Health Care Complaints Commission v Dunstan [2018] NSWCATOD 102
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Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Dunstan [2018] NSWCATOD 102
Hearing dates: 19, 20, 21, 22 March 2018
Date of orders: 02 July 2018
Decision date: 02 July 2018
Jurisdiction: Occupational Division
Before: Hon G Mullane ADCJ, Principal Member
Dr A Poulton, Sernior Member
Dr M De Souza, Senior Member
Ms B Radcliffe, General Member
Decision: (1) The respondent practitioner is guilty of Professional Misconduct;
(2) The respondent is reprimanded;
(3) The respondent must pay the costs of the applicant of or incidental to these proceedings as agreed or as assessed; and
(4) Publication or broadcast without the leave of the Tribunal of the name or any other identifying information of the persons referred in these reasons as "child N" and "the mother" is prohibited.
Catchwords: Professions and Trades-Medical practitioner - unsatisfactory professional conduct and professional misconduct – appropriate protective orders.
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW)
Health Practitioner Regulation National Law (NSW)
Medical Practice Regulation 2003
Cases Cited: Health Care Complaints Commission v Gillett [2007] NSW NNT 7;
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630;
Health Care Complaints Commission v Philipiah [2013] NSWCA 342
Health Care Complaints Commission v Rutner [2009] NSWD 2 ;
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Richard John Dunstan (Respondent)
Representation: Counsel:
Mr L Fernandez (Applicant)
Ms R Mathur (Respondent)
Solicitors:
Health Care Complaints Commission (Applicant)
Avant Law (Respondent)
File Number(s): 2017/00272524
Publication restriction: Publication or broadcast without the leave of the Tribunal of the name or any other identifying information of the persons referred in these reasons as "child N" and "the mother" is prohibited.
AMENDED 20/8/18
REASONS FOR DECISION
Introduction
1. Child N was a boy born on 8 August 2005. He was the third child of his mother.
2. His mother's other two older children were born in 2001 and 2002 and their father in 2003 moved to Queensland. The mother and the father unsuccessfully attempted a reconciliation in Queensland in March 2004. The mother had been living at Narellan in New South Wales with the children while the father was in Queensland.
3. The mother moved with the two children to Queensland to live with the father there. She attempted a reconciliation with the father but in June 2004 those attempts ended. The mother moved to a cousin's house with the two children.
4. In October that year the mother and the father made a further attempt at reconciliation in Rosedale Queensland and later the mother and the two children moved to Deception Bay in Queensland. During this period the father did not cohabit with the mother, but sometimes stayed overnight in her household.
5. The mother discovered at Christmas 2004 that she was pregnant to the father. In about April or March of 2005 she and the two children moved to live in a house next door to her parents at Narellan in New South Wales. The father arrived to stay the day before Child N was born on 8 August 2005. The father stayed only four days and then returned to Queensland.
6. In late March or early April 2005 the mother commenced a de facto marriage with another man, who will be referred to as "Mr G".
7. She fell pregnant to Mr G with her fourth child and he was born in about January 2007.
8. The practitioner was a renowned paediatrician who has a private practice and also was a visiting specialist at Camden Public Hospital and Campbelltown Public Hospital.
9. The mother had from time to time taken her other children to one or both of those hospitals and the practitioner had provided consultations with her and the children, sometimes at one of the hospitals and sometimes at his private practice.
10. Commencing in July 2006 Child N was taken by his mother to the practitioner each of those hospitals and also saw the practitioner in his private rooms. Child N was presenting with bruising and other problems at each of those hospitals and also at the private rooms of the practitioner. He had sustained injuries which generally comprised bruising and areas of petechiae ("small round flat dark red spots caused by bleeding into the skin or beneath the mucous membrane"). But there were also other injuries and complaints.
11. The mother told the practitioner that the injuries appeared to occur spontaneously and were discovered sometimes when the child had slept and was woken and on other occasion when the child had been in his cot and was found injured when adults returned. The mother told the practitioner that she believed that the child was injuring himself by hitting his head on the cot and other objects.
12. Over the period from 20 July 2006 to July 2007 the practitioner saw the child for 9 separate consultations, mostly for bruising, petechiae and other injuries.
