Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Phillipson [2021] NSWCATOD 26 Hearing dates: 15 – 17 February 2021 Date of orders: 12 March 2021 Decision date: 12 March 2021 Jurisdiction: Occupational Division Before: Balla ADCJ, Principal Member Dr K Smartt, Senior Member Dr G Heron, Senior Member D Telford, General Member Decision: The Tribunal, having found that the Respondent is guilty of unsatisfactory professional conduct, makes the following directions: (1) The Applicant is to provide to the Tribunal and the Respondent a statement of the protective Orders it is seeking as a consequence of these findings, together with the evidence on which it intends to rely and submissions, on or before 22 March 2021. (2) The Respondent is to provide to the Tribunal and the Applicant evidence and submissions in response by 5 April 2021. (3) The Applicant is to provide to the Tribunal and the Respondent any material in reply by 19 April 2021. (4) The parties are to jointly provide to the Tribunal, on or before 26 April 2021, a range of dates for the Stage 2 hearing. Catchwords: HEALTH — professional registration and discipline — unsatisfactory professional conduct Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 139B(1)(a), (b) and (l) and 150A Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW), cl 6(1) and Sch 4 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Chen v Health Care Complaints Commission [2017] NSWCA 186 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Sharron Phillipson (Respondent) Representation: Counsel: D Fuller (Applicant) R Mathur (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2020/00105281 Publication restriction: Prohibition of the disclosure of the name of the patient referred to in the Complaint under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). Introduction Outline of the facts Dr Phillipson Legal principles The Complaint and Tribunal findings Complaint One Particular One Finding – Complaint One Particular One Particular Two Finding – Complaint One Particular Two Particular Three Finding – Complaint One Particular Three Particular Four Finding – Complaint One Particular Four Finding – Complaint One Complaint Two Particulars of Complaint Two Finding – Complaint Two Complaint Three Particulars of Complaint Three Finding – Complaint Three Complaint Four Particulars of Complaint Four Finding – Complaint Four Determination and Directions REASONS FOR DECISION Introduction 1. This matter was before the Tribunal for the hearing of an application by the Health Care Complaints Commission. 2. The application arises out of Dr Phillipson's failure to adequately consider a differential diagnosis of an ectopic pregnancy in April 2019. 3. Dr Phillipson does not contest every matter raised by the Health Care Complaints Commission. 4. This decision deals with our findings in relation to the Complaints made against Dr Phillipson. The consequences of our decision, that is the protective Orders to be made, if any, will be determined after a separate, later hearing. Outline of the facts 1. In March 2019 patient A was 33. She had previously consulted other doctors at the North Sydney Medical Practice in North Sydney but consulted Dr Phillipson at that practice for the first time on 28 March 2019. 2. After giving patient A advice in relation to unrelated issues, Dr Phillipson counselled her in relation to pregnancy planning. This included referring patient A for blood tests. 3. On Wednesday 10 April 2019 patient A returned to see Dr Phillipson and they discussed the results of the blood tests. Patient A then went to see the practice nurse who obtained a history that patient A may be pregnant and noted breast tenderness and cramps some three weeks before. The nurse performed a urinary pregnancy test which was positive and she noted "stated had her last period 3-4 weeks ago?". 4. On the same day a serum BHCG test was performed. This blood test measures a hormone produced by the placenta during pregnancy. The BHCG level rises rapidly during the first trimester of a pregnancy. This first test showed a level of 1,881. 5. On 12 April 2019 a second BHCG test was performed with a result of 3,808. 6. On Saturday 13 April 2019 patient A consulted another doctor in the same practice, Dr Sumar. Dr Sumar referred patient A for a pelvic ultrasound. The entry in the patient's clinical notes says "Viable pregnancy Req Obstetric US scan tgen r/v own GP". It is common ground that "US scan" meant ultrasound. On the referral for the ultrasound Dr Sumar wrote under the heading "Clinical Notes" "6/40 pregnant slight bleeding 2/52 ago, check status". 7. The ultrasound was performed on 16 April 2019. The report says: "There is no intra or extra-uterine gestational sac identified. The endometrium measures approximately 5 mm in thickness. The right ovary is 3cc in volume and is normal. The left ovary is 7 cc and containing a 1.7 cm cystic lesion with peripheral vascularity likely to representing a corpus luteum cyst. There is no fluid in the Pouch of Douglas. Impression: There is no evidence intra or extra-uterine pregnancy identified. Please note that this does not exclude very early intrauterine or ectopic pregnancy. Beta HCG correlation is recommended". 