Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Simonson [2017] NSWCATOD 87 Hearing dates: 8, 9, 10, 11 and 12 May 2017 Date of orders: 01 June 2017 Decision date: 01 June 2017 Jurisdiction: Occupational Division Before: The Hon F Marks ADCJ Dr K Edwards (professional member) Dr K Keenan (professional member) J Houen (community member) Decision: Findings of professional misconduct made. Proceedings stood over for stage 2 hearing on 22 June 2017. Catchwords: Medical practitioner – allegations of professional misconduct concerning five patients – requirement for documentation and recording of matters under Regulation – failure to document not for resuscitation direction – inappropriate conduct in the course of a difficult birth delivery-failure to transfer very ill child for specialist treatment in a timely manner – held constitutes in the aggregate professional misconduct. Legislation Cited: Health Care Practitioner Regulation National Law Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336 HCCC v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Frank David Simonson (Respondent) Representation: Counsel: R Mathur (Complainant) S Barnes (Respondent) Solicitors: Health Care Complaints Commission (Complainant) TressCox (Respondent) File Number(s): 2016/00378821, 1620261 Publication restriction: Non-publication order with respect to the name of any patient of the respondent or with respect to any matter which might identify or tend to identify the name of any patient of the respondent which patient is the subject of these proceedings. Reasons For Decision Introduction 1. In these proceedings the complainant, the Health Care Complaints Commission, alleges that the respondent, Dr Frank David Simonson is guilty of unsatisfactory professional conduct and professional misconduct within the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law") as particularised. The proceedings are constituted by an Amended Complaint and concern the circumstances in which the respondent afforded treatment to five patients who were admitted to a regional hospital where the respondent held a VMO position and who came under his care. There are, in essence, three separate Complaints. Complaint One concerns treatment afforded by the respondent to four patients and alleges that the respondent is guilty of unsatisfactory professional conduct under section 139 B of the National Law. Complaint Two concerns documentation and records kept by the respondent of his treatment of five patients at the hospital and alleges that he is guilty of unsatisfactory professional conduct under the same provision. Complaint Three alleges that by reason of the matters referred to in Complaints One and Two the respondent is guilty of professional misconduct under section 139 B of the National Law. Stage 1 hearing 1. With the agreement of the parties the proceedings were conducted by us confined to a consideration of whether the Complaints brought by the complainant were made out, and to what extent. It was agreed that a Stage 2 hearing would be conducted after we had published our Reasons for Decision to determine what protective orders, if any, should be made consequent upon our findings. These Reasons for Decision are concerned only with Stage 1. The evidentiary material 1. A great deal of documentary material was tendered in the proceedings, which extended over five hearing days. This included a number of statements from patients and health practitioners also involved in the treatment of the patients. In addition, the complainant retained one medical practitioner to provide an expert opinion, and the respondent retained two such medical practitioners. Their reports became evidence in the proceedings and they each gave oral evidence. Furthermore, oral evidence was given by one of the patients and her husband, the son and daughter in law of a patient as well as a number of health practitioners. We shall refer to this evidence when dealing with the several Complaints and Particulars which are the subject of these proceedings. The standard of proof 1. Before commencing our examination of the evidence given in the proceedings, it is appropriate to set out the relevant principles which will govern our determination of the factual issues. The principles themselves are not controversial, but their application may cause difficulty, as is the case in these proceedings. 2. It is generally accepted that we are required to be "comfortably satisfied" that the matters in the complaints have been established on the balance of probabilities. The well-known principles established in Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336 apply. At 361 – 363 Dixon J, as his Honour then was, said: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: "No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct" (Panama and South Pacific Telegraph Co. v. India Rubber, Gutta Percha, and Telegraph Works Co.). In the same way, in dealing with the question in what county the publication of a criminal libel had taken place, Best J. said: "I admit, where presumption is attempted to be raised, as to the corpus delicti, that it ought to be strong and cogent; but in a part of the case relating merely to the question of venue, leaving the body of the offence untouched, I would act on as slight grounds of presumption as would satisfy me in the most trifling cause that can be tried in Westminster Hall" (R. v. Burdett). It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty" (Cf. Mowatt v. Blake; Kisch v. Central Railway Co. of Venezuela Ltd.;Lumley v. Desborough). This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (Doe d. Devine v. Wilson; Boyce v. Chapman; Vaughton v. London and North Western Railway Co.; Hurst v. Evans; Brown v. McGrath;Motchall v. Massoud; Nelson v. Mutton; Gerder v. Evans; sed quœre as to the statement of Swift J. in Herbert v. Poland see, further, Wigmore on Evidence, 2nd ed. (1923), vol. v., p. 472, par. 2498 (2) (1)). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (citations omitted) 1. Briginshaw involved a consideration of the proof of adultery in family law proceedings. We find the following observation of Dixon J of assistance, albeit that it is applied to considerations of adultery at 368-369: Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find. 1. We shall approach the determination of whether the respondent is guilty of unsatisfactory professional conduct and professional misconduct consistent with this approach. The expert opinion medical evidence 1. Before commencing our discussion of each of the Complaints and Particulars by reference to the evidence adduced in the proceedings, it is necessary that we make particular mention of the expert opinion evidence. Each of the three experts was asked to provide an expert opinion concerning, in general terms, the conduct of the respondent in his treatment of each of the four patients and his documentation of his interaction with the five patients. Such evidence is of assistance to the Tribunal in determining whether the respondent has been guilty of either unsatisfactory professional conduct or professional misconduct. For the purpose of the comments which we propose to make about the evidence given in these proceedings, it is necessary that we make brief reference to the statutory definitions of unsatisfactory professional conduct and professional misconduct contained in the National Law. They are in the following terms; 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] 1. "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- 1. Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 2. A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (The remainder is omitted because it is not relevant for present purposes.). 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means- 1. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. 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. 1. It will be seen that the definition of professional misconduct is predicated upon a finding of unsatisfactory professional conduct. This latter misconduct is, in turn, predicated upon the Tribunal being comfortably satisfied that the knowledge, skill or judgment possessed, or care exercised, by the respondent in his practice was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Before a finding of unsatisfactory professional conduct can be made it is necessary to compare the knowledge, skill or judgement or care of the respondent with the standard reasonably expected of a practitioner of an equivalent level of training or experience. Accordingly, after identifying the relevant knowledge, skill or judgement or care exercised by the respondent, it is then necessary to ascertain what knowledge, skill or judgement or care would have been exercised by a practitioner of an equivalent level of training or experience. Obviously, there will be many cases where there is no one bright line which typifies the relevant knowledge, skill or judgement or care of such a practitioner. In most cases, the expected standard of relevant knowledge, skill or judgement or care of a practitioner will fall within a band, sometimes narrow and sometimes broader. It is only after all of these matters have been identified that a comparison can be made as to whether the conduct complained of is below the relevant standard, and if so, significantly below it. "Significantly" bears its normal English usage meaning, being to a material or important degree. 2. The Tribunal is often assisted by the expert opinions provided by practitioners of the kind retained by each of the parties in these proceedings in identifying the several indicia referred to above. However, these opinions will only be of assistance if they are provided by witnesses who are able to address the elements which need to be identified. These include especially, identification of the relevant knowledge, skill or judgement or care exercised by a medical practitioner of an equivalent level of training or experience as the respondent. 3. This leads to a consideration of a more basic issue in the context of these proceedings, namely whether there is a differential standard to be applied to a medical practitioner practising in a rural area to that to be applied to a medical practitioner practising in a metropolitan or large regional area with more ready access to a range of specialists for referral and to hospitals with sophisticated diagnostic and treatment facilities. 4. The complainant retained Dr Stephen Howle, a general practitioner of long-standing practising in Tamworth, which he describes as a "provincial city." We note that a Base hospital is located in Tamworth and that Dr Howle was a VMO for many years at that hospital. In his reports, the contents of which we shall refer to when dealing with each of the individual patients, Dr Howle in general terms acknowledged difficulties that the respondent might encounter in working in a small local hospital, but otherwise applied what we understand to have been a standard fixed by reference to a general practitioner of the same level of training and experience as the respondent. The respondent retained Associate Professor Vincent Roche, a general practitioner of long-standing practising in Moss Vale, who for many years was a VMO at the Bowral and District Hospital. The respondent also retained Dr Leslie Woolllard OAM, a general practitioner of long-standing practising in Moree. He was, for many years, a VMO at Moree District Hospital. Dr Woollard has played a prominent role in promoting continuing education for rural practitioners and in publicising difficulties encountered by practitioners practising in remote rural areas. 5. In the course of providing his expert opinion Dr Woollard was asked to comment on an opinion expressed by Dr Howle on behalf of the complainant. Dr Woollard referred to some of the opinions expressed by Dr Howle as containing "entirely unrealistic expectations. What everyone fails to understand is that Dr Howle is NOT an expert in rural medicine in small towns in rural Australia and has NEVER worked in a small rural hospital." He contrasted Tamworth Hospital as having "24/7 specialist cover…… junior doctors on site 24/7". In the course of oral evidence Dr Woollard advocated passionately for the circumstances of rural practitioners, especially working as VMO's in small regional hospitals. In discussing whether it was appropriate to record a differential diagnosis in an elderly patient, he referred to "everything being OK" in "rural doctor speak", and said that he would not always be able to fulfil the requirements to record a differential diagnosis even though this might be appropriate. He also said that in an ideal world he would write down a lot more, but difficulties encountered by practitioners in rural areas precluded this. Furthermore, he said that in an ideal world "the nurses would read my notes, but they don't always." In summary, Dr Woollard said that rural practitioners were unable to comply with some of the basic requirements otherwise imposed on medical practitioners. 6. Dr Woollard and, to a lesser extent, Dr Roche had not approached their task by reference to the obligation of rural general practitioners to comply with some of the detailed requirements imposed, such as the detailed provisions to be found in Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 (now repealed) dealing with the information to be included in records kept by medical practitioners. We shall refer to the provisions of this Regulation in greater detail later in these Reasons for Decision. For present purposes, we observe that they apply in their entirety to all medical practitioners practising in New South Wales, whether in metropolitan, regional or rural areas. Furthermore, the same general standards of conduct apply to practitioners in regional and rural areas as apply to practitioners in metropolitan areas. Obviously, inability to have ready access to sophisticated diagnostic equipment or specialist assistance will impact upon the way in which they practice medicine, but the underlying general standard remains the same. Indeed, it is sometimes said that practitioners in regional and rural areas are expected to be able to provide a greater range of medical knowledge and services because of limitations in ready access to specialist services and tertiary hospitals. 