13. The practitioner caused numerous tests, including a skeletal scan, CT scans of child N's head and haematological tests. Because of what the mother told him, the practitioner was of a mind that the injuries occurred spontaneously or were caused by the child bashing himself on his cot and in other ways and a blood disorder that was causing the bruising and the petechiae by preventing the blood from clotting. These beliefs were held despite numerous blood tests and initial advice by a haematologist that the blood tests showed no abnormality.
14. After a second round of haematological tests showed no abnormality, the haematologist spoke to the practitioner and advised him that because no explanation could be found for the injuries, notification should be made to the Department of Community Services ("DOCS") that the injuries to the child could be from child abuse.
15. The practitioner prepared a letter to that effect but delayed sending it. It arrived at the Department on 23 July 2007. For various reasons the report was not investigated.
16. On 3 March 2008 Child N died as a result of head injuries. A gastric rupture, peritonitis and pneumonia possibly contributed to his death. He was two years and six months of age.
17. Mr G subsequently was charged and pleaded guilty to the murder of Child N. On 31 July 2014 he was convicted and sentenced to 27 years imprisonment.
Orders Sought
1. In closing submissions the applicant sought that the respondent's registration as a medical practitioner be suspended for a period of six months and that the respondent pay the costs of the applicant of or incidental to the proceedings.
2. The practitioner opposed any suspension and the submission for him was that there be a finding of professional misconduct, but only a reprimand.
The Evidence
1. The evidence comprises:
1. Complaint dated 7 September 2017;
2. Police statement of grandmother of child N dated 3 March 2008;
3. Police statement of P (mother of child N with
1. Annexure A – Family tree
2. Annexure B – photographs of child N's bruising;
1. Police statement of F V(Director of child N's kindergarten) – dated 2 April 2008;
2. Notes from child N's kindergarten;
3. Expert Certificate, statement of Dr Susan Russell (Paediatric Haematologist) – dated 26 March 2010;
4. Expert Certificate, statement of Dr Richard Dunstan – dated 18 March 2008;
5. Dr Dunstan's medical records for child N;
6. Dr Dunstan's handwritten note – dated 12 June 2007;
7. Dr Dunstan's correspondence to DOCS – dated 5 July 2007;
8. Transcript of Dr Dunstan's evidence to the Coroner - dated 13 December 2010;
9. Medical Centre medical records for child N;
10. Camden Hospital medical records for child N;
11. Campbelltown Hospital medical records for child N;
12. Westmead Hospital medical records for child N;
13. Commission section 16 correspondence – dated 9 October 2015;
14. Response from Dr Dunstan – dated 30 October 2015;
15. Commission section 28 correspondence – dated 5 January 2016;
16. Email response from Avant on behalf of Dr Dunstan – dated 18 January 2016;
17. Commission section 40 correspondence – dated 19 October 2016;
18. Response from Dr Dunstan – dated 16 November 2016;
19. Curriculum vitae for Dr Dunstan;
20. Code of Professional Conduct, Good Medical Practice, NSW Medical Board, published July 2005;
21. Reply to Application for Disciplinary Findings, dated 16 February 2018;
22. Statement by Dr Richard Dunstan, dated 16 February 2018;
1. Curriculum Vitae of Dr Richard Dunstan;
1. Oral evidence of Dr Dunstan on 19, 20, 21 March 2018;
2. List of child abuse seminars attended;
3. Details of Course 21 – 23 March 2011 "Forensic Medical Evaluation of Injury in Suspected Child Abuse";
4. Details of Course 3 – 15 March 2017 2011 "Forensic Medical Evaluation of Injury in Suspected Child Abuse";
5. References – medical practitioners
1. Associate Professor Andrew McDonald Paediatrician;
2. Dr Adrienne Epps, Head Paediatric Rehabilitation, Sydney Children's Hospital;
3. Dr Raymond Chin, Senior Staff Specialist Paediatrician, Director of Paediatrics at Campbelltown and Camden Hospitals, Associate Professor of Paediatrics, Western Sydney University;
4. Dr Mike Freelander MP, Consultant Paediatrician since 1984 and head of Paediatrics 1986 - 2010;
