Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Robinson [2017] NSWCATOD 147 Hearing dates: 18, 19 and 20 September 2017 Date of orders: 19 October 2017 Decision date: 19 October 2017 Jurisdiction: Occupational Division Before: F Marks ADCJ, Principal Member Dr D Storey, Professional Member Dr F Sardelic, Professional Member J Houen, Community Member Decision: 1. The respondent is found guilty of professional misconduct. 2. Consideration of whether the respondent is impaired is stood over for further hearing to the stage 2 hearing. 3. The further proceedings are stood over for stage 2 hearing on 7 and 8 February 2018 Catchwords: Medical practitioner – disagreement between surgeon and anaesthetist with respect to further conduct of operation – failure to attend to patient in a timely fashion – self prescription of medication – prescription of medication to close family member – finding of professional misconduct – doubt concerning finding of impairment despite concession by medical practitioner that impaired Legislation Cited: Health Practitioner Regulation National Law NSW Poisons and Therapeutic Goods Act 1966 Cases Cited: HCCC v Do [2014] NSWCA 307 Pillai v Messiter (No. 2) (1989) 16 NSWLR 197 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Gregory Leonard Robinson (Respondent) Representation: Counsel: S Maybury (Complainant) P Griffin SC (Respondent) Solicitors: Health Care Complaints Commission (Complainant) Meridian lawyers (Respondent) File Number(s): 2017/00009849 Publication restriction: Non-publication order directed to the name of any patient or former patient of the respondent or any material which might tend to identify such patient. reasons for decision Background to these proceedings 1. These proceedings are constituted by an Amended Complaint in which the complainant, the Health Care Complaints Commission ("HCCC") complains that the respondent, Dr Gregory Leonard Robinson, formerly registered under the Health Practitioner Regulation National Law (NSW) ("the National Law") is guilty of unsatisfactory professional conduct and professional misconduct as those expressions are defined in the National Law by reason of a number of matters concerning his treatment of five patients, a failure to make proper clinical notes, self-prescription of medication and prescribing medication to a close family member. In addition, the complainant asserts that the respondent is impaired as that expression is defined in the National Law. The respondent conceded that he was guilty of some of the particulars of the complaints made against him, but rejected others. The respondent conceded that he was impaired. 2. The proceedings conducted before us were confined to what is known as stage 1 proceedings, namely the establishment or otherwise of the several complaints and particulars. Once appropriate findings are made, the nature and extent of any protective orders are to be dealt with in stage 2 proceedings which, with the consent of the parties, have been set down for hearing on 7 and 8 February 2018. 3. We set out below the Amended Complaint which includes the several matters of complaint and the particulars thereof. We have indicated on the document in bold text those matters which are the subject of concessions made by the respondent; The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Gregory Leonard Robinson of [address supressed] NSW, being a medical practitioner formerly registered under the National Law ("the practitioner"), COMPLAINT ONE is guilty of unsatisfactory professional conduct (admitted subject to details concerning some particulars) under section 139B(1)(a) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, 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. Each of the particulars of Complaint One in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT ONE The practitioner obtained his MBBS from the University of NSW in 1983 and attained Fellowship of the Royal Australian College of Surgeons in 1992. From 1992 to 2011, the practitioner worked as a general surgeon in [country NSW, from 2011 to July 2012] until the dates relevant to this complaint in [southern NSW] including at [a District Hospital] (the hospital) as a Visiting Medical Officer (VMO) General Surgeon. PARTICULARS OF COMPLAINT ONE Patient A 1. Patient A was admitted to the hospital through the emergency department on 17 February 2015. In circumstances where at about 0840 hours on 17 February 2015, a surgical registrar informed the practitioner that another surgical consultant had offered to put Patient A at the end of his operating list and where the practitioner was aware he would not be able to operate on Patient A until at least 1500-1600 hours, at about 0840 hours the practitioner failed to: a. take up the surgical consultant's offer; or b. make enquiries to enlist another competent consultant to commence the operation as soon as possible. Admitted with explanation 2. The practitioner failed to personally review Patient A or arrange for another consultant surgeon to do so from about 0900 hours until approximately 1445 hours on 17 February 2015 in the circumstances of particular 1 and where the registrar reviewing Patient A in his absence was relatively junior. Admitted with explanation 3. During Patient A's surgery on 17 February 2015, the practitioner attempted hernia reduction and widening of the abdominal wall defect. The practitioner inappropriately proceeded to a laparotomy in circumstances where: a. the anaesthetist told the practitioner prior to the operation at about 1530 hours that he would only agree to provide local anaesthesia and sedation for an operation on Patient A to reduce the hernia and/or widen the abdominal wall defect; b. the anaesthetist told the practitioner prior to the operation at about 1530 hours that he would not provide his anaesthetic services for a laparotomy for Patient A; c. the practitioner did not attempt at any time to ask another anaesthetist to provide general anaesthesia to Patient A for a laparotomy. Admits events in (a) to (c) with explanation. Denies laparotomy was inappropriate in the circumstances. 4. During Patient A's surgery on 17 February 2015, after performing a laparotomy the practitioner inappropriately resected the small bowel and large bowel, with the aim to perform a colostomy and small bowel anastomosis (the planned procedures). This was inappropriate in the circumstances of particular 3 and where: a. the practitioner knew Patient A's small bowel was ischaemic after performing the laparotomy and this was not a survivable injury; b. the anaesthetist informed the practitioner at about the time the ischaemic small bowel was found that Patient A's bowel injury was not survivable and that the patient was palliative; c. Patient A was not sufficiently anaesthetised for the planned procedures; d. Patient A was morbidly obese; Admits patient was obese but not morbidly so e. Patient A was on her ward bed which was not set up for the planned procedures. Admits particular with explanation Patient B 5. Following a laparoscopic cholecystectomy performed on Patient B by the practitioner on 1 September 2014, the practitioner booked Patient B for a right inguinal hernia repair and/or groin exploration at the hospital on 24 November 2014 (the planned operation and admission). The practitioner inappropriately booked the planned operation and admission in circumstances where: a. Patient B's laparoscopic cholecystectomy on 1 September 2014 performed by the practitioner excluded hernia as a cause for Patient B's symptoms; b. Patient B's planned operation was not justified following the laparoscopy on 1 September 2014 and the practitioner's clinical examination of Patient B around that time; c. the practitioner failed to obtain any ultrasound report supporting the existence of a hernia requiring operation or other documentary evidence justifying the planned operation. Admitted 6. The practitioner failed to cancel Patient B's planned operation and admission or defer Patient B's operation until further outpatient review in an appropriate time before 24 November 2014, in circumstances where: a. Patient B's laparoscopic cholecystectomy on 1 September 2014 performed by the practitioner excluded hernia as a cause for Patient B's symptoms; b. Patient B's planned operation was not justified following the laparoscopy on 1 September 2014 and the practitioner's clinical examination of Patient B around that time; c. the practitioner failed to obtain any ultrasound report supporting the existence of a hernia requiring operation or other documentary evidence justifying the planned operation. Admitted with explanation Patient C 7. On 9 December 2013 Patient C, a 10 year old boy, presented to the hospital with a two day history of vomiting and gradual onset of right iliac fossa pain. On 10 December 2013, Patient C was admitted to the hospital under the practitioner's care. The practitioner failed to conduct any physical examination or assessment of Patient C: a. within 24 hours of Patient C being admitted to hospital on 10 December 2013; and b. at any other time until the morning of 13 December 2013. Admitted 8. During the period from 10 December 2013 to the morning of 13 December 2013, the practitioner inappropriately relied on a first year surgical trainee and a resident to examine, assess, and manage Patient C from a surgical team perspective. 