Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3 Hearing dates: 04/03/2013-07/03/2013 Decision date: 08 March 2013 Jurisdiction: Civil Before: Elkaim SC DCJ Dr G Yeo Dr K Ilbery Ms A Collier Decision: See paragraph 82 Catchwords: Treatment by practitioner of his mother, putting patient into palliative care instead of referring her for further investigation and management. Legislation Cited: Health Practitioner Regulation National Law (NSW) 86a Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 King v Health Care Complaints Commission [2011] NSWCA 353 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Christopher Maendel (Respondent) Representation: P Strickland SC (Applicant) M Lynch (Respondent) K Bourke (Mr A Fischli and Mr A Blough) Health Care Complaints Commission (Applicant) Hicksons Lawyers (Respondent) File Number(s): 40005/12 Publication restriction: No Judgment 1Mrs Irene Maendel, then 70 years of age, collapsed on 2 March 2010. She died on 8 March. Between these dates she was treated by the respondent. The Health Care Complaints Commission (the "HCCC") instituted these proceedings arising from the respondent's treatment. Some background 2The respondent is Mrs Maendel's son. He is one of ten siblings. Their father is Mr Jake Maendel. 3The respondent was born in the United States of America in 1968. He qualified as a medical practitioner in that country in 1994. 4Like his parents, the respondent is a member of a church community known as the Bruderhof. In November 2005 the respondent came to Australia and took up residence in a Bruderhof conclave near Inverell in New South Wales known as the Danthonia community. The community included a healthcare clinic in which the respondent worked as a general practitioner on a voluntary basis. 5There were also registered nurses in the community who provided their services when needed. This was not often and they worked in other occupations at the same time. For example the two nurses who gave evidence before the Tribunal usually operated a 'sign' business owned by the community. 6In January 2005 the respondent became a Fellow of the Royal Australian College of General Practitioners. In addition to credits derived from his American qualifications he needed to pass examinations to become a member of the fellowship. 7From August 2006 to June 2008, as well as his work in the clinic, the respondent also worked as a Visiting Medical Officer at the Inverell Hospital, in particular in the accident and emergency department. 8In 2009 the respondent's parents came to Australia with the intention of remaining for about a year. They lived in the Danthonia community and apparently developed a close relationship with other church members. Some general observations 9The Tribunal thinks it necessary to make the following observations at this early stage: (a)The respondent was an honest witness. This was conceded by the HCCC. (b)Despite a number of failings in the treatment of his mother, the Tribunal accepts that the respondent acted at all times in a manner that he perceived was in the best interests of Mrs Maendel. The HCCC also conceded this point. (c)Other than a desire for his mother to remain in the caring environment of the church community the respondent's actions were not dictated by any directions or guidelines forming part of the church's beliefs. (d)Whether or not Mrs Maendel was entitled to Medicare or travel insurance benefits played no part in the choice of treatment. The initial incident 10Mrs Maendel collapsed at about 8pm on 2 March 2010 in a bathroom attached to the community dining hall. She was unconscious and received immediate attention, especially from registered nurses who were quickly available. The respondent was summoned and arrived within five minutes. He found his mother unresponsive and vomiting. There were no signs of physical injury. A Glasgow Coma Scale (GCS) test produced a reading of '3' out of '15'. This is a particularly low result indicating a very serious condition. 11After about 10 or 15 minutes Mrs Maendel regained consciousness and informed the respondent that she had a very bad headache but no chest pain. She exhibited no focal neurological signs. She soon lapsed back into unconsciousness. 12The respondent considered the possible causes of his mother's condition and came to the view that she had most likely suffered a sub-arachnoid haemorrhage, a 'stroke'. He used this conclusion as a "working diagnosis" in order to provide ongoing treatment for his mother. 13The respondent informed his father of his diagnosis and said that Mrs Maendel needed to be taken to a bed in order for her condition to be stabilised. Mrs Maendel was first of all moved to a bed within an apartment in the Danthonia complex and then later moved to her own home. She was placed in a new 'hospital' bed and provided ongoing care until her death on 8 March. The Notice of Complaint 14Mrs Nicole Maendel made the original complaint to the HCCC. She is the wife of Mr James Maendel who is one of the ten Maendel siblings. The complaint was widespread in its allegations, as can be seen from Exhibit G. The Notice of Complaint ultimately filed by the HCCC is derived from this document but is much more limited in its scope. An Amended Notice of Complaint was filed during the hearing. A copy is annexed to this judgment. 