Health Care Complaints Commission v Halder [2011] NSWMT 8

Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Halder [2011] NSWMT 8 Hearing dates: 23 & 24 June 2011 Decision date: 26 August 2011 Before: Marks J, Dr L Boshell, Ms J Houen, Dr R Ford Decision: 1) The respondent, Dr Malay Kanti Halder, is cautioned pursuant to s 61(1)(a) of the Medical Practice Act 1992. 2) No order as to costs. Catchwords: UNSATISFACTORY PROFESSIONAL CONDUCT - failure to keep proper records - performed procedure on particular patient in breach of prior undertaking - alleged failure to fully inform a particular patient of nature and consequences of an operation - surrounding hospital circumstances taken into account - practitioner cautioned - no order as to costs Legislation Cited: Medical Practice Act 1992 - s 36 Medical Practice Regulation 2003 - clause 5 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Malay Kanti Halder (Respondent) Representation: Mr P Griffin of counsel (Complainant) Mr M Lynch of counsel (Respondent) Health Care Complaints Commission (Complainant) TressCox Lawyers (Respondent) File Number(s): MT 40012 of 2010

decision

Introduction 1The complainant, the Health Care Complaints Commission, has instituted complaint proceedings against the respondent, Dr Malay Kanti Halder, alleging unsatisfactory professional conduct within the meaning of s 36 of the Medical Practice Act 1992. That Act has now been repealed, but these proceedings are to be dealt with pursuant to its provisions. 2The proceedings are constituted by an amended notice of complaint, which is in the following terms: AMENDED NOTICE OF COMPLAINT TAKE NOTICE THAT the Medical Tribunal has received a complaint from the Health Care Complaints Commission following consultation with the New South Wales Medical Board in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 51(1) of the Medical Practice Act, 1992 (the "Act") THAT Dr Malay Kanti Halder of 5 Hall Road, Hornsby, NSW, ("the practitioner"), being a medical practitioner registered within the meaning of section 40 of the Act. COMPLAINT ONE Has been guilty of unsatisfactory professional conduct within the meaning of section 36 of the Act (deleted), in that: (i) he has demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/ or (ii) he has engaged in improper or unethical conduct relating to the practice of medicine. PARTICULARS At all relevant times the practitioner was a registered obstetrician and gynaecologist. Between 7 August 2007 and 13 January 2008 he worked as a specialist at Wagga Wagga Base Hospital and from 14 January 2008 until January 2009 he worked as a specialist at Gosford Hospital. Patient A 1. On 23 October 2007 the practitioner performed a tension vaginal tape, ("TVT"), procedure on Patient A at Wagga Wagga Base Hospital and: 1.1 (deleted) 1.2 (deleted) 1.3 the practitioner failed to keep proper records of his consultation with Patient A, prior to surgery, on 23 October 2007 contrary to Clause 5 of the Medical Practice Regulation 2003. Patient B 2. On 16 November 2007 the practitioner gave Professor Gregory Papworth, the Director of Medical Services, and Dr Sue Morey, a consultant, at Wagga Wagga Base Hospital an undertaking not to perform any further TVT procedures. 3. On 11 December 2007 the practitioner performed a TVT procedure on Patient B Wagga Wagga Base Hospital and: 3.1 (deleted) 3.2 the practitioner performed the TVT procedure on Patient B in breach of the undertaking he had given; and/or 3.3 (deleted) 3.4 the practitioner failed to keep proper records of his consultation with Patient B, prior to surgery, on 11 December 2007 contrary to Clause 5 of the Medical Practice Regulation 2003. Patient C 4. On 13 February 2008 at Gosford Hospital the practitioner performed a vaginal hysterectomy, pelvic floor repair and labioplasty procedures on Patient C and: 4.1 the practitioner performed the labioplasty without informing Patient C fully of both the nature of the operation and its consequences; and/or 4.2 the practitioner failed to keep proper records of his consultation with Patient C, prior to surgery, on 13 February 2008 contrary to Clause 5 of the Medical Practice Regulation 2003. Patient D 5. On 26 February 2008 the practitioner performed a hysterectomy on Patient D at Gosford Hospital and: 5.1 (deleted) 5.2 the practitioner failed to keep proper records of his consultation with Patient D, prior to surgery, on 26 February 2008 contrary to Clause 5 of the Medical Practice Regulation 2003. 6. (Deleted) Patient E 7. On 18 December 2007 the practitioner performed a vaginal hysterectomy and anterior and posterior vaginal wall repair on Patient E Wagga Wagga Base Hospital and: 7.1 the practitioner failed to keep proper records of his consultation with Patient E, prior to surgery, on 18 December 2007 contrary to Clause 5 of the Medical Practice Regulation 2003. Patient F 8. On 19 October 2007 the practitioner performed a total abdominal hysterectomy on Patient F at Gosford Hospital and: 8.1 (deleted) 8.2 the practitioner failed to keep proper records of his consultation with Patient F in the anaesthetic room prior to surgery, on 15 January 2008 contrary to Clause 5 of the Medical Practice Regulation 2003. Patient G 9. (Deleted) 9.1 (deleted) 9.2 (deleted) Other 10. (Deleted) 11. (Deleted) 12. (Deleted) 13. (Deleted) 3By notice dated 20 June 2011, the respondent admitted the subject matter of the amended complaint, being particulars 1) to 8) contained therein. 4The Tribunal has directed that the names of each of the patients referred to above be suppressed.