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  4. Tsigounis v Medical Board of Queensland - [2005] QDC 103

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Tsigounis v Medical Board of Queensland[2005] QDC 103

Tsigounis v Medical Board of Queensland[2005] QDC 103

DISTRICT COURT OF QUEENSLAND

CITATION:

Tsigounis v Medical Board of Queensland [2005] QDC 103

PARTIES:

TSIGOUNIS, Helen

Appellant

Against

MEDICAL BOARD OF QUEENSLAND

Respondent

FILE NO:

1136 / 04

DIVISION:

Appellate

PROCEEDING:

Appeal from a decision of the Medical Board of Queensland

DELIVERED ON:

11 May 2005

DELIVERED AT:

Townsville

HEARING DATES:

23-25 August 2004, 31 January, 1-4 February, 7-11 February, 7 April 2005.  Further written submissions received on 13 & 18 April 2005

JUDGE:

C.F. Wall Q.C.

ORDERS:

  1. The appeal is allowed
  2. The decision of the Medical Board of Queensland that the Appellant has not satisfactorily completed her internship is confirmed
  3. The decision of the Medical Board of Queensland to cancel the registration of the Appellant is set aside and the Board is directed to extend the Appellant’s probationary conditions for a period of 1 year by requiring her to undertake all of the prescribed internship
  4. The further hearing of the appeal is adjourned to a date to be fixed to allow further submissions as to the directions to be given to the Medical Board of Queensland under s. 240(1)(d) of the Medical Practitioners Registration Act 2001 and the costs of the appeal and in this respect I direct that within 14 days of today the parties file and serve written submissions as to any further directions the Court should make and the costs of the appeal and that within 28 days of today the parties file and serve any submissions in reply.             

CATCHWORDS:

APPEAL – appeal from administrative body – Medical Board of Queensland – decision to cancel registration of medical practitioner – unsatisfactory performance of internship – onus and standard of proof – completion of internship – whether completed satisfactorily – meaning of satisfactory completion – nature of internship – instances of unsatisfactory performance of internship – relevance of psychiatric evidence – whether registration should be cancelled or internship extended – relevant considerations.

Cases referred to:

Briginshaw -v- Briginshaw (1938) 60 CLR 336 (FAA)

Pillai –v- Messiter (1989) 16 NSWLR 197 (CON)

Legislation referred to:

Medical Practitioners Registration Act 2001 (Qld) ss. 9, 11, 15, 56, 57, 94, 239 & 240

Medical Practitioners Registration Regulation 2002 (Qld) ss. 3 & 4

COUNSEL:

Ms H. Tsigounis - self represented

Mr D. Tait S.C for the Respondent

SOLICITORS:

Phillips Fox for the Respondent

Introduction

  1. [1]
    This is an appeal against a decision of the Medical Board of Queensland (the Board) made on 23 March 2004 to cancel the conditional registration of the Appellant as a medical practitioner.
  1. [2]
    The Board is established by s. 9(1) of the Medical Practitioners Registration Act 2001 (the Act). It consists of the Chief Health Officer of the Department of Health and at least 6, but not more than 10, registered medical practitioners, persons having an interest in, and knowledge of, consumer health issues and one lawyer.  A majority of the members must be registered medical practitioners. At least two of the registered medical practitioners must be nominated by the bodies the Minister for Health considers represent the interests of registered medical practitioners and at least one must be nominated by the governing bodies of educational institutions established in Queensland chosen by the Minister.  The Minister may also nominate as members, persons who are not registered medical practitioners or persons having an interest in and a knowledge of consumer health issues.  With the exception of the Chief Health Officer the members are appointed by the Governor in Council. See s. 15 of the Act.

The functions of the Board include the following, (taken from s. 11 of the Act):

  1. (a)

assess applications for registration as a medical practitioner

  1. (b)

register persons who satisfy the requirements for registration as a medical practitioner

  1. (c)

monitor and assess whether registered medical practitioners comply with any conditions of registration

  1. (d)

promote high standards of practice of the medical profession by registered medical practitioners

The Board is thus a specialist body and its decisions are deserving of weight.

Background

(a) Victoria

  1. [3]
    The Appellant was admitted to the degrees of Bachelor of Medicine and Bachelor of Surgery, Monash University on 3 December 1997. On 7 January 1998 she commenced her internship at the Frankston Hospital, Victoria. Her internship was suspended on 16 October 1998 because the hospital did not believe she was then safe to practise as an intern and because of concerns about patient safety and her “lack of insight”.  She was told of “continuing concerns about the quality of her patient care and her ability to practise safely” and that “all doctors working with her thought she was a danger to patients”.  The complaints then made about her and her response to them bear a striking similarity to the present complaints (see the letter from Dr Eleanor Flynn, Director Clinical Services (Medical), Frankston Hospital, ex JO5 to ex 34 and “Proof of Evidence” paras 2-33, ex 54).
  1. [4]
    At the request of the Medical Practitioners Board of Victoria she was examined by Associate Professor Fiona Judd, a psychiatrist on 27 January 1999. She reported that the Appellant did not “currently have any symptoms indicative of a major psychiatric disorder” but there was “evidence of significant personality problems” and that issues relating to her personality raised serious concerns regarding her “ability to take responsibility and function adequately as a medical practitioner.”  The present complaints again raise such issues and concerns.  Professor Judd saw the Appellant only once.
  1. [5]
    Two other psychiatrists assessed her following her suspension. They were Dr Ranvir Sood (in November 1998) and Dr Michael Piperoglou (on 19 January 1999). Their reports were provided to the Medical Practitioners’ Board of Victoria and by the Board to Professor Judd. Dr Sood found “no evidence indicative of a major psychiatric illness” but thought the Appellant had “a personality sensitive to criticism”.  He believed she should be allowed to complete her internship at a different hospital and should “have the benefit of a mentor in the initial stages”.  Dr Piperoglou found “no symptoms or signs of mental illness”.  The Appellant told Professor Judd that she was treated by Dr Sood on a weekly basis “for about 12 months in 1995” as a result of stress due to conflict with the Sub-Dean of Medicine when she was a 4th year medical student.  He prescribed an antidepressant which she took on and off over the 12 months.  Dr Sood did not mention his prior involvement with her in his report. 
  1. [6]
    On 18 February 1999 the Medical Practitioners Board of Victoria determined that she complete a further 6 months intern training with core rotations in general medicine and general surgery prior to being eligible for general registration. The Victorian Board also imposed the following conditions on her registration:

● that a mentor be appointed at her place of employment to provide support, counselling and feedback and three-monthly reports to the Board

● that she attend a psychiatrist approved by the Board with three-monthly progress reports

● that she be reviewed by a Board appointed psychiatrist when deemed necessary

● that the Board receive three-monthly work performance reports from the clinical supervisor

● She did not return to intern training in Victoria, because she says she could not find a hospital willing to employ her.  

          (b) Greece

  1. [7]
    The Appellant then went to Greece with a view to obtaining registration as a doctor there. She trained in Athens from April 1999 until 2 August 2000 when she gained registration to practise medicine in Greece “without a speciality”.  Between August 2000 and 1 November 2001 she trained in anaesthetics at two Athens hospitals.  A reference from the Intensive Care Unit Manager at the second of these hospitals speaks highly of her describing her as “a very good doctor” with “appropriate evaluation of ICU patients’ problems”.  She returned to Australia at the end of 2001.

         (c)  Townsville

  1. [8]
    In early 2002 the Appellant telephoned Dr Barry Hodges, Assistant Director of Medical Services at the Townsville Hospital enquiring about the possibility of a job as a Resident Medical Officer. She “said she had done her training in Melbourne and had just returned from 3 years in Greece where she had worked in anaesthetics.”  She was “very vague about her past history” and didn’t tell Dr Hodges that she had been suspended. He was prepared to employ her as he had a need of her particular skills as he perceived them.  She commenced her employment at the hospital on 2 April 2002 as an RMO.  She was not then registered in Queensland but had applied for general registration on 15 March 2002.  She worked in ICU for some 6 weeks until she went on leave without pay whilst her application was being considered.  Dr Hodges says she was “temporarily suspended whilst her registration was finalised” and that she had been employed “prematurely.”  In considering her application the Board learned of her Victorian history.  As a result the Board referred her for a psychiatric examination by Dr Donna Kippax.  Dr Kippax assessed her on 23 April 2002 and diagnosed her as having a paranoid personality disorder.
  1. [9]
    At its meetings of 28 May and 11 June 2002 the Board registered the Appellant, pursuant to s. 57(3)(b) of the Act, as a general registrant with probationary internship conditions requiring her to complete 6 months of the prescribed internship with a minimum period of 12 weeks in surgery. The prescribed internship is usually for 12 months including at least 10 weeks practical experience and training in each of medicine other than emergency medicine, surgery and emergency medicine (see s. 4 Medical Practitioners Registration Regulation 2002). The Victorian Board’s decision of 18 February 1999 is referred to in the decision of the Board that she be required to complete 6 months rather than 12 months internship in Queensland. Further conditions were imposed on her registration, summarised as follows:

● that she submit to the medical supervision of an experienced general practitioner and attend for treatment by a psychiatrist of her choice at               a frequency determined by the treating psychiatrist, and

● that she work only in a supervised position approved by the Board

The general registration period is the period from 1 October in a year to 30 September in the following year.  See s. 56(1)  of the Act and s. 3 Medical Practitioners Registration Regulation 2002.  The Appellant was thus registered as a “general registrant with internship and other conditions” from 28 May 2002 to 30 September 2002.  She applied to renew her registration for another year on 23 September 2002 and it was renewed on the same conditions.              

  1. [10]
    After completing the prescribed internship a registrant is required to give notice to that effect to the Board and if the Board after reviewing an internship report from the hospital where the internship was undertaken is satisfied the registrant has satisfactorily completed the internship it may remove the probationary conditions, s. 94(1)(a). For present purposes “probationary conditions” means internship conditions.
  1. [11]
    The Appellant was employed, not as an RMO but as an intern, at the Townsville Hospital from 11 June 2002. Dr Hodges says the Board advised him of the conditions of her registration but did not provide any “background information why those conditions were imposed.”  This was unfair to both the Appellant and the hospital.
  1. [12]
    In December 2003 the Appellant applied for general registration without conditions i.e. for the removal of the probationary internship conditions of her registration. That application was supported by an Internship Report dated 19 December 2002 which pre-dated the completion of her internship. The report is signed by Dr Hodges “for the Director of Clinical Training” because the Director, Associate Professor Peter Keary was on leave. Dr Hodges said the report was prepared by the Department of Clinical Training and his job “was really just to sign off on it.”The report assumes that the Appellant’s rotation in emergency medicine between the 19 December 2002 and 12 January 2003 would continue to be satisfactory. The report indicates satisfactory performance by the Appellant as follows:

Medicine:11.6.02 to 14.7.025 weeks

  Paediatrics/Medicine: 15.7.02 to 13.10.02    13 weeks

  Emergency Medicine:   14.10.02 to 12.1.03 11 weeks

As to these weeks see also para [52].

  1. [13]
    At its meeting of 14 January 2003 the Board “discussed the internship report” and, correctly, did not consider that the Appellant had satisfied the terms of her registration which required a minimum period of 12 weeks surgery and resolved to extend her probationary conditions for a period of three months and she was “required to complete a full term in a surgical discipline.”
  1. [14]
    The Board then made no decision as to whether the appellant had satisfactorily completed the other aspects of her internship. These were not then considered. Surgery was the only term which she had not then completed. The other terms had been completed but no conclusion had been yet reached as to whether they had been satisfactorily completed. The Information Notice about the decision provided to the appellant is in part in the following terms:

“The Medical Board of Queensland at its meeting on 14 January 2003 decided to extend the probationary conditions of your registration for a further period of three months. During the extended period of the probationary conditions of your registration you must complete a full term in a surgical discipline.

The reasons for this decision are:

● Following consideration of the internship report from The Townsville Hospital regarding the internship undertaken by you, the Board is not satisfied that the required period of 12 weeks in surgery, as stated in the information notice on 21 June 2002, has been completed.

● The Board considers you will satisfactorily complete the internship during the extended period conditions.”

The second of these reasons was required to be reached by the Board otherwise it would have then been required by s. 94(1)(b) of the Act to cancel the Appellant’s registration.

  1. [15]
    On 29 January 2003 Dr Hodges wrote that the Appellant’s performance as an intern at the hospital “has been considered satisfactory in all respects.”  Attached to this letter was a copy of the Internship Report dated 19 December 2002 (see para [12]).   In evidence Dr Hodges said he “stood by” this report and at the end of 2002 he considered the Appellant was “performing as an average intern … and could see no reason why she wouldn’t get the registration.”  In retrospect he considers though that the Board was correct to require her to complete 3 months in surgery.
  1. [16]
    The Appellant resigned from the Townsville Hospital on 12 May 2003 and on 16 May 2003 the Board received from her a Notification of Completion of Internship as a Medical Practitioner, in which she gave notice that she had completed her internship on 17th April 2003 and applied for the removal of the probationary internship conditions on her registration.  Her application was supported by various documents including satisfactory intern assessment reports completed by various doctors with whom the Appellant had worked.

Complaints about the Appellant

  1. [17]
    At about this time the Board became aware of certain complaints about the Appellant’s work performance at the Townsville Hospital. During March and April 2003 complaints were made to Mr Brian Pugh, Acting Director of Medical Services at the Townsville Hospital. His statement (in ex 1) is illustrative of the apparently spontaneous nature of these complaints and the concern expressed by doctors and nurses about the ability of the Appellant to competently and safely practise medicine. On 15 and 16 May 2003 the Board’s medical advisor, Dr Yuen, visited the Townsville Hospital and investigated these complaints. Her report to the Board is ex JO17 to ex 34. It is factually incorrect in a number of respects e.g. the meningitis patient was not a child and a lumbar puncture was not performed (see also the letter by Dr David Cooksley to the Board dated 22 October 2003, ex DGC3 to ex 5). These do not however affect the overall tenor of the report.
  1. [18]
    In a letter to the Board dated 20 May 2003 Professor Keary advised that the Appellant “had completed terms in Medicine, Emergency Medicine and Paediatrics by 12th January” (with formal reports showing a pass) but had worked only eight fractured weeks in surgery and final reports for surgery had not yet been received. He considered her surgical attachment “less than satisfactory” and believed she had “not completed the requirements for registration and should be required to do further training.”
  1. [19]
    In a second letter dated 30 May 2003, Professor Keary advised the Board in the following terms.

“I have received a report from one of the Registrars who Helen worked with who was very dissatisfied with her work and this is Dr Sharmula Balanathan and I enclose a written Intern assessment form from her which suggests she is not ready for unsupervised work.

All of Helen’s other reports actually pass her, this includes reports from various surgical Registrars.

I should point out however, that at no time during her assignment did she spend more than two weeks with any one unit, and for the most part, these people were not really able to assess her properly.

It is mainly for this reason that I am unhappy about the term that she did. This, of course, was not her fault, there was an administrative upset and I think that Dr Hodges, the Deputy Director of Medical Services failed to recognise that she had yet to do a full surgical term and the only one available at the time was the relieving one.

Nevertheless, I have had several verbal reports from people who are unhappy with her work in Surgery and there are written reports of less than satisfactory clinical behaviour.

Therefore, reluctantly I must state that in my opinion at least, Dr Tsigounis has not yet completed her Internship in a satisfactory manner.”

  1. [20]
    At its meeting of 10 June 2003 the Board resolved that it was not satisfied that the Appellant had satisfactorily completed the internship program or could satisfactorily complete it during the prescribed period. The Board further              resolved that the Appellant be given a Show Cause Notice inviting her to make a submission as to why the Board should not cancel her registration.  She was given such a Notice and she responded to it.
  1. [21]
    The Appellant’s registration expired on 30 September 2003 before the Board further considered the matter and she had not applied to renew it. There was therefore in fact no registration to cancel. The Board recognised this at its meeting of 11 November 2003. On 16 December 2003 the Appellant applied for the restoration of the registration. At its meeting of 27 January 2004 the Board resolved that her “general registration be restored effective 27 January 2004 subject to conditions, including probationary conditions attaching to the registration immediately before its expiry”.
  1. [22]
    At its meeting of 10 February 2004 the Board considered that the Appellant “was performing below the standard expected of an intern, appeared to have little insight into her performance and limitations and did not have the skills necessary to practise medicine in a clinical setting”. The Board also considered that “she was not capable of completing an internship satisfactorily”. It resolved that it was not satisfied that she “has satisfactorily completed an internship programme” and that she be given a show cause notice inviting her to make a submission as to why the Board should not cancel her general registration. The Show Cause Notice is ex JO35 to ex 34 and is dated 16 February 2004. The Appellant’s response is ex JO36 to ex 34 and is dated 12 March 2004.
  1. [23]
    The Board considered the matter at its meeting of 23 March 2004 and the minutes of that meeting are in the following terms:

“The Board considered the following information:-

(a) submission from Yarra Legal, lawyers on behalf of Dr Tsigounis, received by e-mail on 12 March 2004;

(b) show cause notice dated 16 February 2004;

(c) memorandum dated 9 February 2004 from the Assistant Registrar;

(d) submission dated 13 August 2003 and 10 November 2003 from Holding Redlich, lawyers on behalf of Dr Tsigounis in response to the Board’s show cause notice dated 11 June 2003;

(e) show cause notice dated 11 June 2003 and accompanying documents;

(f) information notices dated 21 June 2002 and 28 January 2003 and the Board’s letter of 29 January 2003 regarding a typographical error in the 28 January 2003 Information Notice;

(g) 38 statements from employees and former employees of The Townsville Hospital, copies of which had been supplied to Dr Tsigounis.

In the Board’s view, the submissions on behalf of Dr Tsigounis failed to provide material sufficient to refute the allegations made in the witness statements referred to in (g) above.  In the opinion of the Board, Dr Tsigounis’ responses to adverse material often did not go beyond a claim that she did not recollect the events described, or that the evidence was too vague or that she was not informed of adverse events at the time.

The Board noted that certain information in the statements of employees or ex-employees of the Townsville Hospital was corroborated, and in relation to significant events the Board preferred the evidence of those witnesses to the assertions by or on behalf of Dr Tsigounis where the former conflicted with the later.

In the Board’s view, Dr Tsigounis did not provide it with any, or any sufficient, evidence to show that she can safely and competently practise unsupervised.

Instances of Dr Tsigounis’ practice at the Townsville Hospital which the Board deems unsatisfactory include but are not limited to:-

  1.  An incident described by Dr Balanathan in which Dr Tsigounis caused potassium to be added to an intravenous drip at a time when the patient’s blood level was already high.  In relation to this incident, the Board prefers the evidence of Dr Balanathan, supported as it is by the statement of Ms Rutherford;

2. Two incidents concerning the cannulation of child     patients in contravention of relevant Townsville Hospital policy.  While Dr Tsigounis’ claims that she abided by the Townsville Hospital               policy and the instructions of her superiors after one such incident there is evidence -               which the Board accepts - that Dr Tsigounis disregarded or departed from Townsville Hospital policy in a second such incident.  The evidence of the second such incident is contained in the statements of Ms Buldo, Ms Maloney and Dr Elcock;

3. Dr Tsigounis’ failure to follow the policy of the Townsville                Hospital’s Emergency Department relating to the review                             of patients by senior staff, as evidenced by the                                           statements of Drs Gelhaar and Jessica Lucas - which                             the Board accepts - in relation to a patient diagnosed                             with possible meningitis;

4. An incident related by Dr Peter Lucas, neurosurgical registrar, whose statement the Board accepts.  According to Dr Lucas, Dr Tsigounis, while acting as night call resident, made what he considers to be two serious errors with respect to a female patient who had undergone a lumber laminectomy on the previous day.  It was essential, in Dr Lucas’ view, that the said patient should have received appropriate fluids (either orally or intravenously).  However, during Dr Tsigounis’ period of duty, and on her instructions, a diuretic drug was  administered to this patient, creating a serious risk of dehydration and renal failure.

On the whole of the evidence before the Board, the Board is of the opinion that the action proposed in the show cause notice issued on 16 February 2004 should be taken, on the basis that Dr Tsigounis has not completed the requisite period of surgery at the Townsville Hospital to the satisfaction of the Board.

The Board finds that the professional performance of Dr Tsigounis at the Townsville Hospital raises serious concerns about her ability to practise medicine without undue danger to members of the public who may come under her care.

Further, the Board does not consider that Dr Tsigounis can achieve the necessary level of competence to practise unsupervised within a reasonable period of time, without undue risk to members of the public and without unreasonable burdens being placed upon those who might be given the task of supervising her.

RESOLVED that:-

(i) pursuant to Section 88 of the Medical Practitioners Registration Act 2001, the Board:-

(a) believes the ground exists to cancel Dr Tsigounis’ registration; and

(b) believes that cancellation of her registration is warranted;

(ii)pursuant to Section 88(3) of the Act, Dr Tsigounis’    registration is hereby cancelled;

 (iii) the reasons for the decision are:-

(a) the Board does not consider that Dr Tsigounis has satisfactorily completed internship requirements in accordance with her conditional registration in that she has        not reached the necessary level of competence to practise unsupervised.

(b) the Board does not consider that Dr Tsigounis can               achieve the necessary level of competence to              practise unsupervised;

(c) the Board does not consider that Dr Tsigounis has the ability to practise medicine without undue               danger to members of the public who may come              under her care;

(iv) an information notice be given to Dr Tsigounis;

(v) pursuant to Section 257(4) of the Act, foreign regulatory               authorities, including those of the United Kingdom and                             Greece,  be advised of this decision, after expiry of the                             period in which Dr Tsigounis may appeal;

(vi) if Dr Tsigounis lodges an appeal against the decision,               foreign regulatory authorities shall only be advised                                           should the appeal be dismissed.”

This is the decision that the Appellant has appealed against.

  1. [24]
    Section 239(2) of the Act provides that the appeal is by way of rehearing, unaffected by the original decision, on the material before the Board and any further evidence allowed by the Court. In deciding the appeal the Court has the same powers as the Board, is not bound by the rules of evidence and must comply with natural justice. See s. 239(1). The powers of the Court in deciding the appeal are contained in s. 240.
  1. [25]
    The 38 statements from employees and former employees of the Townsville Hospital which were considered by the Board are in ex 1, documents B3 - 40. Affidavits by the authors of most of those statements were tendered. They are exhibits 2-30. All except the authors of exhibits 17, 19, 21, 24 and 30 were required for cross-examination and gave evidence. Additional evidence was also led by the Board. The Appellant gave evidence and called witnesses.

Onus Of Proof

  1. [26]
    During the hearing I ruled that the onus was on the Board to uphold the decision under appeal and that there was no onus on the Appellant to establish that the decision was wrong.