1. On 18 April 2019 patient A saw Dr Phillipson at around midday. It was the day before Good Friday. The notes record that patient A's last menstrual period had commenced on 31 March 2019. Dr Phillipson arranged for patient A to undergo a third BHCG test that afternoon. 2. The result of the third BHCG test was 14,876. The pathologist informed Dr Phillipson of the result at around 7 pm. Dr Phillipson, who was at her own home, rang patient A. There is a dispute about what was said, but Dr Phillipson agrees that they did not discuss the possibility of an ectopic pregnancy. 3. Patient A did not see Dr Phillipson again before presenting to Royal North Shore Hospital on 30 April 2019 with a ruptured ectopic pregnancy. 4. Patient A lodged a complaint on 15 May 2019. It was considered by delegates of the Medical Council of New South Wales at a hearing convened pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law) on 12 July 2019. The Council suspended Dr Phillipson's registration on that day. Dr Phillipson applied under s 150A to have the suspension lifted. After a hearing on 11 November 2019 the decision to impose the suspension was set aside and conditions were imposed on Dr Phillipson's registration. Dr Phillipson 1. Dr Phillipson has been practising as a general practitioner since 1992. She graduated with a Bachelor of Medicine from the University of Newcastle and has completed a Diploma of Child Health, a Diploma of Paediatrics and a Diploma in Practical Dermatology and has been granted a Fellowship of the Royal Australian College of General Practitioners. Dr Phillipson is also a founding fellow of the College of Aesthetic Medicine and a member of the College of Phlebology. 2. From 1993 to late 2018, Dr Phillipson, with her husband who is also a general practitioner, ran their own practice, the North Sydney Medical Practice. In November 2018 they sold that practice to Qualitas, but stayed on as independent contractors. 3. In 2019 Dr Phillipson had been practising antenatal care for around 25 years and had been, for around 15 years, an accredited antenatal shared care provider with Royal North Shore Hospital. This is a programme where antenatal care is shared between a general practitioner and a hospital antenatal clinic. After doing a training course at the hospital, Dr Phillipson attended antenatal training annually. In 2019 she was seeing 3 to 5 patients a week in that programme and treating additional pregnant women as part of her general practice. Legal principles 1. The onus is on the Health Care Complaints Commission. To make any finding we must be "comfortably satisfied" that the matter has been established on the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. The Complaint and Tribunal findings Complaint One 1. The Health Care Complaints Commission says that Dr Phillipson is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law as she engaged in conduct that demonstrated that her knowledge, skill or judgment, or the care that she exercised, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Particular One 1. At the consultation on 18 April 2019 Dr Phillipson inappropriately concluded that patient A had either suffered a miscarriage or was likely to miscarry and failed to consider any differential diagnosis in circumstances where she knew that: 1. on 12 April 2019, the patient had an HCG reading of 3,808, indicating a pregnancy of an unknown location; 2. the pelvic ultrasound report dated 16 April 2019: 1. did not report a threatened miscarriage or incomplete miscarriage; 2. found no intra or extra-uterine gestational sac; 3. did not exclude very early intrauterine pregnancy or ectopic pregnancy; 1. Patient A did not complain of symptoms suggestive of a miscarriage; 2. No documentation was made in the patient history consistent with patient A reporting pelvic pain or vaginal bleeding. 1. Dr Phillipson denies that she inappropriately concluded that there had been a miscarriage but admits she failed to consider a differential diagnosis. She admits (1) and (2) but does not admit (3) and (4). Finding – Complaint One Particular One 1. Counsel for Dr Phillipson submitted that Particular One cannot succeed because the evidence does not establish that Dr Phillipson had concluded that patient A had either suffered a miscarriage or was likely to miscarry. While patient A had been concerned that she had suffered a miscarriage because of the empty uterus on the ultrasound, Dr Phillipson mistakenly attributed the empty uterus to patient A being only 3 weeks pregnant, which is the history she obtained at the consultation on midday on 18 April 2019. 2. The Health Care Complaints Commission says that the following matters establish that Dr Phillipson had concluded that patient A had either suffered a miscarriage or was likely to miscarry: 1. It is consistent with the complaint made by patient A on 15 May 2019 where she said: "I expressed that finding nothing in the ultrasound is very concerning – have I lost the baby, is there anything wrong, to which she replied, its OK, miscarriage is very common, you will be all right". 