7. To the extent that Dr Woollard, and to a lesser extent Dr Roche have applied a differential standard by reference to the circumstances in which the respondent practised medicine in a rural setting, we will, where appropriate, consider their opinions accordingly. In so concluding we should not be taken to have cast any doubt of any kind upon the undoubted expertise, qualifications and experience of both of these practitioners, whose curricula vitae demonstrate the prominence that they have attained in their profession. Our concern relates solely to the basis upon which their expressions of opinion have been proffered. The Complaints and their Particulars 1. We propose to deal with each of the Complaints and the Particulars thereof sequentially for ease of reference. Complaint One 1. This alleges that the respondent; Engaged in conduct that demonstrates the skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The following particulars of Complaint One justify a finding of unsatisfactory professional conduct individually: 1, 4, 4A, 5, 6, 8A, 9, 10, 11, 12, 20, 24, 25 and 26 1. The Amended Complaint contains the following material said to have been included by way of "background" which applies to the three Complaints the subject of these proceedings. BACKGROUND TO COMPLAINT ONE 1. The practitioner was first registered as a medical practitioner in 1986. In 1996, the practitioner became a fellow of the Australian College of Rural and Remote Medicine. In 2001 he obtained a Diploma (Advanced) from the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. 2. At all relevant times to the allegations in this Complaint, the practitioner held Visiting Medical Officer (VMO) privileges at Bega District Hospital, the Delegate Health Service and Pambula District Hospital (the hospital). 3. The hospital had approximately 30 overnight beds and an Emergency Department. The Emergency and inpatient services were provided by six General Practitioner VMOs, and locum Career Medical Officers were employed for six weeks in the Christmas holiday period. 4. In his role as a GP VMO, the practitioner provided on call services which required him to accept admissions under his care on a rotating roster and see all patients presenting to the Emergency Department (ED). The practitioner also took over care of patients from his own practice admitted to the hospital by another GP VMO. 5. There then follows the following Particulars referable to each of the patients, and contained within these Particulars is further background information. PARTICULARS OF COMPLAINT ONE Patient A 1. The practitioner failed to review Patient A at Pambula District Hospital (the hospital) until 30 October 2013 at about 0850 hours in circumstances where: 1. Patient A aged 83 years old was admitted via the Emergency Department to the hospital on 28 October 2013 at about 0930 hours with a provisional diagnosis of hiatus hernia; 2. on 28 October 2013 after 0930 hours and before 1530 hours, the practitioner was made aware that Patient A had been admitted to the hospital with a hiatus hernia; 3. on 28 October 2013 after 0930 hours and before 1530 hours, the practitioner agreed take over Patient A's care from Dr Donald Reed as part of the practitioner's duties to as a VMO and as Patient A was a patient of the practitioner's general practice clinic; 4. on 29 October 2013 the practitioner was present at the hospital seeing other patients and on call and a document showing new admissions was available to him at the nurses station. 1. On 30 October 2013 at about 0850 hours the practitioner reviewed Patient A and failed to formulate and communicate to nursing staff his provisional or differential diagnosis. 2. (deleted) 3. On the morning of 31 October 2013 and on 1 November 2013 at about 0930 hours the practitioner reviewed Patient A and failed to: 1. communicate to nursing staff the findings of his physical examination of Patient A; 2. formulate and communicate to nursing staff his provisional, differential or final diagnosis for Patient A; 3. provide clear advice to nursing staff about Patient A's discharge and formulate a management and treatment plan, other than for Patient A's discharge date. (4A) The particulars in 2 and 4 above demonstrate unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law in that the practitioner exercised repeated poor judgment and care on 30 October, 31 October and 1 November 2013 by in his communication with the nursing staff and formulation of diagnoses for Patient A. 1. It is necessary to set out some further evidentiary material with respect to Patient A, and the several allegations contained in each of the Particulars set out above. 2. With respect to Particular 1, the clinical notes make it clear that Patient A was not reviewed until 30 October 2013 as alleged, and the respondent did not contend otherwise. In a written statement, the respondent said that he had no recollection of receiving a telephone call from Dr Donald Reed, the patient's usual general practitioner. In a written statement, Dr Reed reproduced a copy of his hospital progress notes for this patient made on 28 October 2013 which indicated that the respondent "agrees to take over care in the morning." Even though he could no longer recall making any telephone request to the respondent, Dr Reed confirmed in oral evidence that he would not have made such a notation if the respondent had not agreed to take over the care of this patient whilst admitted to the hospital. In oral evidence the respondent conceded that he probably did receive such a telephone request from Dr Reed, and that he had obviously forgotten to act on it. If there had been any notation in the patient list/admission sheet provided by the hospital containing the name of this patient, the respondent said he must have overlooked it. 3. We are comfortably satisfied that the factual circumstances alleged in Particular 1 have been established. However, in circumstances where there is no indication in the clinical notes that this patient had a condition which might or did require earlier attention, and there is every indication that the respondent unwittingly and unintentionally overlooked the presence of this patient in the hospital, although his conduct was below the relevant standard referred to in the legislation, it was not significantly so. Accordingly, we find that this Particular of this Complaint does not constitute unsatisfactory professional conduct. 4. Particular 2 refers to a review conducted at about 0850 hours on 30 October 2013. The clinical notes made by the respondent state; "Much better. No further pain. May have free fluids." Dr Howle said that an examination should have been conducted, although because the respondent knew this patient and because he was slowly improving there would be no need for any investigations. He was critical of the notation made by the respondent in failing to conduct an examination. Dr Roche said that the paucity of notes made by the respondent made it impossible to determine whether he had adequately formulated and communicated his provisional or differential diagnoses to nursing staff. 5. On 31 October, the respondent made a notation in the clinical records "very well plan D/C tomorrow if he remains well" and on 1 November 2013 he made a notation "Plan D/C today if NS happy." There is no notation of an examination, diagnosis or advice to nursing staff concerning the discharge and management and treatment plan for this patient. In the opinion of Dr Howle, the conduct of the respondent was significantly below the relevant standard because he had failed to comply with "standard practice to examine and at least briefly, notate the findings prior to discharge." Dr Roche again commented on the paucity of the notes made by the respondent, but noted that "reading the nursing notes in detail and the allied health in detail, there seemed to be no unease amongst the nursing staff or the allied health staff that the patient had a condition that was undiagnosed or unstable." He thought that there might be a "culture" at the hospital presumably concerning the standard of notetaking. 6. In his report, Dr Woollard said that the respondent had made an adequate diagnosis of this patient because he had diagnosed him as being "much better" on 30 October and "well" on 31 October. We do not regard these comments as being appropriate or adequate in discharging the responsibility of a medical practitioner to make an adequate notation for the assistance of nursing staff and other treating practitioners. 7. In a written statement, the respondent said that he had prepared a discharge summary for this patient which he had printed out and given to nursing staff. There was no copy of this document on the records of the hospital which were produced to the complainant concerning this patient. Counsel for the complainant pointed out that the first occasion on which the respondent had produced such a document occurred after the commencement of these proceedings, some three years later. 8. During the course of discussion with the three experts whilst they gave concurrent evidence, they appeared to reach a consensus opinion that given the circumstances of this patient including in particular his diagnosis, his absence of symptoms and lack of necessary future treatment, the conduct of the respondent was below the appropriate standard, but not significantly so. On this basis, although we find Particulars 2, 4 and 4A proven, they do not constitute unsatisfactory professional conduct. Patient B (5) Patient B aged 87 years old was admitted via the Emergency Department of the hospital on 7 January 2014 with a provisional diagnosis of gastritis secondary to food poisoning. The admitting medical officer recorded in the notes that the practitioner was to take over care on 8 January 2014. On 9 January 2014 in the morning, the practitioner first reviewed Patient B and failed to: (a) appreciate or take note of the previous doctor's assessment of Patient B on 8 January 2014, that Patient B's abdomen was non-tender in that the practitioner recorded that Patient B's abdomen was still tender; (b) formulate and communicate to nursing staff the results of his examination of Patient B other than of his abdomen; (c) conduct a thorough clinical review of Patient B to consider the signs of hypovolaemia from the nurses progress notes overnight and on the morning of 9 January 2014; (d) formulate and communicate to nursing staff his provisional or differential diagnoses. (6) On 9 January 2014 in the morning, the practitioner failed to carefully review Patient B's fluid intake, both maintenance and replacement for vomiting. (7) On 10 January 2014 prior to leaving the hospital to fly to Delegate at approximately 0900 hours, the practitioner failed to formulate and communicate to nursing staff: (a) an appropriate management plan for the nursing staff to manage Patient B in the event of further deterioration while the practitioner was away from the hospital.; (b) an adequate plan for palliative care; (c) Patient B's request to the practitioner about his treatment plan. (8) On 10 January 2014 at about 1250 hours the practitioner diagnosed bowel obstruction from an abdominal x-ray. He failed to provide appropriate care and management of Patient B in that he did not: (a) formulate and communicate to nursing staff a plan to use a naso-gastric tube for conservative treatment of bowel obstruction; (b) carefully review Patient B's fluid balance in response to his diagnosis of bowel obstruction; (c) formulate and communicate to nursing staff any differential diagnoses that may have been reversible including dehydration, heart failure, or acute myocardial infarction. (8A) The particulars in 7 and 8 above demonstrate unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law in that the practitioner exercised repeated poor judgment and care on 10 January 2014 by in his communication with the nursing staff and formulation of management plans for Patient B. (9) The practitioner failed to properly plan, manage and document his "not for CPR order" for Patient B on 10 January 2014 from about 0900 hours, in that he failed to: (a) initiate and record a conversation with Patient B about the goals of care, likely outcomes, realistic therapeutic options, and preferences for management including the application of CPR in his situation; (b) document a clear and adequately informed refusal by Patient B for CPR; (c) initiate a conversation with, or clearly instruct the nurses to communicate with Patient B's family about Patient B's "not for CPR order". 1. In his written statement, the respondent denied Particular 5. The clinical notes for this patient made by the admitting VMO on 8 January 2014 clearly state that his abdomen was not tender. The respondent's notes on 9 January state "abdomen still tender." Particular 5(a) is made out. However, this conduct needs to be assessed in the overall context of this patient's condition. In one sense, it was possible that tenderness of the abdomen might indicate some deterioration in the patient's condition, not recognised by the respondent because his notes indicate that he had failed to appreciate that on the previous day there had been no tenderness detected. The condition of this patient was complicated by the fact that in the early morning of 9 January, before he was seen by the respondent later that day the patient had fallen, his blood pressure had been recorded as low and there was an indication that he had vomited. This incident and the symptoms were noted by the nursing staff. Yet the only notation made by the respondent when he saw the patient later that day was "observations OK", before referring to the fact that the abdomen was still tender. The respondent also noted that the patient was at that stage eating and drinking "OK". We find the matters referred to in Particular 5(a) to be significantly below the relevant standard. 2. Particular 5(b) refers to a failure to formulate and communicate the results of the respondent's examination other than the patient's abdomen. There is, however, no evidence in the clinical notes that the respondent actually examined the patient other than by assessing his abdomen. In his written statement, the respondent referred to a number of clinical observations contained in the observations chart for this patient including blood pressure, pulse rate, oxygen saturation, respiratory rate and temperature. He said that he had signed that chart as was his usual practice which indicated that he had reviewed it. We do not find this comment by the respondent as indicating that he had carried out any examination of the patient other than of his abdomen. 