Standard of Proof

  1. [27]
    As to the standard of proof the Appellant submitted that it should be in accordance with Briginshaw v. Briginshaw (1938) 60 CLR336.  The Board submitted that it should be the balance of probabilities               simpliciter.
  1. [28]
    The relevant authorities are summarised in the Appellant’s written submissions. The matters that persuade me that the standard of proof should be as submitted by the Appellant are these

● Serious allegations of professional incompetence are levelled against the Appellant

● If resolved adversely to the Appellant they are likely to impact severely on her standing, reputation, career and livelihood.

● No greater penalty could be suffered by a medical practitioner than deregistration

● If the findings made by the Board stand, the Appellant will find it extremely difficult if not impossible to obtain future employment as an intern and her registration as a medical practitioner in Greece would be at risk

  1. [29]
    I recognise that the degree of satisfaction may vary according to the gravity of the fact to be proved and that it could be argued, for example, that the normal standard of proof should apply to whether the Appellant has completed 12 weeks surgery and the higher standard to whether she has done so satisfactorily or the normal standard of proof should apply to both of these aspects and the higher standard to whether her registration should be cancelled. In my view that would be somewhat artificial when the graveman of the case against the Appellant is a failure to complete her internship to the satisfaction of the Board because incurable incompetence.
  1. [30]
    The authorities referred to by the Appellant variously describe the Briginshaw standard of proof as “reasonable satisfaction”, “comfortable satisfaction”, “more than mere negligence”, “higher than mere balance of probabilities”, “something more than a mere mechanical balance of probabilities”, “a very high standard of probability” and “a high standard of proof.”  In my view these are all different ways of saying the same thing.
  1. [31]
    In applying the Briginshaw standard I also recognise, as the authorities referred to by the Appellant emphasise, that the matter should not be approached with hindsight or by the drawing of indirect inferences and that the evidence relied on by the Board must be precise and cogent, not loose and inexact, and the allegations should be approached cautiously. I also recognise that “mistakes can happen to the most conscientious professional person” (Kirby P., Pillai v Messiter (1989) 16 NSWLR 197 at 202.)

Issues on the Appeal

  1. [32]
      Section 94(1) of the Act is in the following terms:

“94(1) After reviewing the internship report or supervised practice report and any information or document about the registrant obtained under section 93, the board must decide –

  1. (a)
      if the board is satisfied the registrant has satisfactorily completed the internship or program – to remove the probationary conditions; or
  1. (b)
    otherwise –
  1. (i)
    to cancel the registrant’s registration under division 6; or
  1. (ii)
    to extend the probationary conditions for a period of not more than 1 year, by requiring the registrant to undertake a part of the internship or program, if the board considers the registrant will satisfactorily complete the internship or program during the period.”
  1. [33]
    In relation to whether the Board concluded that it was not satisfied that the Appellant had satisfactorily completed her internship generally or only the surgery component the minutes of the meeting of 23 March 2004 (see para [23]) are somewhat equivocal but on balance I am satisfied the decision reached was in relation to her internship generally and not just the surgery component. This is also apparent from the Show Cause Notice and the accompanying evidence statements. Further, of the particular incidents highlighted by the Board one occurred in paediatrics (the second cannulation incident) and two in the emergency department (the second cannulation incident and meningitis patient).
  1. [34]
    The Board’s conclusion that she “had not completed the requisite period of surgery at the Townsville Hospital to the satisfaction of the Board” was expressed to be based on “the whole of the evidence” before it whereas in fact it could probably only have been based on the surgical evidence.  The “whole of the evidence” included the evidence in relation to her surgery rotation and also evidence of complaints made when she worked in Paediatrics, (September and October 2002), Emergency (late 2002, January 2003) and Cardiology (second half of April 2003).
  1. [35]
    In its reasons for its decision the Board concluded that it “does not consider that Dr Tsigounis has satisfactorily completed internship requirements in accordance with her conditional registration in that she has not reached the necessary level of competence to practise unsupervised.”

That conclusion was most probably reached relying on “the whole of the evidence”, including the cardiology complaints.

  1. [36]
    The Appellant’s work in medicine, paediatrics, emergency medicine and surgery was performed as part of her internship. Her work in cardiology was not required for completion of her internship but was nevertheless work performed by her as a doctor subject to internship and other conditions.
  1. [37]
    The appeal involves a consideration of the Appellant’s work in paediatrics, emergency medicine and surgery and a determination of whether she has completed 12 weeks surgery and whether her internship as it relates to paediatrics, emergency medicine and surgery has been satisfactorily completed. The parties agreed with this course. They also agreed that if either issue was resolved adversely to the Appellant it was then necessary to consider whether the Board was correct to cancel her registration rather than extend her internship.
  1. [38]
    If it is decided that she has not satisfactorily completed her internship all of the evidence - paediatrics, emergency medicine, surgery and cardiology - is also then to be considered on the s. 94(1)(b) issue of whether her registration should be cancelled or her internship extended to enable her to satisfactorily complete it. The Board could only extend her internship if it considered she would satisfactorily complete it within the extended period.
  1. [39]
    Relying on all of the evidence the Board effectively concluded that it was not satisfied that she would satisfactorily complete an extended period of internship in which case the only course open to the Board was to cancel her registration. The relevant findings/reasons of the Board for this conclusion are the following:

“The Board finds that the professional performance of Dr Tsigounis at the Townsville Hospital raises serious concerns about her ability to practise medicine without undue danger to members of the public who may come under her care.

Further the Board does not consider that Dr Tsigounis can achieve the necessary level of competence to practise unsupervised within a reasonable period of  time, without undue risk to members of the public and without unreasonable burdens being placed upon those who might be given the task of supervising her.

The Board does not consider that Dr Tsigounis can achieve the necessary level of competence to practise unsupervised.

The Board does not consider that Dr Tsigounis has the ability to practise medicine without undue danger to members of the public who may come under her care.”

  1. [40]
    The minutes of the Board meeting of 23 March 2004 indicate that satisfactory completion of internship (see s. 94(1)(a) of the Act) requires a conclusion that the individual has demonstrated the ability to safely and competently practise medicine unsupervised without undue danger or risk to members of the public who may come under his/her care and I am content to proceed on that basis.  No argument to the contrary was addressed to me.  See also para [19].

Internship

  1. [41]
    Internship is an extremely important practical learning year. Interns make mistakes. The doctors and nurses who gave evidence conceded this and recognised that the Appellant was an intern:

● Dr Sharmila Balanathan didn’t expect an intern to know everything and said “It’s not unusual for interns to make mistakes.  That’s part of the learning process.”

● Dr Katrina Gelhaar said that generally most problems were “resolved with good communications with my resident.  I pointed out the mistake and we moved on.  Hopefully this discussion (would) be used as an educational experience” without the need for any formal complaint.

● Nurse Gayle Doe felt the Appellant was “very antagonistic against any attempts to bring errors to her attention”.

● Nurse Rachel Neil said that interns new to the cardiac unit made mistakes about cardiac drugs and she would initially make allowance for this; normally the interns were receptive to advice but the Appellant was not.

● Dr Keary said it was common for interns to make mistakes “and hopefully they tend to learn from them and admit their mistakes”.  Most do this.

● Professor Rodney Judson accepted that drug “transcription errors can occur”.  He said “we will all make mistakes but we must learn from them and address them.  When interns are assessed we are asked by hospitals (about) their response to criticism or suggestions.  It is a very important aspect of their behaviour that they can acknowledge that what they did was not appropriate and address it appropriately”.

● Professor Patrick Dewan said that all doctors made mistakes and errors of judgment and that interns should be guided through them; they are still in training and it’s not expected that they are able to do everything perfectly which is why they are under supervision.

● Dr Arthur Papagelis said it would be worrying if an intern did not learn from and understand the significance of a mistake and make sure it didn’t happen again.  He said “it’s extremely important that you learn.  The mistake isn’t so important so long as you learn from it and it wasn’t made in a way that could be held incompetent”.  It is important that interns “approach their superiors with an open and receptive attitude to learning … and being  prepared to be corrected”.  A contrary attitude could “result in more complaints than you would otherwise expect”.  It is not unusual for “rushed” interns to make mistakes.

● Dr Simon Rosenblum said that interns must be able to learn from mistakes and “although some clinical skills are expected of an intern, what is more important is a preparedness to follow (the) advice of seniors.”  He agreed that “often nurses know a great deal more about practical medicine than interns”.  He well summarised the position of an intern as follows (T1169):

“We have the most inexperienced doctors in the system sleeping the least having to make important decisions about doses possibly being very tired and then perhaps someone says a word that they don’t like or a patient is perhaps a little bit confrontational or whatever and then suddenly you’re then put in a situation under pressure, it’s very very difficult.”

He said interns should do what a registrar tells them “unless they have a very solid reason for not wanting to do it.  It is medico-legally indefensible if they don’t follow instructions unless they have a good reason for it.”  (T1170)

          12 Weeks Surgery?

  1. [42]
    The hospital records - reproduced in exs 50 & 50A - leave much to be desired and I have some reservations about their accuracy and reliability. Doctors did not always work as earlier rostered or at all and the base document for each pay period (PP) - the time sheet - is completed by the employee and is often incomplete leaving it for others to discern what work the employee may have performed in that pay period. Ms Debra Davis, the hospital’s manager of payroll services gave evidence and I accept what she said about what the records mean. She did not though have personal knowledge of the work performed by employees and when they performed that work. A pay period is a fortnight and pay calculations are based on a time sheet submitted by the employee for each week in each pay period.
  1. [43]
    The board accepts that the Appellant worked in surgery for “probably” 10 weeks only.  Those weeks are, by reference to pay periods and weekly commencing dates:

PP158-114 October 2002

PP158-221 October 2002

PP166-210 February 2003

PP167-224 February 2003

PP168-13 March 2003

PP168-210 March 2003

PP169-117 March 2003

PP169-224 March 2003

PP170-131 March 2003

PP170-27 April 2003

  1. [44]
    The Appellant contends that she also worked in surgery in the weeks commencing 3 February 2003 (PP166-1) and 17 February 2003 (PP167-1).
  1. [45]
    There is no time sheet for PP166-1. Exhibits 50 & 50A are to the effect that the Appellant was rostered for work in the emergency department which is not surgery and that the department “costed” was the emergency department.  In the past, according to Dr Hodges, sometimes the Board accepted emergency medicine as surgery but that is not the case here.  The Appellant said (T1008) that her emergency rotation finished on 6 February 2003 and she then “started in surgery” on that date.  If that is correct she would have started half-way through a week.  Notwithstanding reservations about the reliability of a rostered work entry I am satisfied she did not work in surgery during this week.
  1. [46]
    For PP167-1 the Appellant was rostered as RMO Night. The time sheet is incomplete and does not record the department she worked in. Ms Davis said she worked RMO Internal Relief which is not surgery. The Appellant concedes that RMO Night “cannot be interpreted as surgery”.  The roster is not a reliable indicator of work actually performed.  Dr Peter Lucas was the neurosurgical registrar at the hospital at this time.  His complaints about the Appellant relate to events which occurred on 20 February 2003 when the Appellant was the night call surgical resident.  Dr Lucas said “there is an on-call surgical resident for the three surgical wards”.  Dr Hodges said that the complaints were “during (the Appellant’s) surgical rotation”. In these circumstances I am satisfied that the Appellant did work in surgery during this week.
  1. [47]
    Even though the Appellant’s internship at the Townsville Hospital formally commenced on 11 June 2002 it appears she may have been on leave from then until the week commencing 1 July 2002. There are no time sheets for this period and she was not paid. I cannot accept her written submissions that in the week commencing 10 June 2002 (PP149-1) she worked in orthopaedics which would qualify as a week of surgery. The Appellant’s work summary sent by Mr Pugh to the Board (ex BJP 6 to his statement, ex 1) is I think inaccurate. It records that the Appellant worked in orthopaedics in this week and is most probably based on where she was initially rostered to work. Exs 50 and 50A record the same unit but indicate she was not paid for this week. The Appellant’s evidence about whether she was in fact on leave at this time (T982-990) is quite confusing. Exhibit JO13 to ex 34 (the Internship Report by Dr Hodges) suggests she worked in “Med. Onc. and Medicine” from 11 June - 14 July 2002 but that I think is an error and is based on what she was rostered to do rather than what she in fact did. Exhibit 50 in fact records that she was rostered in orthopaedics in the week commencing 10 June 2002 (PP149-1). In her cross-examination of Dr Keary (T550-556) she put it to him that she was on leave from 29 April - 8 July 2002. In her cross-examination of Dr Hodges (T503) she seemed to suggest she returned to the hospital in “early July 2002.”
  1. [48]
    In her written submissions she also argues that she worked in surgery in the week commencing 7 October 2002 (PP157-2). Exhibits 50 & 50A indicate she was rostered for “Med 1 & Remote Relief G Dance” in the emergency department. The time sheet (completed by the Appellant) records she worked in the emergency department. The evidence of Ms Davis, which I accept, is that she was relieving for Dr G Dance who was doing a medical, not surgical, rotation.
  1. [49]
    The evidence satisfies me that she did not work in surgery in PPS149-1 and 157-2.
  1. [50]
    The evidence establishes 11 weeks only and not 12 weeks surgery as required by the Appellant’s internship conditions. In these circumstances the Board was correct to conclude that the Appellant had not completed the requisite period of 12 weeks surgery.
  1. [51]
    Dr Keary’s concession in cross-examination that it was “possible” that the Appellant “did do 12 weeks of surgery” was based on his state of knowledge when he wrote his letter to the Board dated 29 August 2003 and was expressed without the benefit of an examination of the hospital records.
  1. [52]
    If I am correct about the week the Appellant worked in surgery the number of weeks attributed to Emergency Medicine in para [12] should be reduced by two. An adjustment may also be required to the 5 weeks attributed to Medicine to take account of the time the Appellant was on leave.
  1. [53]
    The Appellant’s position is not helped by what she told her former solicitors. Holding Redlich in their letter to the Board dated 13 August 2003, (paras 2.1 and 2.2 ex JO24 to ex 34) said:

“Our client in fact completed 10 weeks in surgery…The fact that our client failed to complete 12 weeks in surgery was the result of an administrative error…”

Yarra Legal in their letter to the Board, dated 12 March 2004, pages 6, 8 and 31 (ex JO36 to ex 34) said:

“Our client…had completed 10 weeks (of surgery)… We submit that our client’s 10 weeks (surgery) term … Our client, through no fault of her own, was unable to comply with the Board’s conditions as to completion of 12 weeks surgery… In addition to the 10 weeks worked by our client in various surgical roles from October 2002 to 6 March 2003 … The surgery rotation which Dr Tsigounis did undertake (10 wks) …”

To be fair to the Appellant when these letters were written she probably did not have access to hospital records such as exs 50 and 50A.

  1. [54]
    In para 23 of her affidavit, ex 56, the Appellant says she completed 2 weeks surgery in the period 28 October 2002 – 12 January 2003. This is contrary to the case she presented at the hearing of the appeal and is not supported by the hospital records.
  1. [55]
    If all that was preventing the Appellant gaining unconditional registration was one uncompleted week of surgery I would be inclined to the view that the many weeks she worked in emergency medicine would qualify. Dr Hodges said (T504) that in the past and during the Appellant’s employment at the hospital the Board was on occasions prepared to accept emergency medicine as surgery.
  1. [56]
    It is necessary though to next determine whether the Appellant satisfactorily completed 11 weeks surgery or 12 weeks should I be wrong in relation to PP166-1.

Satisfactory Surgery?

  1. [57]
    The relevant dates are 14-27 October 2002 and 10 February – 13 April 2003. I will deal separately with each incident relied upon by the Board.

(a)  Surgical ward 20 February 2003

(i)   Lumbar laminectomy patient – diuretic incident 20 February 2003

  1. [58]
    This is the fourth “instance of unsatisfactory practise” referred to by the Board at its meeting of 23rd March 2004.  See para [23].
  1. [59]
    I accept the evidence of Dr Peter Lucas who was the neurosurgical registrar at the time. Had the Appellant personally reviewed the patient as she should have done (rather than prescribing the diuretic over the telephone) it would have been apparent to her that it was not appropriate to prescribe a diuretic and that by doing so the patient was at risk of dehydration and renal failure. The Appellant also made no notes on the patient’s chart. When the patient was reviewed by Dr Lucas during his morning round her urine output had dropped to nil and she was very dehydrated; she required 7 litres of fluid intravenously. Her urine volume returned progressively over the morning and the pain that she described as “being throughout her whole body” resolved.  The prescription of a diuretic for this patient could never have been appropriate.
  1. [60]
    In her affidavit, ex 56 para 184, the Appellant says she reviewed the patient and determined it was appropriate to prescribe a low dose of Lasix but did not record this in the patient’s notes at the time. In my opinion she has endeavoured to justify events by manufacturing a scenario to support the prescription of Lasix. Had she properly understood the patient’s clinical situation she would not have prescribed Lasix.

(ii) Atrial fibrillation incident

  1. [61]
    This happened on the same night shift as (i). Again I accept the evidence of Dr Peter Lucas. What the Appellant did was inappropriate. The Appellant did not, but should have, first attended and reviewed the ECG and the patient before prescribing a drug rather than making enquiries over the phone and then prescribing Digoxin. Digoxin was not appropriate in the circumstances. In para 185 of her affidavit, ex 56 the Appellant says:

“I do not recall this incident … I can say that it is not my usual practice to rely a nurse’s interpretation of an ECG over the phone prior to prescribing Digoxin. My usual practise would have been to view the ECG results myself, determine whether or not the atrial fibrillation was transient or ongoing and assess the rate. Only after being satisfied from the information that Digoxin was warranted, would I have prescribed it.”

In fact the Appellant did not view the ECG results herself before prescribing Digoxin  but asked the nurse to read out the result displayed on the top of the ECG over the phone.

(iii) The Appellant’s response

  1. [62]
    Dr Lucas was sufficiently concerned by (i) and (ii) that he raised what he considered “the inappropriate management” of these patients with Dr Hodges later that morning. He didn’t then know the name of the night resident. He suggested that the doctor’s “performance perhaps needed review and that further training seemed appropriate.”  In evidence he said (T487):

“My concern was that this seemed to be a systematic error rather than a singular one-off thing.”

  1. [63]
    Dr Hodges says he discussed the incidents with the Appellant and she satisfied him that she had actually seen the patients but belatedly because she had been busy with other patients that night. I am unable to accept this explanation. Dr Hodges took no further action.
  1. [64]
    The next day the Appellant rang Dr Lucas complaining about what he had done and that he had not first spoken to her. She “disputed” his concerns about her management of the patients. She refused to concede that her treatment of the first had been flawed in any way and suggested that Dr Lucas was “deficient in (his) management of the patient.” She said she had managed the second patient appropriately and again questioned Dr Lucas’ management strategy.  Dr Lucas was concerned about “her inability to accept constructive criticism and her poor clinical knowledge.”  In cross-examination of Dr Lucas the Appellant maintained her stance that her treatment of each patient was appropriate.
  1. [65]
    I am satisfied that both incidents evidence unsatisfactory performance as an intern on the part of the Appellant.

(b) Vascular Surgical Ward 24 February – 9 March 2003

  1. [66]
    The Appellant worked with Dr Sharmila Balanathan, surgical registrar, in this unit for 2 weeks from 24 February – 9 March 2003. This period post dates that covered by the “satisfactory” progress report on the Appellant completed by Dr Hodges which is exhibited to his affidavit, ex 3.
  1. [67]
    Dr Balanathan had “grave concerns about her performance” and, not without anxious consideration and time for reflection, failed her as an intern.  See her Intern Assessment Form dated 28 May, ex 4. Dr Hodges believes the problems between them “commenced due to a personality conflict” but I think it was deeper than that. I consider Dr Balanathan had a genuine basis for her concerns about the Appellant. I prefer her evidence about their relationship and the Appellant’s ability to work satisfactory to that given by the Appellant.
  1. [68]
    An Intern Assessment Form “is a tool to assess interns on their professional performance.”  Dr Balanathan reported that the Appellant

● required substantial supervision and was not a reliable or dependable resident

● was not progressing satisfactorily towards full registration, and

● was not up to the required standard.

In the 23 different categories of knowledge, skills and professional attributes she assessed her as less than satisfactory in all except one.  Her assessment for the various categories was:

●  Satisfactory – 1

● Just adequate – 13

● Requires some assistance and supervision – 7

● Requires substantial assistance and extensive supervision and guidance - 2

  1. [69]
    The two categories in which she recorded the lowest assessment possible were “clinical judgment” and “reliability, dependability and efficiency.”  In arriving at this assessment Dr Balanathan felt the Appellant’s “clinical performance” was “poor and she did not accept constructive feedback when offered.”  The evidence supports this assessment. Dr Balanathan said the Appellant is the only intern she has ever failed.
  1. [70]
    In her letter dated 4 November 2003 Dr Balanathan outlined her observations of the Appellant. She amplified these in her affidavit, ex 4. I accept what she says. She impressed me as having been firm but fair and I do not consider the demands she placed on the Appellant to have been so unreasonable that the Appellant was justified in disregarding them. Likewise I cannot accept Professor Patrick Dewan’s opinion that Dr Balanathan “bullied” the Appellant and that her complaints about the Appellant are due to “personal conflict.” Professor Dewan has accepted the Appellant’s version of events which I have rejected and also appears to have latched onto a passing remark of Dr Hodges.
  1. [71]
    Much time on the hearing of the appeal was spent on the absence of the Appellant for afternoon ward rounds with Dr Balanathan on 24 and 25 February 2003. See para 4 of her letter, ex SB2 to ex 4 and paras 10.2 and 10.1.11, ex 4. I prefer Dr Balanathan’s account of what was said in the phone call on 25 February 2002. The Appellant’s version was made up to suit her own purposes in an attempt to justify unsatisfactory conduct; she was manipulating the facts to suit herself. The Appellant said Dr Balanathan ordered her back to work. Dr Balanathan denied this. in cross-examination of Dr Balanathan the Appellant said (T230):

“I came back to the ward and carried on with the ward round, completing those tasks until 8 p.m. And I’m quite happy to produce the time sheet for that if need be.”

The time sheet is in ex 50 and it shows that the Appellant finished work at 4 p.m. and did not return. In her affidavit (ex 56 para 64) the Appellant said she phoned Dr Hodges and he told her not to go in and “relying on this advice I did not return to the hospital.”  See also page 11 of ex JO36 to ex 34.  Dr Hodges said (T513) that he advised her that she should go back.

Dr Hodges sent an email to some staff seeking their views and in it said  that the Appellant had been “ordered back to the ward.”  This was based on what the Appellant told him which is not what in fact happened.  Dr Rossato’s response is based on this incorrect factual premise.  I find that the Appellant knew she should wait and didn’t.  The advice to her by Dr Hodges – “Obey your registrar” – was sensible and correct and the Appellant should have known that.  Dr Hodges conceded that by itself this type of conduct would not warrant dismissal.  A major concern of Dr Hodges was the payment of overtime.  The Appellant to this day maintains that Dr Balanathan was in error and that she did nothing wrong.  A week later Dr Balanathan told Dr Hodges that the Appellant “was making a greater effort to comply with her required duties.”