9. At or about 1900 hours on 12 December 2013, Dr Greenacre, the paediatric consultant telephoned the practitioner and informed him that he was concerned that there was no diagnosis for Patient C, that intra-abdominal sepsis had not been excluded, and that the most likely diagnosis for Patient C was peritonitis secondary to a perforated appendix or appendiceal abscess. Following this conversation, the practitioner failed to immediately attend the hospital to assess, examine and investigate Patient C's condition. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the 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; ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT TWO As for Complaint One. PARTICULARS OF COMPLAINT TWO Patient D 1. Patient D was admitted to the hospital on 24 November 2014 for elective mesh repair of a left inguinal hernia under the practitioner's care. At about 1530 hours on 24 November 2014 Patient D was anaesthetised and intubated in the operating theatre. In those circumstances, the practitioner inappropriately: a. stated to those present in the operating theatre at about 1530 hours and shortly afterwards to others in the hospital administration words to the effect that he would not permit the operation to commence until the hospital provided another one of his patients, who was in the outpatients clinic, with a bed at the hospital; b. delayed the commencement of Patient D's operation from about 1530 hours to about 1550 hours at which time he sent a message for his registrar to commence the operation; c. left the operating theatre at about 1532 hours and did not return until about sometime between about 1624 hours and 1715 hours. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has: i. contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010) (the 2010 Regulation). BACKGROUND TO COMPLAINT THREE As for Complaint One. PARTICULARS OF COMPLAINT THREE Patient A 1. The practitioner failed to document his pre-operative plan and review before Patient A's operation on 17 February 2015, contrary to Schedule 2, clauses 1(2),1(3), 2(1) and/or 2(2) of the 2010 Regulation. 2. The practitioner failed to document his pre-operative examination and assessment of Patient A on 17 February 2015, contrary to Schedule 2, clauses 1(2), and/or 2(1) of the 2010 Regulation. Admitted Patient B 3. Contrary to Schedule 2, clauses 1(2), 1(3), 2(1) and/or 2(2) of the 2010 Regulation, the practitioner failed to adequately document in Patient B's hospital progress notes for 24 November 2014: a. the practitioner's reasons for cancelling Patient B's scheduled operation on 24 November 2014; b. an explanation as to how Patient B came to be admitted for surgery on 24 November 2014. Admitted Patient E 4. The practitioner failed to maintain adequate records in respect of his treatment of Patient E on the dates listed in Schedule A, contrary to Schedule 2, clauses 1(2), 1(3), 2(1) and/or 2(2) of the 2010 Regulation. Admitted COMPLAINT FOUR is guilty of unsatisfactory professional conduct (admitted subject to details concerning some particulars) under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, 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; ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT FOUR As for Complaint One. PARTICULARS OF COMPLAINT FOUR 1. Between 25 May 2012 and about 6 February 2016 on the dates and in the manner set out in the Schedule attached and marked 'A' the practitioner inappropriately prescribed schedule 4 and schedule 4D medications under the Poisons and Therapeutic Goods Act 1966 to himself for his own personal use and benefit, in circumstances where: a. the practitioner did not provide a documented record of his self-prescribing and reasons to his supervising prescriber(s); Admitted b. the practitioner's self-prescribing was contrary to the Medical Council of New South Wales' Guideline for self-treatment and treating relatives/family members (4 October 2011 and 2 December 2014) and/or the Medical Board of Australia's code Good Medical Practice - a code of conduct for Doctors in Australia; c. the practitioner was aware of the risks of self-prescribing as he had been involved with the Medical Council of New South Wales' health program from 2002 to about April 2011 in relation to his opiate abuse and depression during which time conditions were imposed on his registration and removed in 2011, including restrictions on self-prescribing. 2. Between about 26 April 2012 and about 1 June 2016 on the dates and in the manner set out in the Schedule attached and marked 'B' the practitioner inappropriately prescribed schedule 4, schedule 4D and schedule 8 medications under the Poisons and Therapeutic Goods Act 1966 to Patient E, in circumstances where: a. Patient E was a close family member who suffered from multiple medical problems; b. the practitioner did not work together with Patient E's independent medical practitioners to maintain established treatment; c. the practitioner initiated treatment for Patient E with Buprenorphine; Admitted as to a,b and c d. the practitioner's prescribing to a close family member was contrary to the Medical Council of New South Wales' Guideline for self-treatment and treating relatives/family members (4 October 2011 and 2 December 2014) and/or the Medical Board of Australia's code Good Medical Practice - a code of conduct for Doctors in Australia. COMPLAINT FIVE is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. 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 PARTICULARS OF COMPLAINT FIVE 1. Particulars 3, 4, 7, and 9 of Complaint One are repeated and relied upon both individually and cumulatively. 1a. Complaint One is relied upon individually. 2. Complaint Two is repeated and relied upon individually. 3. Complaint Four is repeated and relied upon individually. 4. Complaints One, Two, Three, Four, and Five and the particulars therein are repeated and relied upon cumulatively. COMPLAINT SIX Has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of medicine. PARTICULARS FOR COMPLAINT SIX 1. The practitioner suffers from an impairment in that: (a) he has required and requires treatment for Major Depressive Disorder including medication, and carries a risk of relapse into a depressed and anxious state including from environmental, professional and personal stressors; (b) he has a history of opioid self-administration and/or dependence from 2000 leading to the practitioner being on the New South Wales Medical Council and Board's impairment program from 2002, and has a risk of relapse including from environmental, professional and personal stressors. Admitted Unsatisfactory professional conduct 1. Complaints One to Four allege that the respondent is guilty of unsatisfactory professional conduct. Such misconduct is defined in the National Law, relevantly for the purpose of these proceedings as follows; 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- (a) 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. (b) 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. ... (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. We note that for the purpose of section 139B(1)(a) that the conduct must be "significantly" below the standard described and must demonstrate that the knowledge, skill or judgement possessed by the respondent or the care exercised by him is below that standard to the required extent. The determination of whether conduct falls within this subsection involves the exercise of a value judgement. In doing so we shall have particular regard to the expert evidence given in these proceedings. 2. We observe that in determining whether the respondent is guilty of the misconduct alleged against him we must be satisfied to the requisite standard, namely what has become known as the Briginshaw standard, that the relevant complaints and particulars have been established. We proceed on the basis that we must be comfortably satisfied, on the balance of probabilities, that the Complaints and the particulars have been made out. In approaching this issue we are, on the basis of well-established principles, entitled to have regard to each of the individual instances of misconduct which have been identified and either proven or conceded, and all of those instances in the aggregate. The evidence in the proceedings 1. A great deal of documentary evidence was tendered in the proceedings principally directed to the circumstances of each of the patients the subject of the complaints, as well as the impairment of the respondent. In addition, oral evidence was given by a number of health practitioners involved in the events surrounding these complaints together with expert evidence of Professor Guy Maddern retained by the complainant. We shall refer to this evidentiary material where relevant in the course of these reasons for decision. 