3. In his written statement, the respondent said "It is my usual practice to meet with the nursing unit manager at the nurse's desk to discuss each of the patients that I have seen. This allowed for personal communication with the nursing staff often in much more detail than written communications would allow." Of course, the deficiency in this arrangement is that there was no written record of what the respondent had communicated to nursing staff unless such a record was made by the nurses concerned. To the extent that the respondent sought to rely on this statement to resist Particular 5(b), we reject such reliance. In the absence of any evidence given by the respondent that he had a clear recollection of what, if anything, was communicated by him to the nurses, we are nevertheless left with the impression that the respondent failed to carry out an examination of the patient other than of his abdomen. In these circumstances, we cannot be comfortably satisfied that Particular 5(b) has been established, because there is no evidence of any such results of any such examination, and therefore there was nothing to formulate or communicate. 4. However, there is nothing in the clinical notes or any other documentation to the effect that the respondent conducted a clinical review, whether thorough or otherwise, to consider the signs of the hypovolaemia. In oral evidence, Dr Howle said that the fall was significant and required an assessment to have been made by the respondent by way of review of the patient's condition, and documentation of that assessment and any differential diagnosis. At first Dr Roche said that he was not highly critical of the respondent for failing to deal with the fall accompanied by low blood pressure. However, he said that in retrospect this did indicate a significant change which should have been noted by reference to the observations made in the charts, especially concerning an irregular heart rate. Dr Woollard was of the opinion that by reference to rural doctor standards there was nothing untoward in the fact of the fall and the reduced blood pressure and therefore no differential diagnosis was necessary. In all the circumstances, we prefer the opinion of Dr Howle, corroborated by that of Dr Roche. Whether or not the respondent considered the fall and the drop in blood pressure as significant, this should have been recorded in the clinical notes. 5. In his oral evidence the respondent said that he should have made a note concerning the observations of the nurse about the patient's fall, the presence of vomit and blood pressure readings the night before. We are comfortably satisfied that Particulars 5(c) and (d) have been made out and that they constitute unsatisfactory professional conduct. 6. With respect to Particular 6, the evidence supports the respondent's assertion that nursing staff had discontinued recording fluid intake on the afternoon of 8 January 2014. The respondent said that he had observed the patient drinking and eating and that the patient appeared well. Accordingly, it was said that the fluid balance was not relevant. Dr Howle said that the respondent should have carefully considered the fluid intake of the patient on a maintenance basis, particularly as he had been vomiting. In circumstances where there is no indication of continued vomiting, and based on the observations of the respondent, we are not comfortably satisfied that it was necessary for the respondent to have carefully reviewed the fluid intake of this patient on 9 January 2014 and this Particular has not been made out. 7. Particular 7 refers to a sudden deterioration in the patient's condition on 10 January 2014. The respondent was notified by nursing staff at 6:50 AM that day that the patient's condition had deteriorated. He attended on the patient at 7 AM and noted that there was an increased respiratory rate, the patient was febrile, confused, and there had been no improvement with Lasix. After noting other symptoms, the respondent recorded a provisional diagnosis of acute pulmonary oedema and a small bowel obstruction. 8. The respondent then recorded some notes concerning future treatment, the nature of which was the subject of contention in the course of these proceedings. The notes provided for assessment by way of chest x-ray, abdominal x-ray, blood tests and ECG. There was also provision for management of his condition with intravenous Lasix, intravenous morphine and 25 mg of intravenous hydrocortisone. Dr Howle said that these notes consisted of a mix of interventionist treatment and palliative care, and that they may have caused confusion in the minds of nursing staff. Dr Roche was of the opinion that in their totality these notes contained sufficient guidance for nursing staff who would understand that the patient was to be kept comfortable whilst these investigations were being conducted. We agree with the opinion of Dr Roche, because firstly the respondent's notes are capable of being understood in this way, and secondly there is no indication in the clinical notes that the nurses encountered any difficulty in applying these directions. As at the time that they were made, the notes constituted a sufficient and appropriate management plan and an adequate plan for palliative care should this be required. Further directions were given by the respondent at 7:40 AM that day. At 9 AM the respondent made further observations concerning the condition of this patient, and, significantly, included the following notation "If a cardiac arrest occurs do not commence CPR. Otherwise treat appropriately." 9. At 10:35 AM a notation was made by Nurse Prosser concerning the then current condition of the patient and that a telephone call had been made to the respondent who was at that stage flying to Delegate to conduct a medical clinic. Later that morning further telephone calls were made to the respondent informing him of the results of investigations and that, ultimately, the patient's condition was deteriorating further and that the patient was in a "near unconscious state." At 1145 the patient's family was informed. The respondent arrived at 12:50 PM, noted the patient's then current condition and that he should be kept "comfortable." The patient died at 1330 with a notation that his son was in attendance. 10. We now return to Particular 7. We are not comfortably satisfied that 7(a) and (b) have been made out. In our opinion, it is arguable that the notations made by the respondent in the clinical notes concerning the investigated procedures and the measures to keep the patient comfortable represented an appropriate management plan for the nursing staff whilst he was away from the hospital as well as an adequate plan for palliative care. Even though the respondent was travelling by air to Delegate, it is clear that he was contactable whilst in the air by telephone and remained contactable whilst he was at Delegate. 11. With respect to Particular 7(c), there can be no doubt that at 9 AM on 10 January the respondent made a notation on the patient's records that CPR was not to be commenced in the event of a cardiac arrest. This Particular focuses attention on an asserted failure to communicate the request made by the patient about his treatment plan to nursing staff. In our opinion, a notation of the kind made by the respondent which serves as a communication to nursing staff must by implication have conveyed to them the fact that the patient had properly instructed the respondent and that the respondent had received appropriate instructions that CPR was not to be used. To this extent, we do not find this particular to have been made out. However, these observations are made in the context of findings which we shall shortly make concerning the appropriateness of the respondent having made a 'not for resuscitation' notation. 12. With respect to Particular 8, it is sufficient to observe that none of the expert witnesses said that it was necessary to use a Naso-gastric tube to manage the bowel obstruction and in general terms we are not comfortably satisfied that the respondent failed to provide appropriate care and management of the patient as asserted in Particulars (b) and (c), based on the expert opinion evidence. At that stage the respondent was clearly in a terminal phase, and further action of this kind was not warranted. 13. By way of summary, we are not comfortably satisfied that Particulars 8 (a),(b), or (c) have been made out. 14. This leaves for consideration Particular 9. In his written statement, the respondent said that he had treated this patient for many years and that he had "a long history of ischaemic heart disease including a cardiac arrest and persisting iron deficiency anaemia and was reluctant to investigate that. He had watched his wife die due to attempts to resuscitate her in Canberra. Patient B did not want this for himself and this is recorded in my medical records for him on 6 February 2013." Nevertheless, the respondent conceded in oral evidence that he should have recorded the wishes of the patient which he understood to have encompassed withholding of resuscitation because he did not want to die in the same way that his wife had. We add for completeness that the medical records of the respondent for 6 February 2013 have not been made available to us. However, a letter from solicitors acting for the respondent dated 14 October 2015 provides an extract from his notes of 6 February 2013 to the following effect; "Remains distressed about wife's death. Feels medical staff are responsible. Feels that she died in pain and breathlessness. Does not want the same for himself. He does not want intervention to extend his life, he wishes to be pain free and comfortable if he has a life-threatening illness. Reassured that he would be cared for through life and his death. Comforted again at loss of wife of 60 years." 15. The respondent also said in his written statement that on the morning of 10 February 2014 he had been informed by the patient that he did not want to be resuscitated and that this statement was made in the presence of registered nurses. There is no notation by any nurse in the clinical records to this effect, nor has any evidence been given by any nurse that such a statement was made. This assertion is inconsistent with another portion of the respondent's written statement in which he said, in relation to Particular 9(b); "Patient B was acutely unwell and was not able to discuss a not for CPR order. He had previously made his position abundantly clear to me." We observe that this latter statement is consistent with the failure of the respondent to have documented any conversation with this patient at either 7 AM or 9 AM that day. Furthermore, the clinical record made by the respondent at 7 AM notes that the patient was "confused" and this would have been inconsistent with any ability to convey instructions of this kind. The respondent attempted to overcome this evidence by stating that the confusion must have been temporary, because the patient had told him the previous day that he wanted to go home. When asked in cross-examination whether in fact he had had a discussion with the patient on 10 January about not being resuscitated, the respondent asserted that this had occurred at 7 AM that day. He said he had not recorded the conversation because he wanted to see what would happen to the patient. He said he was not thinking about having the patient complete a Not for Resuscitation form because he was concentrating on his clinical condition. 16. A letter from the respondent's solicitors to the complainant dated 14 October 2015 said that approximately 7:30 AM, presumably on 10 January 2014, the patient had a conversation with the respondent in which he said words to the effect; "this is it doc – I've had enough" and "I want to be comfortable" and "I don't want to suffer like Emmy." Of course, none of this was recorded by the respondent or, indeed, by any one else. The solicitors' letter also referred to the fact that by 9 AM the patient was "so unwell that survival was unlikely." It was said that nursing staff informed the respondent that they felt that this was a terminal event and that they requested a not for resuscitation note be recorded in his file. He said that the notation which he had made was part of a team effort involving the nursing staff. 17. We are not persuaded on the basis of the evidentiary material available to us that the patient adequately and appropriately instructed the respondent that he did not want to be resuscitated in connection with the events surrounding his admission to hospital under the care of the respondent in January 2014. And, even if such instructions had been given we are comfortably satisfied, as conceded by the respondent, that he failed to document them. 18. For completeness, we note that an AIMS Incident Report completed after the death of this patient noted a concern that the respondent was unavailable when the patient was "unstable." And that prevention of the incident "would have benefited having a doctor available to manage" the patient. There is no suggestion that the absence of the respondent contributed to the death of this patient, nor is the fact that the respondent visited Delegate on 10 January 2014 particularised within the Amended Complaint. The matter was raised during the course of the hearing, but we do not consider it relevant to the determination of these proceedings. 19. Helen Jane Prosser was a registered nurse employed at Pambula District Hospital on 10 January 2014. She commenced at about 7 AM that day and took over the management of patients, including Patient B at about 7:15 AM. She made a written statement and gave oral evidence in the respondent's case. Ms Prosser said that she recalled this patient. For the purpose of providing evidence she read the medical records. Ms Prosser was aware of the consultation conducted by the respondent with this patient at about 7 AM that day. She understood that the notation made in the clinical records consisted of an ongoing management plan including conducting certain investigative procedures and managing him by keeping him comfortable. She did not regard this as being a palliative plan at that stage. By about 9 AM that day she said that she felt "extremely concerned" about the condition of the patient and asked the respondent before he left the hospital to write into the medical records whether or not the patient was to be resuscitated and this is when he had made the notation that CPR was not to be applied. In oral evidence Ms Prosser said that in her opinion the patient was not confused at 7 AM. By 9 AM he was distressed, but not confused. 