  1. [72]
    The “satisfactory” Work Progress Reports on the Appellant by Dr Hodges for the two periods 1 – 31 December 2002 and 1 January – 28 February 2003 were not based on personal knowledge and his judgment that the Appellant had performed satisfactorily was made “on the basis at that point in time I’d heard nothing to the contrary.”  Dr Hodges ceased his employment at the hospital in mid March 2003.
  1. [73]
    Dr Balanathan made a number of specific complaints about the Appellant’s work in her unit. These are dealt with in her affidavit and in her evidence. I accept what she says. I thought her recollection of events and meetings was much better than the Appellant’s. Summarised they are:

● Her failure to advise of a patient’s abnormal blood coagulation profile, her failure to investigate the cause or seek advice about how to do so and her apparent inability to understand the implications of an abnormal profile on surgery with the result that the operation had to be postponed. This is compounded by her insistence that Dr Balanathan should have used a particular anti-coagulant and was wrong not to when the use of such a drug could in fact have caused complications

● Her failure for some hours or at all to carry out tests on a patient as instructed including an ECG, chest x-ray and ABG. When done she failed to advise Dr Balanathan of grossly abnormal ABG results leading to a delay in addressing the abnormality, ICU assistance and adverse consequences for the patient. She was not apologetic nor did she appear to realise the seriousness of the situation or that the result was so abnormal.  I cannot accept her account (Holding Redlich letter 10 November 2003, para 10.3, ex JO26 to ex 34) that she paged Dr Balanathan when she received the abnormal results but she was not available

● Her failure to insert an IV cannula in a patient as instructed so that anti-emetics could be administered.  It was inserted some 6 hours later by a nurse;  she did not respond to her pager during this period and went to the bank.

● Ordering potassium for a patient before an operation (when she had been instructed to give the patient only fluids and fast him) in circumstances where there was no valid reason to do so and it was contra-indicated by high existing potassium levels and existing kidney failure.  (This is first “instance of unsatisfactory practise” referred to by the Board on 23 March 2004.  See para [23].)  When queried the next day she denied doing so saying “I didn’t do it. It was a mistake by nursing staff” or “I didn’t give the order. I’m sure I did not say to add potassium. The nursing staff must have just added it.”  I do not believe her. I am satisfied from the affidavit of Nurse Susan Rutherford (ex 12) (see also her statement to Mr Pugh dated 23 August 2003) that the Appellant gave the order over the phone and that the nurses confirmed it with her.  Nurse Rutherford was not required for  cross-examination.  Likewise I do not believe her explanation in para 141 of ex 56. It was her responsibility to first check the patient’s blood results.

  1. [74]
    During the 2 weeks the Appellant worked with her Dr Balanathan “became increasingly concerned about her reliability and skills”  (ex 4 para 13.2.4).  At the end of the 2 weeks both met with Dr Hodges and the “pros and cons” of the Appellant’s performance were discussed. After that meeting Dr Balanathan privately told Dr Hodges of the grave concerns she had about the Appellant’s performance. A few weeks later she told Professor Keary of her “grave concerns about her clinical skills and that she was considering failing her for the 2 weeks she was with me but wanted to give some thought to it.” Her Intern Assessment Form is dated 28 May 2003.  This was one of the “final reports for surgery not yet received” which Professor Keary was referring to in his letter to the Board of 20 May 2003 (see para [18]).
  1. [75]
    The Appellant gave the impression that if her conduct wasn’t “life threatening” (T240-1 e.g.) then it had been overstated. In relation to the patient for whom she ordered potassium she seemed to concede in cross-examination of Dr Balanathan (T241) that “if it did happen it was a mistake … Whether I overlooked something I’m not sure. I can’t explain it at this point in time.”  That is different to the stance she took at the time and different to what Holding Redlich wrote in their letter to the Board dated 10 November 2003 namely:

“3.1

In relation to the allegation in relation to the addition of potassium, Dr Tsigounis instructs that she recalls this incident. It was the case that our client had been advised, falsely, that the patient had low potassium before it was determined that the circumstances were in fact the opposite.

10.5

In relation to the potassium infusion, our client recalls this incident as referred to above. Dr Tsigounis was mistakenly informed that the patient in question had low potassium, however it was later established that this was not in fact the case.”

 The Appellant said (T255) that this response was made before she had seen the patient’s notes and she “could have been thinking of another patient.”  I cannot accept this explanation. Her earlier response indicates she could in fact recall this particular incident. I accept Dr Balanathan (T256) that the medical notes “just confirm what I’ve said in that first letter (ex SB2).”

  1. [76]
    The Appellant’s contradictory position is confirmed in her written submissions:

“The Appellant accepts that she was in error regarding this incident and that she mistakenly gave an ampule of potassium to a patient who had a high potassium.”

In cross-examination by Mr Tait SC the Appellant conceded the incident “possibly could have occurred … but I don’t think it would have made that much of a difference.” (T843).  Later in cross-examination she said (T1105-8):

“So that was an error of judgement?—Oh, no, it wasn’t an error of judgment.  I mean obviously if I knew that the patient had high potassium, I would not have given potassium.  But it was an error based on me just having started on that ward and not knowing any of the patients well enough and – and an error based on me making an error and I apologise for that.

An error:-- What, did you read the chart:-- There’s many times when nurses call-----

Did you read the chart?—What chart?

The – oh, the patient’s chart?—The medical records or?

Yes?—Yes.  It was – I think it was my first day or my second day and I was getting to know all the patients and I was – I was reading as many charts and medical notes as I could possibly  read.

So you’re –you’re there with a patient and you gave an order for potassium without reading the chart to see what the potassium level was. Is that right?—Mr – Mr Tait, once again you’re manipulating the argument.

No, no, will you tell me what it is?—The fact that I gave it by phone order means that I wasn’t with the patient. I was somewhere else on a – somewhere else in the hospital doing something else so I wasn’t – the medical chart was not next to me and I had to rely on memory of the patients that I had just seen. There was quite a lot of them and I had just started the unit and I possibly can accept that a mistake like that was made and of course I apologise for it.

And did you always accept that you’d make a mistake?—Once again, Mr Tait, you’ve got to realise that this was brought up to my attention one year after I left the hospital.  It was very difficult to recollect such a minor – such a small incident.

…

Did you ever blame the nurses?—I can’t recollect the – the exact events of what went on during that particular point in time…

…

I can’t recollect what I said to Nurse Rutherford.

…

I would like to state that it’s – because I had worked in the hospital beforehand and because you have to give fluid orders to patients every four hours and because this is the first time that a complaint of this nature was made that I gave potassium to a patient with high potassium, it is unlikely that I did not know that you do not give potassium to a patient with high potassium in the fluid orders. I mean, I most definitely knew that that is incorrect. And if I made a mistake, I apologised for it.  And it wasn’t a mistake of judgment, it was a mistake of not having enough information before me at the time that I gave the order for whatever reason.

…

If a nurse came up to me … and said, “Did you give potassium to a patient with high potassium?” Most likely I would have said, “No.”  It’s unlike me to do that. I know what normal potassium is, 3.5 to 5.  I know what the consequences of are high – very high potassium and very low potassium. And I know how they can affect the heart.

Yes?—And I know all the dangers regarding to that.

Yes?—but I do-----

The point is your denial, not whether the error was made?—No, I am not accepting that such an error most likely did occur.

Yes.  The point is your denial, your attempt to blame two nurses?—I don’t – I don’t accept the fact that I denied this error, Mr Tait.

HIS HONOUR:  you said you can’t recall what you said?—I can’t recall exactly what I said, Your Honour, for the reasons that I have just given.”

At best for the Appellant she ordered potassium over the phone without knowing or enquiring of the patient’s condition thereby placing the patient at risk. When the error was brought to her attention she blamed nurses and continued to do so up until the 12th day of the hearing of the appeal when she conceded not an error judgment but an error of omission.

  1. [77]
    Generally in relation to Dr Balanathan’s complaints (then summarised in her letter ex SB2 to ex 4) Yarra Legal said in their letter dated 15 March 2004 (p15) that the Appellant stated “a general disagreement with the accuracy of Dr Balanathan’s complaints.”
  1. [78]
    I am satisfied that the evidence of Dr Balanathan, supported in part by the evidence of Nurse Rutherford, indicates unsatisfactory performance by the Appellant.
  1. [79]
    The complaints referred to by Christine Cubitt, ex 1 tab 6, Client Liaison Officer, about the failure of the Appellant to communicate with families and staff are so non-specific that I am unable to reach a conclusion adverse to the Appellant in relation to them.

(c)  Surgical Ward 24-28 March 2003

  1. (i)
    Attitude to patients and staff
  1. [80]
    Details are contained in the affidavit of Nurse Donna Brown, ex 11. The second incident (on 28 March) referred to by Nurse Brown (which she regarded as the most serious) indicates an aloof, uncaring attitude by the Appellant which caused distress to the patient’s family and staff. Nurse Brown’s account was not challenged in cross-examination and I accept what she says.

(ii)    Absence from the ward

  1. [81]
    Nurse Brown suggests that the Appellant (who commenced work at 7.30 a.m.) “left the ward quite early, often by 9 am each day.”  She didn’t see her again on the ward until around 4 p.m. on one occasion she found her in theatre and on others she “assumed she was in theatre or clinics for at least part of the day.”  In her evidence she seemed to suggest that the Appellant was paged but didn’t answer. I am not satisfied that this complaint supports the Board’s case.
  1. [82]
    By itself the second incident in (i) would not alone be sufficient to warrant cancellation of the Appellant’s registration but, coupled with other complaints which I accept, it does indicate at best room for attitudinal improvement on the part of the Appellant. Nurse Brown said she would not have complained about the first incident had the second not occurred. I have not thought it necessary to deal with the first incident because it really adds nothing to the second.
  1. (d)
    Good reports about the Appellant
  1. (i)
    Dr Raad Almendi – Vascular Surgery 14 – 27 October 2002
  1. [83]
    Dr Almendi completed an Intern Assessment Form on the Appellant dated 17 December 2002 as follows:

● She was progressing satisfactorily towards full registration

● By the time her assignment was ending she was clearly able to handle her duties well and carryout her responsibilities as required

● Her knowledge, skills and professional attributes were all either good or satisfactory

● Her overall performance was satisfactory

Dr Almendi qualified his assessment somewhat as follows:

“Helen spent only two weeks in the sub-species of vascular surgery. This is not quite enough to make a fair judgement of her general surgical skill and interest.  She was however quite keen on learning which is a bonus for her career.”

  1. [84]
    In the circumstances not much weight can be placed on Dr Almendi’s assessment more so when compared to that of Dr Balanathan (also vascular surgery) who appears to have had much more to do with the Appellant than Dr Almendi.

(ii)  Dr Hafsa Yusuf – ENT Surgery 14-27 October 2002

  1. [85]
    The Appellant worked in ENT surgery at the same time as vascular surgery and for two weeks only, not 4 additional weeks which is the impression she gives in her written submissions. See also Professor Keary’s evidence at T607-8. Dr Yusuf’s Intern Assessment Form, completed on 6 March 2003 is in relation to “ENT Surgery, Term 4, 2002” and is as follows:

● She was progressing satisfactorily towards full registration

● She was interested in her job, a good communicator and had adequate knowledge

● Her overall performance was satisfactory

● Her knowledge, skills and professional attributes were  all either very good or good

● She was very enthusiastic about the job and always showed interest in knowing more

In her affidavit (ex 1, tab 14) Dr Yusuf said the Appellant asked her to complete the Intern Assessment Form “when I saw her in the library.  She told me that people were writing bad reports about her.”  She continued:

“4.  Normally the intern who covers for the ENT unit also covers   the Vascular unit and we hardly see them.

5.  I had very little to do with Helen. I probably asked her to do 3-4 tasks. The tasks I got her to do were largely clerical such as following up test results or calling someone. They did not require her to make any medical judgements. She performed them well without any problems.

6.  I also recall that she made an effort to contact the ENT unit every morning and ask whether we wanted anything done.”

  1. [86]
    In my view little, if any weight can be placed on Dr Yusuf’s assessment.

(iii)  Dr K. Tawala – Orthopaedic Surgery 24 – 30 March 2003

  1. [87]
    Dr Tawala’s Intern Assessment Form on the Appellant , dated 28 March 2003, is as follows:

● She was progressing satisfactorily towards full registration

● She was hardworking and competent

● Her knowledge, skills and professional attributes were either very good or good

● She will do well

● Her overall performance was satisfactory

  1. [88]
    In her written submissions the Appellant says this assessment relates to “2 weeks orthopaedics” yet the form clearly states “1 week”.  The only week the Appellant worked in orthopaedics was the week commencing 24 March and then for only 5 days the last being 28 March 2003, the date the form is signed. See her time sheet, ex 50.

(iv)   Dr Cu Tai Lu – General Surgery 31 March – 11 April 2003

  1. [89]
    The Assessment Form is dated 17 April 2003 and is as follows:

● Clinical skills and record keeping – very good

● Relationships with others (patients, relatives, supervisors and other staff) and personal skills (reliability, punctuality, use of appropriate initiative, enthusiasm) – average

● Teaching and academic knowledge – outstanding

● Her overall term performance was very good and she was a highly enthusiastic resident

  1. [90]
    Dr Cu Tai Lu’s affidavit, ex 1 tab 33, is as follows:

“3. Helen Tsigounis was a junior resident at the Townsville Hospital who worked for me from 31 March 2003 to 11 April 2003.  She only worked with me for 8 days in that 2 week period as residents have 2 days off a week, and, in addition, she took both Mondays of the weeks she worked for me off.

4.  I completed a resident medical officer’s assessment form in relation to Helen on 17 April 2003.  Exhibit “TCL1” is a true copy of the resident medical officer’s assessment form dated 17 April 2003.

5. I received no complaints in relation to Helen prior to completing the form. After completing the form, at a time when Helen was no longer working for me, a member of the surgical nursing staff at Townsville Hospital, I cannot recall the name of the nurse, came to me and complained that Helen had difficulties in her relationships with patients and nursing staff.  The nurse also stated that Helen had responded slowly when paged. If I had known about these issues at the time of completing the form, I would have given Helen a low rating in relation to her personal skills and relationships with others.

  6.  In general I had no problems with Helen’s clinical skills, record keeping or knowledge. The standards I set for junior residents working for me are not very high. They are only required to write up charts, order any necessary tests and ensure that patients are discharged on time. Helen fulfilled my expectations of a junior resident.

    7. I do not check patient charts every day but I did not find any mistakes in Helen’s writing up of medication.”

  1. [91]
    The ratings which are lower than average are “poor” or “unsatisfactory”.  Accepting what the doctor says notwithstanding the relatively non-specific statements made in para 5, this may have reduced the Appellant’s overall performance assessment from very good to average.

(v)   Professor Keary’s evidence

  1. [92]
    Professor Keary said (T608-610) that he had reason to question the validity of some of the assessment reports on the Appellant, there may have been “personal reasons why some people gave reports of a very commendable nature” and “some of the people had very limited contact” with the Appellant.  He was unwilling to elaborate or be any more specific as to the “personal reasons” and I am unable to conclude that he was including Drs Almendi, Yusuf, Tawala or Cu Tai Lu in this context.  In his letter to the Board dated 30 May 2003 (see para [19]) he expressed reservations about whether those surgical registrars who passed the Appellant had sufficient time with her to “assess her properly”.  In fairness to the Appellant most interns probably pass through the system in that way but unfortunately for the Appellant she appears to have exhibited more concerning aspects than the others did. 

Conclusion as to Surgery

  1. [93]
    I am satisfied that the Appellant has not satisfactorily completed her surgical rotation and that the Board’s conclusion to this effect is correct. The unsatisfactory reports and the evidence of Drs Lucas and Balanathan and Nurse Rutherford more than outweigh the satisfactory reports relied upon by the Appellant. The clinical performance and attitude of the Appellant were less than satisfactory.

Paediatrics September and October 2002 - Satisfactory?

(a) 2 September

  1. [94]
    Two patients, DE and SB, were involved and two nurses, Sally Haley and Julia Bailey witnessed the events described in their affidavits exs 31 and 32. Only Nurse Bailey was required for cross-examination. The Appellant’s written submissions in relation to her evidence are quite non-responsive and do not deal with the substantive complaints. I accept the evidence of the nurses.
  1. [95]
    The concerning aspects of the Appellant’s behaviour are these

Patient DE (aged 4)

● Ordering (initially contrary to the ward protocol) a reduced dose of Midazolam without reviewing the patient and without properly considering the concern expressed by the nurses as to the reduction

● Failing to be aware of or adhere to departmental guidelines/protocols relating to the administration of drugs (see T34 and pages 12 and 60 of ex PJK2 to ex 2)

● Instructing the nurses to give the patient whatever dose of Midazolam they wanted to

● Failing to respond to repeated requests to resite the patient’s IV cannula for 4 hours causing the patient to become distressed and exhibit signs of myoclonic jerking. (This is a forerunner or Dr Balanathan’s third complaint referred to in para [73])

● Making 12-15 unsuccessful and unhygienic attempts to cannulate the patient with distress to the patient and contrary to the hospital guideline limit of 2 attempts (para 10 ex BAJH1 to ex 3) which would or should have been known to the Appellant. In fact in her affidavit (ex 56 para 16) the Appellant indicates that she knew of the two attempts limit

● Suggesting cannulation at an inappropriate site (the axilla).  Again in her affidavit (para 16) the Appellant says she knew of the hospital protocol that interns “only cannulate into the veins in the arms or feet”

● Using the same needle more than once

● Failing to timeously and appropriately dispose of used needles

Patient SB (aged 6)

● Attempting about 12 times to cannulate the patient with the same needle before succeeding causing distress to the patient.

  1. [96]
    I appreciate that cannulation at times may be difficult, more so with children, but the Appellant did not appear to know when to stop and when to seek assistance. One of these cannulation incidents is probably the first of the two specific incidents referred to by the Board on 23 March 2004. See para [23].
  1. [97]
    I also appreciate that the Appellant had other patients to attend to but the delay in relation to DE was inexcusable. If she was not able to promptly attend to the patient (as she initially said she would) she should have said so in which case Nurse Bailey said she would have tried to find another doctor.

(b)   September

  1. [98]
    A few days after the incident with DE Nurse Ricky Steer (ex 19) was present when the Appellant attempted to cannulate another child. The distinct impression given is that the Appellant needed assistance as to the correct procedure to follow. Nurse Steer was not required for cross-examination and her evidence confirms reservations about the Appellant’s understanding of how to properly cannulate a patient and the procedure which should be followed. In evidence (T791) the Appellant said she couldn’t remember this incident.

(c)  About October

  1. [99]
    Two incidents occurred which concerned Dr William Frischman, visiting paediatrician. He described them in the following terms in his affidavit, ex 9:

“2.  Helen Tsigounis was an intern in the paediatric unit for a locum period in about October 2002.  She worked a number of shifts with me while she worked in the paediatric unit.  During one of those shifts, I recall saying to her on a round about a young male paediatrics patient, probably 3 or 4 years old, who was constipated:  “This patient is not to have a colonlitely wash out.”  On the ward round the next day, I found out that she had ordered the patient have a colonlitely wash out. It was not a harmful procedure but it was completely unnecessary and very unpleasant for the patient.

3.  While doing an outpatients clinic, I saw a script written by Helen for a paediatric patient for an anticonvulsant, lamictal. She had failed to write a dosage or duration on the script.

4.  At some point during her paediatric unit rotation, I spoke to her and told her that she was not performing well. I suggested that she needed to spend three months in one area so that her supervisors could give an accurate assessment of her performance.

5.  Either during or just after her term in paediatrics, I spoke to Dr Barry Hodges and told him that in my view, Helen was performing way below standard expected of an intern.”

  1. [100]
    Dr Hodges (para 11, ex BAJH 1 to ex 3) agrees that he spoke regularly to Dr Frischman but does not recall this conversation.
  1. [101]
    Dr Frischman was an impressive witness and I accept what he said. The Appellant now “does not dispute” the first incident even though she says she “cannot recall it.”  She says that at all times she did her best to follow Dr Frischman’s instructions but it would seem that on this occasion she was not paying proper attention to what Dr Frischman said and misheard or misunderstood him.  The Appellant also says she cannot recall the second incident. Yarra Legal in their letter dated 12 March 2004 (ex JO36 to ex 34 page 20) said the Appellant denied both incidents and denied the conversation referred to in para 4 of Dr Frischman’s affidavit. I accept that the conversation occurred in the terms stated by Dr Frischman. Yarra Legal also submitted (in a conspiratorial sense) that Dr Frischman, the local AMA representative, told the Appellant she had “enemies in the AMA” and for this reason Dr Frischman may be “biased and otherwise unreliable.”  I cannot accept this submission.
  1. [102]
    In evidence Dr Frischman said (T162) that on one occasion he told Dr Hodges he was very worried about the Appellant’s short-term memory; this was because of the first incident. Dr Frischman also seemed to imply (T165) that as an intern the Appellant was of less than average ability.

(d)  Dr Shellshear’s assessment

  1. [103]
    Dr Ian Shellshear is also a visiting paediatrician at the hospital. On the 22nd October 2002 he completed an Intern Assessment Form on the Appellant following her 6 weeks term in paediatrics.  He said

● She was progressing satisfactorily towards full registration.

● She had a good relationship with patients/staff, and was interested in academic and medical aspects of paediatrics

● Her knowledge, skills and professional attributes were either very good (including a caring and supportive attitude to patients’) or good

● Her overall performance was satisfactory

  1. [104]
    Dr Frischman said (T169) he believed Dr Shellshear’s opinion was wrong. In his affidavit (ex 30) Dr Shellshear said

“4.  Given the time that has passed since Helen worked with me, I do not recall any specific incidents relating to her.  My general impressions were that during the time she worked with me, I thought she was inclined to be forgetful and on occasions was not on the ward when she should have been.  I did not observe any serious deficiencies that would cause me to fail her. My general practice is that unless a junior doctor has serious deficiencies, I will provide a positive assessment.

5.  I believe she interacted well with parents in the time she was doing paediatrics.”

  1. [105]
    Dr Shellshear was not required for cross-examination. The “forgetfulness” he refers to is consistent with her behaviour in the first incident referred to by Dr Frischman.
  1. [106]
    The incidents referred to in (a) and (b) are not consistent with a “caring and supportive attitude” to patients and in my view the evidence in (a), (b) and (c) is more consistent with Dr Frischman’s opinion of the Appellant’s performance than Dr Shellshear’s.  See also para [108].

(e)  Professor Keary’s letter dated 20 May 2003

  1. [107]
    This is referred to in para [18].
  1. [108]
    The only “formal report showing a pass” in paediatrics is that of Dr Shellshear and I have said that the evidence before me more supports Dr Frischman’s opinion of the Appellant than the report of Dr Shellshear.

Conclusion as to Paediatrics

  1. [109]
    I am satisfied that the Appellant has not satisfactorily completed this aspect of her internship and that the Board’s conclusion to this effect is correct.