15This care given to Mrs Maendel from 3 to 8 March 2010 was provided by the respondent, registered nurses and also carers from the community. There is no doubt that, as palliative care, the regime was sympathetic and competent. 16In broad terms the HCCC alleges that this care should not necessarily have been palliative. Rather it should have been pro-active and directed to establishing the patient's chances of recovery. 17The HCCC says that following the emergency intervention by the respondent, about which it does not complain, he should have referred Mrs Maendel for an immediate CT scan of her brain, had her hospitalised and turned over her care to an independent doctor and arranged for specialist opinion. These actions would also have been necessary to give informed advice to Mr Maendel, the patient's proxy. 18He should have also have kept better records. 19The HCCC alleges that although the respondent's diagnosis may well have been correct, his management of his mother was entirely inappropriate. 20Complaint One alleges unsatisfactory professional conduct under Section 139B of the Health Practitioner Regulation National Law (NSW) 86a (the "National Law"). Most of the particulars of the complaint were admitted together with a concession that the alleged conduct amounted to unsatisfactory professional conduct. Some particulars were not admitted or admitted with qualification. Particular 2 was not pressed by the HCCC. 21Complaint Two is also brought under Section 139B. It alleges a failure to keep proper records. It was admitted. 22The admissions made a good deal of the evidence tendered irrelevant or less relevant. 23Complaint Three alleges professional misconduct under Section 139E, the particulars being the same as those relied upon in respect of Complaints One and Two. This complaint was not admitted. 24In assessing the complaints the Tribunal was acutely aware of their seriousness. Acknowledging that the onus of proof on the HCCC was on a balance of probabilities, the Tribunal nevertheless approached the matter on the basis outlined in Briginshaw v Briginshaw (1938) 60 CLR 336. 25The respondent indicated that he wished to have a separate hearing in respect of protective orders. His entitlement to this course was made clear in King v Health Care Complaints Commission [2011] NSWCA 353. This judgment, therefore, is concerned only with the establishment, or otherwise, of the complaints. 26The facts of this case are unusual. The conduct which was wrongful was carried out in a context in which the doctor at all times acted in accordance with his perception of the best interests of his patient as the prime consideration. The ultimate issue of whether there had been professional misconduct was very difficult to resolve. As will be seen below the Tribunal's decision was not reached unanimously. Ultimately the HCCC failed in respect of Complaint Three because it had the onus of proof and, when applied on the Briginshaw standard, the Tribunal in its evaluative judgment did not accept that the HCCC had proved its case. Resolving the disputes in Complaint One 27As already mentioned nearly all of the particulars in Complaint One were admitted together with a concession that the conduct alleged amounted to unsatisfactory professional conduct within Section 139B. It was left to the Tribunal to reach a decision in respect of Particulars 1(e), 1(f), 4(a) and 4(b). Each will be dealt with in turn. 28The respondent's resistance to the allegation in Particular 1(e) is based on whether the instructions to nursing staff were appropriate for pro-active care or, on the other hand, for palliative care. If it was the latter then the respondent says the instructions were not necessary. Based on the evidence of Dr Raftos and Dr Gibbons the Tribunal agrees with the respondent's position that the instructions were not required for palliative care. If, however, it is accepted by the respondent that investigative and positive care should have been undertaken, as is evident from his admission to Particular 1(d), then it must follow that the instructions to the nursing staff should have included the regular monitoring of the patient's physical and neurological state. 29The respondent's answer to this point, and to some extent generally, was that if he should not have been treating his mother in the first place then he cannot be criticised for the manner of his treatment. He effectively asked the Tribunal to say once it was accepted that he should not have been treating his mother then his continued treatment of her should not be criticised. 30The Tribunal disagrees with this approach. The fact is that the respondent did continue to treat his mother and must therefore be susceptible to criticism of any failings in the continuing treatment. 31The Tribunal being satisfied that pro-active care was, at least initially, appropriate, the failure to give instructions to effect such care must result in establishment of Particular 1(e). 