2. Dr Phillipson admitted that she had arrived at such a conclusion at the s 150 hearing. At that hearing Dr Phillipson did say she thought the ultrasound showed that patient A may have miscarried. She also said "After taking a history that she was only 2 or 3 weeks' pregnant I said it's probably a miscarriage. We both, she thought she was miscarrying" and later said "they were very concerned that she was having a miscarriage. Both of them were very concerned she was having a miscarriage and so was I". She said she told patient A "This may – miscarriages can happen, this could be a miscarriage, but look I'm hopeful that we'll work together to make sure that – well, we'll see what we can do and work with what's going on". 1. The Tribunal is satisfied that the effect of the whole of the evidence is that, at midday on 18 April 2019, Dr Phillipson decided to investigate why the ultrasound performed on 16 April 2019 showed an empty uterus. She took an inadequate history regarding patient A's last normal menstrual period and vaginal bleeding, and so mistakenly concluded she was only three weeks pregnant and suspected the ultrasound had been performed too early in the pregnancy to show a gestational sac. Dr Phillipson ordered the third BHCG test to determine whether there was a viable pregnancy i.e. to determine whether the pregnancy was progressing or patient A had miscarried. This is consistent with the complaint made by patient A on 15 May 2019 where she said "Dr Phillipson calculated I was only 3 weeks pregnant and that's why nothing showed in the ultrasound. I insisted to have another ultrasound but Dr Phillipson refused and said the ultrasound needs to be done in 10 weeks. And you are only a few weeks pregnant." It is consistent with patient A's Gmail conversation with her husband immediately after the appointment where she said "She said I am only 2 weeks pregnant and the ultrasound was done way too early. She was very apologetic about the ultrasound etc. getting another blood test to check if everything is ok." It is consistent with Dr Phillipson's statement and oral evidence in these proceedings. 2. We accept the submission made by counsel for Dr Phillipson. The Health Care Complaints Commission has not established that at the consultation at midday on 18 April 2019 Dr Phillipson concluded that patient A had either suffered a miscarriage or was likely to miscarry. Particular Two 1. During the evening of 18 April 2019 Dr Phillipson concluded that patient A had a viable pregnancy and failed to consider the differential diagnosis that patient A could have an ectopic pregnancy in circumstances where : 1. Patient A had a BHCG reading of 14,876; 2. the pelvic ultrasound report dated 16 April 2019 indicated no intrauterine gestational sac or an extra-uterine gestation. 1. Dr Phillipson admits Particular Two of Complaint One. 2. Counsel for Dr Phillipson conceded that, in determining this aspect of the Complaint, the Tribunal was not limited to the circumstances set out in (1) and (2) but could take all of the surrounding circumstances into account. Finding – Complaint One Particular Two 1. This Particular of the Complaint is concerned with the telephone consultation at around 7 pm on 18 April 2019, which was the last time that Dr Phillipson spoke to patient A before her emergency admission to hospital 12 days later. 2. Earlier that day, at the consultation at midday, Dr Phillipson had asked patient A when she had her last menstrual period and was told 31 March 2019. This is shown in the clinical notes. Dr Phillipson ordered the third and last BHCG test and had the results when she spoke to patient A at 7 pm. Dr Phillipson considered that the significant rise shown by the test was consistent with a viable pregnancy and that the ultrasound had been performed too early in the pregnancy to detect a foetal pole. 3. In that telephone conversation Dr Phillipson told patient A that the BHCG results were very promising and that she considered the pregnancy was viable. 4. The material available to Dr Phillipson at around midday on 18 April 2019 was the following: 1. A positive pregnancy test on 10 April 2019; 2. The history taken on 10 April 2019 by the nurse; 3. A BHCG level of 1,881 on 10 April 2019; 4. A BHCG level of 3,808 on 12 April 2019; 5. The referral for the ultrasound dated 13 April 2019; 6. The ultrasound report dated 16 April 2019; 7. A history of morning sickness taken at midday on 18 April 2019; 8. A history taken at midday on 18 April 2019 of the last menstrual period being on 31 March 2019. 1. In concluding that patient A was three weeks pregnant and failing to conclude that patient A was around six to seven weeks pregnant, which would have been identifiable on the ultrasound, and failing to arrive at a possible ectopic pregnancy as a differential diagnosis, Dr Phillipson did not take into account the following: 1. The pathology report advising of the BHCG results on 10 April 2019 includes a table showing that the result was consistent with patient A being 4 to 6 weeks pregnant. It is unlikely that patient A would have even ovulated by 10 April 2019 if her last period had commenced on 31 March 2019. 