20. Ms Prosser confirmed that in the absence of the respondent there was no other medical practitioner who was available to be consulted about this patient. The CMO did not commence work until about 12 noon and it was inappropriate to contact any other VMO with respect to a patient who was a private patient of the respondent. She did, however, keep in close regular contact with the respondent by telephone. 21. Particular 9(c) concerns communication between the respondent and the family of Patient B in connection with the direction not to apply CPR. In his written statement, the respondent said that it was his understanding that the nursing staff continually attempted to contact the designated next of kin, the patient's son. He said that the son was contacted at 11:45 AM on 10 January, and that he spoke with the son, advising him what had happened to his father who was then unconscious. He said that the son was then with his father, indicated that he had said goodbye to him and asked that his father be kept comfortable. The respondent also said that the patient's son told him that he was very happy with the care that his father had received. Following this advice, the cardiac monitor was disconnected and the patient died a short time later with his son by his side. 22. Ms Prosser gave evidence concerning her understanding of contact between hospital staff and the son of Patient B. The respondent had never discussed with her making any contact with the family, and it was her experience that the respondent would himself attempt to contact the family to discuss any not for resuscitation directions. She confirmed that contact details for the son were contained within the clinical records for the patient. She herself had no conversation with the patient's son until he arrived at the hospital. 23. The son of patient B provided two written statements. He was aware that his father had been taken to hospital by ambulance on 7 January 2014 for what he was informed by neighbours was the result of food poisoning. His wife made contact with the hospital on four occasions on 9 January, and was informed that her father-in-law was "comfortable and okay". At that stage, the son decided to travel to the hospital from Bathurst where he lived. He arrived at the hospital at around 11:30 AM on 10 January. His father was still alive but did not seem able to recognise him. Within about an hour of arriving the staff commenced disconnecting monitors to which his father was attached and then his father died. He had a conversation with the respondent who told him that there was nothing that could be done for his father because of the state of his heart. He was surprised at this because he thought his father had been admitted to hospital for suspected food poisoning. 24. The patient's son held a power of attorney. He said that he was never informed of any order having been made that his father was not to be resuscitated, and no attempt was made by anyone to seek his assent to this course of action. Specifically, he denied any conversation with the respondent in which he had told him that he had said goodbye to his father, because he was not aware until shortly before the end that his father's condition was terminal. He also denied telling the respondent that he was happy with the care that his father had received at the hospital. 25. In general terms, the son of Patient B said that he was unaware that his father had given any authorisation that he should not be resuscitated although his father told him that he did not want to live without his mother once she had died. 26. Statements were also made by the wife of the son of Patient B relating to attempts made by her to make contact with the hospital to receive information concerning his condition. 27. It will be observed that there is a direct conflict between the evidence given by the respondent with that given by the patient's son concerning communications between them. The son was not required for cross-examination on his statement. We are not satisfied that the recollection of the respondent is to be preferred to that of the son, and, indeed, we regard the conflict in this evidence as representing another example calling into question the accuracy of the recollection of the respondent concerning a number of important matters. We shall refer to this aspect later in these Reasons for Decision. 28. Based on the material which we have set out above we are comfortably satisfied that the allegations contained in Particulars 9(a), (b), and (c) have been made out and that they constitute unsatisfactory professional conduct. Patient C (10) On 25 January 2014 at Bega District Hospital (Bega Hospital) during Patient C's delivery from about 0902 hours, the practitioner failed to respond to signs of shoulder dystocia including that the left shoulder was impacted far behind the symphysis pubis, by taking over the delivery or handing over the delivery to the locum obstetrician. (11) On 25 January 2014, the practitioner failed to take over Patient C's delivery from the midwife after the midwife and/or Patient C requested that he do so. (12) On 25 January 2014 after the midwife requested that the practitioner apply supra pubic pressure with contractions, he failed to provide effective supra pubic pressure. 1. Evidence concerning the circumstances of this birth was given by a number of witnesses. It is convenient to refer initially to the evidence of Gina Woodward, an experienced midwife who was employed at the hospital, and who was intimately involved in the birth. Ms Woodward gave two statements to representatives of the complainant, participated in an interview conducted by three medical practitioners representing the Southern NSW Local Health District concerning the circumstances of the birth, completed hospital documentation and gave oral evidence before us. 2. Ms Woodward became involved in the birth of the baby at about 7:15 AM on 25 January 2014 when she commenced her shift that day. She had called the respondent around 7:30 AM to provide him with an update but telephoned him again about 8:30 AM after observing meconium stained liquor and asked him to come to the hospital straightaway. She recollected that the patient wanted the respondent to be there and to manage her labour and deliver her child. We interpolate that the patient obviously then had a good relationship with the respondent who had delivered her first child and for whom she had worked as a practice manager. 3. Because she was unsure when the respondent would arrive Ms Woodward asked for the attendance of the general practitioner paediatrician and the hospital obstetrician, Dr Sothinthane Srichrishanthan because of the meconium stained liquor and because she thought it was going to be "a complicated birth." The paediatrician arrived first, and later the respondent. At the time that the respondent arrived Ms Woodward said "the head was crowning and I was suspecting that there was a shoulder dystocia because of the length of time it had taken for the head to crown." She said that when the respondent arrived the patient "started beseeching" him to help and deliver the baby. However, instead of doing so the respondent instructed her to continue with the birth. Even though Ms Woodward asked the respondent what size gloves he needed he did not respond and "just began verbally encouraging (the patient), telling her she was doing a good job." At that stage Ms Woodward's supervisor, Maria Gurton, arrived at her request. She said that at that stage "the baby's head was being born very slowly, and I realise that there was a shoulder dystocia." In one of her written statements Ms Woodward said; "I informed Dr Simonson about the shoulder dystocia and the position of the baby. Despite my requests for him to assist with the delivery Dr Simonson remained on the left side of the bed. He needed to be on the right-hand side of the bed to apply the pressure needed to birth the baby. I think he placed one hand on (the patient) but he did not apply any pressure. I don't remember him saying anything in response." 4. Because Ms Woodward was then concerned about the health of the baby she asked the paediatrician to call the obstetrician. When the obstetrician came into the room the respondent told him that the patient was a private patient. The obstetrician then proceeded to take his gloves off and walk out of the room. She said that the respondent saw this but did not proceed to put any gloves on himself. She then instructed the obstetrician to put his gloves back on and assist with the birth of the baby. 5. In her interview with the representatives of the Local Health District Ms Woodward provided further details concerning the birth of the baby. She said; "As the head was being born, the baby had that turtle effect and the grimace; it was a big stretch on the neck. At that point I put the bed flat and into McRoberts and I asked Dr Simonson to apply suprapubic pressure. I informed him that the baby was on the right-hand side of the bed and that I needed suprapubic pressure from the right-hand side." At that stage Dr Simonson did not have gloves on and Ms Woodward was completely managing the birth. She said that Dr Simonson put one hand only over the suprapubic bone and at that stage the patient had a contraction. She continued "I started to do downward traction and I abandoned it because I thought all I'm going to do here is this is just going to impact the shoulder more because there was no, no effect of suprapubic pressure applied and I thought if I do downward pressure on this baby now I'm just going to make the situation worse….." 6. In the interview, Ms Woodward reiterated that she had asked the specialist obstetrician to assist because the respondent had declined to become actively involved in the birth. Furthermore, he had been continuing to encourage the patient to push which was contraindicated with a shoulder dystocia. Ms Woodward was very clear that at that stage the respondent was aware that there was a shoulder dystocia involved. She did not think that he took this matter seriously. At no stage did the respondent come to the foot of the bed to see what was happening. At all times he remained on the left-hand side of the bed. 7. Ms Woodward then described how the obstetrician successfully delivered the baby, albeit that the baby was observed to be "very stunned, quite floppy." Ms Woodward, who had 22 years experience as a midwife described the birth as involving a severely impacted shoulder dystocia. We found her to be a truthful witness with undoubted expertise as a midwife, who acted most competently and appropriately in the birth of the baby. 8. In a statement given to the complainant, Dr Srichrishanthan said that he was working as a locum obstetrician and gynaecologist at Bega Hospital from 23 January to 3 February 2014. On 25 January 2014 he received a telephone call from a midwife asking him to attend the delivery ward as there was a delivery and a possible shoulder dystocia in a patient in labour. He was told that she had a shoulder dystocia with her previous childbirth. Dr Srichrishanthan said that when he went to the delivery room there were either two or three midwives present and a person who he later found out was the respondent, who stood to the left side of the patient. The respondent told him that the patient was his private patient. He said; "I hesitated for a moment as usually, if it is a private patient, the doctor who is caring for the private patient is the person who asked for my assistance. I was uncertain whether Dr Simonson wanted me to attend or not. I assessed the situation and saw the midwife was panicking as the head was out but the shoulders were stuck. The midwife was desperate and asking me to help get the baby out as it was an emergency. Dr Simonson didn't ask me to take over the delivery of the baby." He said that he then introduced himself to the patient and after explaining the situation briefly delivered the baby by using the McRoberts manoeuvre. He further said that the respondent "did not play any active role in the delivery of the baby. I don't recall if he said anything but he remained beside the patient's left side closer to the head end of the bed." 9. Tellingly, Dr Srichrishanthan said that "This patient should have been identified as a high-risk patient because her first child had shoulder dystocia. She should have been seen by a specialist and had a delivery plan." 10. In his interview with the representatives of the Local Health District, Dr Srichrishanthan made the following observations; 1. at all times while he was present, the respondent remained on the left side of the patient close to the head end of the bed; 2. at no stage did the respondent tell him to take over the delivery of the baby. "… I couldn't really get whether he wants me to take over and help the delivery or whether he is saying not to get involved, because when I started delivering he was just standing there but he was just watching."; 3. the shoulder dystocia condition was readily apparent to him when he came into the delivery room. 1. In a statement made to the complainant, Maree Gurton a nurse supervisor who was present in the delivery room confirmed that the respondent did not participate in the delivery. She saw the respondent on the left side of the patient "pushing on her stomach" Ms Gurton also said that she asked Dr Srichrishanthan to 'stay and assist' as he was a 'bit hesitant' after Dr Simonson had told him that this was a 'private patient' . 2. Dr Glen Davies, is a specialist obstetrician and gynaecologist attached to the Bega Hospital who provided oral evidence in the course of the proceedings. He had been asked by the respondent to review Patient C at 37 or 38 weeks regarding an abnormal Pap smear, but not regarding her pregnancy. She was the first private patient booked into the hospital since he had taken up his position in July 2013. He had been concerned about the experience of a number of general practitioners, including the respondent. 