32Particular 1(f) was further amended to delete the words "including as to the extent to which any drowsiness was due to morphine". On this basis the alleged facts were admitted. They were not however conceded to amount to unsatisfactory professional conduct. 33Again accepting that palliative care was not necessarily appropriate and also taking into account that the respondent was the only medical practitioner providing treatment to the patient, in a home setting, the Tribunal is of the view that proper practice required the practitioner to closely monitor and assess the patient's clinical and neurological state. It is correct that the failure to do so is a product of the failure to implement an investigative management regime. Nevertheless the failure must be seen in its own right, although no doubt when examining protective orders the setting against which the failure occurred would be taken into account. The Tribunal therefore finds the conduct was unsatisfactory professional conduct. 34The issue about Particular 4(a) was whether the respondent formed a judgment that the patient should only receive palliative care. As the Tribunal understands the respondent's position, he admits this particular provided it is taken to include a consideration of his mother's wishes. Accepting that to be the case the Tribunal finds the particular proved and that, because no CT was ordered and no local independent opinion was sought, the facts constitute unsatisfactory professional conduct. 35In respect of Particular 4(b) the issue is really the same. The Tribunal does accept that the advice given to Mr Maendel did include options besides palliative care (as set out in the respondent's statement from paragraph 40), but once again, given the failure to carry out full investigations, the recommendation was internally flawed. Therefore the particular is found proved and amounts to unsatisfactory professional conduct. 36The Tribunal is satisfied, based on its findings and on the admissions that every particular in Complaint One has been proven to the necessary standard. Complaint Two 37Complaint Two was admitted together with a concession that the conduct amounted to unsatisfactory professional conduct. Complaint Three 38Complaint Three relies on the particulars of Complaints One and Two to establish that the respondent was guilty of professional misconduct under Section 139E. This section is in the following terms: "139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) 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 suspension or cancellation of the practitioner's registration." 39It is clear from the terms of Section 139E that the various particulars under Complaints One and Two can be accumulated in order to reach the conclusion of professional misconduct. 40In the present case the accumulation of the particulars, especially those in Complaint One combine to create an allegation that the respondent, by his actions and omissions, deprived the patient of a chance of recovery which she may have had if a pro-active approach had been taken. It is a part of this allegation that by not fully informing Mr Jake Maendel of the possibility of recovery consequent upon appropriate investigations that Mr Maendel was not able, as proxy for his wife, to make an informed decision about the options available for future treatment. 41The extensive admissions made by the respondent limited the necessity to make findings of fact. There were however some areas of dispute which require discussion. 42The first such issue is the extent to which Mrs Maendel had been alert and active between her collapse and death. 43The HCCC relied on the clinical notes of the nursing staff together with, in particular, the observations of a Ms Dorrie Rhodes, as contained in a letter she wrote on 8 May 2010 (Exhibit B, Tab 5). The following portion of the letter is the most significant: "It was during that next night while Meg Loewenthal and Rose Mommsen were with her that she woke up and asked what had happened to her. That whole day (Thursday, March 4) was a gift to us all. Irene was awake and quite conscious. She greeted many brothers and sisters by name including many children. I was so touched how several times when I entered the room or came over to her, she waved at me and smiled. When Amber and Regina came in to help me turn Irene in her bed, she opened her eyes and looked at each in turn, "Ambs? Gina!" However it was also very hard to witness her puzzlement over why she was in bed and what had happened. She asked several times, "What happened to me?" or, "am I sick?" She wanted to get up to take a shower. I didn't know what to say to her. Amber and I were with her that morning and we often were at a loss at what to tell Irene about her situation. It was just so new for all of us." 44There is no doubt that the description given by Ms Rhodes suggests an extended period of particularly alert conduct on the patient's part. 45The opposing view was presented by the respondent together with the evidence of two registered nurses, Mr Fischli and Mr Blough. 