2. The history accepted by Dr Phillipson on 18 April 2019 was inconsistent with the history in the notes taken by the nurse on 10 April 2019 that patient A's last period had been 3 to 4 weeks earlier which was well before 31 March 2019. 3. Similarly the pathology report advising of the BHCG results on 12 April 2019 includes a table showing that the result was consistent with patient A being 4 to 6 weeks pregnant. Again this is inconsistent with Dr Phillipson's conclusion on 18 April 2019 that patient A was 2 to 3 weeks pregnant. 4. The referral for the ultrasound which is dated 13 April 2019 has a history "6 weeks pregnant, slight bleeding, check status". This again is inconsistent with Dr Phillipson's conclusion that patient A was 2 or 3 weeks pregnant on 18 April 2019. 5. The ultrasound showed an empty uterus. There are two types of ultrasound done in early pregnancy – transvaginal and transabdominal. It is common ground that signs of pregnancy can be seen earlier in the pregnancy on a transvaginal ultrasound than on a transabdominal ultrasound. It is also common ground that the ultrasound report in Dr Phillipson's notes does not disclose which type of ultrasound was performed although the expert evidence is to the effect that it can be determined from the images accompanying the report. Those images, which are also in Dr Phillipson's notes, show that both types of ultrasound were performed. Dr Phillipson said she is not trained to read ultrasound images and she had assumed patient A had undergone a transabdominal ultrasound which would have only shown a pregnancy over six weeks gestation. However, firstly, patient A says both types of ultrasound were performed and that she told Dr Phillipson this. We accept this evidence. Secondly, Dr Dobler agreed that, based on the BHCG result on 12 April 2019, the BHCG level by 16 April 2019 would have been in the range of 10,000 – 15,000, by which stage there should have been evidence of the pregnancy even on a transabdominal ultrasound. Lastly, Dr Phillipson conceded she did not make any enquiries to ascertain whether her assumption was correct in circumstances where we consider she should have done so. For example, she could have asked patient A or called the radiologist. We also take into account the evidence of Dr Dobler that radiologists usually do both types of ultrasound unless the patient has an objection to a transvaginal ultrasound and that, when this occurs, it is noted in the report. 1. On 18 April 2019 patient A also told Dr Phillipson that she had morning sickness. Dr Phillipson did not consider whether this was inconsistent with her conclusion that patient A was two to three weeks pregnant. 2. Dr Phillipson said she had not questioned patient A about her history of her last menstrual period having commenced on 31 March 2019. In circumstances where even Dr Phillipson concedes that bleeding can occur during pregnancy, her failure to consider whether that bleeding could have been implantation bleeding associated with the implantation of the foetus into the endometrium, an ectopic pregnancy or a threatened miscarriage contributed to her erroneous conclusion that patient A was two to three weeks pregnant. 1. Later that day Dr Phillipson received the third BCHG result which could not have been consistent with patient A being 2 to 3 weeks pregnant on the evening of 18 April 2019. 2. Accordingly, we are satisfied that Dr Phillipson had no medically acceptable basis on which to conclude on 18 April 2019 that the ultrasound was consistent with having been performed too early in the pregnancy to show evidence of pregnancy. 3. The note on the ultrasound report shows that two options could not be excluded – a very early pregnancy or an ectopic pregnancy. In circumstances where there was clear evidence available to Dr Phillipson that it was unlikely to be the first option, Dr Phillipson did not consider the second option. 4. Dr Ellis was retained by the Health Care Complaints Commission to provide an expert opinion. She said the estimated gestational age consistent with the BHCG test on 10 April 2019 was at least 3 or 4 weeks. By 12 April 2019 the level had risen consistent with the pregnancy progressing and was of at least 5 weeks gestation. It was incorrect for Dr Phillipson to have concluded that patient A could be only 3 weeks pregnant on 18 April 2019. 5. Dr Dobler, the expert retained by Dr Phillipson, concluded that Dr Phillipson came to the mistaken view that patient A had a very early pregnancy that may not have been visible on ultrasound. She had taken into account the history of the last menstrual period having commenced on 31 March 2019, the symptoms of pregnancy being nausea and morning sickness and the absence of complaints of abdominal pain or discomfort to suggest an extra-uterine pregnancy. Dr Phillipson focussed on ensuring that it was not a failed pregnancy and was reassured by the rising BHCG levels that the pregnancy was viable. Dr Phillipson erred in not realising that the BHCG levels were inconsistent with the dates on which she was working and not grasping the significance of the ultrasound findings in regard to the BHCG levels that had been recorded. 