2. No evidence was adduced on behalf of the respondent. Furthermore, he did not give oral evidence in support of the explanations which he wished to propound before us and to resist those allegations which he wished to contest. It is unusual for a respondent medical practitioner not to give evidence in support of his or her case before this Tribunal. However, an explanation was provided by Senior Counsel who appeared on his behalf, and which we accept as reflecting the respondent's personal circumstances. That explanation, as provided in written form at our request is in the following terms; 1. I indicated that Dr Robinson did not cavil with two relevant submissions of the Applicant, namely, (i) that the Tribunal was entitled to take into account, in assessing his written evidence, that he elected not to give oral evidence in the hearing thereby depriving the Applicant, and the Tribunal, of the opportunity to test his evidence; and (ii) in appropriate circumstances it was open to the Tribunal to give consideration to drawing inferences adverse to him because he did not give evidence and make himself available for cross-examination. 2. I indicated that: (i) Dr Robinson attended the Tribunal on Monday morning for the following reasons; (a) as a mark of respect to the Tribunal ; (b) to confirm his instructions in relation to the Further Amended Complaint, especially his instructions to admit the complaint of impairment; (c) to be available if instructions were required as a result of any discussions between counsel and solicitors about the Further Amended Complaint; and (d) to permit a face to face discussion about forensic matters arising from the election not to give evidence. 3. By way of background I explained that I had a conference with Dr Robinson on the evening of Thursday 14 September 2017 and that his instructions were only confirmed shortly prior to the hearing. 4. It was not suggested that he was suffering from any relevant incapacity such that he could not give evidence. He was not suggesting that there was any independent expert evidence to this effect. Had this been the case an application for an adjournment would have been made . 5. The election not to give evidence, and not to further attend the hearing was made by Dr Robinson, in consultation with his partner, because they were of the view that to participate and give oral evidence would likely be severely adverse to his health and wellbeing. 1. It follows, as Mr Griffin SC properly pointed out in the explanation set out above, that the task of the respondent in rebutting the evidence adduced on behalf of the complainant, and the inferences that might properly be drawn from it is made more difficult because we have not been afforded his own evidence about these matters. Nevertheless, we understand and accept the basis upon which the explanation given on behalf of the respondent was made. As will be seen, this explanation is consistent with the expert psychiatric evidence of Dr Robert Fisher given on behalf of the respondent. 2. We now deal with the evidence as it concerns each of the complaints and particulars thereof seriatim. Complaint One – Patient A 1. This 61-year-old female patient was admitted to the emergency section of the Hospital on 17 February 2015 at 12:44 am with symptoms of vomiting and suspicion of an incarcerated abdominal wall hernia. She was assessed as weighing 135 kg and it was noted that she was morbidly obese, and had not mobilised for 3 to 4 years and was wheelchair bound. The patient was classified for the purpose of assessment as an emergency as being "less than 24 hours – Non-critical, Non-Emergent." The classification form utilised by the hospital contained six classifications, the first of which was less than 15 minutes, and the last of which was less than 72 hours. The classification accorded to this patient was the second longest in the list. The emergency form noted that the classification was made at 10:45 am, and that the operation was scheduled after 4 pm that day to be conducted by the respondent. There is a notation on the form that the respondent was not available until after 4 pm that day. The operation was noted to be a laparotomy with a possibility of a bowel resection and repair of a ventral hernia. The booking was noted to have been made by Dr Jean Wong, a surgical registrar at the hospital who took over the management of the patient early on 17 February. The hospital records note the respondent as being the attending medical officer. It appears that he was assigned her case after she was admitted in the early hours of 17 February. 2. There is a notation in the hospital clinical records made by Dr Wong at 1 pm that in the event of a cardiopulmonary arrest there should be no CPR. 3. The operation commenced at about 5 pm that day. 4. Dr Wong said that she had seen the patient at 8 am whom she then described as "stable and afebrile." She later received a message that Professor Jones had offered to place this patient at the end of an operating list that he was then conducting. At 8:30 am she sent the respondent a message asking him whether he wanted Dr Jones to perform the operation, but he declined that offer. This was on the basis of information given to him by Dr Wong concerning the appearance of the patient, and certain diagnostic results. He indicated that he would be available at 3 or 4 pm. Arrangements were then made by her for the operation to be conducted later that day when the operating theatre became available. Professor Martin Jones is the Director of Surgery at that hospital and an experienced surgeon. 5. On 28 April 2016 the respondent attended an interview conducted by representatives of the Local Health District in which the hospital is situated. His initial impression after viewing clinical notes and diagnostic records and discussing her circumstances with the patient was that notwithstanding her weight, he wanted to perform an operation under general anaesthetic because he thought that he could prolong her life. He had successfully previously reduced a hernia with another patient with medical problems but acknowledged that there was a risk if the bowel had become "compromised and it is too far gone." He thought that in the circumstances the patient had "a very low list of comorbidities." 6. There is evidence, principally given by Dr Rodney Juste a Senior Staff Specialist and Director of Intensive Care Services at the hospital who is an anaesthetist as well as an intensive care specialist concerning his communications with the respondent prior to the operation being performed. This evidence was contained in an interview conducted by representatives of the Professional Practice Unit at the Local Area Health District, a statement provided by him and his oral evidence given in these proceedings. Dr Juste was the anaesthetist on call on the afternoon of 17 February, and he was briefed by the anaesthetic registrar. He saw the patient and classified her as being "high risk." He spoke to Professor Jones who confirmed that he had offered to do the operation earlier but that the respondent had refused. He thought that this was "an important issue" because this patient should not have had to wait all day before an operation was performed. Dr Juste also discussed the circumstances of this patient with Dr Grant Simmons a VMO intensivist and they had agreed that it would be too dangerous to give this patient a general anaesthetic. 7. Dr Juste said that he then had a conversation with the respondent in which he told him that in his opinion the patient would not survive a general anaesthetic and that to administer this would merely be delaying her "inevitable death." He said that the respondent agreed and that he would only attempt by way of operation a reduction of the hernia using a local anaesthetic. Dr Juste said that he found the respondent "persuasive" and in particular agreed that such a procedure would reduce the patient's pain and was, in fact, a palliative procedure. The respondent does not appear to have disagreed that such an agreement was reached. 