46Mr Fischli performed shifts as a registered nurse and also made observations of Mrs Maendel during casual visits to her room. Mr Blough's involvement was more limited. He looked after the patient from 10pm to midnight on 4 March and then from about 3am to about 6am on 7 March. He did not make observations outside his shift times. 47Mr Fischli's observations of the patient's general condition can be summarised in these portions of his oral evidence. (a)"Q. What's the significant one? A. There was a group of children that had come in to see her and they sang a song to her or something like that and she woke up and they were talking to her and she seemed to be responding and that was very unusual and I was in the room at that time, and because I don't believe Jake Maendel was in the room and because it was so unusual, I saw a camera there and I grabbed the camera to take a picture so that he could have a picture of his wife, you know, awake and alert, and by the time - it was a digital camera and by the time I turned it on and got to a place where I could take a picture, she was unconscious again. Q. You said that she seemed to be responding when the children were singing songs. What was she doing? A. Well, she - her eyes opened up and she - she may have said a word or two to them. You know, you could see that she was taking in the fact that they were there and singing to her. Q. So you don't recall an occasion when there was a large group of children and she could name each of them by name? A. No. Q. She didn't do that in your presence? A. Well, I was there at that, what I just described. Her entire period of lucidity, in my memory, was about a minute; sixty seconds or so." (T 42.5) (b)"Q. It is not the case is it that her lucid moments were usually only for a few seconds? A. That's correct, her lucid moments were only for a few seconds." (T 43.48) (c)"Q. I beg your pardon? A. Every time I came in to my memory she was unconscious, I don't remember coming in and seeing her awake." (T 44.22) (d)"Q. Do you remember was her speech normal? A. I only ever heard her say a couple of words at a time and it was hard to assess whether - I mean it wasn't, you know, there wasn't enough said to really assess is this normal speech or not, I certainly never heard her formulate a sentence. Q. But the words that you heard sound well formed as if her tongue was working well and the word was a correct word? A. I don't have any recollection of anything different or strange, I just remember her saying, "My head". Q. You said she opened her eyes, when you saw her eyes open did they appear to be focusing and working in coordination with each other, were the pupils normal, do you remember that sort of thing? A. The incident I screamed earlier when the children were there, she appeared to be recognising the people that were there for that minute or so, and then she drifted off, her eyes were closed and she became unresponsive and if you tried to get her back she had a bit of response. Q. When you say when you tried to get her back, what-- A. Well, if you called her, whatever, tried to, you know, it wasn't like she had just gone to sleep, you couldn't - you couldn't - for example, I changed her IV at one point, she didn't react to that like a normal person would, if a person was asleep and you stuck a 20 gauge catheter in their arm they'd probably wake up, and she didn't respond like a normal person." (T 51.18) 48It is to be recalled that, certainly in the morning, Mr Fischli made his observations on the same day that Ms Rhodes alleges the conscious activity on the patient's part. 49As already stated, Mr Blough's involvement was limited. It was, subject to this limitation, consistent with the evidence of Mr Fischli. For example, he said: "Q. Firstly, from a nursing point of view, was she asleep, was she unconscious, was she comatose? What was your understanding of her clinical condition from the nursing point of view? A. She was unconscious. Did not respond to normal speaking or what one would, you know, how one responds to somebody to see if they're - to talk to them or touch them and get a response. She did not respond to those kinds of things." (T 84.21) 50The HCCC submitted that the description given by Ms Rhodes was corroborated by the nursing clinical notes. In particular, reference was made to the patient often turning herself, smiling, talking and enquiring about her condition. There are some references to drinking water and sucking on a sponge. There is this entry on 5 March at 4pm: "Wide awake when children came - big smiles and hellos to each one". 51Another entry requiring particular mention is at 7am on 6 March, which states: "woke w/singing smiled". There was a suggestion that the entry read "woke up singing ...". The Tribunal thinks the entry should be read as the patient having woken up with singing rather than singing on her part. This is not only more consistent with the appearance of the note but also with the unlikelihood of her waking up and immediately singing. 