Mainwaring

  • Shortened Case Name:

    Health Ombudsman v Mainwaring

  • MNC:

    [2022] QCAT 351

  • Court:

    QCAT

  • Judge(s):

    Member Robertson

  • Date:

    15 Sep 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Craig v Medical Board of South Australia (2001) 79 SASR 545
1 citation
Jump To
Cite 1 - (2001) 79 SASR 545
Health Care Complaints Commission v Mooney [2022] NSWCATOD 44
2 citations
Jump To
Cite 1 - [2022] NSWCATOD 44
Cite 2 - [2022] NSWCATOD 44
Medical Board of Australia (Tasmania) v Daware [2012] TASHPT 3
2 citations
Jump To
Cite 1 - [2012] TASHPT 3
Cite 2 - [2012] TASHPT 3
Medical Board of Australia v Lewis [2019] SAHPT 14
2 citations
Jump To
Cite 1 - [2019] SAHPT 14
Cite 2 - [2019] SAHPT 14

Cases Citing

Case NameFull CitationFrequency
Health Ombudsman v Orth [2023] QCAT 4911 citation
1

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