Emergency, 28 October 2002 – 31 January 2003 - Satisfactory?

(a)  Another cannulation incident

  1. [110]
    This is the second cannulation incident referred to in the Board’s decision of 23 March 2004, see para [23]. The Appellant attempted 5 or 6 times to cannulate a child patient using the same needle for at least 2 attempts and without first undertaking standard preparations causing distress to the patient and the patient’s parents (Nurse Karen Maloney, ex 1 tab 36 and Nurse Rebecca Buldo ex 20). When Dr Mark Elcock (ex 6), an Emergency Department physician spoke to her afterwards (after having been told of the incident by Nurse Buldo) she “did not appear to have much insight into the distress she had caused the family and did not understand why they were angry.”
  1. [111]
    Holding Redlich, in their letter dated 10 November 2003 (ex JO26 to ex 34) said (para 7.1) that the Appellant didn’t recall taking four attempts to cannulate a patient or this particular incident. Yarra Legal in their letter dated 12 March 2004 (ex JO36 to ex 34) said that after speaking to Dr Elcock “she thereafter observed the hospital standard of making only two attempts.” (see also ex 56 para 100).  In ex 56 para 172 she says she may have tried 3 times to insert the cannula but denies she tried more than this.  She also says she doesn’t recall any follow up discussions with Dr Elcock. Nurse Maloney was not required for cross-examination.  In evidence, Nurse Buldo (a registered nurse since the beginning of 2002) said she considered the Appellant’s treatment of this patient to have been “sub-standard and not in keeping with an intern level of professionalism.”  She said (T261) that had the Appellant properly planned and prepared for the cannulation the poor outcome may have been prevented. 
  1. [112]
    Dr Elcock said (T387) that without his “diplomatic intervention” this incident would have resulted in a formal complaint by the parents. He was concerned about her failure to inform the parents what she proposed to do and why and obtain their consent and her dismissive attitude towards them more than the actual cannulation attempts. He considered (T389) she lacked insight into her inexperience with cannulation and lacked judgment. He said (T390) generally two nurses should assist in cannulating a child, one to calm and restrain the child and the other to assist with the actual cannulation and the Appellant should have realised this.

(b)  The pelvic vaginal examination incident, (late 2002)

  1. [113]
    The Appellant carried out a pelvic vaginal examination of a patient (using a speculum or a swab) without a nurse being present. During the examination Nurse Karen Struthers (ex 16) heard the patient say twice

“You’ve got it in the wrong spot.”

When the Appellant left, the patient asked Nurse Struthers whether the Appellant knew what she was doing because she said she had initially inserted the speculum or swab into her rectum and then into her vagina.  Nurse Struthers reported the incident to Dr Elcock but he did not get a chance to speak to the patient.  The patient is unidentified, has not made a statement and did not give evidence.

  1. [114]
    The Appellant denies this incident occurred (T843) and she has been consistent in that denial. In the absence of evidence from the patient I am not prepared to act on the hearsay evidence of Nurse Struthers. I do though, find that the Appellant was in error in not having a nurse present for the procedure and in using an inappropriate room (see ex 5 para 8.1.1). Beyond this I am not prepared to act on conclusions other witnesses may have drawn from this incident as to the Appellant’s performance and competence.

(c)  The drug administration incident, mid January 2003

  1. [115]
    The patient was to be intubated and the Appellant was to administer the anaesthetic drugs in this order – sedative, anaesthetic and muscle relaxant. She was clearly instructed to this effect by Dr Katrina Gelhaar (ex 10). When told she could start administering the drugs the Appellant picked up the syringe with the muscle relaxant first and was about to administer the drug. She was stopped and another intern administered the drugs. This was, I accept, potentially dangerous to the patient for the reasons given by Dr Gelhaar, ex 10 para 10, see also T72. The Appellant said (Yarra Legal letter ex JO36 to ex 34 page 21) that there was no discussion about the management of the patient and that Dr Gelhaar administered the drugs. She denied that she attempted to administer drugs, see also ex 56, para 127.
  1. [116]
    In her cross-examination of Dr Gelhaar the Appellant agreed that it would have been inappropriate to administer the muscle relaxant first (T147) but said it was unlikely she did that considering she worked with a professor of anaesthetics in Greece for 6 months “and was doing this sort of thing on a daily basis” (T148).  Dr Gelhaar said she afterwards discussed the incident with the Appellant but the Appellant denied this (T149).  I accept the evidence of Dr Gelhaar. At best for the Appellant she made a mistake, at worst she was too casual and was not paying attention to the instructions given to her. I prefer the latter interpretation.

(d) The meningitis patient – JY, 27 January 2003

  1. [117]
    This is the third incident referred to by the Board in its decision of 23 March 2004, see para [23]. Much time and evidence was devoted to this incident. The overwhelming preponderance of the evidence given by the Board witnesses (Drs Gelhaar, Jessica Lucas (who was not required for cross-examination), Ashley, Coley, Small and Cooksley and Professor Judson) which I accept, is against the case advanced by the Appellant. I cannot accept her evidence. In my view her unilateral decision to discharge the patient placed him at serious risk. A lumbar puncture should first have been performed and she should have realised that. The Appellant attempted to justify a serious error of judgment by ex post facto improvisation and a subjective interpretation of the patient’s medical history based on an examination of his complete file which was subpoenaed for the purposes of the appeal. Her explanation was redolent with hindsight rationalisation. She is still unable to accept the opinions of very experienced emergency practitioners who gave evidence and to this day continues to advance an untenable interpretation of her conduct and the reasons behind it. She cannot accept that her decision to discharge the patient was wrong and the reasons why it was wrong. For present purposes it matters not whether JY was subsequently diagnosed with viral or bacterial meningitis, the fact remains that the Appellant should have but didn’t, order or perform a lumbar puncture. (I should mention that I am satisfied from the evidence of Dr Cooksley that JY in fact had meningitis. Dr Small thought he didn’t but I think he is mistaken; Dr Cooksley’s examination of the patient’s records was much more detailed than Dr Small’s and I felt he had a better understanding of the overall picture. In the final analysis it doesn’t really matter if JY did not have meningitis; the issue is that he presented with signs of possible meningitis and in these circumstances a lumbar puncture should have been performed). She discharged the patient without first presenting him to a Registrar or Consultant as required by the Emergency Department Manual, see para 2.14 ex NRS1 to ex 7. I do not believe her when she says she presented him to Dr Gelhaar on her morning rounds; JY also says that didn’t happen. She did not, as she should have, discuss the patient with Dr Gelhaar or Dr Ashley. No record of any such discussion or presentation of the patient to either doctor was made on the patient’s chart. If this had occurred as the Appellant said it did, she should have, but didn’t record it. I also accept the evidence of Dr Gelhaar (T135) that if the patient had been presented to a senior doctor in the morning he would not have been allowed to go home. If she was uncertain about whether to order a lumbar puncture she should have consulted a senior doctor. Drs Gelhaar, Jessica Lucas, Ashley, Small, Cooksley and Coley all said a lumbar puncture was indicated and had they been consulted that is what in all probability would have happened. The Appellant treated the patient inappropriately. Her treatment of him was “unacceptable” (Dr Small T307).  See also paras [269], [272] and [273].
  1. [118]
    Dr Ashley considers (ex 22 para 11.1.11) this incident

“indicated that Helen had problems in relation to making a diagnosis and then following through with the appropriate treatment.”

  1. [119]
    The Appellant should have notified senior staff of the possibility that JY had meningitis so that appropriate monitoring of staff members dealing with the patient would be put into place, see ex 22 para 11.1.13. Dr Ashley said (T106) that in accordance with the applicable protocol the Appellant should have consulted a registrar about JY’s treatment; to discharge the patient without such consultation “shows lack of judgment and lack of concern.”   The antibiotic prescribed by the Appellant for JY complicated his later management because it caused difficulty identifying the precise type of meningitis he suffered. In my view the Appellant’s treatment of this patient failed at all stages and reflects badly on her clinical skills and judgment.
  1. [120]
    In her written submissions criticising Drs Cooksley, Ashley and Jessica Lucas, the Appellant seeks to divert attention from the substantive issues. Notwithstanding those submissions I have no reservations at all about accepting their evidence. The Appellant should have performed a lumbar puncture or advised these doctors of the position in relation to JY; she should not have discharged him. She also criticizes Dr Gelhaar for “reconstructing the ideal situation in a hospital”, for “attempts at reconstruction” and for giving “inconclusive evidence.”  I do not accept that this was what she did, on the contrary I think it is the Appellant who tried to reconstruct a clinical picture of JY which the evidence does not in any way, shape or form justify or support.  I do not think the fact that the Appellant had examined JY placed her in such a position of advantage that I should, as she submitted, reject the opinions of those doctors who didn’t examine him but who expressed opinions based on his records (including his history) and the provisional diagnosis reached by her.
  1. [121]
    To the extent to which Drs Rosenblum and Papagelis could be said to support or sympathise with the Appellant’s treatment of JY I cannot accept them in the face of the experienced emergency medicine practitioners whose evidence I do accept. Each conceded though that it is very important that meningitis be excluded. The same applies to the opinions expressed by Professor Dewan. I considered his opinions to be ill informed and I have reservations about his objectivity in matters concerning the Appellant. He seemed to me to be unreasonably subjective in the face of a substantial body of apparently credible evidence pointing in the other direction. Much of the criticism of the Appellant he dismissed as the product of some type of herd or group mentality whereas I find it to be the result of genuine concern by experienced individuals who have all arrived separately at the same conclusion as to what should have been done and as to the Appellant’s clinical skills and judgment. The seriousness of the Appellant’s conduct is not mitigated by the fact that JY is the only Emergency Department instance relied on by the Board where the patient was discharged in breach of the protocol.
  1. [122]
    I agree with the submission of Mr Tait SC that the Appellant still appears to have no realistic insight into the seriousness of the situation which existed with JY and is unable to accept the fact that Drs Gelhaar, Jessica Lucas, Ashley, Small and Cooksley could be correct in the opinions they have expressed. According to Dr Ashley (T108) this shows that the Appellant “lacks insight and a sense of limitation of her own skills.”  See also paras [273] and [274].

(e)  Emergency Department Intern Assessments of the Appellant

(i)   Dr Julia Ashley, (ex 22)

  1. [123]
    Dr Ashley completed an Intern Assessment Form on the Appellant dated 18 December 2002 as follows (as a result of the Appellant working in Emergency for 10 weeks):

● She was progressing satisfactorily towards full registration

● She had a pleasant manner toward staff and patients, caring, adequate knowledge base for level of training

● Her knowledge, skills and professional attributes were all satisfactory

● Tries hard, adequate performance for level of training, improved during rotation

● Her overall performance was satisfactory

  1. [124]
    She qualified this somewhat in her affidavit when she said

“13  From my observations of Helen’s performance during the period I worked with her in the Emergency Department, I am of the opinion that Helen may perform well in a non clinical setting. However, based on my observations of her clinical ability, I do not believe that Helen had the skills necessary to practice medicine in a clinical setting. The basis on which I have formed that opinion include that Helen:

13.1 Is not focused enough on the task at hand and is a fey soul.

13.2 Seems to find it difficult to discuss all her patients with senior registrars or consultants.

13.3 When she did discuss patients with me, she did not  follow through on all the suggestions I made to her to complete diagnosis and treatment of a patient. I found that Helen did follow some of the directions I made but not all, for example, she did not perform all the tests I suggested. I also found that Helen would not always report back to me with the results of the tests I had asked her to perform.   In my opinion, by doing so, Helen did not only  endanger the patient but she also deprived herself of the opportunity of learning from the case.”

  1. [125]
    Both Dr Ashley and the Appellant continued to work in Emergency after the date Dr Ashley completed the Intern Assessment Form. Dr Ashley’s affidavit was sworn on 22 July 2004 which of course was after the incident involving JY. On 28 January 2003 Dr Ashley sent an email to Professor Keary in the following terms:

“Helen is currently on her second rotation through the emergency department, first as an intern and now as JHO.  She has improved over her sojourn in the ED.

Helen needs ongoing mentoring. She is more focused than she used to be, she has not yet developed judgment. She apparently has difficulties presenting patients to senior registrars. When given direction she does not fully follow through, nor has she developed a sense of priorities.”

In her affidavit (para 10) she says she sent this email as a result of her concern about JY and the pelvic vaginal examination incident which she was told about.  The opinions she expresses in para 13 of her affidavit do not appear to be influenced by the pelvic vaginal examination incident.

  1. [126]
    In evidence (T109 and 111) Dr Ashley described her Intern Assessment as a barely passing report, “a barely passing grade” and said that “unfortunately in emergency medicine you’re only as good as your last case.”  She said (T113) her concern about the Appellant was as a result of “a number of things” and the pelvic vaginal examination incident was “just one more item.”  She described the Appellant’s position concerning JY as “indefensible” and I agree that is a concerning aspect of her apparent lack of insight.
  1. [127]
    Taking into account also Dr Ashley’s involvement with the Appellant up to the end of January 2003, I am satisfied that the Intern Assessment Form does not accurately reflect the level of the Appellant’s overall performance or her knowledge, skills and professional attributes. Had the form been completed at the end of January 2003 I am satisfied that Dr Ashley would have described the Appellant’s overall performance as “not up to required standard” which is the box on the form below “satisfactory”.

(ii)  Dr Andrew Coley  (ex 29)

  1. [128]
    Dr Coley worked in the Emergency Department from late August 2002 until early in 2003 as a senior consultant. On 16 December 2002 he completed an Intern Assessment Form on the Appellant as follows:

● Very thorough, dealt with very stressful situations in a calm manner. Great patient skills. Was a pleasure to have in the department

● Her knowledge, skills and professional attributes were exceptional, very good and good

● She had strong clinical skills

● Her overall performance was good to excellent

  1. [129]
    Like Dr Ashley he reconsidered (see T77) his assessment in his statement dated 13 February 2004, exhibited to his affidavit, in the following terms:

“4.  Helen Tsigounis worked as an intern in the Emergency Department at the Townsville Hospital at the end of 2002 and in early 2003. I worked several shifts with Helen, however, my contact with her was minimal as interns tend to discuss their cases with the senior registrars rather than the consultants. As a consultant, however, I was responsible for supervising Helen when we were both on the same shift.

5.    My initial impression of Helen was that she was confident and independent and I thought that her knowledge base was reasonable for her level of experience. I recall one particular case soon after I began to supervise Helen involving a difficult psychiatric patient. The patient began screaming uncontrollably and I thought Helen was very calm in dealing with the patient. At that point, I was impressed with her ability to handle difficult situations.

6.     In mid December 2003, Helen asked me to fill out an intern assessment form for her time in the Emergency Department. I recall that this was relatively early on in the time that Helen spent in the Emergency Department.

7.    I cannot remember the exact time frame, but it was after I had written the intern assessment form, I began to fell that although Helen was trying very hard, at times she was making decisions about the management of patients that were above her knowledge level and as a result she was making mistakes. I do not now recall any specific examples of incidents, but I do recall that I became aware of a number of incidents that made me question Helen’s judgment and I began to have her present more patients to me directly so that I could better assess her clinical skills.  Although I still felt that Helen was gathering information well and treated patients with respect, I began to see that her knowledge base was not as strong as I had initially assumed.  I also felt that Helen should have consulted with more senior practitioners in relation to matters that she was uncertain about but she did not.

8.     I cannot recall if I spoke to Helen specifically about my concerns to make sure she got more supervision. This was partly because it was mandatory that all cases be run by senior registrars or consultants prior to patients leaving the Emergency Department.

9.     Based on my experience with Helen after I completed the intern assessment form, if I had been asked to complete another intern assessment for her at the time she left the Emergency Department, I would have given her 3’s (just adequate) under the ‘Knowledge’ category; 3-4s (just adequate-satisfactory) under the ‘Skills’ category and 5’s for the ‘Professional Attributes category other than for “awareness of own strengths/limitations and consulting appropriately’ for which I would have given her a 3 (just adequate).”

A score of 5 is “good”.

  1. [130]
    He further qualified his assessment in his affidavit (sworn on 9 June 2004) as follows:

4.1 When I assessed Helen’s performance in the intern assessment form dated 16 December 2002 (the intern assessment form), I did so on the basis of her performance to that date.

4.2   Helen continued to work in the Emergency Department for some time after I completed the intern assessment form. To the best of my recollection, the period Helen worked in the Emergency Department after I had completed the intern assessment form was approximately 3 weeks.

4.3  As stated in paragraph 9 of my statement, the assessment in that paragraph is the assessment I would have given Helen at the time she left the Emergency department, that is, my assessment of her performance throughout the period she was in the Emergency Department including the period after I completed the intern assessment form.

4.4 I would not have failed Helen in an intern assessment form as it was my understanding that she was going on to do more training. When I completed the intern assessment form, I did not believe that Helen was capable of treating patients without supervision.”

  1. [131]
    In evidence he amplified his reasons for reconsidering his assessment (T77-78 and 84-85):

“I felt that initially when I was working with Helen, although it was fairly limited, I felt that she had done quite well with a couple of stressful situations and although I perhaps did not have enough time with Helen initially, after I had done my assessment form certain things came to my attention and I felt that Helen perhaps  needed a little stronger clinical support and I didn’t feel that my initial assessment of her was truly correct.  I felt that if I could have re-assessed at a later point when I got to know Helen a bit more, then I would have changed my initial assessment and that’s what I did. 

You say in paragraph 4.4 of your affidavit that, ‘When I completed the intern assessment form I did not believe that Helen was capable of treating patients without supervision’?—Yes, I feel that that’s correct. I felt that she needed certainly more training before she could function entirely independently.

And that remained your view?—That continued to be my view. That’s correct.

…

I do remember a general sense that when you would present patients to me you were not able to back up your clinical judgment with sound knowledge and critical thinking, that I thought you may have had initially. And so I was more concerned in that I felt like you need obviously more training.

…

I just began to see that your knowledge base was not as strong as I had initially assumed.”

  1. [132]
    Dr Coley also said (T88) that he felt her performance in some categories was “less than satisfactory.”  He said (T79-80) that as time went by he started to question the Appellant’s “practical skills” and her “knowledge base” and didn’t feel that she measured up to his initial assessment.  He had also heard about the meningitis patient whose treatment he considered to have been “inappropriate”.  He had also discussed the Appellant with other consultants and senior registrars.
  1. [133]
    In the Work Progress Report on the Appellant for the period 1-31 December 2002 (see ex 3) Dr Hodges stated that the Appellant’s immediate superior Dr Coley “has given me a positive report on her performance generally.”  Dr Coley can’t recall what he said to Dr Hodges but I think the statement attributed to him should be approached in the same way as his earlier Intern Assessment.

(iii)  Dr Niall Small (ex 7)

  1. [134]
    Dr Small has been the Director of the Emergency Department at the Townsville Hospital since February 1997. He was on study leave from October 2002 until 6 January 2003 and had limited contact with the Appellant and did not witness any of the incidents already mentioned.
  1. [135]
    He agreed that he sent a fax to the Appellant on 27 May 2003 (ex HT 11 to ex 56) advising her

“…that there are no formal complaints currently being prepared relating to your management of patients in the Emergency Department.”

Whilst aware of the various incidents already referred to he said (ex 7 para 29) that his response was correct in that no formal complaints were in fact then being prepared.

  1. [136]
    Dr Small also said (T339) when referred to Dr Coley’s assessment of the Appellant that had he been present “as director I’d not have accepted an intern assessment form completed by a locum” which is what Dr Coley was.
  1. [137]
    Based mainly on the meningitis incident and her cross-examination of him, Dr Small gave the following evidence about the Appellant’s suitability for general medical registration (T357-8):

“Based on your experience, you are able to form a view whether she is suitable to be given registration as an RMO, or to work as an RMO, unqualified registration, general registration, or not?—It’s my opinion that the current situation is that Dr Tsigounis is not suitable to be awarded general medical registration.

Are you able to say why?—I’d still have some concerns regarding Dr Tsigounis’s degree of insight into the cases that have been discussed this morning and – and yesterday;  a certain lack of acknowledgement perhaps that certain management may have been inappropriate, that there may have been other options to discuss management with senior medical officers at the time. I would regard that as part of a learning experience for junior medical staff and sometimes for senior medical staff to acknowledge that perhaps management may have been substandard and strive for improvements in the future.

It’s – may appear that she doesn’t accept now that a lumbar puncture was necessary, from her questioning.  Is there any doubt in your mind a lumbar puncture was required?-- There is not.

Is the process of reasoning applied to differential diagnosis important in the practice of medicine?—Absolutely, particularly in the emergency department where patients may present with a presentation where a number of diagnoses are a possibility, and the – the doctor assessing the patient must be able to formulate the differential diagnosis, work through that differential diagnosis, and come to a – a definitive diagnosis.

Based on the discussions between you and Ms Tsigounis yesterday and today, are you able to give an opinion of whether she has an adequate capacity to handle the process of differential diagnosis?—Based on the discussions we’ve had in this court, I would say no.

No, you do not have a capacity to decide it?—I have a capacity to say that I do not think she has that ability at present.

Right.  Is that a skill quickly learned?—It’s a skill that can be acquired quickly by some doctors; some doctors may take a lot longer to acquire that skill.  It’s – there’s a broad spectrum of-----

All right?-- ----- ability.)

I accept this evidence.  The views of Dr Small are consistent with those of most of the other doctors who had worked with the Appellant and I thought he was well qualified to express them, at least to the extent of the Appellant’s Emergency Department practice.

(iv)  Dr David Cooksley (ex 5)

  1. [138]
    Dr Cooksley is a consultant in the Emergency Department and has worked there since July 1999. He worked directly with the Appellant when they were rostered together and he was then her direct supervisor.
  1. [139]
    In an email to the Acting Director of Medical Services at the hospital, Brian Pugh (who was temporarily acting in the position previously occupied by Dr Hodges) dated 12 May 2003 (ex DGCI to ex 5) he said of the Appellant

● Her performance was below that acceptable for an intern and far below that expected of someone with several years of postgraduate experience

● She continually failed to consult appropriately. She had to be heavily supervised by consultant and registrar staff and regularly prompted to ask for help

● She exhibited resistance to being taught. She would often argue or seek ‘another opinion’

● She was unduly physically ‘rough’ with patients particularly children

In his email he mistakenly referred to JY as a “woman”.

  1. [140]
    In a later letter to the Board dated 22 October 2003 (in ex 5) he said:

“I observed Dr Helen Tsigounis working as an Intern in the Emergency Department from October 02 to January 03. 

…

General feedback to me from the Emergency Department Registrars was that they found Dr Tsigounis difficult to supervise as she required constant close supervision and didn’t discuss all the patients she had seen with them. They also regarded her as being difficult to teach. She appeared to be ‘set in her ways’ and reluctant to be directed in patient assessment and management issues.

…

I believe that Dr Tsigounis had little, if any, insight into her performance as a doctor and little, if any awareness of her own limitations and when to seek assistance. Until she improves in those areas, I believe that it would be dangerous for Dr Tsigounis to practice medicine in a non-supervised capacity.