52The Tribunal does not accept that the nursing notes corroborate Ms Rhodes' statement. This is for the following reasons: (a)The statement refers to a "whole day" of consciousness and activity. The notes do not show this. (b)Ms Rhodes refers to the events including recognition of children as occurring on 4 March whereas the notes suggest this may have occurred, at least to some extent, on 5 March. (c)Ms Rhodes' description, and this is said without criticism, is obviously influenced by the spiritual feelings she experienced, no doubt influenced by her obvious affection for Mrs Maendel. (d)The letter was also an apparently cathartic exercise on Ms Rhodes' part together with an endeavour to provide comfort to its recipient. 53The Tribunal also notes that it was informed that Mr Fischli and Mr Blough were facing disciplinary proceedings by their professional body. There was an impression of a defensive attitude taken in their evidence although the Tribunal would not make any finding of conscious dishonesty. 54The Tribunal's ultimate view is that the clinical nursing notes are the most reliable indicator on this issue. The Tribunal is satisfied that the patient was generally unconscious from 3 to 8 March but that, in particular on 4 and 5 March, there were periods when she was awake, able to respond to questions, able to take some fluids and to recognise various persons, including children, who visited her. These periods of lucidity were probably of limited duration and certainly did not extend over hours let alone the "whole day" described by Ms Rhodes. 55The Tribunal also finds Dr Maendel's evidence consistent with the notes and further accepts that on each occasion that Dr Maendel was informed of some conscious activity on the part of his mother that he attended upon her and re-evaluated her condition. The Tribunal also accepts that on each such re-evaluation Dr Maendel found no overall improvement in the patient's state. This is a separate question as to whether he should have acted upon the reports alone to generally reassess the treatment regime. 56The next issue of importance concerns the wishes of Mrs Maendel. As already stated it is accepted that Dr Maendel acted according to his perception of his patient's wishes. It is also accepted that his assessment of these wishes was that the patient would not have wanted pro-active treatment in the circumstances. It was at first thought that Dr Maendel's statement that his mother's view was that she should receive all treatment that was humanly possible and then leave matters in the hands of God was inconsistent with his general approach which was that she should be allowed to remain amongst her family and friends and not receive aggressive treatment. On close examination of the evidence, however, the Tribunal is satisfied that the doctor had a genuine belief that his mother would not have elected to receive aggressive treatment. 57The respondent sets out his understanding of his mother's wishes in his supplementary statement in Exhibit 1 at Tab 1. The HCCC, while acknowledging the sincerity of the respondent's belief in the patient's wishes, said that the respondent's interpretation was not based on a reasonable interpretation of his discussions with his mother and also did not take into account the possibility that she might have changed her mind. The Tribunal is satisfied that the respondent did have reasonable grounds for his belief derived from his discussions with his mother particularly as expressed to him and set out in paragraph 8 of the supplementary statement. The Tribunal notes however that the scenarios described in conversation with Mrs Maendel do not mirror the illness which later befell her. 58In relation to a possible change of mind, this of course can never be excluded; however, there is no basis upon which the respondent could have predicted a change of mind nor any reason why he might have suspected that would occur. 59The next point of importance concerns the respondent's conversations with his father. These are comprehensively set from paragraph 40 of his statement (Tab 1 in Exhibit 1). It is worth setting them out here. "40. I explained to him that on the basis of my examination and assessment, she had suffered a serious subarachnoid hemorrhage with a poor prognosis, I explained to him that she could die any time; that she could re-bleed further from the site; and that she could deteriorate and die from the effects of the bleeding that was already present. I told my Dad that we needed to make a choice between aggressive medical and surgical intervention at a tertiary center versus a palliative approach where our goal would be comfort care. I explained to him that I was confident I could provide palliative care at home but that there were interventions with possible benefit which could only be performed in the hospital like ventilation on a respirator. 