8. The evidence is that the respondent and Dr Juste agreed that the operation would be performed on the patient's ward bed, but in an operating theatre, and that it would be confined to an attempt to reduce the hernia under local anaesthetic. All of the attending theatre nursing staff were so informed, as was Dr Wong who was also present as the respondent's registrar to assist him in the operation. Because only a local anaesthetic was to be used, the patient was not intubated or ventilated. After the operation commenced and the initial incision was made by the respondent it was discovered that there was some small bowel which was dead. Dr Juste said that he told the respondent not to proceed further, but the respondent proceeded to resect a portion of the small bowel and then continue to explore the wound finding that some of the large bowel also was dead. At that stage Dr Juste said that the patient could not survive. He said the respondent disagreed and then proceeded to resect a portion of the large bowel. Whilst these further operative procedures were being undertaken the patient was observed to be moaning, and attempting to place her hands over the operation site. She had to be restrained by nursing staff and given more local anaesthetic. The nursing staff were seen by Dr Juste to be visibly distressed. The respondent then proceeded to place some mesh over the site of the wound and the patient was transferred for palliative care. 9. In his oral evidence, Dr Juste described the patient's morbidities which he ascertained from his examination of her and from the clinical and diagnostic notes. There is no need for us to elaborate on this evidence because apart from some generalised observations made by the respondent in the interview to which we have referred, there is no evidence to reject the opinion of Dr Juste. In all the circumstances we accept the evidence given by him that this patient was suffering from an irreversible condition, which rendered it inappropriate to provide a general anaesthetic. When he saw her at 3:30 pm the patient was in a lot of pain and the most effective treatment was to control her pain. The respondent agreed that he would proceed to undertake such operative work as would achieve this. 10. In describing his interaction with the respondent during the course of the operation, Dr Juste said that he told the respondent to stop once the dead small bowel had been exposed. However, the respondent kept repeating words to the effect that he was able to fix the problem and that the patient could survive. It was clear that if the respondent wished to proceed he would have to attempt a full laparotomy which would require a general anaesthetic because of the necessity to relax the abdominal muscles. The respondent continued to expose the dead large bowel after resecting the small bowel and Dr Juste again asked him to stop the operation. He then agreed to do so, effecting a mesh repair and they agreed that the patient should be palliated because she was clearly dying at that stage. 11. Dr Juste said that he had asked the respondent 10 to 20 times to stop the operation but the respondent had refused till he eventually decided to go no further. This evidence is not consistent with the evidence of the nursing staff given in the proceedings nor with that of Dr Wong. However, such inconsistency does not detract from the thrust of the evidence of Dr Juste to the effect that it was inappropriate for the respondent to have proceeded in all the circumstances beyond the stage which had been the subject of their pre-arranged agreement. Indeed, in their evidence Professors Jones and Maddern agreed that the respondent should never have proceeded beyond the initial incision designed to maximise pain relief. Both of these highly qualified surgeons also expressed doubt whether the respondent should indeed have attempted any further operative procedure on this patient, but neither of them was critical of him in attempting the initial procedure. 12. Dr Jean Wong had made a statement following the operative procedure, had given a statement to an investigator appointed by the complainant and an interview to representatives of the Local Area Health District all of which became evidence in the proceedings. She also gave oral evidence. At the time of the incident involving this patient Dr Wong was a year 3 surgical registrar working under the supervision of the respondent. She had worked as an intern and resident at a Sydney teaching hospital, and then had undertaken general surgical training in 2013 following a period as a surgical resident in training. She said that she felt competent to assess this patient on 17 February. Tellingly, however, Dr Wong said that the respondent had never asked her about her experience as a surgical registrar. At the time of the incident she had been at that hospital for about 17 days only. 13. In her statement and in the course of her interview Dr Wong provided details of the progress of the operative procedure. She described how initially the respondent wanted to push some of the protruding bowel back into the abdomen but was unable to do so. It was then that he contemplated attempting to open the abdomen and that he would do this without moving the patient from her ward bed onto an operating table. He told Dr Wong that he wanted to widen the neck of the hernia "and essentially with a larger hernia defect, the bowel would not have the opportunity to be strangulated/incarcerated." The respondent had informed her that he had previously undertaken this procedure successfully under local anaesthetic. However, when the hernia sac was dissected out to the neck, it was observed that some of the contents looked dark coloured. Once the sac was opened this revealed that some part of the small bowel was dead. The respondent resected this. At that stage Dr Wong said that the anaesthetist was compliant with this decision. It then became obvious that part of the large bowel had also died. Dr Wong said that at that stage the respondent was considering a stoma, asked Dr Juste for the patient's condition and was advised that she was stable but with low blood pressure. The respondent was unable to find the two ends of the small bowel because one end had retracted deep into the abdomen and this caused pain to the patient. The respondent asked Dr Juste to administer some muscle relaxant but this would require a general anaesthetic. Dr Juste refused to administer a general anaesthetic. Dr Wong recorded Dr Juste as telling the respondent "that he should palliate the patient given that we had made a diagnosis of ischaemic bowel and the severity of the pathology would make is unlikely she would survive the operation." It was at that stage that the respondent decided that he could not continue further with the operation, a large mesh was placed over all of the bowel and the abdomen was closed. Thereafter the patient was afforded palliative care. 14. In the course of a detailed expert report, Professor Maddern made a number of observations which we summarise as follows; 1. it was appropriate for the respondent to have contemplated laparotomy, but not without appropriate support from the anaesthetist 2. the operation should have been conducted as soon as possible, and as soon as an emergency theatre had become available. He was critical of the respondent for having assessed the patient "at a very late stage." 3. He thought that the respondent should have taken up the offer of Professor Jones to have undertaken operative treatment earlier in the day 4. it was not unreasonable to attempt to reduce the hernia provided that the bowel had not already been compromised. Thereafter, the operation should only have proceeded under a general anaesthetic, and if this was not possible, it should have been abandoned. 5. There was no criticism of the procedure negotiated between the respondent and Dr Juste at around 3:30 pm. 1. Evidence was also given in the proceedings by registered nurses Lorraine Dunshee, a nurse unit manager and Irene Helen Linehan, the anaesthetic nurse assisting Dr Juste at the operation. Their evidence corroborated the evidentiary material which we have set out above. It was quite clear that both of them were upset and concerned about how the operation had proceeded, the fact that there was dissension between the respondent as the operating surgeon and Dr Juste as the anaesthetist, and the impact on the patient who was seen at one stage to be in pain and moving her hand towards the site of the wound because she had been given a local anaesthetic only. Findings on Complaint One re Patient A 1. The findings with respect to Particular 1 (a) and (b) are dependent upon the time when Professor Jones was likely to have become available given that the respondent was informed that an operating theatre was likely to become available for him at about 3 pm. Furthermore, whilst Professor Maddern thought that the operation should have occurred as soon as possible, he conceded that there were no overt indications that signified any particular urgency. Despite the admission made by the respondent that he is guilty of this Particular, we are not comfortably satisfied that it has been made out because of the lack of evidence concerning the time when Professor Jones became available to commence the operation. Furthermore, there is no evidence that any other "competent consultant" was available to commence the operation. 