3. Dr Davies was taken to clinical notes concerning this same patient at the same hospital when she had delivered the birth of her first child in December 2011. There was a notation in the hospital records of an instrumental delivery and "Manoeuvre/s to birth shoulders: McRoberts manoeuvre." Dr Davies said that this did not necessarily mean that the birth had been accompanied by a shoulder dystocia, however a McRoberts manoeuvre would only be performed for a shoulder dystocia or a potential shoulder dystocia. In any event, there was always a risk of shoulder dystocia in any delivery. He said that with respect to this patient if he had thought that there was a potential problem involved in the second pregnancy he would have noted that as a risk, and he had not done so. When asked specifically about the history involved with the first delivery Dr Davies qualified his earlier evidence by saying that if a large baby was involved he would have organised an ultrasound, and he would have counselled the patient about the possibility of a shoulder dystocia. There was no indication with this patient at 36 weeks that there was a large baby. He would also have asked to be notified by the midwife when the patient commenced pushing. 4. Dr Davies said that a shoulder dystocia constituted a medical emergency. 5. Patient C provided statements to the complainant participated in an interview with representatives of the Local Health District and gave oral evidence. She said that the respondent had delivered her first baby in December 2011 using a vacuum extraction device. After the birth, she was told that there was nothing unusual about that delivery and no mention was made of the baby having shoulder dystocia. 6. When she became pregnant again, Patient C again consulted the respondent. She also attended regular antenatal appointments at Pambula District Hospital. During a discussion with a midwife in November 2013 it was suggested that she see Dr Davies in case the respondent was unavailable when it became time for her delivery. She saw another doctor on the first occasion but was again referred to Dr Davies for review of an abnormal Pap smear. While she was consulting with Dr Davies he called the respondent to offer any assistance that might be required during the delivery if the respondent was unavailable. 7. On 25 January 2014, whilst she was in advanced labour, she asked the midwife to call the respondent because she was concerned that he had not then arrived. When the respondent came to the delivery suite he sat down in a chair next to her husband. She recollected the midwife, Ms Woodward asking the respondent to give her some assistance in the delivery. The respondent said words to the effect that she was all right and should just carry on. She recollected that sometime later whilst she was pushing Ms Woodward again asked the respondent to help her deliver the baby. He remained near her "trying to reassure me." 8. Another doctor then came into the delivery suite and she heard the respondent say something like "What are you doing in here, there is no need for you to be in here, she is a private patient of mine." She said that that doctor then left the room. At that stage she observed the respondent "coming around my bedside, on the left towards my head." She had remembered him remaining seated until the baby's head started crowning. When he was standing, the respondent was midway between her head and hips. She said "He was talking to me while I was labouring and holding my left leg back in position." Her next clear recollection was the birth of the baby. 9. The husband of Patient C gave two statements to the complainant and also gave oral evidence. In general terms, his evidence corroborated that of his wife but he acknowledged that his recollection of the sequence of events was not clear, no doubt affected by his concerns for his wife and the baby. 10. In his statement the respondent denied each of the particulars. He said that he was "happy during the delivery that progress of the delivery was proceeding very well, the first stage had proceeded quickly and Patient C was well into the second stage. ….The midwife never asked me to take over. When I arrived she asked me if I wanted to take over. As everything appeared to be going well I said "No"." He said that he did respond to the signs of shoulder dystocia by ensuring that the patient was receiving the appropriate care from the midwife whom he assessed as coping and caring for the patient appropriately. He said if not, he would have taken over her position. Furthermore, he said that when asked to apply suprapubic pressure he was holding the patient's leg and used his right hand from the left side of the bed during the contraction. Whilst he was doing this he said that the midwife, in a panicked voice, said "no not there on the right side" and then without waiting for any reply from him she requested the locum obstetrician to assist her. 11. The respondent then said in his statement that: "If the midwife had asked me to take over the delivery or I thought she needed assistance I would certainly have done so." We observe that this statement is contrary to the consistent evidence of all other persons to whom we have referred. It is abundantly clear that the respondent was asked to take over the delivery, and declined to do so. It is also abundantly clear that the midwife asked for and required assistance, and that it was provided by the specialist obstetrician without any apparent effort on the part of the respondent to give any assistance. 12. In the course of his oral evidence the respondent said that he felt very embarrassed about the obstetrician being present and that he had not been aware that he had been called in. This is why he told him that he was very sorry but the patient was a private patient of his. 13. He referred to the request from the midwife to put pressure on the patient, which he did with his right hand. When she called out to him that she wanted the pressure on the right side the respondent said that the midwife had panicked and had not asked him calmly. He was unable to do anything because at that stage she asked the obstetrician to come over and help. He said that the obstetrician then looked at him and he nodded to the obstetrician as an affirmation that he could continue to deliver the baby. We observe that the respondent had been given many opportunities to tell his version of events relating to the birth of this baby but had never, prior to giving evidence in these proceedings indicated that by some manner he had informed the obstetrician that he should take over the birth of the baby. In particular, the respondent had never so informed the representatives of the Local Health District in an interview which they had conducted with him and had not included any reference to this matter in a detailed statement which he had prepared with the assistance of his solicitors. Furthermore, this evidence is contrary to the evidence of Dr Srichrishanthan and of the midwife. This evidence clearly bears all of the hallmarks of recent invention and provides another instance where the recollection of the respondent cannot be accepted. 14. In cross-examination, the respondent agreed that the best place to deliver a baby is by standing at the front, and not at the side holding a leg up. We point out that on the evidence the respondent never stood in a position where he could deliver the baby. The respondent denied that he had been asked by the midwife on two occasions to take over the birth of the child. He said that if he had been asked to assist he would have done so. We prefer the corroborated evidence of Ms Woodward and Dr Srichrishanthan to the effect that Ms Woodward had asked the respondent to take over the delivery of the baby on at least two occasions, and he had declined to do so, preferring to leave the matter in the hands of Ms Woodward initially, and later taking no action when she asked for help from Dr Srichrishanthan. 15. We refer also to information provided by the respondent to representatives of the Local Health District in the course of the interview conducted on 8 May 2014. In the course of that interview the respondent made the following points: 1. when referred to the fact that the respondent was assisting the patient "but not actually going around… and attempting to deliver the baby and then Dr Srichrishanthan coming in and then obviously there were some issues about him and he actually did the delivery" the respondent said that he was not happy about this. He said that he was asked by the midwife to give some suprapubic pressure "which I started to do" and that she then panicked and asked the locum obstetrician. He said that he was humiliated and insulted but he suppressed these concerns and continued to support the patient. He said in part; "The locum obstetrician is going to have at least the same skills as me" and he was concerned to look after his patient. He reiterated that he was not asked to deliver the baby, but that he had "helped this doctor deliver the baby." 2. a midwife is capable of delivering babies with most normal deliveries. The role of the doctor is to assist if there is a problem and to give reassurance to the patient. 3. overall, he was in charge of the situation. 1. In his written report, Dr Howle said that it was appropriate that the respondent initially became involved as a support person to the patient and to the midwife. However, the respondent was reluctant to become more actively involved when requested by the midwife, despite telling the locum obstetrician the patient was a "private" patient. It was the impression of Dr Howle that the respondent "did not seem to comprehend the clinical situation of the impacting shoulder, either by taking over from the midwife (as would be routine practice) or assisting with suprapubic pressure, or by insisting that the specialist takeover." In his opinion this conduct was "significantly below what is reasonably expected of a practitioner with an equivalent level of training or experience" and invited his strong criticism. We agree. 2. The written reports of doctors Woollard and Roche contain a degree of speculation about what actually occurred during the course of the delivery. We have already concluded that we are comfortably satisfied on the basis of the evidence that the midwife did ask the respondent to take over the delivery of the baby initially before any problems developed and later when she became concerned that a shoulder dystocia might be involved. Both of these experts agreed with the opinion of Dr Howle that in these circumstances the respondent should have either taken over the delivery or clearly delegated it to the obstetrician who was present. Dr Woollard said that in his opinion the most senior person in the delivery room should take over and not to do so was "appallingly bad". 3. Whilst there was some evidence that it might be possible to apply supra pubic pressure with one hand whilst leaning over the patient, the preponderance of evidence, including that specifically of doctors Davies, Howle, and Roche, was that this should be done with two hands. 4. We are comfortably satisfied on the basis of the evidence given in the proceedings that Particulars 10, 11 and 12 have been made out. Furthermore, we are comfortably satisfied on the basis of the evidence that the conduct referred to is unsatisfactory professional conduct. Patient D 1. There are no Particulars concerning this patient contained within the Amended Complaint under Complaint One. Patient E 1. (Particulars 17 to 19 deleted) (20) Patient E aged seven years old presented to the hospital's Emergency Department at approximately 1215 hours on 15 February 2014 with a history of abdominal pain, bowels not open for two days, and vomiting. On 15 February 2014 at about 1930 hours, the practitioner reviewed Patient E and failed to make arrangements for transfer to an acute hospital facility with appropriate specialist care and equipment such as CT or ultrasound for surgical assessment in circumstances where: (a) this was his third examination of Patient E that day where she had recently complained to the practitioner of abdominal pain; (b) Patient E had no clear diagnosis; (c) Patient E had not had bowel motions for two days; (d) the practitioner was unable to thoroughly examine Patient E's abdomen including for bowel sounds; (e) Patient E required IV fluid and analgesia; (f) Patient E's pulse rate increased from 95 beats per minute at 1550 hours on 15 February 2014 to about 120 beats per minute at 1900 hours on 15 February 2014; (g) he continued to be concerned about the risk that Patient E could have had bowel obstruction or appendicitis; (h) Patient E had deteriorated since the practitioner's previous assessment at 1600 hours with further vomiting and ongoing pain. 1. (Particulars 21 to 23 deleted) (24) On 16 February 2014 at about 1050 hours, the practitioner incorrectly interpreted Patient E's blood results and observations as adequate in circumstances where: (a) the blood results from blood collected at 1930 hours on 15 February 2014 were abnormal including a white cell count of 11.3, neutrophils of 10.2, lymphocytes at 0.9, eosinophils at 0.0, and a high glucose level of 7.9; (b) Patient E had complained of severe abdominal pain to a nurse at about 0930 hours on 16 February 2014 and refused an abdominal exam when seen by the practitioner; (c) at about 1050 hours Patient E's pulse rate was trending upwards since 1550 hours the previous day. (25) On 16 February 2014 at about 1050 hours, the practitioner failed to make immediate arrangements for Patient E's transfer to an acute hospital facility with appropriate specialist care and equipment such as CT or ultrasound for surgical assessment, in circumstances where: (a) Patient E earlier than morning refused abdominal examination (b) and did so again at 1050 hours; (c) Patient E had vomited 50mls at 0100 hours and 200mls at 0400 hours; (d) Patient E's overnight observations included ongoing complaints of severe abdominal pain; (e) Patient E had a pulse rate trending upwards since 1550 hours the previous day. (26) On 16 February 2014 at or shortly after 1430 hours when the practitioner was contacted by nursing staff and advised that Patient E had suffered a syncope episode at about 1415 hours, he failed to: (a) formulate and communicate to nursing staff his diagnosis or differential diagnoses such as shock from dehydration, vasovagal reaction to pain, a ruptured internal organ or internal bleed; (b) arrange extra IV fluids or an IV bolus of fluid for Patient E. 1. This female patient aged 7 was admitted to the Pambula District Hospital under the care of the respondent as VMO after 