41. I explained what I believed would happen if we called an ambulance and transferred her to Inverell Hospital. She would require intubation with sedation and paralysis and be placed on a ventilator to protect her airway during transport and also to help decrease pressure in the brain. She would then need to be air-lifted to a facility on the coast with a neurosurgical unit. I explained that in effect that she would be evaluated to see if she was a candidate for surgery to prevent a re-bleed. Dad asked me if I thought surgery like that would help and I explained that surgery would do nothing to reverse the effects of the bleed that had already occurred but that it could prevent a re-bleed, and that I doubted she would be a good candidate for surgery. 42. I also explained that there was no guarantee that aggressive medical or surgical care would result in a good outcome, and that there was a significant likelihood that she could die en route or alone in an ICU on the coast. I also explained that with the sedation and paralysis required for intubation, he might not have another opportunity to converse with Mom. I told him that in my opinion there was a poor chance of recovery with aggressive care and surgery and that I felt the best option was to simply keep her comfortable at home. My Dad agreed to keep Mom at home." 60There is further explanation described in paragraph 44. 61It was submitted by the HCCC that the version of conversations set out in the deposition of Mr Jake Maendel should be accepted over the respondent's version. The Tribunal does not agree. Mr Maendel's statement is obviously a summary of his recollection given a year after the event. In addition, it is apparent from Exhibit H that Mr Maendel makes no criticism of the respondent's actions. The email includes: "Jake is, and always has been, fully satisfied with every aspect of the care his wife Irene received from Chris and the nursing team. He believes that the treatment decisions he made accord with what she would have wished, had she been able to make her wishes known. My client considers that the complaint filed with the HCCC by Mrs Nicole Maendel is unfounded and in bad faith, and notes that all of his other eight children share his views regarding the care his wife received." 62Having accepted that the respondent was acting with the wishes of the patient as the prominent dictator of his actions, the next question that arises is whether this approach is valid in itself. On the assumption that there was a proper basis for knowing the patient's wishes, Dr Gibbons said: "the doctor's obligation is to follow the patient's wishes" (T 111.38). The Tribunal is of a similar view. However, in the present case this view does no more than express an acceptance that the respondent's actions were based on a valid perception of the patient's wishes. It does not extend to justify those actions where, on objective assessment, they were inappropriate. 63The last issue requiring comment is the overall environment in which the respondent found himself. It is important because of the respondent's submission that his failings should be looked at in a 'global' sense emanating from his initial error of taking on his mother's post-stabilisation care. 64After making the initial wrong decision to treat his mother he then took on a number of roles and was subjected to a number of stressors that probably dominated his thought process and impeded his capacity to divert from the course that he chose. 65The following passages of evidence are important: "Q. The second thing I want to put to you was a suggestion that looking back that you were significantly overreaching yourself, now before you answer I want to tell you what the ingredients of the suggestion are so I'm not putting this to you as you were doing this, I am only putting it to you for your comment, do you understand? A. I think so. Q. While this was all going on, let's start off at stabilisation, there is no criticism of anything you did in relation to the emergency care, the criticism seems to start once stabilisation has occurred. From then on you were the sole treating doctor, you were the sole diagnostician, and I don't mean human, I mean you didn't have the assistance of CTs or anything else; you were a son with natural feelings for your mother which no doubt would have included some shock and grief. A. That's right. Q. You were your father's advisor. You were the sole person providing him with information. A. True. Q. You were the continuing dictator in a benign sense of the mode of treatment? A. Yes. Q. You were the sole liaison between your siblings and your mother in terms of what's going on. You were no doubt a considerable support to your father although presumably other members of the church would have also been there for him? A. They were. Q. Yes, as a simple human being having regard to what you've told us about what you did you would no doubt have - could no doubt have used extra sleep. You were physically at stress and strain, do you agree with that? A. Yes. Q. Lump all of those things together as being all happening at the same time, you're in all of those roles; do you looking back now or what would you like to say about the suggestion that you were significantly over reaching yourself? A. I would agree with that in that sense. Q. Can I add into the mix that you were operating with a lack of peer support, do you accept that? A. Yes." (T 223.27) 66Although the Tribunal is firm in its view that the respondent should be regarded as having committed a series of errors, it does accept that once the initial wrong decision was made the respondent became trapped by the surrounding circumstances and stressors outlined above so that he became fixed to a course of action in which the subsequent errors almost became inevitable. Was there professional misconduct? 