2. With respect to Particular 2, the respondent submitted that he was entitled to rely on the review conducted by Dr Wong and that she was competent. There may be no doubt concerning her competency, but the evidence is that the respondent never sought to interrogate her concerning her competency and in the circumstances it was inappropriate for him to rely upon her assessment without having made his own independent assessment. Furthermore, such an assessment should have been made at a much earlier time in the absence of any arrangement made for an assessment to be undertaken by another consultant surgeon. This is particularly so given the obvious serious nature of the patient's condition. We are comfortably satisfied that this Particular has been made out. 3. With respect to Particular 3, the respondent admits the material contained in sub paragraphs (a) to (c). However, he denied that it was inappropriate that he proceed to undertake a laparotomy in all the circumstances. The evidence in these proceedings, particularly that of Professor Maddern is to the effect that no such procedure should have been undertaken once it became clear that the anaesthetist would not have provided a general anaesthetic consistent with his initial attitude, and based on good reason. It is unarguable that at the stage that the respondent contemplated undertaking a laparotomy there was no prospect that the patient would survive a general anaesthetic and therefore no good reason to proceed further. Of course, the end result for the patient was the same in that she did not survive a condition which was probably likely to have been fatal in any event given her comorbidities. Nevertheless, the patient was subjected to discomfort and pain which would otherwise have been avoided. We are comfortably satisfied that this Particular has been made out. 4. Particular 4 is another aspect of Particular 3. The respondent sought to argue that the bowel injury was "survivable". Whilst this assessment may have been appropriate prior to the operative treatment being undertaken, it was clearly not the situation when the state of the small bowel was revealed, it became impossible to join it without a general anaesthetic and the condition of the large bowel was also compromised. The respondent also submitted that there was no evidence that the patient was "morbidly" obese, although he conceded that she was clearly obese. The patient was described as morbidly obese in documentation in the clinical notes and by a number of witnesses. Nothing turns on the extent of her obesity, which was on any account severe and sufficient to compromise any operative treatment. We are comfortably satisfied that this Particular has been made out. 5. Having regard to those matters which we have found proven, and based on the opinion of Professor Maddern we are of the opinion that those matters in the aggregate constitute unsatisfactory professional conduct. They are significantly below the relevant standard. Indeed, so much was admitted by the respondent. Complaint One – Patient B 1. The respondent conceded the truth of the events as outlined in the introductory words of paragraph 5, but denied sub paragraphs (a) to (c). An ultrasound report is referred to in the respondent's entry into the case notes on 24th November 2014 – on the day of cancellation - as showing an "about 5mm (-? Non existent) indirect sac". – in other words, the ultra sound did indicate a small hernia. However, an inspection of the patient's hernial orifices from the inside at the time of his laparoscopic cholecystectomy had ruled out the diagnosis of hernia, and as Professor Maddern stated in his oral evidence, an ultrasound alone is very unreliable evidence of the presence of a hernia. In these circumstances, we are comfortably satisfied that the factual situation contained in sub paragraphs (a) and (b) has been proven, but not (c). However, as is clear from the contents of paragraph 6 the operation to be performed on this patient was cancelled in a timely manner. 2. It is abundantly clear that the respondent should never have made arrangements for this patient to have an operation for a hernia which did not exist. However, as Professor Maddern pointed out, "we all make mistakes". Whilst he was critical of the respondent, he was not strongly critical. In circumstances where the respondent ultimately arranged for the operation to be cancelled and the patient was saved from undergoing an unnecessary procedure, we are not satisfied that the conduct of the respondent in all the circumstances constitutes unsatisfactory professional conduct. That is because the conduct was not significantly below the relevant standard. 3. Accordingly, whilst we find that the significant parts of the factual basis for this Complaint have been made out, we do not conclude that it represents unsatisfactory professional conduct. Complaint One – Patient C 1. This 10-year-old boy was admitted to the Emergency Department of the hospital at 5:30 am on 10 December 2013 complaining of abdominal pain. He was assigned to "the surgical team" and to the respondent as the consultant surgeon. Arrangements were made for him to be seen by a paediatric VMO. An abdominal CT was performed which did not indicate any problems associated with the appendix and the patient was diagnosed suffering from gastroenteritis. On 12 December 2013 the paediatric VMO contacted the respondent by phone expressing concern that the patient was deteriorating and asking that he review him. The respondent attended at 8:20 am the following day, diagnosed peritonitis and an acute abdominal condition and arranged for an urgent transfer to Sydney Children's Hospital. The patient underwent operative treatment for a ruptured appendix and peritonitis with other complications. Until seen by the respondent all surgical attention had been given by the surgical registrar. 2. Clinical notes provided by the hospital and information provided by medical staff indicate that prior to the eventual involvement of the respondent, the surgical care of this patient was mainly provided by Dr Sarah Forsyth, a surgical registrar. Another registrar had discussed the patient's condition with the respondent when he was admitted on 10 December. The respondent was contacted by Dr Forsyth by telephone mid-morning on 10 December and by another registrar at 6:10 pm that day. Dr Forsyth again contacted the respondent by telephone after she had reviewed the patient at about 11 am on 11 December and again at around 9 am on 12 December. At that stage, the combined surgical and paediatric assessment was that the patient was recovering from gastroenteritis and that his ongoing management would be undertaken by the paediatric registrar. 3. Tellingly, during the course of investigations being conducted by the HCCC in September 2015 following a complaint about this matter, the respondent informed the HCCC that he attended the hospital on 12 December 2013 in order to do a round of inpatients including patient C but was intercepted at the entrance to the paediatric ward by his Registrar who advised him that the patient's condition had improved, "and that he had been up and walking around unhindered today and that the paediatrician Dr Greenacre and his team had taken over the care of the patient." The respondent said that he was emphatically told by the registrar that it was no longer a surgical problem, that the surgical team were no longer involved and that there was no reason for him to see the patient. When informed of this information Dr Forsyth said that she had no recollection "of this interaction." Furthermore, the paediatric registrar Dr R Javier had no recollection of any request made by the surgical team for the paediatric team to take over the care of this patient. Certainly, no such suggestion was ever made by Dr Forsyth. 4. Dr Toby Greenacre a specialist paediatrician was the VMO at the hospital. He confirmed in a written report to the HCCC that at all times this patient was admitted under the care of the respondent and remained under his care. He was consulted by the surgical team as required. In his report Dr Greenacre said that when he reviewed the patient at about 6 pm on 10 December he thought that his diagnosis was appendicitis with or without peritonitis or gastroenteritis and said that further investigations were required. When reviewed again on 11 December at around 9:45 am Dr Greenacre noted that there was no evidence of appendicitis shown in the abdominal CT scan. However, there was concern that no positive diagnosis had yet been made and that peritonitis with an appendiceal abscess or perforated appendix had not been excluded. The patient's condition varied and Dr Greenacre again reviewed him at around 7 pm on 12 December. At that stage he remained concerned that no firm diagnosis had as yet been made, and that peritonitis had not been excluded. He then telephoned the respondent and told him that the most likely diagnosis was peritonitis secondary to a perforated appendix or an appendiceal abscess. 