12 noon on 15 February 2014. She was complaining of nausea, vomiting and abdominal pain overnight. The respondent conducted an examination. He noted that it was very difficult to assess the patient's gastrointestinal area because of guarding and pain upon touching. He was, however, able to carry out a rectal examination. The patient was reviewed at 4 PM. Her abdomen was "a little softer" and the patient was still complaining of pain. She was admitted overnight for observation. There is no indication of any provisional or differential diagnosis made at that stage. At 7 PM that evening the patient was noted by nursing staff to be very distressed with severe abdominal pain and dry retching although she had not vomited since 6 PM. The respondent was requested to review her further and noted that at that stage the patient was sleeping, afebrile and had a very soft abdomen whilst asleep. There was a notation that she had vomited again. The patient was commenced on intravenous saline. At 8 PM the patient was observed by nurses to be sleeping. At 8:35 PM she was observed to have walked to the toilet with her mother. The patient had further visits to the toilet that evening and was reported to have vomited at 4:30 AM. She was observed later that morning to have had minimal sleep because of her continuing complaints of irregular abdominal pain. 2. When reviewed by the respondent again at 10:50 AM on 16 February he noted that her observations were "all good" and he arranged for her to continue IV hydration. The next significant entry is 2.15 PM that day when the mother reported to nursing staff that the patient had fallen backwards and presented "as if no recognition in eyes." The patient was observed by nursing staff to be alert. The respondent attended again at 3 PM that day and made a note of her fall. She was observed to be pale and he made a note "very difficult to assess." Again, there is no notation of any diagnosis. At 2:45 PM that day the patient was observed to be sitting upright "constantly requesting something to drink." Her mother was noted to be concerned that no one was paying attention to the fact that the patient was sick. She was reassured that she was continuing to be observed. The mother stated that she wanted the child to be transferred to Bega hospital. A notation made by nursing staff indicates that Bega hospital was notified concerning a possible transfer. 3. A notation by a nurse at 3 PM on 16 February indicates that the child was alert and oriented but would not let anyone assess her abdomen. She was observed to look pale and tachypnoea and had been vomiting. Arrangements were made for her to be transferred to Bega hospital. The ambulance arrived at 4:40 PM. Bega Hospital is 30 km from Pambula. 4. Before considering other evidentiary material concerning this patient we refer to the transcript of an interview with the respondent conducted by representatives of the complainant on 4 August 2014. He was questioned at some length by an interviewee concerning his care of this patient. During the course of the interview the respondent said the following; 1. that on initial admission he thought that the patient was probably suffering from a viral infection even though she did not have a temperature. He said that he was unable to convince himself because of the manner in which she was prepared to poke and prod her own stomach that he was dealing with "a big surgical problem," but could not rule this out. 2. he made no notation of any provisional diagnosis even though he made further comment that the patient could have had a "surgical problem" in the nature of appendicitis or intussusception or a bowel obstruction. 3. he did not order an x-ray at that stage because of the risks for a child and also because "she was so robust in her own examination of her abdomen." In retrospect, he said that he should have ordered one and there were facilities at the hospital that day to do so. 4. because the patient was able to examine her own abdomen the respondent was able to exclude peritonitis, but not "an abdominal problem." 5. when the respondent again examined her at 7 PM that day he said he was concerned that the patient might have had appendicitis or possibly a bowel obstruction. He agreed that this was inconsistent with the viral syndrome which she had been considering some six hours previously. The respondent was reminded that at that stage the patient has had a very high level of pain, a pulse rate of 120 and a respiratory rate of 25. Yet he had noted that observations were all okay. He then referred to the fact that those readings were "between the flags", that is between standards set by the Department of Health to alert nursing staff of any possible complications. He was taken back to his possible diagnosis of intussusception, but agrees that this would be unusual with feelings of tenderness. The respondent was reminded that an abdominal x-ray would have been useful as a diagnostic tool in determining whether there was a surgical diagnosis, and he agreed. 6. there was a guideline which indicated that if the circumstances of the patient such as this girl had not improved after 24 hours the VMO should seek specialist assistance and if necessary a transfer to a hospital with a surgical facility. 7. the respondent was then referred to the clinical observations and his notes of the following morning. The nursing notes indicated that she had had a heart rate of 120 throughout the evening, and continuing pain. After a discussion about the nature and extent of the complaints of the patient and the observations made by the respondent he agreed that as at 10 AM that day he should have referred the patient "when she refused the abdominal examination." He further agreed that he should have referred the patient at 7 PM the previous night because her pulse rate was increasing despite the fact that she was on intravenous hydration. 8. the respondent noted that the child and her mother had wanted to leave the hospital and "go home." He conceded that this was because the mother wanted the patient to be transferred to Bega. 9. the respondent again conceded that at no stage had he made a notation of a provisional diagnosis or a treatment plan. He said that he had discussed the matter with the nursing staff, but had not discussed the possibility of a bowel obstruction. 10. the respondent also conceded that in the circumstances he had not given the patient sufficient hydration, particularly as she had been ill for 48 hours and vomiting. 1. In statements provided to the complainant the mother of Patient E denied that she had ever told the respondent or nursing staff that she wanted to take her daughter home. In fact, she had asked that her daughter be x-rayed or given a CT scan. Furthermore, she said that she told the respondent that it was unlikely that her daughter had a "stomach bug" because no one else in the family was ill. This witness also denied the accuracy of the observations made by the respondent that from time to time her daughter appeared well without any complaints and was walking around the hospital ward. She said that except for visiting the toilet facilities, her daughter remained in bed unwell. 2. In his written statement, the respondent said that the patient was continually "in and out of bed and happy walking around. Patient E did not display any significant signs of an acute abdomen." This description of her activity is inconsistent with that given by the mother whom, we observe, was with her daughter from midday of the first day that she was at the hospital save for a short period when she went home to change her clothes. It is also inconsistent with many of the observations of the nursing staff recorded in the clinical notes. 3. The respondent has responded to a number of Particulars by reference to detailed material in circumstances where there is simply no indication that he had considered this material at the time that he was treating this patient. For example, with respect to Particular 24 the respondent said that the white cell count may be helpful if significantly elevated. He then referred to chapter 15 of a text on Abdominal Pain and a US text "Current Diagnosis and Treatment Emergency Medicine". He then noted that stress induced hypoglycaemia "is common in patients with severe sepsis" again quoting three texts. Furthermore, the respondent referred to stress as possibly causing the mild elevation of the white cell count and the glucose, commenting that neither was significant. He said; "There are a whole range of things which can cause an elevation in neutrophils including cigarette smoking and exercise. In this case, the elevated neutrophils could also be in response to infection, protracted stress, or glucocorticoid administration." He then quoted another text on Haematology published in the US. The respondent continued by reference to "the benefit of hindsight" because, as it transpired, this patient was suffering from a rare condition which required urgent surgical treatment and left her with a significantly shortened bowel. 4. In our opinion it is not appropriate to consider this matter with the benefit of hindsight, but by reference to the standard of care and treatment which the respondent should appropriately have afforded this patient having regard to the matters set out in the definition of unsatisfactory professional conduct. To look at the matter with the benefit of hindsight would also place the respondent in an unfair position. His detailed reference to the texts referred to above and his very technical approach to the blood test readings referred to in Particular 24 smacks of an ex post facto rationalisation which we do not find helpful in determining these proceedings. It is sufficient to observe for our purposes that, as conceded in the expert evidence, these readings do not exclude a surgical basis for the patient's condition. In the circumstances we prefer to approach the matter on the basis of the responses given by the respondent to the questions and propositions put to him by those who interviewed him on 4 August 2014, which we have summarised above. 5. Dr Howle found it difficult to comment on the treatment and care afforded by the respondent to this patient by reference to the several Particulars because the respondent had not provided any documentation of provisional or differential diagnoses. It was therefore impossible to align the management of the patient with any particular diagnosis. In general terms, Dr Howle was of the opinion that the respondent should have referred this patient for specialist assessment and, if necessary, treatment at a much earlier stage. He was highly critical of the failure of the respondent to provide adequate hydration because the patient was dehydrated on arrival at the hospital and her fluid intake needed to be strictly controlled because she continued to vomit. Even though abdominal x-rays may not have disclosed signs of bowel obstruction or a perforated abdominal organ their results would have expedited a transfer to specialist facilities. 6. When asked to provide his opinion of the adequacy of the recognition by the respondent of the clinical significance of the changes over time in the condition of this patient Dr Howle commented that; "It is difficult in retrospect to assess this from Dr Simonson's perspective. However, the recurrent severe pain episodes, the recurrent vomiting and the changing nature of the abdominal assessments should certainly make one concerned that the patient is unstable and undiagnosed. The trend in the observations, including the persistent tachycardia even when there was apparently no pain, and the exacerbations of pain was certainly suggestive of ongoing intra-abdominal pathology. I do not think that Dr Simonson appreciated this, and was falsely reassured by his normal findings on examining the patient's abdomen." Contrary to the opinion expressed by the respondent, Dr Howle said that the blood tests were "abnormal, suggestive of inflammation, possible infection, and a body under stress (high glucose level)." In a supplementary report, Dr Howle said "I think Dr Simonson did not take into account the observations and the nursing notes in the hours prior to his 10 AM assessment. I think he misinterpreted the clinical picture to fit with his original diagnosis of viral infection, and in so doing made an incorrect diagnosis. This is significantly below the standard expected and invites strong criticism." 7. In his report, Dr Roche essentially supported the care and treatment afforded by the respondent to this patient as being not below the relevant standard. Unlike Dr Howle he regarded the blood test results as being "essentially normal". Furthermore, he regarded the elevated heart rate as still being within normal range for a child. In essence, we understand Dr Roche to have formulated his opinion on the basis of the professed observations of the respondent that the patient was not in great pain. A reading of the nurses' notes does not give such a clear picture, as we have earlier set out. This must call into question his opinion. 8. Dr Woollard has provided his opinion on the basis that this patient "had a very, very, rare complication" and has justified the approach to treatment and care afforded by the respondent accordingly. In the course of his report, Dr Woollard said; "I have no doubt Dr Simonson wishes he had made the diagnosis earlier but from the point of view of someone like myself I am not sure that would have been possible but as no one but Dr Simonson and the Pambula nursing staff were present to examine the child it will remain an unknown." 9. In the course of oral evidence Dr Roche said that the patient should have been reviewed with the assistance of a specialist if the patient's symptoms had persisted for 48 hours after being put on intravenous fluids. He later modified this evidence by agreeing that it was inappropriate to leave this patient with her symptoms having persisted for 48 hours without referral. 10. In his oral evidence, Dr Howle summarised the position which applied, certainly at about 1050 hours on 16 February 2014 as being "I don't know what is going on and I need a second opinion and there is no merit in waiting any longer." Dr Roche said that he was unsure whether the point of time had been reached for a transfer and a second opinion by 1050, but it was getting close to the point where a second opinion should have been sought. Dr Woollard was not able to comment specifically on this aspect, having not been in attendance to observe exactly what was going on, but he agreed that the request by the mother for a transfer to Bega Hospital was a factor which should have been taken into account in determining to transfer the patient. 