67In assessing whether the respondent's actions amounted to professional misconduct the Tribunal was guided by the following passage from the decision of Kirby P (as he then was) in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200: ""Misconduct" means more than mere negligence: The words used in the statutory test ("misconduct in a professional respect") plainly go beyond that negligence which would found a claim against a medical practitioner for damages: Re Anderson, (at 575). On the other hand gross negligence might amount to relevant misconduct, particularly if accompanied by indifference to, or lack of concern for, the welfare of the patient: cf Re Anderson (at 575). Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct: ibid. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson (at 760-761). These are the approaches which have been taken in our courts. They have been taken in the courts of England where such misconduct is alleged. And they have similarly been taken in the courts of the United States. The entry in Corpus Juris Secundum, vol 58, (1948) at 818, reads: "Both in law and in ordinary speech the term 'misconduct' usually implies an act done willfully with a wrong intention, and conveys the idea of intentional wrongdoing. The term implies fault beyond the error of judgment; a wrongful intention, and not a mere error of judgment; but it does not necessarily imply corruption or criminal intention, and, in the legal idea of misconduct, an evil intention is not a necessary ingredient. The word is sufficiently comprehensive to include misfeasance as well as malfeasance, and as applied to professional people it includes unprofessional acts even though such acts are not inherently wrongful. Whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the conduct and not from its consequences."" 68The very last sentence in the above quote has particular relevance to this case. On the basis of Dr Raftos' evidence the likelihood is that Mrs Maendel would have been severely disabled or died, notwithstanding proactive treatment. She may, however, have fallen into the 30% of cases where a full or near full recovery is achieved. If she was denied the opportunity to fall into this category then the consequences of the respondent's conduct could not be more dire. Dr Raftos also said that signs of consciousness might have indicated a better chance of falling into a positive category (T 68.2). 69However, as stated in the above passage from Pillai it is the nature of the conduct and not its consequences that are relevant. 70The Tribunal was also mindful that it should not work backwards from a decision that it did not ultimately wish to suspend or cancel the respondent's registration. 71It is, of course, difficult to divorce Mrs Maendel's death, including the possibility that she might have returned to a normal life, from consideration. Nevertheless the respondent's conduct must be seen as a sincere attempt to act in the best wishes of his mother. Taken with the overwhelming responsibilities that were thrust upon him both as the doctor, the family representative and the principal support of his father, the Tribunal does not think that there was professional misconduct on the respondent's part. He did not act with indifference, he did not have a wrongful intention and he did not act in any manner deliberately designed, or reckless of the possibility that further harm would be caused to the patient. 72In addition, the Tribunal recognises that the very essence of its function is derived from the necessity to protect the public. This is enshrined in Section 3A of the National Law which states: "3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration." 73Putting aside the fact that the respondent no longer practises in Australia, the Tribunal does not believe that the respondent's treatment of his mother would give rise to or be indicative of any similar treatment to members of the public. In fact, the evidence is to the contrary recalling that Dr Maendel said that in every other case in which there was a suspicion of a sub-arachnoid haemorrhage he had immediately referred the patient for a CT scan and hospitalisation. 74The Tribunal has no doubt that the wrongdoings of the respondent were serious both as admitted by him and found by the Tribunal. They not only occurred on separate occasions but included basic acts of medical practice from the failure to instigate proper investigation and review to the absence of proper record keeping. 