5. The hospital records indicate that the patient's condition worsened substantially during that evening and that he had significant pain. The patient was personally reviewed by the respondent for the first time at 8:20 am on 13 December when arrangements were made to transfer him to Sydney Children's Hospital. 6. In a letter addressed to the HCCC dated 22 October 2015 Dr Greenacre noted that this patient had been admitted under the care of the respondent. He said "it has been my experience of almost 32 years at (the hospital), if I telephoned a surgical colleague to inform him of a diagnosis of peritonitis, that he would come as soon as possible to review the patient. This has been the usual practice of the surgical and paediatric departments. Any competent surgeon I have ever been involved with would have been alarmed at a diagnosis of peritonitis in a patient who had already been in hospital for three days in their care and would review the patient promptly. I clearly told Dr Robinson that I felt the patient had peritonitis, most likely due to perforated appendix. I expected that he would be very concerned and would come to the hospital immediately. I was stunned that he decided to come in the next morning, rather than immediately." 7. In his expert report, Professor Maddern was critical of the respondent for having relied on a physical examination and opinion expressed by Dr Forsyth who was then "a first-year surgical trainee, inexperienced, and certainly requiring very close supervision of such cases." In his opinion, the respondent should have personally assessed the patient and provided guidance and input to his management. Furthermore, he said that the respondent should have personally examined the patient within 24 hours of admission. If he had been unable to do so, he should have obtained a more senior opinion than that provided by a first-year surgical trainee. Indeed, if the respondent had attended at the hospital at 7 pm on 12 December and had determined to operate on the patient, he could have possibly avoided the substantial deterioration of the condition of the patient overnight and his eventual transfer to Sydney. 8. In what he termed a "draft report" said to have been written "in good faith" and without legal consultation and therefore being incomplete, forwarded to the HCCC on 13 July 2015 the respondent said that on 12 December he had attempted to review this patient during ward rounds but was actively and strongly dissuaded from doing so by his Registrar who said that the patient was no longer a surgical problem. He said that about an hour or so after leaving the hospital he was called by Dr Greenacre who asked him to review the patient. He told Dr Greenacre that he had been advised by his Registrar that the patient was not a surgical case. He asked Dr Greenacre whether he wanted him to attend the patient that afternoon or whether it was acceptable to leave the review to the next morning. Dr Greenacre said that what it would be satisfactory to conduct the review the following morning. We observe that the statements made by the respondent in this "draft report" are entirely inconsistent with information furnished by Dr Forsyth, and in particular the detailed information provided by Dr Greenacre. Furthermore, there is no indication in the hospital clinical records that the care of this patient was transferred from the respondent as surgical consultant to Dr Greenacre as the paediatric consultant. We reject the version of the events asserted by the respondent in this document. 9. In all the circumstances, we are comfortably satisfied that each of Particulars 7, 8 and 9 is made out and that each of them individually, and all of them in the aggregate constitute unsatisfactory professional conduct. Complaint Two – Patient D 1. The respondent concedes that this patient was admitted on 24 November 2010 for a repair of a left inguinal hernia under his care, and that the patient was anaesthetised and intubated in theatre at about 3:30 pm. He denies subparagraph (a) and asserts that he told theatre staff and the anaesthetist that he was attending another patient in the surgical clinic with "wound issues and necrosis" and asked that the operation not commence. With respect to subparagraph (b) the respondent says that he found out between 3:20 pm and 3:30 pm that the patient had been anaesthetised against his instructions and ordered his Registrar to scrub but not to commence the operation. He said he then returned to the theatre at 3:30 pm and instructed the Registrar to commence the operation. However, this is inconsistent with his response to subparagraph (c) where he says he left the operating theatre at around 3:30 pm and returned at 5:15 pm. 2. Evidence was given about this matter by Registered Nurse Lorraine Dunshea. In a statement furnished to the HCCC, Ms Dunshea said that she had informed the respondent on the afternoon of 24 November 2010 that there was no bed available for one of his patients on whom he wished to operate that day. She was present in a hallway in the hospital at approximately 3:32 pm that day when the respondent said that he would not operate anymore that afternoon because there were no beds available, presumably for the patient on whom he wished to operate. At that stage patient D was in an operating theatre awaiting surgery and had been intubated. She said she knew this because she went into the theatre and saw the patient there. The respondent did not return to the operating theatre until 4:24 pm and that she had made a note of this precise time. Ms Dunshea prepared a note to this effect which she forwarded to the Nurse Manager at 6:32 pm that day. 3. Dr Rebecca Seton was a third year Surgical Registrar at the hospital that day and was to perform the operation on patient D under the supervision of the respondent. Prior to scrubbing for the operation she had informed the respondent that a patient had arrived in the outpatient clinic for an appointment with him. She said the respondent told her to start the operation, and that he would go to the clinic and see that patient. At that stage patient D had been anaesthetised. She said she scrubbed and proceeded to prepare and drape the patient, but before she had started the operation the respondent "rushed into the theatre" and told her not to start because he had a patient who needed to be admitted, but no bed was available for her. He then indicated that if the hospital could not find a bed for this patient he would wake up patient D before his operation and send him home and give that bed to the other patient. The respondent then left the theatre. He came back in about half an hour and told her to start the operation because the problem had been "sorted out." 4. A report on this incident was provided by Professor Jones. He had been informed that the respondent was holding a patient on the operating table as a "hostage" in order to have another patient admitted. He was able to speak to the respondent by telephone and told him "most directly" to go into the operating theatre and complete the operation on patient D. 5. Professor Maddern was highly critical of the respondent in having left a patient who was intubated without allowing the operation to proceed for some time, and in attempting to use the circumstances of this patient as a bargaining tool to have another patient admitted. Such conduct was not in the best interests of patient D, and in his opinion that conduct "brings great discredit" to the respondent and was significantly below the relevant standard. Furthermore the condition of the other patient as described by the respondent could not in any way be described as an emergency warranting the respondent leaving patient D after he had been anaesthetised. 6. We reject the response of the respondent which is clearly inconsistent with the overwhelming contrary evidence in the proceedings. We are comfortably satisfied that the Particulars of this complaint have been made out and that the respondent is, as a result, guilty of unsatisfactory professional conduct. Delaying and threatening to abandon an operation on a patient who was already intubated and anaesthetised was, in all the circumstances a most serious matter and clearly significantly below the standard that would be expected of the respondent. Complaint Three 1. The respondent admits Particulars 2, 3 and 4. On the basis of the documentation available to us, we are comfortably satisfied that these particulars are established. 