5. Dr Catherine Allgood Senior Staff Specialist Paediatrician and Neonatologist, Campbelltown Hospital;
6. Dr Zhanna Tsukanova General Practitioner, Campbelltown Medical Centre;
7. Professor John Whitehall; professor Paediatrics & Child Health, Western Sydney University;
8. Dr Geoffrey Bent Consultant Paediatrician, Campbelltown;
9. Dr Julia Sgarlata Paediatrician, Orange;
10. Dr Benjamin D. ER Consultant Paediatrician, Hurstville;
11. Dr Magdy Ibrahim Fellow of RACGP, Mount Annan
12. Dr Vivian Fernandes Consultant Nuclear Medicine and General Physician, Campbelltown;
13. Dr Lynette Maree Belamy Principal advisor to the Clinical Excellence Commission on patient safety matters, manager of its NSW programme for surgical and anaesthetic deaths; part time Director of Medical Services for the Mater Hospital North Sydney and part time general practitioner in private practice at Edgecliff;
14. Dr Ian Andrews paediatric neurologist at Sydney Children's Hospital and Campbelltown Hospital;
15. Dr Jenny Brackenbury general practitioner Elderslie;
16. Dr Lance Holland-Keen paediatrician and general practitioner; Mount Annam;
17. Dr Roy Abi-Hanna General practitioner, Harrington Park;
1. References – other
1. Andrew Dunstan, son of practitioner;
2. Jonathon Dunstan, son of practitioner;
3. Ceara Mary Cotterall Clinical Nurse Specialist 2;
4. Mrs Kylie Dickinson Cootamundra mother of 2 patients of practitioner;
5. Ms Ann Lancaster Turramurra, Physiotherapist, board member of Australian Academy of Cerebral Palsy and Clinical Co-ordinator Cerebral Palsy Service, Sydney Children's Hospital;
6. Mrs Pamela Templeton, Director of Services Mater Dei Early Intervention Program, Camden;
7. Mrs Roslyn Fitzpatrick Education expert and former principal of St Paul's Primary School, Camden;
8. Ms Deborah Small, Elderslie, mother of 3 children treated by practitioner, has known him 29 years and worked in his practice for 19 years;
9. Mr Paul Sinclair, has known practitioner 30 years, was self-employed Community pharmacist. They and their families have frequently socialised, Experienced the practitioner's leadership in establishment in 2000 and subsequent success of the charity "Kids of Macarthur Health Foundation;
10. Mr Mark Brown Solicitor in Liverpool for about 30 years, resided in Camden when practitioner associated for about 30 years;
11. Ms Helen Gahan has known practitioner over 30 years, worked with him and for him once he set up his own practice, until returned in 2006 but returned as a casual worker for him from shortly after that and remains.
1. Letter from Health Care Complaints Commission to Dr Waugh of 15 March 2018;
2. CV of Dr Waugh;
3. Exhibit R1 – summary document of Dr Waugh of consultation notes;
4. Report of Dr John Waugh of 8 March 2018;
5. Addendum to report of Dr Waugh dated 13 March 2018;
6. Oral evidence of Dr John Waugh on 19 March 2018;
7. Statement of Rowena Margaret MacAlpine, retired Hospital Social Worker;
8. Oral evidence of Ms MacAlpine on 21 March 2018;
9. Statement of Belinda Kasep, (as at December 2010 Acting Manager Casework, Child Protection Team, Bankstown Community Services Centre for Department of Human Services, Community Services) of 8 December 2010 excepting paragraphs 39, 45 and 46
10. Applicant's submissions document "complaint and responses";
11. Applicant's Selected Chronology;
12. Applicant's document; and
13. Respondent's Chronology.
The Complaints
1. The complaints are as follows:
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 Richard Dunstan of [address] NSW being a medical practitioner registered under the National Law,
COMPLAINT ONE
is guilty of unsatisfactory professional conduct under section 139B(a) of the National Law in that the practitioner has:
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.
The following particulars of Complaint One justify a finding of unsatisfactory professional conduct individually: 2, 3, 4 and 7.
BACKGROUND
At all relevant times the practitioner was registered as a medical practitioner practising as a specialist in paediatrics. The practitioner consulted in private rooms in Campbelltown and attended Campbelltown Hospital as a Visiting Medical Officer ('VMO') in Paediatrics.