I was very surprised to learn that Dr Tsigounis had been given a good term assessment.”

  1. [141]
    In the letter he referred to the pelvic vaginal examination, the meningitis patient (but incorrectly stated the Appellant had performed a lumbar puncture and had diagnosed the patient as having acute bacterial meningitis) and the drug administration incident. To the extent that his opinions are based on the pelvic vaginal examination I will disregard them; there is though more then enough other support for his opinions and they are consistent with my own view of the evidence. At the time he wrote this letter he had not reviewed JY’s patient notes, hence the mistake about the lumbar puncture (T702). This does not in my view, detract from the substance of the opinions he expressed in the letter or his later evidence in relation to the meningitis incident because by then he had read the notes and knew what had happened.
  1. [142]
    He was surprised at the Intern Assessment reports on the Appellant by Drs Coley and Ashley and “cannot concur with their content” (ex 5 paras 11 and 12).
  1. [143]
    He conceded in cross-examination (T695) that his direct contact with the Appellant was “fairly minimal” and (T710) that for almost all of the particular incidents he referred to in his email and letter he was relying on what others had told him.
  1. [144]
    I am unable to accept the Appellant’s written submission that the mistakes he made in his email and letter (which were perpetuated by Dr Yuen in her report to the Board, see para [17]) are suggestive of such a “careless and cavalier” approach that his opinions should generally be rejected. I accept the explanation he gave.

(v)  Dr Aruna Munasinghe

  1. [145]
    Dr Munasinghe was a medical registrar and on the 18 December 2002 completed an Intern Assessment Form on the Appellant’s performance in Term 3, 2002 in the Emergency Department as follows (see ex PJK1 to ex 2):

● Exceptionally good and natural in clinical problem solving. Can remember most of the details about patients well. Very good in organising facts and presenting

● Her knowledge, skills and professional attributes were exceptional or very good

● Exceptionally good in application of basic principles of medicine in diagnosis. Also as a very good memory about patients and their problems

● Her overall performance was good to excellent

  1. [146]
    Dr Munasinghe did not give evidence. Dr Small said (ex 7 para 11) that Dr Munasinghe was not a member of the Emergency Department staff during the period that the Appellant worked in it and he does not know on what basis his assessment was made. In evidence he said (T340-2) he was not in fact a medical registrar, was never part of the Emergency Department “medical staffing” and had “no role within the hospital structure to provide intern assessments for doctors in the Emergency Department.”  Dr Cooksley said (ex 5 para 11) that he was a medical registrar and “not qualified to give a report on an Emergency Department term as he would not have sufficiently observed (the Appellant’s) performance at that time.”
  1. [147]
    The Appellant seemed to suggest (T341-2) that because she interacted with Dr Munasinghe in the admission of patients from the Emergency Department to a medical ward this qualified him to assess her as an Emergency Department intern. I cannot accept this. I accept the evidence of Drs Small and Cooksley that Dr Munasinghe was not qualified to report on the Appellant’s performance in the Emergency Department. I am unable to accept his assessment beyond the fact that she may have performed well in the transfer of patients between departments of the hospital.

(vi) Dr Mark Elcock (ex 6)

  1. [148]
    In his statement (ex MSE1 to ex 6) he said

“I worked approximately 10-15 shifts with Helen while she was in the Emergency Department.  I had enough involvement with Helen to form an opinion of her performance as a doctor. My assessment of her was not that she was a bad clinician (her investigations and treatment were of a standard I would expect of an intern) but I believe her attitude and dealings with patients needed improvement. She also did not appear to have a lot of insight. I formed the opinion that she was overconfident and overestimated her abilities.

In my experience, interns usually discuss with the consultant how to best treat patients, apart from in relation to routine matters. The impression I formed was that I would give instructions to Helen about how to treat a patient and they would not always be followed. I felt I had to chase her up to make sure my instructions were followed through”

  1. [149]
    In the same statement he said that he completed an Intern Assessment Form on the Appellant (which has since been lost) at the end of Term 4, 2002 at which time he had probably worked 7 shifts with her (T395). He cannot recall what he wrote but the two incidents he referred to in his evidence (see paras [110-114]) had not then occurred and he believes he gave her a satisfactory assessment but made “some comments about her patient handling skills and her insight.”  I have already discounted the second of the two incidents he spoke about.
  1. [150]
    In an email to Mr Pugh dated 9 May 2003 (ex 6) he recorded both incidents and described her behaviour as “inappropriate”. The email continued:

“It is not a lack of clinical knowledge in this doctor that is the problem but the lack of insight that her behaviour is inappropriate. Despite speaking to her about these I still do not think that she feels she did anything wrong.”

This is partly incorrect because he did not in fact speak to the Appellant about the pelvic vaginal examination (see para [138]).

  1. [151]
    In cross-examination he said (T385-6) his opinion was based on the two incidents and “day to day activities/witnessing day to day practise.” He continued

“I’ve been working with Queensland Health for 16 years and observed many interns in my time and one’s assessment of interns is not based solely on formal submissions or allegations.”

  1. [152]
    See also his evidence at T387-389 and 396. His concern was not so much with her clinical skills, clinical competency, but with her lack of insight into her own experience, lack of judgment, over confidence and generally inappropriate behaviour in terms of her response to or behaviour with patients, their relatives and staff and to patient management plans.
  1. [153]
    When asked to comment on Dr Shellshear’s assessment of the Appellant (see para [103]) he said (T397) it was “certainly at odds” with his own and that working in a “busy emergency department (with its pressures) is very different to working in a paediatric ward.”
  1. [154]
    Subject to discounting the pelvic vaginal examination incident I accept the opinions of Dr Elcock. I thought his experience and working involvement with the Appellant well qualified him to form a judgment on the Appellant’s performance in the Emergency Department.

(vii)  Dr Jim Holland

  1. [155]
    Dr Holland worked in the Emergency Department and on 18 December 2002 completed an Intern Assessment Form on the Appellant’s performance in Term 4, 2002 as follows (se ex PJK1 to ex 2):

● Efficient use of time and is keen to ask lots of questions – likes to understand processes and have reasons for doing what we do.  Confident to impart learned skills to medical students

● Her knowledge, skills and professional attributes were very good, good or satisfactory

● Overall, a commendable performance especially on nightshift when more time is spent working independently

● Her overall performance was good to excellent

  1. [156]
    Dr Holland did not give evidence. Dr Cooksley said (ex 5 para 12) that he “cannot concur” with his assessment. I prefer the assessments provided by those doctors who did give evidence. Dr Holland’s assessment is not supported by the other evidence which I accept.
  1. [157]
    Dr Elcock counter-signed Dr Holland’s Intern Assessment Form but says (ex 6 para 5) that he felt he was “not in a position to alter what Dr Holland had written as he had spent more time with (the Appellant) than myself” and that the two incidents he referred to in his evidence (one of which I have disregarded) had not then occurred; those incidents he said (T384) “altered” his opinion.  I accept what he says and am not prepared to find that his countersignature adds any weight to Dr Holland’s assessment.

Conclusion as to Emergency Medicine

  1. [158]
    I am satisfied that the Appellant has not satisfactorily completed this aspect of her internship and that the Board’s conclusion to this effect is correct.

Cardiology 14-30 April 2003

  1. [159]
    In this two week period the Appellant generated many complaints and concerns about her performance. There were so many that Dr Paul Martin, cardiology registrar, Coronary Care Unit (CCU) (ex 21) and Dr Priyantha Ranaweera, cardiology registrar, CCU (ex 27) met with Brian Pugh on about 1 or 2 May 2003 to discuss their concerns (see also ex 1, tab 5). Mr Pugh’s file note of this meeting is as follows:

“Drs Paul Martin and Priyantha Ranaweera met with me to discuss Dr H Tsigounis. Both have concerns about her performance.

During the discussion the following points were raised

  • Repeated Medication errors – no improvement – continue to happen despite intervention.
  • Refused to work
  • Problems with Nurses
  • Dr Singh has raised issues
  • Dangerous
  • Something will happen
  • Can’t trust her or her medicine
  • We need to know the truth
  • Antagonistic attitude
  • Not doing the Resident’s job the way it should be done.
  • Not prepared to learn
  • Not payment attention. This can cause problems
  • Potential for harm to be caused.

I advised both persons I considered the matters raised to be serious and that in fairness to Dr Tsigounis I would need for them to put their concerns in writing asap and that I would discuss the matters with her.”

  1. [160]
    It is necessary to refer to the various incidents which led to this meeting.

(a)   Cardioversion incidents, 21 & 22 April

  1. [161]
    These are referred to in paras 7 and 8 of the Statement of Nurse Rachel Neil (ex RMN1 to ex 14). Despite instructions to the contrary on both occasions the Appellant held the charged paddles in the air for a few seconds causing risk to the patients and attending staff. She said she knew how to carry out the procedure yet this was not apparent to those present and she was not receptive to correction.
  1. [162]
    The Appellant did not cross-examine Nurse Neil about these incidents notwithstanding that Yarra Legal (letter dated 12 March 2004, ex JO36 to ex 34 page 23) denied that they occurred and said she had not previously used a defibrillator. I accept the evidence of Nurse Neil including that the Appellant told her she “was experienced in using the equipment from when she was in Greece.”  The second incident is supported by Dr Priyantha Ranaweera, (ex 27 para 7.3 and T377-380) whose evidence I also accept.  He said he would not have let her use the equipment without first showing her what to do had she not told him of her prior experience.  I cannot accept the Appellant’s version as stated in the Yarra Legal letter, page 28.
  1. [163]
    In her affidavit, ex 56, page 32, the Appellant resiled partly from her earlier stance saying:

“This is a difficult procedure in which I did not claim expertise. I regret any concern which may have arisen from any difficulties in performing this procedure … I have no recollection of unwarranted and repeated mistakes or demonstrations of this procedure.”

To the extent that this conflicts with what Nurse Neil said I cannot accept it. 

(b)  Morphine – Maxalon incident, 23 April

  1. [164]
    Patient “A” was allergic to morphine. This was clearly stated on the patient’s chart and to reinforce this Nurse Margaret Weber (ex 28 para 7.1.3) crossed out morphine and wrote “Has an anaphalatic (sic) reaction.”  Such a reaction can be fatal.  Patient “A” was also allergic to Maxalon and this was also clearly stated on the chart.   The Appellant prescribed both morphine and Maxalon for the patient. 
  1. [165]
    The Appellant said (Yarra Legal letter (ex JO36 to ex 34)) that she had no recollection of patient “A” but conceded she was “generally aware of the seriousness of adverse reactions to morphine and Maxalon respectively”.  In her affidavit (ex 56 para 201) she says she does not believe she would have prescribed any drug “for which there was a clearly notated anaphylactic alert recorded.” 
  1. [166]
    I accept the evidence of Nurse Weber; she was not cross-examined on the incident. Fortunately no harm came to the patient but the incident clearly reflects a concerning inattention to detail on the part of the Appellant.

(c) X ray and CT scan incidents, 27 April

  1. [167]
    These are referred to in an email from Dr Suzanne Langlois, Director of Medical Imaging to Brian Pugh (ex 1 tab 5.12) but in each case the Board is unable to exclude that the Appellant was acting on orders from a Registrar.

(d)  The Frusemide/Magnesium patient, 28 April   

  1. [168]
    The patient was admitted for commencement of carvedilol but the Appellant failed to record this on the patient’s medication chart during admission. The chart was mislaid. (It was later located). The Appellant did not want to start a new one. That was not an unreasonable attitude. She said she would “deal with the matter later” (ex 15) but she did not and had not attended to it by the time her shift ended.  The patient was not commenced on the medication until the following day.  Later the Appellant prescribed a double dose of frusemide (Lasix 80mg – take 2 tablets B D instead of 40 mg – take 2 tablets B D or 80 mg B D). The on-call resident was paged and the order rectified.
  1. [169]
    The Appellant also incorrectly prescribed 2.5mg Magnesium by suppository for the patient. The standard dose is 500mg and it is only available in tablets or in intravenous form.
  1. [170]
    These incidents are described by Nurse Gayle Doe (ex 13 and T 435-437, 444-448) and Nurse Kindee Lawty (ex 15) in relation to the admission incident. The Appellant admitted the magnesium mistake and that 40 mg of frusemide is the standard dose. She did not admit any wrongdoing as to the admission of the patient, see Yarra Legal letter, ex JO36 to ex 34 pages 22-23.
  1. [171]
    I accept the evidence of Nurses Doe and Lawty. A higher dose of frusemide was not warranted and the Appellant should have followed up the earlier failure to record the patient’s medication before she completed her shift. I do not accept that a higher dose of frusemide was warranted as contended by the Appellant in ex 56 para 148. In evidence the Appellant said she did not recall the Lasix incident and couldn’t now say why she increased the dose. She admitted that the magnesium prescription was misleading; by “supp” she meant supplement not suppository. I find this explanation to be disingenuous.

(e)   Consent for cardioversion, 28 April

  1. [172]
    In her memorandum (ex GMD 2 to ex 13) Nurse Doe said:

“7.  Consent for cardioversion filled out by Dr Tsigounis and       signed by the patient but the procedure omitted from the form.”

She said that the Appellant was asked to complete the form correctly and her response to this request was antagonistic.  In her affidavit (ex 13, para 5.6.1) she says “Kindy Lawton (sic) advised me of this during the shift that it occurred”.

  1. [173]
    Nurse Lawty (ex KLJ1 to ex 15) refers to a consent “done by (the Appellant) that had all the risks of the procedure but not the actual procedure itself.”  In her affidavit (ex 15 para 7.1) she says:

“I needed her to write the correct procedure.

  She was with the registrar at the end of the bed. I was with a group of other doctors and noticed that she was on call so went up to her while the registrar was speaking to another patient and spoke to her very briefly and asked her to get his consent when she got round to the patient. She did not seem to have an adverse reaction.”

  1. [174]
    Holding Redlich (ex JO26 to ex 34 page 3) denied “allegations made by Nurse Lawty” and Yarra Legal (ex JO36 to ex 34 page 23) denied this particular incident.
  1. [175]
    In evidence Nurse Doe conceded (T438) that she had not witnessed the incident herself. Nurse Lawty was not cross-examined about it and it was not put to her that it did not happen. In the circumstances I am satisfied that I can act on what Nurse Lawty said happened.

(f)  The angiogram consent, 29 April

  1. [176]
    According to Nurse Doe (ex GMD2 to ex 13, para 8) nursing staff requested the Appellant numerous times over several days to obtain the patient’s written consent to an angiogram. The form had not been completed when the patient was due for the procedure and the Appellant was then urgently required to attend to the matter. The form has to be completed by a doctor. The Appellant complained about having her ‘rounds” interrupted to obtain the patient’s consent. According to Nurse Lawty (ex 15) who was the nurse who “interrupted” the Appellant, the Appellant later said to and of her “Some nurses around this place should watch their backs because they never know what may happen.”  The nursing staff were upset and concerned about what they regarded as a threat by the Appellant.  They reported the matter.
  1. [177]
    Holding Redlich (ex JO26 to ex 34 page 3) denied the “allegations made by Nurse Lawty” as did Yarra Legal (ex JO36 to ex 34 pages 22 and 23) but conceded “the serous nature of the alleged incident” (the threat) but the Appellant did not cross-examine Nurses Lawty or Doe about it and appeared only (T449) to question Nurse Doe about whose responsibility it was to obtain consent forms for angiograms.  In her written submissions the Appellant contended that Nurse Lawty’s version of the threat to her “was exaggerated”.  I cannot accept that.  I detected no hint of any exaggeration on the part of Nurse Lawty.
  1. [178]
    I accept the account of events given by Nurses Doe and Lawty. The Appellant did not seriously contest what they said.

(g)   A second consent incident, 30 April

  1. [179]
    According to Nurse Doe (ex 13) the Appellant asked a hospital social worker to obtain the telephone consent of a relative of a patient to the patient undergoing cardio thoracic surgery. This was an improper request; it was not the social worker’s job to obtain the consent of a patient to an operation. Later the Appellant faxed a blank consent form to the patient’s general practitioner who completed it and faxed it back to the hospital. The general practitioner was not able to give consent, consent must be given by the patient.
  1. [180]
    Yarra Legal (ex JO36 to ex 34 page 22) admit that the Registrar gave the Appellant the task of obtaining consent for the operation but deny that the Appellant faxed a consent form to the general practitioner for his signature or that the Appellant requested a social worker to obtain the consent; the Appellant said she telephoned the doctor “to obtain some history on the patient and to gain assistance in locating relatives in case their consent was needed in the circumstances” (see also ex 56 para 146).  In her affidavit (ex 56 para 146) the Appellant says she contacted a social worker “for assistance in contacting the Aboriginal Liaison Officer … to assess the patient.”  The patient was an aboriginal lady.
  1. [181]
    In evidence Nurse Doe said that after speaking to the social worker she spoke to the Appellant. Her evidence continued (T433-434):

“I spoke to Helen myself about getting the consent and she said it’s all right, she will organise for the general practitioner on – of this patient who lives – who was up in the country town – to organise the consent, which she did.  She then gave me – this was over a day or so.  She then gave me a copy of the consent, which had been faxed by the general practitioner to our unit, which was totally illegal because the general practitioner is not able to give consent for – for an operation that they are not performing themselves and I tore the consent up because it was not a legal consent.

Right.  And did you attempt to explain this to Miss Tsigounis about-----?--  Yes, I did.

And what was her reaction?—At the time I believe she just said, ‘Fine’, you know, ‘We’ll organise something else.’

…

Obtaining consent involves explaining to the patient-----?—Yes, it does.

-----the – the nature of the procedure-----?—And the risks-----

-----and the risks-----?-- -----associated.

-----associated with it?—Yes.”

In cross-examination Nurse Doe admitted (T442) that there was concern about whether the patient understood enough to give consent.

  1. [182]
    I accept that the Appellant faxed a consent form to the patient’s doctor which was returned to the hospital. I do not believe the Appellant when she said she didn’t do this. The social worker did not give evidence and in her absence I am not prepared to make an adverse finding against the Appellant in relation to what she said of the incident.

(h)  Inappropriate medication requests to nursing staff

  1. [183]
    In her memorandum (ex GMD2 to ex 13) Nurse Doe lists the following as one of the “concerns nursing staff have with the clinical management of patients” by the Appellant:

“6.   Nursing staff being requested to fill out medication and IV orders and ‘she will sign later.’”

Such a practice, she says, is contrary to policy.

  1. [184]
    In her affidavit (ex 13 para 5.5.1) Nurse Doe said “Kindee Lawty told me about these incidents” and in her evidence (T437) she said she was not personally involved in these incidents. They are not mentioned by Nurse Lawty in either her affidavit or her evidence.
  1. [185]
    In these circumstances I am not prepared to act on the hearsay evidence of Nurse Doe.

(i)  Cardiac test forms

  1. [186]
    According to Nurse Doe (ex GMD2 to ex 13) forms completed by the Appellant were faxed to the cardiac investigation unit but the tests required to be undertaken were not stated on the forms. The Appellant was paged and asked what test was needed and nursing staff then informed the unit.
  1. [187]
    Nurse Doe says (ex 13 para 5.8.1) that she didn’t witness this happening but was told of it by Nurse Lawty. The incident wasn’t mentioned by Nurse Lawty when she gave evidence nor is it referred to in her affidavit, ex 15.
  1. [188]
    Holding Redlich (ex JO26 to ex 34 page 3) denied “the allegations made by Nurse Lawty.”
  1. [189]
    Faced with this denial had the Board wished to pursue the matter evidence should have been lead from Nurse Lawty. In the circumstance I am unable to place any weight on the evidence of Nurse Doe as to this incident.

(j)   Another cannulation incident

  1. [190]
    This is described by Nurse Doe in the following terms (ex GDM2 to ex 13):

“2.  Cannula inserted into a patient’s arm and left exposed with no dressing and no bung. The cannula had pierced a vein and blood had pooled on the floor although it had stopped actively bleeding. The patient was very distraught as was the RN who reported it to me.

Action: Cannula removed, patient and husband comforted and Dr Helen Tsigounis paged numerous times but did not respond. Dr Priyantha Ranaweera, cardiology registrar notified.  Nursing staff member still upset over this incident a week later and support continuing.”

  1. [191]
    Nurse Caroline Darr (ex 18) described what happened as follows

“4. The one occasion I had direct contact with her (the Appellant) was in relation to the insertion of a cannula into the arm of a female patient, who had been admitted to the Medical 3 unit to undergo an angiogram.  A cannula had to be inserted into the patient’s arm for that procedure…Dr Tsigounis attended the patient to insert the cannula.

7. Dr Tsigounis tried to insert a cannula unsuccessfully twice. I could see that the patient was a little distressed, for example, she was screwing her face up and squeezing her husband’s hand. On her third attempt to insert the cannula, Dr Tsigounis got flush back (meaning that the cannula was into a vein) but the cannula then tissued and was not working.  I recall that the cap for the cannula was laid out with the other equipment but Dr Tsigounis did not insert it into the end of the cannula.

8. Dr Tsigounis said words to the effect of: ‘It’s not working’; she then walked out of the room before I had an opportunity to say anything.

  1. After attempting to console the patient; who was quite distressed, I went out to the nurses station where Debbie Gregory was and said words to the effect:

‘Dr Tsigounis tried to put the cannula in and failed, have you seen her?’

  1. Neither Debbie or I could find Dr Tsigounis on the ward.I do not recall whether one of us tried to page her.
  1. Debbie then came into the room and looked at the cannula that Dr Tsigounis had inserted in the patient’s arm. Debbie said that if it was not working, we would have to take it out. I took out the cannula.

12.  I recall that the patient was a bit distressed…

  1. I do not recall who put the cannula in the patient’s arm   after that.”
  1. [192]
    Nurse Deborah Gregory (ex 18) described her involvement in the incident:

“6.   When I entered the room, I saw that the cannula was inserted into the back of the patient’s hand but that it did not have a bung in it so blood was trickling out of it. The blood was not gushing out of the cannula.  This indicated to me that the cannula may not have been properly inserted. The patient’s blood had dripped onto the bed and onto the floor.

  1. A bung is inserted into the end of the cannula to prevent infection and bleeding. I also noticed that no bandaging had been put around the cannula to support it.
  1. I did not remove the cannula immediately as I wanted someone senior to me to see it. I went out and found the Nurse Practice Coordinator, I believe it was Gayle Doe, and asked her to come and look at it. Gayle came to see the patient and when she saw the cannula, she said: ‘Remove it’.
  1. Before leaving the room to get Gayle, I said to Caroline that we would have to take out the cannula. She said that she would get the equipment ready to take it out. I believe that Caroline removed the cannula.