11. Overall, we prefer the approach adopted by Dr Howle as to what is the appropriate standard to be applied to the circumstances of this patient. In reaching this conclusion we prefer his approach to the analysis of the pathology results and to his assessment of the overall situation in determining that at the latest at about 1050 hours on 16 February 2014 the respondent should have made immediate arrangements for the transfer of this patient to an acute hospital facility with appropriate specialist care and equipment. We also take into account that the evidence given by the respondent about his care and treatment of this patient is tainted for the reasons which we have earlier set out and especially because it is inconsistent with the information which he provided to the interviewers on 4 August 2014. 12. We add for completeness that the respondent admitted that he was guilty of particular 26(b), and apologised for having failed to arrange for these fluids to have been given to the patient. 13. It follows that we are comfortably satisfied that Particulars 24, 25 and 26 have been made out and that they constitute, in the circumstances, unsatisfactory professional conduct. COMPLAINT TWO 1. Is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has: 1. contravened the Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed) (the 2010 regulation). Each of the particulars of Complaint Two justify a finding of unsatisfactory professional conduct individually and cumulatively. 1. This Complaint is based upon asserted breaches of the provisions of Schedule 2 to the 2010 Regulation. This Regulation has since been repealed, but was operative as at the dates of the conduct complained of. A breach of this Regulation constitutes unsatisfactory professional conduct as defined in section 139 B(1)(b) of the National Law. Schedule 2 is in the following terms; SCHEDULE 2 – Records kept by medical practitioners and medical corporations in relation to patients 1 Information to be included in record 1. A record must contain sufficient information to identify the patient to whom it relates. 2. A record must include the following: 1. any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), 2. particulars of any clinical opinion reached by the medical practitioner, 3. any plan of treatment for the patient, 4. particulars of any medication prescribed for the patient. 1. The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient. 2. A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient: 1. the date of the treatment, 2. the nature of the treatment, 3. the name of any person who gave or performed the treatment, 4. the type of anaesthetic, if any, given to the patient, 5. the tissues, if any, sent to pathology, 6. the results or findings made in relation to the treatment. 1. Any written consent given by a patient to medical treatment (including any medical or surgical procedure) proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient. … 2 General requirements as to content 1. In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. 2. A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. 3. All entries in the record must be accurate statements of fact or statements of clinical judgment. 3 Form of records 1. An abbreviation or shorthand expression may be used in a record only if the abbreviation or expression is generally understood in the medical profession in the context of the patient's case or generally understood in the broader medical community. 2. Each entry in a record must be dated and must identify clearly the person who made the entry. 3. A record may be made and kept in the form of a computer database or other electronic form, but only if it is capable of being printed on paper. 4 Alteration and correction of records A medical practitioner or medical corporation must not alter a record, or cause or permit another person to alter a record, in a way that obliterates, obscures or renders illegible information that is already contained in the record. 5 Delegation If a person is provided with medical treatment or other medical services by a medical practitioner in a hospital, the function of making and keeping a record in respect of the patient may be delegated to a person other than the medical practitioner, but only if: 1. the record is made and kept in accordance with the rules and protocols of the hospital, and 2. the medical practitioner ensures the record is made and kept in accordance with this Schedule. Background As for Complaint One. 1. Before commencing our consideration of each of the Particulars of this Complaint we observe that, in general terms, the respondent and doctors Roche and Woollard conceded that they did not fully appreciate the nature and extent of the requirement to make records which complied with the provisions of Schedule 2. Their initial responses to some of the Particulars of this Complaint were informed by this misunderstanding. To this extent they qualified their opinions as originally expressed in their written statements and reports. We do not regard this as a critical matter because, as was conceded by counsel for each of the parties, an evaluation of whether there has been compliance with Schedule 2 is a matter essentially for the Tribunal. PARTICULARS OF COMPLAINT TWO Patient A 1. The practitioner's entries in the hospital records for Patient A's admission to the hospital from 30 October 2013 to 1 November 2013 did not contain an adequate level of detail appropriate to Patient A's case, contrary to Schedule 2, clauses 1(2) and/or 2(1) of the 2010 regulation in that the practitioner failed to document: 1. physical examinations or independent assessments of Patient A; 2. provisional or differential diagnoses; 3. treatment or management plans for Patient A other than Patient A's discharge. 1. The practitioner's entries in the hospital records for Patient A's admission to the hospital from 30 October 2013 to 1 November 2013 lacked sufficient information concerning Patient A's case to allow another medical practitioner to continue management of Patient A, contrary to Schedule 2, clauses 1(2) and/or 2(2) of the 2010 regulation in that the practitioner failed to document; 1. physical examinations or independent assessments of Patient A; 2. provisional or differential diagnoses; 3. treatment or management plans for Patient A other than Patient A's discharge. 1. We have previously referred to the contents of the clinical notes in our discussion concerning this patient with respect to Complaint One. It is clear that notations such as "much better. No further pain" and "very well" do not constitute a diagnosis, and that the brief reference to "may have free fluids" does not constitute a treatment or management plan. Certainly, as was confirmed by Dr Roche in his report, the paucity of these notes would not enable another practitioner to continue management of this patient. 2. The respondent relied upon the Discharge Summary which he had prepared and which he said he had given to the nurses. We have previously commented that this document was not part of the records produced by Pambula District Hospital to the complainant, and it was not produced by the respondent until after these proceedings had been commenced. In any event, although this document does contain details of management post discharge, it was clearly not prepared as part of the continuing clinical records, and would not have been available for perusal by any other medical practitioner whilst the patient remained in the hospital. The intent of the provisions of the Schedule is that records must be made either at the time that the treatment or services are provided, or shortly thereafter. In the circumstances of this patient we do not regard the Discharge Summary as complying with the provisions of the Schedule. 3. We find that Particulars 1 and 2 have been made out to the required standard. Patient B (3) The practitioner failed to ensure that Patient B's fluid balance sheet was accurately and regularly maintained, contrary to Schedule 2, clauses 2(1), 2(2) and/or 5 of the 2010 regulation. (4) In the morning on 10 January 2014, the practitioner failed to record his clinical judgment as to why he considered resuscitation of Patient B after a cardiac arrest was not to occur, contrary to Schedule 2, clauses 1(2)(b) and/or 2(2) of the 2010 regulation. 1. The respondent conceded that he had not made a record of his clinical judgement as to why he considered resuscitation after a cardiac arrest was not to occur. However, it was submitted that this information was not required by the provisions of Schedule 2 relied upon. We disagree. A direction that a patient not be resuscitated is clearly a matter of great significance for the patient, his family and for the nursing staff and any other medical practitioner who might become involved in the continuing management of this patient. It equally clearly constitutes a clinical opinion which is required to be recorded. We are comfortably satisfied that this Particular has been made out. (5) On 10 January 2014 up to about 1250 hours, the practitioner failed to document the following in the hospital records, contrary to Schedule 2, clauses 1(2)(b), 1(2)(c), 2(1) and/or 2(2) of the 2010 regulation: (a) his diagnosis and/or prognosis for any conditions the practitioner understood Patient B to be suffering from; (b) his clinical judgment about Patient B's deterioration in blood pressure, oxygen saturation and urine output. 1. The clinical notes made by the respondent at 7 AM on 10 January 2014 provide a provisional diagnosis of acute pulmonary oedema and small bowel obstruction. At that stage he made arrangements for certain diagnostic investigations to be carried out, as we have previously noted in connection with Complaint One. As Dr Howle commented in his report, it was reasonable at that stage for the respondent to await the results of these investigations before making any further prognosis or clinical judgement about the patient's condition. In the circumstances we are not comfortably satisfied that Particular 5 has been made out. (6) On 10 January 2014 up until about 1250 hours, the practitioner failed to document the following in the hospital records, contrary to Schedule 2, clauses 1(2), 2(1) and/or 2(2) of the 2010 regulation: (a) his discussions with the nursing staff concerning Patient B's clinical situation being terminal; (b) his discussions with the nursing staff about the palliative care plan for Patient B. 1. The respondent conceded a failure to comply with the matters referred to in this Particular, a concession which, on the evidence, was properly made by him. We are comfortably satisfied that this Particular has been made out. (7) On 10 January 2014, before leaving to fly to Delegate, the practitioner failed to document an appropriate management plan for the nursing staff to follow as to Patient B's care, treatment and diagnosis concerning palliative care while he was away from the hospital, contrary to Schedule 2, clauses 1(2), 2(1), and/or 2(2) of the 2010 regulation 1. We have previously concluded in connection with our consideration of Complaint One that the details of the plan noted by the respondent at 7 AM on 10 January 2014 were appropriate in containing a mix of treatment and management. In these circumstances we are not comfortably satisfied that this Particular has been made out. (8) The practitioner failed to document in the hospital records any discussions and/or agreement he had had with Patient B or next of kin concerning Patient B's end of life decisions and care, contrary to Schedule 2, clauses 1(2), 2(1) and/or 2(2) of the 2010 regulation. 1. The respondent admitted that he had failed to document any such discussions or agreement, but submitted that it was not necessary to do so within the provisions of Schedule 2. We disagree. The withholding of medication or the use of any medical procedure or equipment is as much a feature of the provision of medical treatment and medical services as is the active administration of medication, medical procedures and the use of equipment for medical purposes. It is equally clear that the consent of the patient or, in appropriate circumstances, his family, was required before such a course could be embarked upon. Furthermore, unless matters of this kind are clearly documented no other medical practitioner could possibly continue to manage such a patient's case. Hopefully, these matters are so clear and so fundamental to the practice of medicine that we do not need to elaborate on them further. The admitted failure to document these matters constitutes a failure to comply with the provisions of Schedule 2 as particularised. We are comfortably satisfied this Particular has been made out. (9) The practitioner's overall level of detail and information in Patient B's hospital record was inappropriate and insufficient, contrary to Schedule 2, clauses 2(1) and 2(2) of the 2010 regulation. 1. We have some sympathy for the position of the respondent that in the absence of any particularisation of the level of detail and information referred to, it is impossible for him to respond. Furthermore, the complainant has otherwise alleged breaches of the Schedule 2 with respect to this patient with a degree of particularity. We do not require the respondent to respond to this Particular, and we shall not take it into account in determining these proceedings. Patient C (10) The practitioner failed to document his assessment, examination and investigations after he arrived in Patient C's birthing suite on 25 January 2014, contrary to Schedule 2, clauses 1(2), 2(1) and/or 2(2) of the 2010 regulation. (11) The practitioner failed to document his assessment of Patient C's baby and the practitioner's treatment plan including his assessment and response to the risk of shoulder dystocia after he arrived in Patient C's birthing suite on 25 January 2014, contrary to Schedule 2, clause 1(2) of the 2010 regulation. (12) After Patient C's delivery, the practitioner failed to record his assessment, diagnoses or review of Patient C's baby, other than a reference to shoulder dystocia and noting that "the baby may go home … if okay", prior to leaving the hospital on 25 January 2014, contrary to Schedule 2, clause 1(2) of the 2010 regulation. (13) The practitioner failed to document his reasons for not conducting routine post-natal care of Patient C and her baby before 6 May 2014, contrary to clauses 2(1) and/or 2(2) of the 2010 regulation. (14) The practitioner's overall documentation of Patient C's labour and delivery, including hand over of care to another obstetrician, lacked sufficient information and adequate detail, contrary to Schedule 2, clauses 2(1) and/or 2(2) of the 2010 regulation, in circumstances where he was her VMO obstetrician and he had been present at stages of her labour and at her delivery. 