PARTICULARS OF COMPLAINT ONE
(1) On 19 July 2006 Child N (aged 11 months) presented to the Emergency Department ('ED') at Camden Hospital accompanied by his mother. Child N presented with discolouration below both eyes and on the chin. The medical officer sent Child N home with a referral letter to a GP in which he stated, 'I could not totally rule out any battery in this patient' ("the letter"). On 20 July 2006 Child N attended the practitioner's rooms accompanied by the mother and provided a copy of the letter to the practitioner. The practitioner ordered that Child N undergo a CT scan of the head. The practitioner's clinical response to Child N's presentation was inadequate in that he failed to:
a) raise concern regarding the location of the injuries to Child N; and
b) admit Child N to hospital to ensure his safety.
(2) On 21 July 2006 Child N presented to Campbelltown Hospital accompanied by the mother. Child N presented with two black eyes and haemorrhaging in the white of his left eye. The mother reported to nursing staff that Child N liked to bang his head on objects, including banging his head on the side of his cot. The practitioner assessed Child N on this date and ordered a CT scan, x-ray and blood tests. Child N was discharged on 22 July 2006 in the care of Patient B. The practitioner's clinical assessment and treatment were inadequate in that he failed to:
a) seek further information from the mother about the reported head-banging behaviour of Child N including its frequency and severity;
b) seek further information from the mother about Child N's cot, including where it was placed, how it was constructed and about other objects Child N had been banging his head against;
c) inquire about the carer of Child N at the time his injuries were sustained;
d) involve an in-hospital social worker.
(3) On 22 July 2006, the practitioner received test results from a paediatric haematologist which disclosed no abnormalities and did not suggest that there was any organic cause or causes to Child N's presentations to hospital. Following review of child N's test results the practitioner failed to:
a) re-evaluate his previous clinical opinion concerning Child N's injuries;
b) consider the possibility of non-accidental injury; and
c) DELETED
d) make a notification to the Department of Community Services ("DOCS") as required by section 27 of the Children and Young Persons (Care and Protection) Act 1998.
(4) On 25 September 2006 Child N (aged 13 months) presented to the ED at Campbelltown Hospital accompanied by the mother. Child N had allegedly fallen from the bed on to his head and had petechiae on the shoulders and neck, a small graze on the left side and a bad cough. The practitioner assessed Child N and ordered blood tests to be taken. In circumstances where this was Child N's third presentation to a hospital with similar symptoms and recent test results from a paediatric haematologist disclosed no abnormalities and did not suggest there was any organic cause or causes to Child N's presentation, the practitioner's clinical management of Child N was inadequate in that he failed to:
a) re-evaluate his previous clinical opinion concerning Child N's injuries;
b) consider the possibility of non-accidental injury; and
c) DELETED
d) make a notification to the DOCS as required by section 27 of the Children and Young Persons (Care and Protection) Act 1998.
(5) On 17 October 2006 Child N (aged 14 months) presented to the practitioner's rooms accompanied by the mother. Child N presented with petechial rash and subconjunctival haemorrhage. In circumstances where recent test results from a paediatric haematologist disclosed no abnormalities and did not suggest there was any organic cause or causes to Child N's presentation, the practitioner's clinical management of Child N was inadequate in that he failed to:
a) re-evaluate his previous clinical opinion concerning Child N's injuries;
b) consider the possibility of non-accidental injury;
c) inquire about the carer of Child N at the time the injuries appeared; and
d) DELETED
e) make a notification to the DOCS as required by section 27 of the Children and Young Persons (Care and Protection) Act 1998.
(6) On 7 December 2006 Child N (aged 16 months) presented to the practitioner's rooms accompanied by the mother. Child N presented with recent bruising and blood in the urine. The practitioner's clinical response to Child N's presentation in circumstances where test results disclosed no abnormalities and did not suggest there was any organic cause or causes to Child N's presentation was inadequate in that he failed to:
a) re-evaluate his previous clinical opinion concerning Child N's injuries;
b) consider the possibility of non-accidental injury;
c) inquire about the carer of Child N at the time the injuries appeared; and
d) DELETED
e) make a notification to the DOCS as required by section 27 of the Children and Young Persons (Care and Protection) Act 1998.