75In addition, the wrongdoings highlight the very good reason why the medical profession proscribes the treatment of family members by practitioners. This case is a stark example and reminder to the medical profession that no matter how well intentioned a doctor might be it is fraught with risk and danger to treat a member of one's own family. 76The confluence of treatment of a serious condition with the emotional reaction of being a son to the patient and also the principal source of support and information to his father and wider family have resulted in the string of errors made by the respondent. 77At the same time the Tribunal accepts that every action of the respondent was well intentioned, that his diagnosis was almost certainly correct and in all likelihood he afforded his mother her final days in the manner she would have wished and without the rigours of rough and lengthy transportation, invasive investigation and possibly surgery and death in a hospital away from her church and community environment. 78In Sabag v Health Care Complaints Commission [2001] NSWCA 411 at paragraph 83, Sperling AJA said that professional misconduct was "a matter of degree and judgment". The Tribunal is acutely aware that the possible consequences (death as opposed to survival) of the respondent's unsatisfactory conduct suggests a high degree of culpability. Nevertheless, in the judgment of the Tribunal the overall circumstances of the respondent's actions were such that they ought not be classified as misconduct. The Tribunal is not satisfied, on an evaluative and objective basis, that the HCCC has proved the allegation of professional misconduct. 79It has already been mentioned that this result was not a unanimous decision of the members of the Tribunal. Two members took a different view on the establishment of Complaint Three. However, by the application of Section 166(3) of the National Law the decision of the Deputy Chairperson, in this circumstance, is the decision of the Tribunal. As the Deputy Chairperson was of the view, together with one other member of the Tribunal, that Complaint Three had not been established, then that is the decision of the Tribunal. 80The dissenting members of the Tribunal did not wish to provide a separate judgment but were satisfied to rely on the following observations of their views. The difference of opinion between the members of the Tribunal was not as to any findings of fact, rather it was because two of the members were satisfied that the HCCC had 'crossed the line' of proof in establishing that the respondent's errors were so serious as to constitute professional misconduct. The following findings were of particular relevance to their decision: (a)There had been a substantial departure from known accepted standards of care. These included treating a family member, the failure to have a CT scan, the failure to consult other local practitioners (of which three or four were known to him and were available) or a specialist. (b)The failure to reassess the patient's condition, in particular following reports of conscious activity on her part and having regard to this evidence from Dr Raftos: "WITNESS: I don't know that anyone has looked at the effect of the different portions of the treatment for subarachnoid haemorrhage individually but it would certainly be reasonable to say, for instance, that since the use of nimodipine to reduce the incidence of ..(not transcribable).. spasm the outcome from subarachnoid haemorrhage has improved. So it would be reasonable to say that if you had someone with subarachnoid haemorrhage and you didn't give them the nimodipine and you didn't give them treatment to control their cerebral oedema and intracranial pressure then their outcome would be - then their predicted outcome would be worse. So if those therapies weren't given then they would do worse." (T 69.29) (c)Even if honestly misguided the respondent's above erroneous actions were deliberate. (d)The respondent's advice to his father was of a nature one might expect from a son. It was not the objective advice that a doctor should provide to a relative required to make a momentous decision. (e)Mr Maendel no doubt took serious account of the advice given to him because it came from a medical practitioner. (f)The respondent allowed himself to simultaneously be an adviser to his father and family, a support to his father and the sole treating doctor and medical adviser. (g)Although not with deliberate intent the respondent moderated his explanations to his father to fit his perception of his mother's wishes. 81The dissenting members of the Tribunal considered the above factors to amount to such serious conduct as, within the guidelines set out in Pillai, amounted to professional misconduct. Conclusion 82The conclusions of the Tribunal, in respect of this part of the proceedings, are as follows: (a)Complaints One and Two of the Amended Notice of Complaint are found to be established. (b)Complaint Three is found not to have been established. (c)The matter is stood over for the consideration of protective orders to 22 May 2013. (d)The costs of the hearing to date are reserved. Annexure ********** 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: 08 March 2013