11. The patient was very upset by the incident.”

  1. [193]
    Yarra Legal (ex JO36 to ex 34 pp 24 and 25) said that in the absence of patient records the Appellant was “unable to respond to this allegation other than to deny that it occurred.”  In her affidavit (ex 56 para 167) the Appellant denied “the allegations.”
  1. [194]
    I initially thought that Nurse Gregory was mistaken about the involvement of Nurse Doe as the latter said (ex 13 para 5.2) she was only told of it by the former one of two days later but in evidence (T434-435) Nurse Doe said she did in fact attend the patient. She said

“The cannula incident; tell us about that?—At the time I was unaware that it was Dr Helen that was involved in that.  One of my nurses came up to me and said – quite upset that the patient had had a cannula put in the – the hand and it had been left uncapped and undressed and the doctor had gone off and said that she would be back shortly.  When I went and saw the patient the – the patient also had a family member with them, they were quite distraught over it. There had been some pooled blood on the – on the floor because the hand was hanging over the edge of the bed, but it was not still bleeding but it obviously had been bleeding, and it definitely had no cap on it, which meant that the cannula was open to air and infection, and as it’s well, supposedly in a vein we have a direct route of infection into the patient.  I – well, the nurse that was involved was very upset, as well, and when I did-----

Was – Debbie Gregory was one nurse?—Debbie Gregory, yes.

And who was the other nurse?—Carolyn Darr was the other nurse.

Yes?—Yes. The cannula was removed immediately and when I did-----

And was it in a vein?—Well, it must’ve penetrated a vein for the blood to actually have pooled on the floor.

Sure?—Yep.

That’s at some stage?—At some stage, yes.

And maybe gone out the other side?—But it had – it was not actively bleeding at the time.

No?—And when I did some investigation over who – who was the doctor that was involved in actually putting the cannula in – ‘cause I never actually witnessed-----

Mmm?-- -----the cannula going in, I found out it was Dr Helen.

In your 28 years of nursing how many times have you experienced doctors putting in a cannula which apparently didn’t work and then walking away?—Never, never.

What would you do if one of your nurses did that?—I would reprimand them and probably put them through a training course on how to insert cannulas.

Well, it’s not just the – putting in a cannula, is it, it’s the – the leaving the patient?—It’s – yes, leaving the patient;  the risk of infection to the patient is – is huge;  the – the mental stress that the patient and the family member was under at the time, because they didn’t know what was happening.

So, so how was the patient and his-----?—Very upset, very upset.”

  1. [195]
    Nurse Doe was not cross-examined about this incident. Nurse Darr agreed in cross-examination (T403) that a “cannula can work for a while and then tissue depending on the vein” but said in re-examination (T404) “she said ‘It isn’t working’ and walked out.”  Nurse Gregory was not required for cross-examination.
  1. [196]
    I accept the evidence of the nurses. The Appellant tried unsuccessfully to cannulate the patient, gave up and left others to complete the job.

(k) Various medication errors

  1. [197]
    These are referred to by a number of witnesses.
  1. [198]
    Dr Paul Martin was a cardiology registrar at the time and is the doctor referred to in para [159]. In his statement (ex PTM1 to ex 21) he agrees that Mr Pugh’s file note reflects his recollection of the matters discussed at the meeting except that he has no recollection of any discussion about the Appellant refusing to work.
  1. [199]
    In relation to other matters he says:

“4. Helen Tsigounis was an intern in the CCU for a few weeks while I was working there.  I worked directly with Helen on a number of occasions.

5. Based upon my direct observation and reports from nursing and medical staff of Helen’s work, I became concerned about a number of aspects of her performance while in the CCU.  My concerns related primarily to the seriousness, number and repetition of Helen’s mistakes in medication dosages and her lack of improvement despite counselling.

7. One of the concerns I had was Helen’s repeated errors in prescribing, particularly medication dosages that continued in spite of my encouragement and counselling.  Although I cannot now remember patient names and dates, I recall that on a number of occasions, Helen wrote up an incorrect dose of a medication on a patient’s chart.  To the best of my recollection, the medication errors Helen made included for example, medications such as clopidogrel (plavix, iscover) which is used in CCU to thin the blood of sick patients.  Errors in the dosages of these types of medication can cause excessive bleeding and have serious consequences for a patient.

8. When I became aware of a medication mistake Helen had made, I would bring it to her attention so that she may be aware of and learn from her mistakes.  I also suggested on a number of occasions that one way of avoiding such mistakes was to look up dosages in one of various available reference sources, such as, the mini MIMS or the full MIMS, copies of both were available in the CCU.  Similarly, I suggested that if she was unsure about a medication dosage, she could ask her senior. Despite my advice, Helen made repeated mistakes in dosages for the same medications.

9. One day when I was on a ward round with Helen, a nurse approached us and pointed out a medication mistake in a patient’s chart to Helen.  I recall that Helen responded to the nurse in what I thought was an antagonistic manner.  Although I do not remember the words Helen used precisely, I recall that it made me think that she felt that she was being shown up in front of her seniors.  Later in the ward round, I spoke to Helen about this incident.  I told Helen that it was in her best interests that medication errors be brought to her attention and that she should not react in a negative way when they are.

10. My overall impression of Helen was that she was finding it difficult to listen to or accept advice when it was given.  Further, Helen’s repeated dosage errors, even following counselling, meant that our seniors (including Brian Pugh) had to be alerted.”

  1. [200]
    Yarra Legal (ex JO36 to ex 34 page 25) contended that these “allegations are vague, general and unsubstantiated by production of clinical notes relating to the specific patients (and that) in these circumstances and given the time which had passed since the alleged incidents are said to have occurred our client is unable to fully respond to the allegations other than by a denial that such incidents occurred”. In ex 56 para 175 the Appellant says she does not recall any specific errors to which Dr Martin refers. She continued:

“I acknowledge that it was my first experience of CCU and many of the drugs and treatments were new to me.  Initially, I was learning and was not given responsibility for making prescribing decisions.  During ward rounds with the consultants and registrars my role was largely that of writing up their verbal drug orders, which were sometimes changed.  It was my practice to ask many questions about the cardiac drugs and the protocols particular to that ward, and I often looked up information in MIMS. I do not recall specifically Dr Martin recommending to me that I refer more often to MIMS, although I do recollect Dr Ranaweera suggesting it on a specific occasion.”

  1. [201]
    Dr Martin was not required for cross-examination and in these circumstances, notwithstanding the criticism levelled against him and the account given by the Appellant in her affidavit, I am prepared to accept what he said.
  1. [202]
    Dr Koco Xhori (ex 8) was a resident medical officer who worked with the Appellant for about 3 weeks in April 2003. In his statement (ex KX1 to ex 8) he says:

“7. I remember being asked on numerous occasions by nursing staff, including Meaghan Bell, Rachel Neil etc., to come and correct medication doses and frequency mistakes made by Helen in patient charts.  Although I have not been able to locate all the relevant charts, I have been able to locate the following examples:

7.1 Patient A - On 16 April 2003, Helen prescribed 5mg of metaprolol for a 77 year old male patient.  She did not prescribe the frequency the drug was to be given in the chart.  In my experience, 5mg is not an appropriate dose for metaprolol.  When I reviewed the chart in relation to this patient sometime later on 16 April 2003, I changed the prescription for metaprolol to 12.5mg bd, that is twice a day.

7.2 Patient B - On 17 April 2003, Helen prescribed 40mg of Brufen for patient B.  The correct dosage of Brufen is 400mg.

7.3 Patient C - On 24 April 2003, Helen prescribed Lasix for patient C to be given on a ‘PRN’, that is an as needed basis.  Lasix is a diuretic.

7.4 Although I cannot locate specific examples of where I have personally crossed it out, I recall that Helen prescribed Clexane on at least 4 or 5 occasions orally and that I was asked to correct it.  Clexane is given subcutaneously.  It is not given orally.

8. I recall that a couple of weeks after Helen and I started working together, one of the registrars, Dr Umesan, asked me on 2 or 3 occasions to look after Helen because she was making gross mistakes in the charts.  I recall that I told Dr Umesan that I would not check up on Helen because it was not my job to supervise her.”

  1. [203]
    In relation to the prescription of Lasix ‘PRN’ Dr Xhori said (ex 8 para 4.2.2)

“In my experience, Lasix is not prescribed on an as needed basis because this leaves it up to the nurses to decide when the patient should be given a dose.  It was Helen’s responsibility as the doctor prescribing Lasix to assess the patient and determine based on the patient’s clinical presentation whether the Lasix should have been given once, twice or three times a day.”

  1. [204]
    Dr Umesan has not provided a statement or given evidence and in those circumstances I am not prepared to act on what Dr Xhori says he was told by Dr Umesan.
  1. [205]
    Yarra Legal (ex JO36 to ex 34 page 19) responded to para 7 of Dr Xhori’s statement in the following terms

“As to paragraph 7.1 - Our client recalls this incident and instructs that she was told by a nurse that the patient was receiving doses of 5mg and started completing the chart on that basis.  Our client instructs that she then realised this was not the correct dosage and consulted MIMS.  She then called Dr Xhori and confirmed the correct dosage which was then written up on the drug chart.

Paragraph 7.2 - Our client instructs that in this circumstance she copied drugs from previous drug chart and acknowledges that a mistake was made, for which she apologises.  She notes that the drug was administered 4 times before the mistake was recognised and the dosage revised.

Paragraph 7.3 - Our client recalls this incident with the assistance of the records and instructs that she began writing ‘Lasix PRN’ - meaning that the dosage would depend on re-assessment of the patient from time to time.  When our client became aware that the nurses were confused by such terminology, she changed the drug chart herself.

Paragraph 7.4 - Our client instructs that she wrote up the drug Clexane to be administered ‘OD’ meaning once daily.  Our client cannot comment on the interpretation of others.”

See also ex 56 paras 114-117.

  1. [206]
    Dr Xhori was not cross-examined about these matters. So far as “OD” is concerned Dr Xhori was not asked to comment on the Appellant’s explanation and I am prepared to give her the benefit of doubt in relation to it.
  1. [207]
    Medication errors by the Appellant are also described by Nurse Rachel Neil (ex 14) in the following terms:

“10. As a shift co-ordinator, I review the charts for all patients in the ward during a shift, I recall three specific occasions when I came across mistakes in Helen’s writing up of medication. Based on my experience of seeing Helen sign charts and prescriptions previously, I recognised Helen’s signature in relation to the three following incidents:

10.1 Three patients were prescribed clexane (a bloodthinning product) orally by Helen.  This drug does not come in oral form, it comes from the drug manufacturer in a pre-filled syringe and is therefore designed for subcutaneous administration.  These prescriptions were given to the three patients on different dates:

10.1.1  Patient A - 14 April 2003.

10.1.2 Patients B and C on 17 April 2003.

10.2 Helen prescribed a heart attack patient, who was at risk of suffering pulmonary oedema Lasix (a diuretic) incorrectly on about three occasions.  She prescribed Lasix for the patient as PRN (when necessary).  It is not appropriate to leave this medication to the nurses discretion of when it necessary.  After the Lasix was crossed out on 24 April 2003, I do not know by whom, Helen failed to write it in the chart at all.  The result was that the patient only received one dose of Lasix on 23 April 2003.

10.3 Anginine was prescribed by Helen to a patient on 14 April 2003 and 15 April 2003 to be given sub cutaneously.  Anginine is a vaso-dialator that is designed to alleviate chest pain.  It comes in the form of a tablet which is administered by dissolving it under the tongue.  On 16 April 2003, Helen then prescribed the drug sub-lingually.

11. I recall that on at least two occasions I came across mistakes that had been repeated in the charts on a number of occasions despite the fact that I had told her they were incorrect and given her the MIMS or the drug protocols.”

  1. [208]
    The patient prescribed Lasix ‘PRN’ is the same patient as that referred to by Dr Xhori. During the evidence of Nurse Neil the Appellant conceded (T464-470) that she should not have written ‘PRN’. The statement of Nurse Weber (ex MAW1 to ex 28, para 7.1.6) that the same patient was prescribed ‘oral pravochol PRN’ is now conceded to be wrong (T660-661). Nurse Weber also says (para 7.1.4) that the Appellant prescribed the patient referred to in para [164] who was allergic to Maxalon the drug on a PRN basis. There is no record in the chart though of the patient receiving any Maxalon. It is inappropriate and potentially dangerous to prescribe a drug PRN (pro res nata = as things arise).
  1. [209]
    As to the prescription of Lasix ‘PRN’ Yarra Legal said (ex JO36 to ex 34, page 29):

“As to the general criticism of our client having prescribed Lasix to be given ‘PRN’ she instructs that her intention in doing so was to indicate that the patient’s need may vary, depending on later clinical assessment.  It was not meant by her to indicate that the nursing staff should make this assessment.  Dr Tsigounis understood that if the nursing staff were unsure as to any issue in her notes and drug orders, then the appropriate course would have been for the nurse caring for the patient to contact her with that query.  This did not occur.”

In evidence (T793-794) the Appellant admitted that it was an error to write “Lasix PRN” as that is misleading and confusing.  She said she realised this when she was told about it.  This is quite inconsistent with the earlier arguments advanced by her which I have just mentioned.               See also ex 56 para 204.  I cannot accept this explanation; it is contrary to the understanding of other witnesses whose evidence I accept.  In my view the issue in relation to the prescription of Lasix was not whether it should have been prescribed (and in this respect the Appellant referred to what she contended was a conflict in the evidence of Nurses Neil and Weber) but the additional notation ‘PRN’ which should not have been written.  Nurse Neil referred (T452-453) to potential problems which could arise with junior nursing staff and I accept what she said.

  1. [210]
    Yarra Legal (ex JO36 to ex 34 pages 23-24) admit that the Appellant “inadvertently” wrote clexane orally; she says she amended the chart on 17 April 2003.  As to the Anginine she says she wrote “S/L” meaning “sub-lingually” and that “may have been erroneously interpreted as “S/C”.  See also ex 56 paras 155 & 157.  I must say that as it is written the writing on the chart looks to me like “S/L” not “S/C”.
  1. [211]
    Nurse Weber (ex MAW1 to ex 28, para 7.1.11) also refers to the prescription by the Appellant for a patient of Temazepam on 23 April 2003. Temazepam is a sleeping tablet that only comes in an oral form yet the Appellant prescribed it twice - once orally and once intravenously. The intravenous prescription has been crossed out. Yarra Legal (ex JO36 to ex 34 page 29) admit that the prescription of Temazepam “I/V” was a mistake.
  1. [212]
    Nurse Kindee Lawty worked the weekend prior to 29 April 2003 with the Appellant. She says (ex KJL1 to ex 15) that the Appellant wrote the dose and route of a potassium supplement, Span K, incorrectly and Nurse Lawty was required to have the on call resident medical officer change it. Yarra Legal (ex JO36 to ex 34 page 24) effectively said the Appellant could not recall this incident. See also ex 56 para 60. Nurse Lawty was not cross-examined about the incident. Notwithstanding the absence of the patient’s notes or chart and the absence of any statement by the resident medical officer, I accept what Nurse Lawty says.
  1. [213]
    Nurse Meaghan Bell (ex 26) described an incident with a patient initially receiving a glyceryl trinitrate infusion - GTN - which was then ceased and later started again. The consultant responsible for the patient was Dr Yadu Singh (T296). In the absence of evidence from him, and there was none, I am unable to conclude from the evidence of Nurse Bell that what the Appellant did was inappropriate or that she was not acting on instructions from Dr Singh.

(l)  Unexplained Ward Absences

  1. [214]
    Nurse Neil (ex RMN1 to ex 14, para 12) and Nurse Lawty (ex KJL1 to ex 15, para 5 refer to unexplained absences from CCU and difficulties in contacting the Appellant by pager.
  1. [215]
    These were not brought to the Appellant’s attention until mid February 2004 and without more details the Appellant said she could not adequately respond to the allegations (Yarra Legal, ex JO36 to ex 34, page 24 and ex 56 para 161 where she denied she was difficult to contact).
  1. [216]
    Nurse Neil was not cross-examined about what she said in para 12 nor was Nurse Lawty about what she said in para 5. In these circumstances I accept what each witness said recognising though that the Appellant may in fact have had good reason for the absences and the contact difficulties. In evidence (T843ff) the Appellant admitted there were “problems” with her availability during her time in cardiology.  She said she was on a learning curve but was at the hospital “the whole time”.  She took one afternoon off to see Dr Liam Barry, her supervising general practitioner.  Try as he could Mr Tait SC was unable to get the Appellant to satisfactorily explain what she meant by “problems” with her availability.  Nurse Lawty admitted (T414) that cardiology “is quite a complex rotation” and I accept that.

(m)  Statements to Dr Xhori

  1. [217]
    These are referred to in ex KX1 to ex 8 and in the doctor’s evidence. I accept what he said but it doesn’t bear upon the Appellant’s practise as an intern rather it may explain some aspects of her behaviour. See also her statements to Mr Pugh, ex 1 tab 5 paras 12 & 17. Yarra Legal (ex JO36 to ex 34) and the Appellant in ex 56 para 79 denied that Mr Pugh’s account in para 17 was accurate; the conversation referred to in para 12 was not denied. Mr Pugh was not required for cross-examination and I accept his accounts. The Appellant submitted that Dr Xhori misinterpreted what she said because English is his second language. I thought he spoke very good English and I am satisfied he did not misunderstand or misinterpret what the Appellant said.

(n)   Dr Priyantha Ranaweera

  1. [218]
    Dr Ranaweera (ex 27 para 10) said that Mr Pugh’s file note (supra para [159]) reflects his recollection of the issues discussed at the meeting which were based largely on reports that he and Dr Martin had received from nurses and junior doctors in CCU. His personal knowledge of the incidents was negligible. He said (T374) that they intended to get everybody together, including the Appellant, to talk about them “and see whether we could come (to) an amicable solution” but this didn’t happen because the Appellant resigned.

(o) Meeting - Appellant and Mr Pugh, 12 May 2003

  1. [219]
    Before his meeting with Doctors Martin and Ranaweera on 1 May 2003 Mr Pugh had received written complaints about the Appellant’s performance from Nurses Donna Brown and Sue Rutherford, Christine Cubitt, Acting Client Liaison Officer and Doctors Langlois, Elcock, Cooksley and Ranaweera. I have already referred to the substance of these complaints.
  1. [220]
    On 12 May 2003 the Appellant came to see Mr Pugh in his office. Mr Pugh said there were a number of issues that had been raised by doctors in the Cardiology Department (Doctors Martin and Ranaweera) and they wanted to discuss these with her. The Appellant said she had only been in Cardiology for 3 weeks and there weren’t any problems (ex BJP4 to ex 1 tab 5.1). She asked for time off work “to fix up some outstanding issues for the Medical Board”, “to see a doctor” and to be with her ill father.  Mr Pugh said he was unable to approve leave (the hospital was short staffed and her notice was too short) whereupon the Appellant “submitted her resignation, effective immediately”.
  1. [221]
    Yarra Legal (ex JO36 to ex 34 p 13) deny Mr Pugh’s account of what was said at this meeting but do not suggest any other version. In ex 56 para 77 the Appellant says she was not provided with details of the “issues” referred to by Mr Pugh or any material supporting any such “issues”.
  1. [222]
    Mr Pugh was not required for cross-examination and I accept his account of what was said at the meeting. The Appellant provided no opportunity for Mr Pugh to discuss matters with her.

Conclusion as to Cardiology

  1. [223]
    In my opinion the evidence establishes that the Appellant did not perform her work in this area satisfactorily. If her work in cardiology had been performed as part of her internship she would not have satisfactorily completed this aspect of her internship.

The Appellant

  1. [224]
    She is intelligent and complex. She exhibits a degree of immaturity in life situations notwithstanding her age. She can be casual to the extent of being dismissive. I agree that she does not take criticism seriously or objectively but seeks to deal with it by rationalisation and minimisation. Her capacity for self-examination is extremely limited. She was sometimes tough and unreasonably uncompromising, sometimes pleasant and acquiescent (normally only when she perceived it to be in her interest), sometimes fragile and immature, and sometimes forceful and overly dogmatic to the extent of being untruthful. She exhibited a constellation of mind and mood states contributed perhaps by her deregistration and concern for her future. On the other hand she had in the past exhibited concerning personality and competency traits which had resulted in the loss of employment and extended internship. Curiously these manifested themselves in her two attempts to complete her internship in Australia – Frankston and Townsville –but not apparently in Greece.
  1. [225]
    I also accept that in a number of instances she was placed in a difficult situation in responding to complaints. She was not now able to recall some patients or relevant treatment details or to do so when responding to the Show Cause Notice. It was difficult for her to respond to complaints which hadn’t been brought to her attention at the time of relevant events more so when patients were not, until affidavits were filed, identified by reference to hospital records and charts. Even when identified it was still difficult for the Appellant to recall particular patients and clinical details.
  1. [226]
    In my view she has an over inflated opinion of her own importance, ability, knowledge and clinical skills and an inability to accept that she may have made mistakes on occasions and to learn from them. She equates intelligence with insight and judgment. In evidence she said (T830)

“I got 3 psychiatric assessments which stated a high level of intelligence, which goes against having lack of insight and judgment.”

  1. [227]
    Even making due allowance for the fact that she may not have been able to recall particular patients and details of their clinical situation and treatment, the time which has elapsed between then and now, the fact that she represented herself and was in an unfamiliar court environment, that she was concerned, worried, stressed and sometimes nervous by the allegations against her, that she was concerned about events generally and her career, that internship is a learning process during which mistakes are often made and the time which has elapsed since the cancellation of her registration and the hearing of the appeal, she was not a good witness but was difficult and non-responsive. She was obstinate, evasive and argumentative, she procrastinated, she would not give a direct answer when one was called for and she was reluctant to admit the obvious. She appeared to have diminished and flawed insight and judgment in relation to what seemed to me to be relatively straight forward matters where there was a preponderance of credible evidence against her position. She was strong willed to an unreasonable extent.
  1. [228]
    She gave misleading answers to some questions, eg her right to practise generally in Europe and her curriculum vitae (ex HT8 to ex 50) in particular “Qualifications - Provisional Registration - Victoria”.  Her curriculum vitae generally is a misleading document but she was reluctant to admit as much.  Her evidence in relation to the roster sheet for pay period 167 March 1 & 2 (in ex 50) was disingenuous and made up as she went along.
  1. [229]
    She was an extremely frustrating witness. Her recollection was, I consider, deliberately selective and I think she remembered more than she admitted to. Her concessions on certain matters were undermined by an indifference to a preponderance of evidence on others which were adverse to her position.
  1. [230]
    I have also taken into account that English is not the first language for some of the witnesses and for that reason misunderstandings could have occurred in their dealings with the Appellant.
  1. [231]
    She was inclined to delegate tasks when she should have done them herself and she seemed uninterested in tasks which she considered others should have performed. She was easily frustrated when relatively straightforward tasks proved difficult. She was impatient and could exhibit a smart, superior, even dismissive attitude, when dealing with nurses.
  1. [232]
    She thinks that everyone is against her and have conspired to bring her down and she cannot understand why. (See for example, paras 12 and 17 of the Statement of Brian Pugh, ex 1, tab 5 as to which see para [217]). This is a personality defect which has existed since her student days and earliest intern training at Frankston Hospital. She is incapable of being objective or looking at matters objectively. A blinkered subjective attitude transcends all issues and prevents her from making decisions which objectively would be in her best interests. She put the following question to Dr Rosenblum (T1179) which I wouldn’t let the doctor answer

“What would you say if a medical board made a decision against a doctor and cancelled their registration based on false complaints?”