(7) On 3 March 2007 Child N (aged 19 months) presented as an outpatient to Campbelltown Hospital with the mother. Child N presented with a lump on the right side of his forehead, with a bruise around it, red marks across his eyebrows, a bruise underneath his right eye with bruising on the top of his eyelid, bruising on his right ear and petechiae on his head, chest, tops of his shoulders and top of his back. The paediatric registrar called the practitioner to discuss the matter. Child N was sent home with a plan that he be reviewed by the practitioner.
On 9 March 2007 Child N attended the practitioner's rooms accompanied by the mother. The mother complained that Child N, who had just started walking, was having sudden falls. The practitioner's clinical response to Child N's presentation in circumstances where test results disclosed no abnormalities and did not suggest there was any organic cause or causes to Child N's presentation was inadequate in that he failed to:
a) consider the shape of the petechiae and the odd distribution of injuries to Child N on the front and back of the head;
b) inquire about the carer of Child N at the time the injuries appeared;
c) re-evaluate his previous clinical opinion concerning Child N's injuries;
consider the possibility of non-accidental injury;
d) admit Child N to hospital to ensure his safety; and
e) DELETED
f) make a notification to the DOCS as required by section 27 of the Children and Young Persons (Care and Protection) Act 1998.
(8) On 26 April 2007 Child N attended Campbelltown Hospital accompanied by the mother. The mother reported to the practitioner that Child N had been vomiting blood, had bruising and petechiae to his face and head, blood in his nappy and on the tip of his penis. The mother also reported that Child N had bite marks on his right hand and foot and had blood coming from the inside tear duct of his left eye. Test results disclosed no abnormalities and did not suggest there was any organic cause or causes to Child N's presentation and the mother told the practitioner that she had a potential concern about her new partner. The practitioner's clinical response to Child N's presentation was inappropriate in circumstances where he failed to:
a) consider the possibility of non-accidental injury;
b) inquire about the carer of Child N at the time the injuries appeared;
c) re-evaluate any previous clinical decision concerning Child N's unexplained injuries; and
d) DELETED
e) make a notification to the DOCS as required by section 27 of the Children and Young Persons (Care and Protection) Act 1998.
COMPLAINT TWO
is guilty of unsatisfactory professional conduct under section 139B(a) and (l) of the National Law in that the practitioner has:
(a) 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; and/or
(l) engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
Each particular of Complaint Two justifies a finding of unsatisfactory professional conduct.
PARTICULARS OF COMPLAINT TWO
(1) On 12 June 2007 Child N (aged 22 months) attended the practitioner's rooms accompanied by the mother. Child N presented with petechiae on the left side of his neck and the right shoulders. The mother informed the practitioner that the mother and her partner were under suspicion and requested that the practitioner provide her with a letter stating that the cause of Child N's symptoms were being investigated and that the practitioner was actively trying to find a cause. The practitioner inappropriately provided an open letter to the mother in circumstances where test results disclosed no abnormalities and did not suggest there was any organic cause or causes to Child N's presentation, in which he stated:
a) Child N to be experiencing 'a problem of spontaneous petechiae';
b) "these events are unlikely to be caused by inflicted trauma"; and
c) that "the pattern of the petechiae was not consistent with injury".
(2) On 17 June 2007 the practitioner was advised by a paediatric haematologist that extensive clotting studies had been done and that there was no medical reason for bruising and bleeding to occur in Child N. The paediatric haematologist and the practitioner agreed that the practitioner would notify the DOCS on their joint behalf. The practitioner:
a) failed to make an immediate telephone notification to the DOCS in circumstances where the nature and frequency of the injuries to Child N should have alerted the practitioner to act immediately;
b) wrote a draft letter to the DOCS on 5 July 2007 but did not send the letter until 19 July 2007 after he was contacted by a DOCS worker that day who advised that she was acting on information independently acquired and was making enquiries about Child N.