2. The respondent does not admit Particular 1. We understand the basis for this non admission is the contents of a consent form signed by Patient A before undergoing the operative treatment. In his written report about this matter Professor Maddern said that determining to proceed with the operation was "a significant decision regarding a patient who was clearly extremely unwell and needing to undergo a difficult and challenging procedure" and that this "should have been documented within the medical record reflecting both (the patient's) wishes as well as Dr Robinson's perception of the surgical strategy that needed to be employed. This is a significant oversight." 3. We reject any suggestion that the bare reference to the procedure referred to in the consent form constitutes the documentation of a preoperative plan and a review of that plan as required by this Regulation. We are comfortably satisfied that Particular 1 has been made out and that, in the aggregate, all of the Particulars of this Complaint Three which we have found to have been established constitute unsatisfactory professional conduct. Complaint Four 1. The respondent admitted the factual material referred to in the Background to this complaint, and admitted Particulars 1 (a) and (c). He did not admit Particular 1 (b) on the basis that the Guideline and Code do not prohibit self prescribing. 2. Schedule A to the Amended Complaint, which we have not reproduced, shows that between 25 May 2012 and February 2016 the respondent initiated 107 prescriptions for medication for himself. A few of these prescriptions contained 5 repeats. Many of them were for quantities of 60 tablets and some for 100 tablets. The respondent asserted that he was entitled to issue some of these prescriptions in emergency situations or to tide himself over when prescriptions written by his treating medical practitioners ran out as provided for in the relevant Code. It is not necessary that we analyse the contents of this Schedule in any detail. It is sufficient to observe that most of the prescriptions which he issued could not, by reference to the dates upon which they were issued and the quantities prescribed, fall under either of the exceptions to the Code provisions which counsel against self prescription of medication for reasons which are so obvious that they do not require repetition. There may be some circumstances which would justify the issue of some of these prescriptions within the exceptions referred to in the Code, but these are few in number. Overall, we are comfortably satisfied that Particular 1 (b) has been made out. 3. The respondent admitted that he was guilty of the conduct referred to in Particular 2 (a), (b) and (c), but did not admit the conduct referred to in subparagraph (d). Particular 2 refers to prescriptions which the respondent had issued for his partner. Again, the controversy with respect to subparagraph (d) revolved around the exception in the Code relating to emergency treatment or the issue of scripts to tide his partner over where an existing script had run out. 4. There is annexed to the Amended Complaint Schedule B which we have not reproduced. It indicates that between 26 April 2012 and 29 February 2016 the respondent issued 133 prescriptions for medication for his partner. The majority of these prescriptions contained repeats and all but a few were for quantities of 30 tablets or more. Again, this prescribing pattern is not consistent with any exception to the provisions of the Code dealing with the prescription of medication to close family members. 5. A letter from the respondent's solicitor to the HCCC dated 17 August 2016 expresses "extreme remorse" by the respondent for having self prescribed medication and" remorse for failing to exercise clinical judgement in prescribing for his partner, when his partner was not easily able to attend a doctor to write a prescription for her continuing medication." We repeat that the prescribing pattern referred to in Schedules A and B is not consistent with this explanation. 6. We are comfortably satisfied that all of the sub- particulars of Particular 2 have been made out. We also find that in the aggregate all of the matters so found to have been established in Complaint Four constitute in the aggregate unsatisfactory professional conduct. Complaint Five 1. It is now necessary to determine whether the Respondent is guilty of professional misconduct. This expression is defined in the National Law in the following terms; 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. The provisions of this definition require us to consider whether any one incidence of the unsatisfactory professional conduct which we have found or whether in the aggregate all of the unsatisfactory professional conduct is or are of a sufficiently serious nature to justify suspension or cancellation. 2. In Pillai v Messiter (No. 2) (1989) 16 NSWLR 197, Kirby P (as his Honour then was) in the NSW Court of Appeal described the test for professional misconduct as follows. He said (at 200): Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of privileges which accompany registration as a medical practitioner. Further, (at 201), Kirby P said: The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed. 1. As is clear from the provisions of the National Law and from the many decided cases of appellate courts and this Tribunal, the raison d'être of the legislation is the protection of the public. Conduct which is significantly below the standard referred to will have the potential of creating a risk to the safety of the public at the hands of a medical practitioner. 2. Although, by definition, a finding of professional misconduct would justify an order for suspension or cancellation of registration it does not necessarily follow that the Tribunal is bound to make such an order, and the consideration of the nature and extent of any consequential orders must be determined by reference to well-established principles. In exercising this jurisdiction, there are a number of matters to which we must have regard. They have been most recently, succinctly, referred to in the judgment 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. In exercising the value judgement necessary to a determination of whether the unsatisfactory professional conduct which we have found is sufficient to constitute professional misconduct because it would justify cancellation or registration of the respondent's registration we shall have regard to the established principles referred to above as extracted from Do. We also have regard to the nature and extent of the misconduct as found by us. We are particularly concerned, based on the evidence given in the proceedings and our appreciation of that evidence that the misconduct of the respondent as we have found concerning patients A, C and D is of a most serious kind. When aggregated with the other misconduct which we have found we are of the opinion that it would justify cancellation or suspension of registration. Of course, in so concluding we should not be taken to have determined whether cancellation or suspension of registration is an appropriate protective order. Any final determination of this kind will need to await the conclusion of the stage two proceedings. Complaint Six 1. The respondent conceded that he was impaired consistent with the meaning of that word as defined in the National Law. Relevantly, there is a definition of "impairment" in section 5 of that Act. We proceed on the basis that a medical practitioner who is suffering from an impairment as defined is impaired as that word is to be understood within Complaint 6. The relevant portion of the definition is as follows; "impairment", in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect-- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; 1. In asserting that the respondent was impaired as alleged both parties appear to have relied principally on a recent report of a psychiatrist Dr Robert Fisher who had examined him on several occasions on behalf of the Medical Council of NSW. Before considering this report and other documentation it is necessary that we make brief reference to some relevant history as it concerns the respondent which we have extracted from a report of an Impaired Registrants Panel dated 16 June 2014 pursuant to an enquiry held under section 173 of the National Law. The respondent had voluntarily surrendered his Schedule 8 prescribing rights in 2002 following a two year history of depression and narcotic abuse. His registration was subsequently suspended, but lifted shortly thereafter with practice conditions placed on his registration. The respondent's condition and compliance with practice conditions were monitored from time to time and no significant issues were raised concerning his ability to practise medicine. In 2010 the respondent came to the attention of the then Medical Board because of concerns at a regional hospital that he might be suffering from a respiratory infection or other condition which precluded him from working as effectively as possible. Notwithstanding this difficulty, the respondent appears to have progressed to a stage where he was able to exit the Health Program on which he had been placed in April 2011 and his prescribing rights were restored in November 2011. 