  1. [233]
    During her internship I think she acted on occasions for reasons of personal convenience and to suit herself regardless of the consequences for others or difficulties which flowed from acting that way. She tended to simplify and distort facts to suit her own purposes.
  1. [234]
    Generally I think she behaved in a way entirely consistent with the diagnosis of Dr Kippax of a paranoid personality disorder and she exhibited those concerning personality traits which worried Associate Professor Judd. Her evidence about her consultation with Dr Kippax was implausible and I did not believe her. Her view, mistaken in my opinion, was that most of the allegations against her were either wrong or mistaken.
  1. [235]
    The evidence leaves me with considerable concern and disquiet about her ability to organise herself and her time in a way which allows her to work efficiently and competently. She displays an incapacity to learn from mistakes and an inability to realise that she still may have much to learn. She genuinely believes she has qualified as a doctor and that should be the end of the matter. Her personality state intrudes into her thought processes and decision making and makes it difficult for her to accept the need to consult, seek advice and assistance and discuss matters which others have a genuine concern about. It also means she is reluctant to accept that she may have been wrong and may have made mistakes. She seemed to suspect the motives of those trying to help almost as if they had to be wrong because she couldn’t be. She appears to be incapable of engaging in objective conflict resolution and this in turn caused personality conflicts which she interpreted as a conspiracy against her. Those personality conflicts may also have caused others to elevate their concerns about her beyond the significance which they otherwise would have attributed to them had she been more receptive to issues and willing to admit her mistakes and learn from them.
  1. [236]
    She is argumentative and extremely self-opinionated. When she commenced her employment at the Townsville Hospital she was already a doctor qualified to practise in Greece. As a result I think she probably thought her six months internship was a matter of form, Frankston was in the past, the conditions placed on her registration were unnecessary and upsetting but had to be complied with. These matters, I think, combined to engender in her the somewhat casual and cavalier attitude she exhibited to some of her duties. I felt she thought she knew more about medical practice than is the fact and this colours her view of the present proceedings and their genesis.
  1. [237]
    She is unable to subjectively and objectively appreciate that there is real concern about her competence and realise how best to cope with that concern and resolve it. She appeared to me to be devoid of any capacity to appreciate that she may have made serious and concerning mistakes and may have more to learn. She struck me as unable to appreciate and accept that other more experienced practitioners – both doctors and senior nurses – may be genuine in their criticism of her and that there may be an objective basis for their concerns. She is inclined, relying on evidence to the effect that interns regularly make mistakes but not really accepting that she ever did, to attribute these concerns to reasons of personality or pettiness rather than professional disquiet and genuine concern about whether she knew what she was doing. At the hospital she displayed on occasions petulant impatience and a dismissive attitude and an apparent failure or refusal to understand and appreciate why others may have been concerned about her behaviour and her clinical judgment; she refused to learn and compromise and try and do better the next time.
  1. [238]
    I am satisfied that she does lack insight into her conduct and behaviour and that this is clearly related to her limited capacity for self-examination and objective analysis of events and complaints. In fairness to her it is quite possible that others could conclude that her apparent unwillingness to learn from her mistakes and lack of appreciation of her limitations is intentional whereas in fact it may be due to factors presently beyond her control and which require treatment of the nature suggested by Dr Kippax.
  1. [239]
    In evaluating the evidence I have also taken into account the following (and this is not intended to be an exhaustive list):

● her work in different departments of the hospital was somewhat disjointed and lacked consistency and routine;

● her surgery rotation was fractured;

● cardiology is a difficult area for an inexperienced intern or junior doctor to work in and the condition of patients may change rapidly;

● personality conflicts are not uncommon in hospitals or in any workplace;

● drug transcription errors are made by interns;

● cannulation is not always a simple procedure more so with children and more than one attempt may be required;

● long, busy, often hectic hours were involved on occasions;

● the picture presented to the Board was not in all respects complete or accurate or supported by first hand knowledge;

● medicine is not necessarily an exact science and sometimes opinions will differ;

● differing opinions have been expressed about her and her competence;

● the involvement of the Director of Clinical Training in her internship appears to have been somewhat remote but on the other hand the evidence was silent as to his involvement generally in the work and training of interns;

● staff records as to weeks worked and in which department leave much to be desired but she is partly to blame for not accurately or at all recording such details;

● some witnesses had more involvement with her than others;

● she has no legal training and was in a difficult position of being both Appellant and counsel.

Psychiatric Evidence

  1. [240]
    In my view the evidence in all respects confirmed the earlier opinions of Associate Professor Judd and Dr Kippax. I agree with their opinions. My observations of the Appellant are also consistent with those opinions. I am though prepared to make allowance for the stress associated with her present predicament. She does have difficulty dealing with stress.
  1. [241]
    I agree with Dr Kippax that she appears to suffer from a paranoid misperception of the intentions of others and that an “element of her self-functioning” is destroying her career.  Dr Kippax had little doubt that this trend would continue unless she actively engages in psychotherapy designed to address this aspect of her functioning.  She has not had such therapy and in my view the trend has continued.  She is incapable, without treatment, of understanding this.  Her condition is so difficult to treat that Dr Kippax advises that a separate psychiatrist should be appointed to help the treating psychotherapist keep his or her feet on the ground, to monitor progress and to prescribe medication as needed otherwise the treating psychotherapist is likely to be “sucked in” with no benefit to the patient.  Her disorder is potentially treatable but because of it, treatment is likely to be a very difficult process.
  1. [242]
    I accept the opinions of Professor Judd and Dr Kippax. Neither were required for cross-examination. Their reports were the most detailed and comprehensive of those psychiatrists who examined the Appellant. Two other psychiatrists have examined the Appellant and one has reviewed the report of Dr Kippax. Dr John Allan was her supervising psychiatrist for the purpose of her conditional registration. In a 4 line report to the Board dated 11 April 2003 he referred to regular attendances by the Appellant “for monitoring and some supportive psychotherapy” and said there were “no significant issues at this point”.  Dr John Shand assessed her at her own request in about February 2003.  His opinion was that she “has functioned well under difficult circumstances during her life” and “does not suffer from any form of psychiatric disorder - past or present” or any personality disorder.  He described her as “an intelligent young woman of superior verbal capacity and intelligence, which receives support from her curriculum vitae, some of which was presented in documents provided to me”.  I have already commented on the misleading nature of her curriculum vitae.  Judging from her background and history as recorded by Professor Judd and Dr Kippax and having regard to the Frankston Hospital complaints about her and her response to them I find it difficult to accept that she has in fact “functioned well under difficult circumstances at times during her life”.  In fact I think that her personality problems have contributed to those circumstances.
  1. [243]
    Dr Arthur Ouzas “briefly reviewed the report of Dr Kippax” in August 2004.  He disagrees that the Appellant meets the criteria for paranoid personality disorder (an Axis II disorder).  In her report dated 24 April 2002 Dr Kippax said:

“International classifications of psychiatric disorder, for example the current DSM-IV-R, recognise two ‘axes’ of disorder; Axis I and Axis II disorders.  Both categories imply some degree of impairment of functioning in order to meet the diagnostic criteria.  In general, writing a report that offers an Axis I disorder as a diagnosis is relatively easy.  The disorder ‘comes upon’ the individual, is seen as somehow separate to his/her being as a person, and has fairly clearly defined onset, course, signs, symptoms and prognosis.  Of course, the issues aren’t always as clear cut as this, but as a general statement this applies.

None of the evaluating psychiatrists, including myself, has found evidence for an Axis I disorder for Dr Tsigounis.

Axis II disorders are more difficult to understand, define and report on.  They involve distortions and deficits in the entire ‘being’ of the individual.  They are assumed to be lifelong patterns of personality dysfunction that have their origins in earlier development, are apparent by early adulthood, and are not easily recognised by symptoms and signs, either by the individual concerned, or by others.  One needs to survey all aspects of a person’s life and functioning to establish the diagnosis, and the process is potentially flawed by the subjectivity of the observer.  The effected individual tends to recognise something is amiss, but often attributes this to the actions of others, rather than to the self.  It is only when one views a repetitive pattern over time that personality disorders can be diagnosed.  For these reasons a more detailed analysis of the whole of a person’s life is necessary.

It is my opinion Dr Tsigounis does suffer an Axis II disorder, and this is the clinical entity that she, and others, must address in considering her future well-fare and the safety of patients.”

In his report dated 10 August 2004 Dr Ouzas said:

“Most significantly Dr Kippax writes that ‘none of the evaluating psychiatrists, including myself, has found evidence for an Axis I disorder for Dr Tsigounis’.  Moreover her diagnostic opinion is that Dr Tsigounis meets the criteria for Paranoid Personality Disorder.

I do not believe that Dr Tsigounis meets the criteria for this diagnosis.  In the first instance there is no evidence suggesting that a paranoid attitude has been characteristic of her long term functioning and certainly not of her functioning premorbidly prior to the reported difficulties in Medical School and subsequently.

It is acknowledged that stress may significantly magnify inherent personality traits and that these pathoplastic features may thus colour an individual’s presentation.  However she does not present with a sense of pervasive, unwarranted suspiciousness and mistrust of people and she does not present with a sense of restricted affectivity.  In fact she presents as warm with a sense of humour and a normal range of affect.  She is not guarded and she does not present as threatened, or defensive.  If there is a sense of ‘paranoid misconception of the intentions of others’, as Dr Kippax writes then it is solely in relation to this specific situation regarding her medical registration i.e. it is not characteristic of her global functioning.  It is also worth mentioning that Axis II diagnoses are notoriously unreliable over time.  A common difficulty lies in the area of misattribution of the impact of stressors as manifestations of trait markers (i.e. Axis II) rather than state markers (i.e. Axis I).  This is of particular importance in this case especially because of the prolonged nature of the stressors and the tendency for this significance distinction to become blurred.

My impression is that whilst she has been coping extraordinarily well with this naturally particularly stressful situation that she does in fact have an Axis I diagnosis which I believe is Chronic Adjustment Disorder with anxious mood.  Therapeutically she has not required antidepressant medication which may assist with the regulation of stress sensitivity but rather has seemed to benefit from intermittent and infrequent supportive therapy.  On this basis I suspect her symptoms would resolve once she is granted full registration and I would certainly support such a decision.”

I would say four things about the opinion of Dr Ouzas:

● In 13 days observing the Appellant representing herself, cross-examining witnesses, giving evidence and calling witnesses (even accepting that she is not a trained advocate) she presented “with a sense of pervasive, unwarranted suspiciousness and mistrust of people”, “as guarded, threatened and defensive” and as having a “paranoid misconception of the intentions of others” which I thought was more likely “characteristic of her global functioning” than the “specific situation regarding her medical registration”             

● The diagnosis of Dr Kippax was made before the Appellant commenced her internship at the Townsville Hospital and before the complaints the subject of this appeal were made

● Judging from the complaints made about her and her reaction to them I am not convinced that she has benefited “from intermittent and supportive therapy” presumably from Dr Allan, supported by Dr Barry

● Without treatment I have grave reservations about whether her symptoms will resolve if she is granted full registration

  1. [244]
    Professor Judd considered the Appellant did not, when she examined her, have any symptoms of a major psychiatric disorder rather she had significant personality problems. Dr Ouzas does not appear to have reviewed Professor Judd’s report. I am not sure how a “chronic adjustment disorder with anxious mood” equates to significant personality problems raising serious concerns about the Appellant’s ability to take responsibility and function independently as a medical practitioner.  Judging from the prognosis of Dr Ouzas the former may not be as serious as the latter but it is not entirely clear.
  1. [245]
    Dr Liam Barry was the supervising general practitioner for the purpose of her conditional registration and while no report is to hand from him the Appellant’s former solicitors, Yarra Legal, in their letter to the Board dated 13 August 2003 referred to the Appellant’s instructions to the effect that “it was the opinion of Dr Barry that our client had ‘absolutely no problems.’ ”  Little weight can be attached to this statement in the absence of any report from Dr Barry.
  1. [246]
    Dr Kippax examined the Appellant more than 3 years after Professor Judd saw her. It may be that her personality problems have progressed to a paranoid personality disorder, or maybe they are the same with different labels. Whatever may be the case either condition has the potential to raise serious concerns about her ability to satisfactorily and competently practise medicine unless the condition is successfully treated. The opinions of Professor Judd and Dr Kippax are much more consistent with the behaviour of the Appellant as described by the witnesses relied upon by the Board whose evidence I generally accept. They are also consistent with my own observations and assessment of the Appellant during the hearing of the appeal. I am also inclined to think that the opinions of Dr Allan and Dr Shand are to an extent the result of an uncritical acceptance of everything they were told by the Appellant.
  1. [247]
    It is for these reasons that I prefer the opinions of Professor Judd and Dr Kippax to those of the other psychiatrists. I do not accept the Appellant when she said (T797-801) that Dr Kippax has not accurately recorded her history and that this should detract from the reliability of her opinion of the Appellant. See also para [234].
  1. [248]
    The Board’s position is that she is not medically unfit to practise rather that “some of her psychological problems, as outlined in the report of Dr Kippax, may help understand some of her actions”.  I find it difficult to agree with the submission of Mr Tait S.C. that the psychiatric assessments of the Appellant are “totally irrelevant” to the issues in the appeal; they at least assist in understanding her behaviour.  The Board submitted that the Appellant’s “lack of judgment” is a significant issue on the appeal and I agree with that.  I also accept that her psychiatric fitness to practise is not an issue for determination on the appeal and without the benefit of oral evidence from the psychiatrists it is difficult to be definitive in relation to her psychiatric condition.

The Appellant’s Witnesses

(a) Professor Patrick Dewan

  1. [249]
    He is a professor of paediatric surgery at the University of Papua New Guinea and has a professorial fellowship at the University of Melbourne. He gave evidence (by telephone) for the Appellant. He has known her for about 18 months and she had sat in with him on some outpatients at Sunshine Hospital, Melbourne as an observer.
  1. [250]
    He provided a statement dated 31 January 2005 (in ex 54) in the following terms:

“Helen Tsigounis, has not been registered on the basis of having fallen short by 2 weeks in the requirements for meeting registration requirements.  Rather than a reason for non-registration I would view this a breach of duty of care of those organising the course to which he has been allocated.  Her training seems adequate for registration.

The remainder of the allegations are either no (sic) adequately substantiated or are trivial or vexatious.  Importantly it would seem that issues of conflict in the work place have not been handled well by management, and to not expect Helen to under perform when she was in such a stress situation is an inditement (sic) on the hospital as much as on Helen.

A significant event was the bullying demand by a Registrar for Helen to return to a ward round, at a time when Helen was not expected in the hospital.  For the registrar to then be used to provide a belatedly submitted reference that is attacking of Helen is unjust.  The other reports largely pain (sic) Helen as a very good Resident.

Helen appears to have been the scapegoat of a system under stress.

As Helen was accepted into medical school, allowed to graduate and has performed well according to many criteria, I believe that the Medical Board has a moral obligation to ensure that Helen is given an opportunity to practice medicine.”

  1. [251]
    I am unable to accept everything Professor Dewan says. I agree that the hospital is partly to blame for apparently giving the Appellant the impression at the end of PP170-2 that she had then completed 12 weeks surgery but the onus was surely also on her to then confirm that this was in fact the case. Subject to what I have already said I cannot accept that the various incidents relied on by the Board are unsubstantiated, trivial or vexatious and the product of unresolved conflict in the workplace causing stress for the Appellant with resultant underperformance. I do not accept, for the reasons I have already given, that Dr Sharmila Balanathan bullied the Appellant or that all of the other intern assessment reports “largely paint Helen as a very good resident”.  Likewise I cannot accept that she has been “the scapegoat of a system under stress”.  The Appellant underperformed, to use Professor Dewan’s language, because she either didn’t know what she was doing and was not prepared to learn or did know what she was doing but did not do it properly and competently.
  1. [252]
    I think that Professor Dewan’s unwarranted and ill informed pre-judgment of the system, his uncritical acceptance of what the Appellant told him and his cursory consideration of the allegations against the Appellant has clouded his thinking and objectivity and I am unable to accept what he says. He was quite defensive when questioned about his own experience with the Medical Practitioners Board of Victoria and the loss of his employment at the Royal Children’s Hospital, Melbourne and was less than frank when it came to initially providing details.
  1. [253]
    In evidence he referred (T910 for example) to his interest in “bullying in the medical workplace” and his perception of its relationship to hospital financial constraints which placed pressure on managers and staff to perform in a less than caring manner.  He seemed to see this scenario as productive of staff conflict and as the cause of the Appellant’s problems.  He thought that those who complained about the Appellant were part of a “group think phenomenon, good people who are caught in a loop” (T921).  In his view most of the complaints were “of a relatively minor nature”.  The many doctors and nurses who gave evidence didn’t regard them as minor and nor do I; the preponderance of the evidence is that they were serious, worrying, concerning and risky and in some cases potentially dangerous and life threatening.  Likewise I detected no evidence of “group think” rather it was a situation where numerous caring professionals were individually and collectively concerned about the competence of the Appellant and her ability to practise medicine safely and in the best interests of the patients.  Had the Appellant reacted in a different way and had she evinced concern about what she had done and a willingness to learn from her mistakes they may not in some cases have expressed their concerns in the formal way in which they did.
  1. [254]
    In cross-examination he conceded (T930), in relation to patient JY, that a hospital protocol preventing an intern discharging a patient from the emergency department without the approval of a registrar “is a very reasonable guide” but his answers in relation to the particular situation of JY seemed to be predicated on an acceptance of the Appellant’s evidence (which I have rejected) that she consulted Dr Gelhaar before discharging the patient.  He said (T930):

“Because of this incident having been reported and discussed some time after the occurrence there may have been a brief interaction with a registrar that was omitted from the document and with a busy emergency department the omission of that sort of documentation is something that wouldn’t surprise me.”

Alternatively he seemed to say that if she breached the protocol this was the fault of the hospital for not tutoring her in “the nature of the protocol and its correct application” (T933).  The Appellant had a responsibility to familiarise herself with the Emergency Department Manual and it is not as if she didn’t know of the protocol.

  1. [255]
    When cross-examined about particular incidents relied on by the Board he retreated somewhat from the dogmatic stance evidenced by his initial statement. In one case he said for example (T935):

“I still need to know what the context was.  Was her Registrar busy in theatre or because it is bad interaction wouldn’t come and give help and was the anaesthetic Registrar unavailable also?  So that’s the sort of context that I would like to be aware of.  Was this somebody who was left out in the cold alone and struggling without anybody coming to her aid and then there was a sense of ‘I can’t seek help because all I get is a belligerent interchange.  I can’t give an answer without the context.”

  1. [256]
    This was said in relation to the cannulation incident referred to in para [95]. He also conceded that 12-15 attempts at cannulation “in isolation is extreme” and generally (T1031) that as an intern the Appellant may have made mistakes on a number of occasions.
  1. [257]
    The distinct impression he gave, and which I cannot accept, is that if the Appellant made a mistake it was never her fault rather it was the fault of a system which, because of inherent defects and a group think environment, inevitably but not intentionally set her up to fail. He glossed over the fact (T936) that, with the exception of one person who passed with some extra time, the Appellant was the only intern that didn’t pass. He also suggested (T937-8) that the Board was unintentionally also afflicted with the “group think and bullying phenomenon” and was as a result unable to resist the momentum of complaints and stand back and analyse them critically and objectively.  I imagine he would, after reading this judgment, level the same accusation at me.  The whole thrust of his argument glosses over the nature of the complaints against the Appellant and the weight of the evidence in support of them.  He effectively determined that work at the Townsville Hospital did not provide the Appellant with “a caring environment” (T940) which was why she failed.  I cannot accept this interpretation of events.  It is interesting that one of the grounds he says he is relying upon in challenging the decision of the Royal Children’s Hospital to dismiss him is “bullying” (T1024); he sympathises with the Appellant as a victim of “a group think conclusion” (T1025).
  1. [258]
    In relation to the cardioversion incidents (see paras [161]-[163]) Professor Dewan’s evidence (T920) that it would be “extremely unusual” to expect an intern to be able to perform such a procedure must be read subject to the fact (as I have found) that the Appellant told Nurse Neil that “she was experienced in using the equipment from when she was in Greece”.

(b)  Dr Arthur Papagelis

  1. [259]
    His statement dated 31 January 2005 (in ex 54) is in the following terms:

“My name is Arthur Papagelis.  I am a General Practitioner.  I graduated in 1986.  I have had extensive experience working in Hospital (sic), in particular, the Royal Melbourne Hospital where I worked primarily with the surgical units and the Emergency Department.  Currently, I run my own medical practice in Broadmeadows.

I was requested by Dr. Helen Tsigounis to review documentation pertaining to her career thus far and her attempts at medical registration in Australia.

At my one and only meeting with Helen Tsigounis, I found her to be an intelligent person with no obvious deficit in her ability to express understanding, empathy or in her ability to learn as one would expect from an individual who has completed the MBBS in Australia.

Dr Tsigounis has handed over to me reports concerning her progress at various training institutions primarily in Australia but also in Greece.  Included in these documents is a number of complaints concerning Dr Tsigounis by various staff members at the institutions she has trained at.

Following my review of these documents together with the many positive reports included amongst the negative, it is my assessment that there is nothing here that cannot be attributed as part of the learning curve for hospital Resident/Interns.  Of course, I make the assumption here that the negative reports are factual.

Since her graduation in 1997, Dr Tsigounis appears to have been working hard at her chosen profession either in Australia or in Greece.  She appears to have accumulated extensive experience during the last six or seven years.  She has most likely far more experience, therefore, than your average Intern prior to medical registration.

Most of her clinical assessments, according to the documents I have reviewed, if not the great majority, are very positive about Helen’s abilities in her training positions.

I could not, reading the various psychiatric reports, conclude that Helen suffers with any serious psychological or psychiatric condition.

Therefore, in conclusion, given my assessment of the documentation provided to me, it pains me to learn of Helen’s struggle and setbacks in her attempt to obtain, what many MBBS graduates take almost for granted, her medical board registration in the country she has trained in.”

  1. [260]
    With the exception of his relatively benign interpretation of the various incidents involving the Appellant I generally accept his evidence. He seemed to me to be an experienced general practitioner. Before he wrote his statement he had no personal knowledge of the Appellant.
  1. [261]
    His opinion in relation to the various medication errors suffers from the fact that he had not heard all of the evidence which I have and I think he tended to unreasonably downplay the significance associated with the number of errors made. It was clear to me that, like Dr Papagelis, the doctors and nurses who gave evidence appreciated that interns were learning on the job and that “mistakes happen in a teaching hospital” (T1070).  I think he underestimated the number and frequency of the errors made by the Appellant and the concern the doctors and nurses had about those errors.