1. We are able to deal with all the Particulars of this Complaint concerning this patient together because there is no documentation available to us which would satisfy any of these requirements of Schedule 2. There is a reference in the submissions of the respondent to a notation made by the respondent in the progress notes on 25 January 2014. It refers to the fact that there was a shoulder dystocia, one line of illegible handwriting and a notation that the patient may need to be moved the following day. These superficial notes do not, in our opinion, comply with the provisions of the Schedule referred to. As we have found, the respondent played a passive role in the actual birth of the baby, and this would ameliorate the necessity for him to record all of the details referred to in the Schedule. On the other hand, he clearly provided comfort and support to the mother, who was his patient, and was also the person in charge of the delivery. This latter consideration would require sufficient particularisation to comply with the matters referred to in Particulars 10 and 11 and we are comfortably satisfied that we may so find. We regard the matters referred to in Particular 14 as of lesser significance, but nevertheless we are comfortably satisfied that this Particular has also been made out. Patient D (15) The practitioner failed to document any management plan for Patient D's admission to the hospital ward on 15 February 2014, contrary to Schedule 2, clause 1(2) of the 2010 regulation. (16) The practitioner failed to document his clinical examinations of Patient D during her admission to the hospital on 15 February 2014, contrary to Schedule 2, clause 1(2) of the 2010 regulation. (17) The practitioner failed to document his provisional and/or differential diagnoses for Patient D during her admission to the hospital on 15 February 2014, contrary to Schedule 2, clause 1(2) of the 2010 regulation. (18) The practitioner's documentation in Patient D's clinical notes for her admission to hospital on 15 February 2014 lacked sufficient information and adequate detail, contrary to Schedule 2, clauses 1(2), 2(1) and/or 2(2) of the 2010 regulation. 1. This patient, aged 82 was admitted to the Pambula Hospital on 15 February 2014 suffering from severe right hip pain. She was reviewed by the respondent as the VMO on duty before arrangements were made later that day for her to be transferred to Bega District Hospital by ambulance. The clinical notes do not contain any notation made by the respondent. There is a note made by a nurse at 1745 that the patient had been seen by the respondent and that he had requested a transfer to Bega District Hospital for surgical review. 2. The respondent said that there was a page missing from the clinical notes for this patient because he had asked the nurse to give him a clean sheet of paper upon which he could write down some details. It seems that it was this piece of paper which was missing. This evidence presupposes that the respondent could actually remember when giving evidence before us what had occurred on 15 February 2014, that he did make such a notation and that in some way it had become separated from the remainder of the clinical notes. It is clear, however, that the respondent prepared a detailed referral to the Bega District Hospital which he said he had had typed himself. He denied in evidence that this was a "cut and paste" document. Having compared such documentation as exists in the hospital files we agree that this is a document which appears to have been created de novo. It contains details of the respondent's findings on examination. No provisional diagnosis is recorded but it was presumably his inability to formulate one which led to the urgent arrangement for a transfer. The referral letter was prepared at around 6 PM that day, some little time after the respondent had last reviewed the patient. Because there must be some doubt about the creation and subsequent loss of a document containing the respondent's clinical notes, and because in any event the referral letter contains the requisite information, we are not comfortably satisfied that these Particulars have been made out. Patient E (19) The practitioner failed to document his diagnosis, provisional diagnoses or clinical impression after his reviews of Patient A at about 1310, 1600, and 1930 hours on 15 February 2014, and at 1050 hours on 16 February 2014, contrary to Schedule 2, clause 1(2) of the 2010 regulation. (20) The practitioner failed to document his clinical opinion, judgment and reasoning in response to Patient E's pulse rate rising from 95 to 120 beats per minute on 15 February 2014, contrary to Schedule 2, clauses 1(2) and/or 2(2) of the 2010 regulation. (21) The practitioner failed to document his assessment of the location or area of Patient E's abdominal pain following his assessments at about 1310, 1600, on 15 February 2014, contrary to Schedule 2, clause 1(2) of the 2010 regulation. (22) The practitioner's documentation in Patient E's hospital record for her admission on 15 February 2014 lacked sufficient detail including management plans contrary to Schedule 2, clause 2(1) of the 2010 regulation. 1. We have previously set out in some detail the circumstances in which Patient E received treatment under the care of the respondent. The respondent admitted Particular 19. He also admitted Particular 21 but offered an explanation. He said his failure to make a documentation occurred because he found it difficult to identify the site of the pain because the patient would not let him touch her, but pointed in a general manner all over her abdomen. He conceded, however, that he should have noted that he was unable to find the location of the pain and why. It is not necessary that we review the factual material concerning this patient, because we have previously done so when considering Complaint One. We are comfortably satisfied that Particulars 19 and 21 have been made out. 2. Particular 22 is confined to the record made by the respondent at the time that the patient was admitted on 15 February 2014. Some of the material which is the subject of this Particular is included within Particulars 19 and 21. There are typed notes made by the respondent at 1:10 PM on the date of admission. They record a number of findings on examination and the difficulty in conducting an examination because of the patient's painful abdomen. A management plan is noted of "Ondansetron ice blocks and review" which review took place at 4:00 PM. It is stating the obvious that there were a number of potential provisional diagnoses which could have been made at that stage and recorded. In that, on the evidence, the respondent had not made any provisional diagnosis at that stage, it would have been appropriate for him to have recorded this fact. This would have been of assistance to any other medical practitioner who might have taken over the care of the patient. We are comfortably satisfied that this Particular has been proven, but restricted to the failure to record a provisional diagnosis. Unsatisfactory professional conduct 1. We have previously set out the definition of this expression contained in section 139 B of the National Law. By reason of this definition each of the matters which we have found proven as set out in Complaint Two will constitute unsatisfactory professional conduct. Furthermore, based upon the evidentiary material which we have discussed, many of the matters which we have found proven which are contained in Complaint One are indicative of conduct below the relevant standard set out in the definition. It follows that each one of these constitutes unsatisfactory professional conduct, as we have found. 2. In summary, we have found the following Particulars proven and that each of them constitutes unsatisfactory professional conduct: Complaint One: 5(a), (c) and (d), 9(a), (b) and (c), 10, 11, 12, 24, 25 and 26. Complaint Two: 1, 2, 4, 6, 8, 10, 11, 14, 19, 21 and 22. Professional misconduct 1. This is the subject of Complaint Three. COMPLAINT THREE 1. is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. 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 the practitioner's registration BACKGROUND TO COMPLAINT THREE 1. As for Complaint One. PARTICULARS OF COMPLAINT THREE (1) Two or more of the following particulars of Complaint One, when taken together, justify a finding of Professional Misconduct: 1, 2, 4, 5, 6, 7, 8, 11, 13, 15, 17, 20, 21, 26, and 27 1, 4, 4A, 5, 6, 8A, 9, 10, 11, 12, 14, 16, 17, 20, 24, 25 and 26. (2) Two or more of the particulars of Complaint Two when taken together with two or more of the particulars of Complaint One justify a finding of Professional Misconduct. 1. It is now necessary to determine whether, by reason of any one or more of the Particulars of unsatisfactory professional conduct which we have found proven, the respondent is guilty of professional misconduct as that expression is defined in section 139E of the National Law which we have previously set out. Accordingly, it is necessary to determine whether the unsatisfactory professional conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or whether there is "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." This directs attention to a consideration of those circumstances which would justify suspension or cancellation of registration. Whilst this involves the exercise of a value judgement having regard to all of the relevant factual circumstances, it must be undertaken in the context of the statutory regime which applies to these proceedings. 2. It is well-established that the jurisdiction of this Tribunal is primarily protective in nature. In exercising this jurisdiction there are a number of matters to which we must have regard. They have been referred to succinctly in the judgement of Meagher JA in the New South Wales Court of Appeal in HCCC v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said; 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. We should make it clear that in determining whether the conduct of the respondent may be characterised as professional misconduct justifying cancellation or suspension of registration, such a characterisation is not necessarily determinative of any consequential appropriate protective orders. Our concern for present purposes is to determine whether or not the conduct is such that cancellation or suspension is warranted. In determining this matter we have regard to the protection of the public, the maintenance of public confidence in the integrity of the profession, and the deterrent effect both on the respondent and on other medical practitioners. 2. We commence our consideration with the issues of documentation and record-keeping which are the subject of Complaint Two. Whilst Dr Woollard sought to minimise the wrongdoing associated with a breach of the provisions of Schedule 2, it became obvious to him as well as to Dr Roche and the respondent during the course of discussions between members of the Tribunal and counsel for each of the parties that these are important matters. The instances which are the subject of these proceedings do not represent one or two isolated matters but are indicative of a course of conduct which is contrary to the legislative scheme which regulates the practice of the medical profession. The necessity to record and document the matters referred to in the Schedule has a very important role to play in the practice of medicine. Not only do these matters serve as an aide memoir to assist practitioners in recalling the progress, or lack of progress in the treatment of patients, but they also assist in the evolving evaluative process which is a fundamental part of the scientific application of medical theory to difficult cases. Furthermore, they provide a ready source of information for other medical practitioners who may be required to take over the care of a patient and for ancillary health practitioners also involved in the care of those patients. We regard the several failures and omissions which we have found to have occurred as constituting, in the aggregate, serious misconduct, but not necessarily of a kind which would justify cancellation or suspension of registration. 3. The matters which we have found proven under Complaint One also constitute misconduct of a serious nature. In particular, matters concerning the proper documentation of what, is in effect, an advance care directive, the failure to ensure proper communication with the family of someone who is clearly close to death, the failure to conduct himself appropriately in the course of a difficult birth and a failure to make a timely referral for specialist advice in the case of a young patient with a condition which was admittedly difficult to diagnose. We add that because this latter condition was difficult to diagnose the failure to refer was also indicative of a standard significantly below that which is reasonably expected of a practitioner of an equivalent level of training or experience. In the aggregate the conduct of this kind is so serious that it would arguably lead to a conclusion of unfitness to practice such as to justify suspension or even cancellation of registration and thus constitute professional misconduct. This is more so when one aggregates the misconduct under Complaint One with that found proven under Complaint Two. 4. We conclude, that on the basis of our observations concerning the matters which are the subject of Complaints One and Two as found proven that the respondent is guilty of professional misconduct and we so find. We emphasise, that such a finding is not conclusive of any ultimate protective orders, the appropriateness of which we can only commence to consider after the completion of the stage 2 hearing on 22 June 2017. ******** 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: 01 June 2017