2. In September 2013 a notification was made to the Council concerning the respondent's health which had persisted for over a year. The Council referred the respondent to Dr Robert Fisher for assessment. In a report of 15 January 2014 Dr Fisher explained the respondent's symptoms of fatigue, depression and general unwellness as being related to an underlying physical condition and certain stressors. He did not believe that there were any grounds for the respondent re-entering the Impaired Registrant's Program. 3. In their report, the members of the Panel noted that the respondent had said that he was working very hard at the hospital, then being the hospital where the incidents which have given rise to these proceedings occurred. He described himself as suffering from fatigue and felt physically stressed. However, following a recent injection of testosterone he felt much better and that his low mood had improved. The members of the Panel concluded that the respondent did not require ongoing monitoring within the Health Program. 4. The respondent was next reviewed by Dr Fisher on behalf of the Council on 23 May 2016 and he provided a report dated the same day. Dr Fisher noted that the respondent had ceased practising on 24 April 2015 because "he was struggling to cope with multiple stressors which were both work-related and personal." In particular, the respondent had referred to a conflict between himself and a senior anaesthetist at the hospital, which we assume must relate to the circumstances surrounding patient A. He also expressed concern about complaints arising from his treatment of patient C. The respondent also described personal circumstances which created a stressful situation for him. 5. Dr Fisher diagnosed the respondent as suffering from an impairment "in that he has required treatment for recurrent major depressive disorder albeit that he reports currently to be free of depressive symptomatology or indeed any other major psychiatric symptoms." He thought that there was a risk that the respondent might lapse back into a depressed and anxious state, although he was taking medication. Even though there was no evidence that the respondent had engaged in drug or alcohol abuse or was dependent on these substances, Dr Fisher thought that there was always a long-term risk of lapse. Furthermore, the existence of a number of stressors in the respondent's workplace at the hospital and some financial strain put the respondent "at risk of lapsing into a depressed state and potentially to a lapse of his opioid self administration." He thought that the respondent's self-confidence may have suffered as a result of the incidents at the hospital. 6. Dr Fisher concluded that the respondent should undertake psychotherapy and that he should re-enter the Impaired Registrants Program "and to be monitored for stability of mood as well as being monitored for acceptable standards of clinical practice." 7. The latest report available from Dr Fisher is dated 23 August 2017 following a consultation on 16 August 2017. Dr Fisher noted that the respondent had surrendered his registration in September 2016. After taking a history concerning the respondent's current activities and noting that the respondent said he had not self-administered opioids since 2002 and abstains from alcohol Dr Fisher concluded that the respondent suffers from an impairment because of the risk that he might relapse in the manner as described in his report of 23 May 2016 which we have summarised above. Significantly, Dr Fisher said that if the respondent was fully compliant with conditions of registration requiring regular drug and urine testing, continued attendance on treating drug and alcohol specialists, maintenance of antidepressant treatment and access to a support psychologist or psychiatrist then he would be "at much less risk of lapsing into either opioid self administration or severe anxiety and depression." Dr Fisher also said "I am also of the view that he may have a very valuable contribution to make to the country community in his role as a general surgeon." Finally, he noted that if the respondent were to return to work it should be on a graduated, part-time basis with access to a clinical supervisor to counter his loss of self-confidence. 8. For completeness, we note an opinion expressed by Dr Glenys Dore, a Senior Staff Specialist Psychiatrist by report dated 4 November 2015 who appears to have treated the respondent for opioid dependence to the effect that; 1. the respondent had suffered from an impairment which has been well controlled for over 10 years with no evidence of a relapse and that he is stable on a maintenance program 2. whilst the respondent has "underlying personality vulnerabilities and he experiences episodic depressive and anxiety symptoms (largely due to situational stressors) these are more likely to have a negative effect on his own well-being, rather than detrimentally affecting his capacity to practice medicine" However, it seems that Dr Dore had not treated the respondent since February 2015. 1. The respondent's treatment was taken over as locum for Dr Dore by Dr Mark Hardy, a drug and alcohol practitioner who furnished a report dated 12 January 2016. He expressed the opinion that the respondent "suffers from an impairment" which he described as being opioid dependence but noting that there was no evidence of relapse. He thought that any anxiety or depression and personality traits would not have a significant impact on the respondent's ability to practice medicine but might affect him personally and impact on his interpersonal relationships with management in a Local Health District where he worked. 2. Although the respondent has conceded that he is impaired for the purpose of the National Law provisions, it is still necessary for us to be satisfied to the requisite standard that he is indeed impaired. For reasons which we now discuss, we are not so satisfied. It seems to us from our review of the medical evidence upon which both parties have relied in asserting and accepting that the respondent suffers from an impairment that the basis is a risk of lapsing into drug dependency. However, the evidence is to the effect that that risk is capable of being managed. Furthermore, no assessment is made concerning the nature and extent of that risk; for example whether it might be assessed as fanciful or remote or more likely to occur. Any evidence concerning any underlying anxiety and depression is to the same effect. In these circumstances, we have considerable doubt about whether the respondent is indeed impaired and whether we should accept the concession made by the respondent. 3. To some extent there is no compelling need for us to come to any concluded view of this matter at this stage of these proceedings because firstly, the respondent has voluntarily surrendered his registration and is no longer registered, and secondly the proceedings are stood over for a stage 2 hearing on 7 and 8 February 2018 on which occasion this matter can be the subject of further consideration by the parties, and the adducing of any additional evidentiary material. Furthermore, our findings concerning the misconduct of the respondent may to some extent involve a consideration of whether he is impaired for the purpose of determining what protective orders might be appropriate consequent upon the findings that we shall make in these proceedings. 4. Accordingly, we propose to defer consideration of whether or not the respondent is impaired to the stage 2 proceedings. Conclusions and orders 1. Pursuant to the findings which we have made that the respondent is guilty of unsatisfactory professional conduct and professional misconduct as referred to in our reasons for decision, the proceedings are stood over for a stage 2 hearing on 7 and 8 February 2018. 2. We shall further consider whether and to what extent the respondent is impaired as alleged in Complaint Six during the course of the stage 2 hearing. 3. We expect the parties to reach sensible agreement with respect to a timetable for the filing and serving of evidentiary material to be adduced for the purpose of the stage 2 hearing. We grant liberty to apply which may be exercised by either party at short notice in the unlikely event that any difficulty will arise, the hearing of which will be conducted by the presiding member. Orders 1. The respondent is found guilty of professional misconduct. 2. Consideration of whether the respondent is impaired is stood over for further hearing to the stage 2 hearing. 3. The further proceedings are stood over for stage 2 hearing on 7 and 8 February 2018 ******** 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: 19 October 2017