6. The Tribunal is satisfied that the Health Care Complaints Commission has shown that during the evening of 18 April 2019 Dr Phillipson concluded that patient A had a viable pregnancy and failed to consider the differential diagnosis that patient A could have an ectopic pregnancy and that Complaint One Particular Two has been established. Particular Three 1. As a result of the conduct particularised above at Particulars One and Two, Dr Phillipson failed to: 1. advise patient A that she could have had an ectopic pregnancy; 2. advise patient A of the signs and symptoms that would indicate a ruptured ectopic pregnancy; 3. provide instructions to patient A on what to do in the case of an emergency; 4. advise patient A that she required further follow up to determine why there were no signs of a foetus in the uterus despite the rising BHCG levels; 5. refer patient A to an early pregnancy assessment unit at the Royal North Shore Hospital; 6. request serial BHCG requests; 7. request a further pelvic ultrasound. 1. Dr Phillipson admits (1)-(3). Dr Phillipson does not admit (4)-(7) and says they flow from her failure to arrive at a differential diagnosis of an ectopic pregnancy. Finding – Complaint One Particular Three 1. The evidence is to the effect that, if an ectopic pregnancy is suspected, a practitioner of an equivalent level of training or experience to Dr Phillipson would have given the advice and taken all of the steps set out in this Particular. 2. Dr Ellis is of the view that Dr Phillipson should have advised patient A in the telephone call at 7 pm on 18 April 2019 that if she had any symptoms or signs of an ectopic pregnancy (which should be explained and a fact sheet given) she should present urgently to a hospital. In addition Dr Phillipson ought to have insisted that patient A present to her as the first appointment of the day on Tuesday morning following the Easter holiday. She could then have arranged an urgent ultrasound, serial BHCG testing and referral to an early pregnancy assessment unit at Royal North Shore Hospital. 3. We do not accept the approach of Dr Dobler. He said that Dr Phillipson could not be expected to warn patient A of the matters set out in Particular Three because she had not considered the differential diagnosis of an ectopic pregnancy. It would have been worse, he said, if she had diagnosed it and then failed to warn patient A. 4. We are satisfied that the Health Care Complaints Commission has established Particular Three. As a result of the conduct particularised above at Particulars One and Two, Dr Phillipson failed to take the appropriate steps to manage the risk posed by the possibility of an ectopic pregnancy. Particular Four 1. Dr Phillipson failed to appropriately manage patient A's clinical situation as she did not insist that patient A present to her at her earliest appointment on 23 April 2019 to undertake further tests and imaging. Finding – Complaint One Particular Four 1. Dr Phillipson denies this Particular. Counsel for Dr Phillipson submitted that Dr Phillipson did not have the power to insist i.e. compel patient A to return for review. 2. We do not accept this submission. We accept the submission made by counsel for the Health Care Complaints Commission – the purpose of the Complaint is to put Dr Phillipson on notice of the Health Care Complaints Commission's case, subject to procedural fairness. It is clear that the Particular asserts that Dr Phillipson should have forcefully informed patient A of the risks which needed to be urgently managed by further testing. 3. There is then a factual issue of what Dr Phillipson did say to patient A in the telephone call on the evening of 18 April 2019. In her first statement Dr Phillipson says that she recommended patient A consult her immediately after Easter to commence antenatal care and to discuss the timing for another ultrasound. In her second statement she said she did request that patient A return to commence antenatal care with either herself or another GP following the Easter break. In the Tribunal's view, neither of these versions would convey to patient A the need for urgent review. 4. Dr Phillipson did not make a contemporaneous note of what occurred. On 28 May 2019 she made the following entry into the clinical notes: "Patient was called at home … on the evening of Thursday 18th April. Informed that BCHG had significantly risen and required an antenatal appointment with her gp." 1. This again does not suggest Dr Phillipson had made it clear to patient A that her condition required urgent review. We note that the entry was made by Dr Phillipson after she had been informed by patient A that she had needed surgery after a ruptured ectopic pregnancy. 2. In her evidence in these proceedings, Dr Phillipson said she asked patient A to return after Easter. She could not recall whether she had specified a date and could not recall having said it was urgent. 3. Patient A does not recall Dr Phillipson asking her to make an appointment in the week after Easter. She said she would have done so if Dr Phillipson had asked her. She said she received an email confirming an appointment for her to see Dr Phillipson on 2 May 2019. We accept this evidence. 