(c)   Dr Simon Zalman Rosenblum

  1. [262]
    His statement dated 26 July 2004 (in ex 54) is as follows:

“I Dr Zalman Rosenblum have been a general practitioner for a period of almost 25 years. 

I am currently employed by the Mayne Group with admitting rights to a number of hospitals.

I am affiliated with the following hospitals:  Masada Hospital and Elsternwick Hospital.

I have had some experience with medical students and doctors during the early stages of their careers.  I have reviewed all the material relating to Dr Helen Tsigounis including all references written at the time of her employment and any subsequent complaints.

I note that most of these complaints came to her attention up to a year after she left the hospital.

I also note there appears to be a lot of contradictory information regarding the complaints and much hearsay evidence.

In particular I have read the material regarding her management of the ‘meningitis patient’ and it is my impression that her judgment and treatment of this patient appears to be satisfactory.

All other complaints in my opinion are common to all interns i.e. Many attempts to insert a cannula on a child.

Based on the information, references and complaints, it is my opinion that she be granted Full Medical Registration immediately.

Alternatively, I am happy in the future both as a mentor and to facilitate future employment to offer Dr Tsigounis an opportunity to achieve full registration.  I also note there is a shortage of female GPs.”

  1. [263]
    Similar comments to those made in respect of Dr Papagelis apply to Dr Rosenblum. Notwithstanding that he thought the medication errors made by the Appellant to be “not a huge number” (T1176) I think he also failed to appreciate that the number and frequency of the errors were such that they were generating justifiable concern amongst doctors and nurses involved in the treatment of the patients. I prefer the evidence of Professor Judson as to the medication errors to that of Drs Papagelis and Rosenblum.  Dr Rosenblum also said (T1176) that “obviously someone who perhaps didn’t like (the Appellant) was collating and trying to collect as many of these errors as possible to put them into a submission”.  That was being done but it was because of the nature and extent of her errors not because someone didn’t like her.  The Appellant was not responsive to correction and appeared unwilling or incapable of learning from her mistakes.  I do not accept the evidence of Dr Rosenblum as to the Appellant’s treatment of the meningitis patient; it is contrary to all of the other evidence which I do accept.
  1. [264]
    He agreed (T1165-1166) that if one is not familiar with a drug the doctor should “check with a MIMS, a pharmacist or (relevant) protocols.”
  1. [265]
    He conceded (T1169) that some of the complaints against the Appellant were “potentially serious” and that “a registering board should be satisfied of the competence of a practitioner before they allow them to practise unsupervised”.
  1. [266]
    His support for the Appellant appeared to be based on a view that “the bridges of communication” between her and senior doctors “unfortunately had not been there” and “it meant she was in a position where she was really unable to seek help” (T1171). That is not my impression from the evidence and I think that view caused Dr Rosenblum to downplay the significance of the complaints made against her. His opinions were also based on his “impression of (the Appellant) just in terms of how she came across - she is a very caring person”. (T1171-1172). To this extent I think his opinions lacked a degree of objectivity and he fell into the error which Dr Kippax cautioned against - he was “sucked in” (see para [241]).
  1. [267]
    He also referred (T1172 and 1180) to a consultant who was “hostile” to the Appellant and a “personality clash” with that consultant obviously from what the Appellant told him.  This was I think a reference to Dr Sharmila Balanathan and I have already indicated that I prefer her evidence to that of the Appellant.  Dr Balanathan’s concerns were genuine and warranted and were not, in my view, the product of any personality conflict.
  1. [268]
    Notwithstanding the seriousness associated with the nature and extent of the medication and documentation errors made by the Appellant I do accept the evidence of Drs Papagelis, Rosenblum and Judson (see ex 37) that some of these are “within the range of mistakes commonly made by interns” and had the Appellant been prepared to learn from them they may not have been elevated to their currently concerning level.  The fact is that she didn’t appear to learn anything and gave the impression that she didn’t need to learn more.  Her attitude was far too casual and she was dismissive of the concerns of other professional staff.

The Past and the Future

  1. [269]
    Associate Professor Rodney Judson is Divisional Director, Division of Surgery at Melbourne Health, Director of Trauma Services, Royal Melbourne Hospital and Senior Fellow, Department of Surgery at the University of Melbourne. He was retained by the Appellant to provide a report on the material considered by the Board. He also read the Appellant’s affidavit ex 56. He was not called by the Appellant but by the Board. His report is ex 37 and, in part, is in the following terms:

“In considering the materials provided by the Medical Board of Queensland I would conclude that Dr Tsigounis had not quite reached the standard expected of a competent intern.  The number of complaints whilst often poorly documented and vague in their specific references would suggest that Dr Tsigounis had at times not shown the level of care or understanding of the effects of certain medications expected of an intern at the completion of their training period.  I would, however, support the contention of Dr Tsigounis that she should be given the opportunity of a further period of conditional registration under supervision, perhaps by way of some form of supervised practice program to attain the expected level of competence.

A substantial number of the sited incidents relating to poor transcription of medication orders and tardiness in completion of some forms of documentation are within the range of mistakes commonly made by interns during their training.  There were several other more concerning incidents such as the disputed provision of telephone drug orders without personally having assessed the patient, failure to notify of a significantly abnormal pre-operative blood test and the inappropriate discharge of a patient from the Emergency Department with suspected meningitis.  These incidents would appear to suggest a lack of understanding of the potential seriousness of the clinical situation.  No serious ill effects resulted from these incidents as Dr Tsigounis was working in a supervised capacity and as such it would be expected that more senior colleagues should be available to check Dr Tsigounis’ performance and counsel her appropriately.

On reflection of Dr Tsigounis’ rotations through the Townsville Hospital I would opine in hindsight that they failed to provide the best environment for training as a very significant time was spent in the Emergency Department where continuity and mentoring opportunities are limited based on rostering of Senior Medical Staff.

Based on the material that have been provided I could not support the contention that Dr Tsigounis was incapable of achieving the level of competence necessary for full registration.

I would support the need for further appropriate mentoring and supervision with the opportunity for contemporaneous feedback of any perceived deficiencies and clear well documented assessment of progress.  I would feel that such a process if conducted over a sufficient length of time, ideally for one year, would afford Dr Tsigounis the opportunity to both gain and demonstrate she had reached the level of competence necessary for full medical registration.

Based on concerns raised in regard to Dr Tsigounis’ performance the supervised practice program would need to have the facility for close senior colleague review of Dr Tsigounis’ medical decisions such as daily case note audit or patient review prior to discharge to ensure that the public is adequately protected.  Such a system would allow rapid feed back to Dr Tsigounis, clear documentation of adequacy of clinical decision making and the aversion of potential adverse events.”

  1. [270]
    The Board submitted that Professor Judson’s “views should carry great weight”.
  1. [271]
    In relation to some of the medication errors relied on by the Board Professor Judson said in cross-examination (T665-666):

“Professor Judson, can you give us an example of - you know, for example, the drug orders that - that - an example of a specific - a specific example of the drug orders that led you to come to - to your opinion?-- Yes, there was a drug order which was written for a diuretic, Lasix, which was written down as PRN.  PRN implies that the nursing staff would use their discretion in the delivery of that mediation and it really is - it’s essentially only used for medication for pain not for a diuretic.  There was a drug order for a sleeping pill which had been given - been written up to be given intravenously.  And there was a further one which was a clear - these were commonly used medications that had the route and mode of administration had not been appropriately written (sic). This is a mistake which, really, anyone who was practising at the level of an intern should not even in a lapse of concentration, have made.  So I felt that that really was not to the standard that I felt was appropriate.

Do you agree that interns work incredible hours?-- I’m fully aware of the hours that interns work, but - and I do realise that sometimes people may make mistakes in the spelling of drugs, but - but to write up a common medication such as Lasix or an intravenous or a sleeping tablet and suggest that that would be given intravenously, I believe that is difficult to sanction.

I would accept that transcription errors can occur, but there were a number of instances quoted where transcription of medication had been incorrect.  And as I said, I would have thought that a very commonly used medication such as a diuretic, which is always given once daily or almost always given on a once daily basis that to have written that up ‘PRN’ would, to my mind, suggest either a lack of understanding of the mode of action and the clinical setting for the use of the drug or a lapse of concentration, which really, I think, would not be acceptable to somebody acting as an intern.

Oral Lasix is usually given once daily, yes.

Right?-- And certainly never written up as PRN.”

  1. [272]
    When cross-examined about JY he said (T669):

“Whichever clinical situation you paint, it would seem that you had thought it was meningitis.  So - and clearly, to administer oral antibiotics in the absence of a lumbar puncture was - was not the appropriate management.”

  1. [273]
    He said (T670) that the only way to exclude meningitis was to do a lumbar puncture; observation only of the patient over time would be “totally unacceptable … Observation would not be an acceptable way to manage anybody in whom there was a suspicion or a possibility they were suffering from meningitis”.  There was then this evidence (T675-676):

“HIS HONOUR:  Ms Tsigounis, your case is that you made no error in relation to the patient with suspected meningitis.  Is that               so?

APPELLANT:  Right.  That’s so, yes.

HIS HONOUR:  Does that - is that view of Ms Tsigounis relevant to your opinions, Doctor?-- I - I’m astounded that Dr Tsigounis could not in hindsight and on review of the clinical situation acknowledge that the appropriate treatment for - for the patient as they presented would have been a lumbar puncture.  This is a view that was supported by the other senior clinicians in the emergency department at the time.  I think anyone is - can have a temporary lapse, but to not even subsequently acknowledge and learn from the experience is an exceedingly disturbing event.

I would suggest again and - and reiterate that it is standard acceptable medical practice that in the presence of suspected meningitis that a lumbar puncture should be done.  If the clinician who’s looking after the patient does not have the necessary skill to perform that, then clearly somebody more senior should be called.  It’s all a matter of clinical perspective and I believe in this instance there was a severe deficiency demonstrated in clinical perspective in the management of this patient.

HIS HONOUR:  Doctor, if somebody was suspected of having meningitis, to exclude that you would do a lumbar puncture?-- Absolutely.

And if you wanted to exclude the fact that somebody had meningitis, you would do a lumbar puncture?-- Absolutely, yes.”

  1. [274]
    In re-examination Professor Judson gave the following evidence (T652-684):

“In your 25 or your 30 - nearly 35 years as a medical practitioner and 25 years associated with training registrars and interns, have you been able to discern some of the common factors in successful medical practitioners?-- I think that to be a successful medical practitioner, it requires diligence in - and a keen sense of responsibility in all things that you do.  It would not be possible for every medical practitioner to know in detail every aspect of every disease.  However, I think it is the responsibility of every practitioner to practice in such a way that those things they don’t know themselves or they’re uncertain of, that they seek the help and experience of more senior people.  And that - also that they have a duty of responsibility to ensure that any actions that they - they take, they - they follow up and - and doubly check that - that all is well.

Yes?-- And I think that - that in this instance with Dr Tsigounis, there were a number of times when - when I think there was a failure of this duty of care not following up on - on pre-operative blood tests which were - were abnormal and could have seriously affected the surgery the following day; the careless recording of - and copying of drug charts and - and the ordering intravenous fluids without taking the - being responsible enough to go and examine the patient first to assess their needs, I think that - that these are areas of care over which, as I said, I  - I have concern.

You expressed a view in your report that she needed a further 12 months training or - work and supervision.  Have you any alteration to that view?-- No.  I - I expressed that because the - I felt the - in spite of the - sort of these, the weighty number of statements that were made, I felt that the training opportunities that Dr Tsigounis had been given at - at Townsville were perhaps not ideal, that the - there was a significant amount of changing of terms and a number - number of the training episodes were only of several weeks.  The documentation of sort of senior assessment was - was relatively sparse in some instances.  A lot of the reports had been given by relatively junior registrars, which I thought was really not appropriate to make a - a definitive decision regarding Dr Tsigounis’s potential as - as a doctor.  So, on reflection, I don’t feel that - that there’s a lot of documentation that any of the terms that Dr Tsigounis did have have been well documented.  It is generally accepted that a year is the minimum that we need to assess doctors before we give them full registration.  And I would be of the opinion that it would be prudent before making a firm decision in regard to Dr Tsigounis’s ability to act as a doctor, that it - it really would take a year of the standard rotations that we would normally put interns through before you could make a - yeah, an informed decision in relation to - to the desirability of registration or not.”

  1. [275]
    The Appellant submitted that I should reject the evidence of Professor Judson because it was second-hand, based on hearsay, contradictory and unsubstantiated, that he had misinterpreted facts, that he gave disproportionate weight to certain evidence, was inconsistent in his reasoning and made incorrect assumptions. I do not accept this criticism or the reasons given by the Appellant in support of it. I found Professor Judson reasoned and measured in his approach and his evidence was entirely consistent with other evidence which I accept. I have no reservations about relying upon what he said. I do not think there is much difference of substance between what he said and what Drs Papagelis and Rosenblum said. The latter said in cross-examination (T1171-1175):

“If I do assume that the complainants’ side of the story is correct, yes, I think it would be a very good idea to have some sort of provisional registration where perhaps she has to work supervised for some period in a hospital or whatever and subject to a satisfactory assessment I think then she should be granted full registration.

Yes?-- But it should be on the proviso that obviously she has to work somewhere where she would be away from the sort of - from the person and the controversy and the unpleasantness that has marred her intern year - years ago.

Yes, yes.  What I might suggest, Doctor, since there does seem to have been a suggestion of lack of communication between her and her superiors, whoever’s fault that is, whether she was shy about seeking advice or whatever, that if she’s having this supervised period, that some more formalised relationship of mentoring be set up so that she can get adequate feedback promptly about her problems rather than learning about them later?-- I think that would be much better because then it means that any errors can be corrected immediately rather than a system where these sort of problems build up and spill over into an impossible situation.  Again, as I said, I can only base my assessment on what she’s shown me and my impression is of her that she is a very caring person, that she really - I mean I personally think she will make a great doctor - she is a great doctor, but I think that from what you’ve said, she obviously needs to have some method whereby she has to be - she has to demonstrate that she knows the - the skills of communication.  Skills of communication you need not as a - an intern but you need it the whole of your working life.

I think she should be given a chance.  I think obviously if she demonstrates the same sort of behaviour again and if these sort of complaints occur again and if in fact the same sort of - she doesn’t consult then obviously my assessment is not correct and she’s not worthy.  But I think that my assessment will be proven correct.  I think that she will make a great doctor.  I would be happy in any way possible to participate in any sort of supervision order or whatever.

And the other thing I should also mention to you is that we all have a vested interest in making sure that the public is protected against incompetency and against doctors who should not be doctors.  And in fact, part of the screening process nowadays that we have in selecting medical students is to insure that the correct people are taken in, people who communicate, people who know how to.  Nowadays your communication skills are regarded as vital to protect you against medico-legal difficulties and also in terms of being able to communicate with the patient directly and not have all sorts of problems.  I think that Helen, as I said, unfortunately had a fall out - I’m not saying who was at fault here - but I think definitely she should be given an opportunity.  I think she’s got the potential to be a wonderful doctor.

I think she should be definitely given an opportunity to prove that she’s capable.”

  1. [276]
    The Appellant said from the Bar table (T770) that over the last 2 years she has been maintaining her medical skills including attending the surgery of Dr A Gouras a general practitioner in Prahran, Melbourne “on a regular basis observing and doing some assisting”.  Dr Gouras said in a letter (ex 60) that “she has attended and observed at my surgery on several occasions”.  This is not much.  It should also be recognised that it has not been the choice of the Appellant not to practise.  Professor Judson said though that this is a further but separate reason supporting the need for further training.  He said (T684):

“It was April 2003 when she left the hospital.  Assuming she has done no clinical work since then as a medical practitioner, are you able to say anything about a loss of skills?  Would there be any and if so to what extent?-- Yes.  I think there clearly will be a loss of skills.  It is difficult to maintain your skills when you’re out of the clinical arena.  So that I think that that even, sort of, further strengthens my suggestion that an appropriate period of training would be necessary.  Things have changed.  Even in a year.  New equipment becomes available that doctors need to be familiar with.  New medication has become available.  So I think that Dr Tsigounis’s skills would have deteriorated.  Not to a very significant degree but certainly would have deteriorated somewhat by not having been involved in the medical field for the last year - well, getting onto two years now.”

Satisfactorily Completed Internship? 

  1. [277]
    The evidence more than satisfies me that the Appellant has not satisfactorily completed her internship and the Board was correct to so conclude. She has not completed it by reason of her failure to complete 12 weeks surgery and her failure to satisfactorily complete her rotations in surgery, paediatrics, and emergency medicine either individually or combined. Her work in cardiology was also unsatisfactory to the same extent. Her work in all of these areas is also clearly relevant to whether her internship should be extended but in relation to that issue other factors must also be considered.

Cancel Registration or Extend Internship?

  1. [278]
    In deciding to cancel the Appellant’s registration I do not think the Board gave any or any sufficient consideration to the following matters

● Her known psychiatric or personality problems and the extent to which they may have contributed to the way she acted and responded to concerns expressed to her

● The extent to which her work was or was not supervised as required by her conditional registration

● Professor Keary’s reservations about the continuity of her surgical rotation (paras [18] and [19])

● The fractured nature of her surgery rotation

● Interns are still learning and do make mistakes

● Professor Keary’s view that she required further training (para [18])

● Dr Frischman’s evidence that she should spend 3 months in one area (para [99])

● Dr Ashley’s opinion that she needed ongoing mentoring (para [125])

  1. [279]
    In addition to these the following factors of relevance are now apparent

● Her work in different departments of the hospital was somewhat disjointed and lacked consistency and routine. She was to an extent shunted around in an almost relieving capacity and her internship lacked any ordered structure.  Professor Judson (para [274]) referred to the possibly less than ideal training provided to the Appellant at the hospital and the failure to properly document her training

● The evidence of Dr Small that perhaps management may have been sub-standard in some respects (para [137])

● Not all of the allegations relied upon by the Board have been established

● The opinions of Drs Peter Lucas and Andrew Coley that further training is required (paras [61], [130] and [131])

● Professor Judson’s evidence to the effect she is not incapable of achieving unconditional registration after a further period of internship coupled with appropriate mentoring and supervision and an appropriately structured training program and that she is not “incapable of achieving the level of competence necessary for full registration”

● The submission of the Board at para [270].

  1. [280]
    In my view the Board was to an extent overwhelmed by the totality of the allegations against the Appellant such that it failed to give sufficient consideration to whether the Appellant may have been able to complete a properly structured and appropriately conditioned further period of 12 months internship.
  1. [281]
    The Board reached its decision to cancel the Appellant’s registration in the absence of any evidence to the effect that the Appellant would not have been able to satisfactorily complete a further period of internship structured in such a way that recognised her problem areas and the particular respects in which she required further training. I appreciate that the Board is to an extent entitled to rely on its own knowledge of matters related to training and supervision but there was no evidence before it directly bearing on whether the Appellant would or would not be able to “achieve the necessary level of competence to practise unsupervised within a reasonable period of time” such as a further 12 months or that such an extended internship (appropriately structured and conditioned) would place “unreasonable burdens” upon those required to supervise her (see para [23]).
  1. [282]
    The Show Cause Notice dated 16 February 2004 (para [22]) whilst stating that the Board had resolved that she was “incapable of satisfactorily completing the prescribed internship” primarily directed attention to the Board’s decision to consider cancelling her registration.  The Appellant’s submissions in reply opposed that course, took issue with the allegations against her and contended that she had satisfactorily completed her internship.  No alternative submission was advanced in relation to whether her internship should be extended should the Board reach a conclusion adverse to her on the issue of satisfactory completion of internship.
  1. [283]
    The evidence before the Board was primarily, if not only, directed to past events and it was left to the Board to reach a decision on the s. 94(1)(b)(ii) issue on the basis of that evidence alone and in the absence of any direct evidence to the effect that the Appellant’s faults were incurable.
  1. [284]
    The preponderance of evidence before me on this issue is to the effect that the Appellant will, subject to a properly conditioned and structured internship of 12 months, satisfactorily complete that internship.
  1. [285]
    I incline to the view that “will” in s. 94(i)(b)(ii) should be interpreted as “may” but this was not argued and I need not express any definitive view on the matter.
  1. [286]
    The onus will be on the Appellant. If her performance to date is any indication she will have to make significant changes to her way of doing things and her attitude to others. She must be prepared to learn and to admit mistakes and learn from them. In my view it is likely that she needs psychiatric assistance of the nature referred to by Dr Kippax or at least assistance in relation to the personality problems highlighted by Professor Judd.
  1. [287]
    Any extended internship should not be undertaken at the Townsville Hospital because of the personalities involved including hers. See for example the evidence of Dr Rosenblum, para [275].
  1. [288]
    For these reasons I consider the decision of the Board to cancel the Appellant’s registration should be set aside and the Board should be directed to extend the Appellant’s probationary conditions for 1 year by requiring her to undertake all of the prescribed internship.
  1. [289]
    If the Board has power to vary the Appellant’s probationary conditions I consider it should be directed to do so by imposing additional conditions to the effect that during the prescribed internship the Appellant should submit to and undergo such psychiatric treatment as is considered appropriate by the Board with regular reporting to the Board by the treating psychiatrist/s and that during the prescribed internship there be such mentoring and supervision as is considered appropriate by the Board, together with contemporaneous advice to the Appellant of any perceived deficiencies in the performance of her internship and definitive assessment of her progress.

Result

  1. [290]
    At this stage the orders I make are these
  1. The appeal is allowed
  1. The decision of the Medical Board of Queensland that the Appellant has not satisfactorily completed her internship is confirmed
  1. The decision of the Medical Board of Queensland to cancel the registration of the Appellant is set aside and the Board is directed to extend the Appellant’s probationary conditions for a period of 1 year by requiring her to undertake all of the prescribed internship
  1. The further hearing of the appeal is adjourned to a date to be fixed to allow further submissions as to the directions to be given to the Medical Board of Queensland under s. 240(1)(d) of the Medical Practitioners Registration Act 2001 and the costs of the appeal and in this respect I direct that within 14 days of today the parties file and serve written submissions as to any further directions the Court should make and the costs of the appeal and that within 28 days of today the parties file and serve any submissions in reply.
Close

Editorial Notes

  • Published Case Name:

    Tsigounis v Medical Board of Queensland

  • Shortened Case Name:

    Tsigounis v Medical Board of Queensland

  • MNC:

    [2005] QDC 103

  • Court:

    QDC

  • Judge(s):

    Wall DCJ

  • Date:

    11 May 2005

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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Pillai v Messiter (No.2) (1989) 16 NSW LR 197
2 citations
Jump To
Cite 1 - (1989) 16 NSW LR 197
Cite 2 - (1989) 16 NSW LR 197

Cases Citing

Case NameFull CitationFrequency
Tsigounis v Medical Board of Queensland [2006] QCA 295 22 citations
Tsigounis v Medical Board of Queensland (No.3) [2005] QDC 1771 citation
1

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