4. Counsel for Dr Phillipson submitted that we should resolve the conflict in the evidence in favour of Dr Phillipson by taking into account the extensive character references in evidence. However, we are not persuaded that there is any such conflict – Dr Phillipson on her own evidence did not indicate on any occasion to patient A that she should urgently return immediately after the Easter weekend for a purpose other than regular antenatal review. 5. As we have said, Dr Ellis is of the view that Dr Phillipson should have insisted that patient A present to her as the first appointment of the day on Tuesday morning following the Easter holiday. She could then have arranged an urgent ultrasound and serial HCG testing. We accept this opinion. 6. In our view it is clear, because Dr Phillipson did not consider the possibility of an ectopic pregnancy, that she did not convey to patient A that she needed urgent review by ultrasound and BCHG testing to monitor the progress of her pregnancy. 7. We are satisfied that the Health Care Complaints Commission has established Particular Four. Finding – Complaint One 1. The Health Care Complaints Commission says that Dr Phillipson is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law as the conduct particularised in Complaint One demonstrates that her knowledge, skill or judgment, or the care that she exercised, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 2. Both experts were of the view that her conduct was significantly below that standard. 3. The Tribunal agrees with the experts. While we have only found that Particulars Two, Three and Four have been established, we are of the view that the conduct relied on in Particular One forms part of Particular Two. 4. Ectopic pregnancy is not rare, it occurs in 1-2% of all pregnancies. An undiagnosed ectopic pregnancy can lead to the death of the patient. In this case patient A underwent an emergency laparoscopy and salpingectomy. The hospital notes record "massive transfusion protocol activated." Patient A said her family thought she might die. 5. Based on our findings, there was information from several sources available to Dr Phillipson which would have made a practitioner of an equivalent level of training or experience realise that patient A was extremely unlikely to be only 2 to 3 weeks pregnant on 18 April 2019. That conclusion would then have caused a practitioner of an equivalent level of training or experience to understand that on 16 April 2019 evidence of the pregnancy should have been seen on the ultrasound and, as there was no such evidence on the ultrasound, there was a real likelihood that the ultrasound was consistent with a pregnancy of unknown location, which includes ectopic pregnancy, as noted on the ultrasound report. A practitioner of an equivalent level of training or experience would then have made the differential diagnosis of ectopic pregnancy and given the warnings and advice set out in Complaint One. 6. Dr Phillipson's failure to do so, taking into account her many years of experience and training in the area, means that her knowledge, skill and judgment fell significantly below the standard reasonably expected. 7. We are satisfied that Dr Phillipson is guilty of unsatisfactory professional conduct under s139B (1)(a) of the National Law. Complaint Two 1. The Health Care Complaints Commission says that Dr Phillipson is guilty of unsatisfactory professional conduct in that she engaged in improper or unethical conduct relating to the practice or purported practice of medicine: s 139B(1)(l) of the National Law. Particulars of Complaint Two 1. On 28 May 2019, Dr Phillipson inappropriately made a retrospective entry into patient A's clinical notes documenting the telephone call with patient A on 18 April 2019 in circumstances where: 1. Patient A had made a complaint against the practitioner to the Health Care Complaints Commission; 2. Dr Phillipson was on notice by the Health Care Complaints Commission of the complaint. 1. The Health Care Complaints Commission says the making of the retrospective entry was improper. 2. Dr Phillipson admits that the entry was retrospective but denies it was improper to do so. Finding – Complaint Two 1. Both Dr Ellis and Dr Dobler accept that there will be circumstances in which a doctor will need to make a retrospective entry. 2. In this case: 1. It is obvious from the entry that it was made on 28 May 2019; 2. Dr Phillipson was at home at 7 pm on 18 April 2019 when she spoke to patient A by telephone. She could not access the practice's computer system from her home; 3. By the time Dr Phillipson returned to work after the Easter break, she had forgotten to make an entry in the notes; 4. On 28 May 2019 Dr Phillipson spoke to patient A. She then reviewed her records and found she had not documented the evening telephone discussion of 18 April 2019. She said she then made a true account of the 18 April 2019 conversation as she recalled it. 1. Dr Ellis made some comments in relation to the reliability of the content of the note. However that is not the subject of this complaint. 2. We decline to find that Dr Phillipson engaged in improper conduct by making the retrospective note on 28 May 2019. Complaint Three 1. The Health Care Complaints Commission says that Dr Phillipson is guilty of unsatisfactory professional conduct in that she contravened the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW): s 139B (1)(b) of the National Law. Particulars of Complaint Three 1. The Health Care Complaints Commission says that Dr Phillipson contravened clause 6(1) and Schedule 4 of the Health Practitioner Regulation (New South Wales) Regulation in respect of her medical records for patient A in that she failed to document appropriate history-taking in relation to all of patient A's consultations. 2. Dr Phillipson admits Complaint Three. Finding – Complaint Three 1. We have already set out some of the entries in the medical records in these Reasons. 2. We are of the view that all of the entries are inadequate. For example, in relation to the first consultation, three matters were discussed. In relation to one of those, an upper respiratory tract infection, the entry does mention some aspects of a respiratory examination but does not include any history of her symptoms. At that consultation Dr Phillipson undertook pregnancy counselling but has not recorded a detailed personal health history. 3. Dr Ellis said that, overall, Dr Phillipson's documentation is grossly inadequate. 4. Dr Dobler said the medical notes of Dr Phillipson do not meet the standard required for a practitioner of her experience or qualifications. 5. We are satisfied that Dr Phillipson is guilty of unsatisfactory professional conduct under s 139(1)(b) of the National Law as she has contravened the Health Practitioner Regulation (New South Wales) Regulation. That Regulation sets out the standards for record keeping including, inter alia, a requirement for the record to contain sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. Complaint Four 1. The Health Care Complaints Commission says that Dr Phillipson is guilty of professional misconduct in that she has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, and/or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of her registration. Particulars of Complaint Four 1. Complaint One, Particulars One and Three are repeated and relied upon individually. 2. Complaints One, Two and Three and the particulars thereof are repeated and relied on cumulatively. 3. Dr Phillipson denies both Particulars of Complaint Four. Finding – Complaint Four 1. In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA observed that: "19. … The term professional misconduct does not have a specific meaning, it is merely a category of "unsatisfactory professional conduct" serious enough to justify suspension or cancellation… 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend on an evaluative judgment made by the Tribunal." 1. In deciding whether the conduct which has been established is sufficiently serious, we make the following findings: 1. Dr Phillipson's conduct in relation to patient A was a very serious misdiagnosis for any general practitioner with her experience. 2. The consequences of Dr Phillipson's failure to identify the risk of ectopic pregnancy could have resulted in the death of patient A. Patient A did experience serious medical complications from the ectopic pregnancy. 3. Nevertheless, Complaints One and Two arise out of the treatment of only one patient on one day. 4. Complaint Three, which relates to inadequate record keeping in relation to patient A only, would not, in our opinion, be considered serious enough by itself to justify an order for the suspension or cancellation of Dr Phillipson's registration. 5. We do not consider that Dr Phillipson's conduct, when all of the Complaints which have been established are taken together, is conduct of a sufficiently serious nature to justify suspension or cancellation of her registration. 1. We decline to find that the Health Care Complaints Commission has established that Dr Phillipson is guilty of professional misconduct. Determination and Directions 1. We make the following determinations: 1. The Health Care Complaints Commission has established Complaint One Particular Two, Particular Three and Particular Four and the conduct constitutes unsatisfactory professional conduct. 2. The Health Care Complaints Commission has established Complaint Three and the conduct constitutes unsatisfactory professional conduct. 3. Complaint One Particular One, Complaint Two and Complaint Four have not been established. 1. The Tribunal makes the following directions: 1. The Applicant is to provide to the Tribunal and the Respondent a statement of the protective Orders it is seeking as a consequence of these findings, together with the evidence on which it intends to rely and submissions, on or before 22 March 2021. 2. The Respondent is to provide to the Tribunal and the Applicant evidence and submissions in response by 5 April 2021. 3. The Applicant is to provide to the Tribunal and the Respondent any material in reply by 19 April 2021. 4. The parties are to jointly provide to the Tribunal, on or before 26 April 2021, a range of dates for the Stage 2 hearing. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2021