(3) On 24 July 2007 Child N (aged 23 months) attended the practitioner's rooms accompanied by the mother. The mother reported that Child N had had approximately 5 episodes of petechiae since his last attendance. The practitioner's clinical response to Child N's presentation was inappropriate in circumstances where by letter sent 19 July 2007 he had notified the DOCS of 'unusual events that are suspicious' and 'without medical explanation' in that he:
a) continued to ignore the possibility of non-accidental injury;
b) failed to make an immediate telephone notification to the DOCS.
COMPLAINT THREE
Is guilty of unsatisfactory professional conduct under section 139B(b) of the National Law in that the practitioner contravened the Medical Practice Regulation 2003 (now repealed).
PARTICULARS OF COMPLAINT THREE
(1) Between 21 July 2006 and 24 July 2007 the practitioner failed to keep proper medical records in accordance with the requirements of schedule 2 of the Medical Practice Regulation 2003 in that he failed to record:
a) an adequate assessment of Child N's injuries including aetiology, shape, distribution, pattern and location;
b) an assessment of alternatives to Child N's presentation, such as consideration of potential indicators of physical abuse.
COMPLAINT FOUR
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 FOUR
(1) Particulars 2, 3, 4 and 7 of Complaint One and particulars 1, 2 and 3 of Complaint Two are repeated and relied upon individually and cumulatively or in the alternative Complaints One, Two and Three and the particulars therein are repeated and relied upon cumulatively.
Unsatisfactory Professional Conduct / Professional Misconduct
1. "Unsatisfactory professional conduct" of a registered health practitioner is defined in sub-section 139B(1) of the National Law as relevantly including:
"Conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of the practitioner of an equivalent level of training or experience" (para 139B(1)(a));" and
"Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" (para 139B(1) (l))."
1. Under Section 139E, for the purposes of the National 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.
Expert Evidence
1. Dr John Waugh, the Director of Paediatrics at Caboolture Hospital in Queensland, was instructed by the Health Care Complaints Commission to provide expert evidence in relation to the issues of whether the various alleged acts or omissions of the practitioner particularised in the complaints constituted conduct within the definition of para. (a) or para. (l) of s139B(1) and particularly:-
(a) The standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct;
(b) Whether there was a departure from the standard that was significantly below that standard or otherwise, and if so;
(c) Whether the departure from the standard invites his strong criticism.
1. He was asked to set out the basis for his opinions and also with respect to Complaint Two to state whether he considers the conduct alleged is improper or unethical.
2. There was no expert evidence offered disputing the opinions of Dr Waugh in his report of 8 March 2018 and the addendum dated 13 March 2018.
3. In his report Dr Waugh referred to the following documents:-
* The Children and Young Persons (Care and Protection) Act 1998,
* The Tribunal's Expert Guidelines,
1. Dr Waugh from his other findings drew conclusions seriously adverse to the practitioner. He was cross-examined extensively.
2. Dr Waugh arrived at several conclusions regarding the practitioner's state of mind and conduct when dealing with child N and his mother being:
* That the open letter the practitioner wrote at the mother's request was an attempt to block investigation into possible non-accidental injury;
* It seeks to exonerate the boyfriend;
* He "misused his perceived authority as a specialist paediatrician in order to obstruct to investigate non-accidental injury of N";
* He abused his professional position by deliberately withholding appropriate notification to DOCS; and
* He failed in his obligation to N, who was his patient, by colluding with the mother to stymie the investigation;
1. The practitioner denied all of these propositions. They are allegations about a paediatrician who has practised as a medical practitioner since 1977 and as a specialist paediatrician since 1983 that are on the face of it unlikely. But in the context of the practitioner's many years of practice, his dedication to children and children's services, including services for disabled children, and his exceptional reputation and assistance to community services, they are particularly unlikely. Much of this positive information about the practitioner was not referred to by Dr Waugh and it appears was not provided to him. He was provided with the practitioner's letter of 16 November 2016 responding to the HCCC and his statement of 16 February 2018, including his CV. The Tribunal found that the evidence fell far short of proving those propositions on the balance of probabilities.
Petechiae
1. Petechiae are small round flat dark red spots caused by bleeding into the skin or beneath the mucous membrane. In answer to questions from the panel, the practitioner said that petechiae can be caused to the neck, face and eye from hard coughing. Also if a person is choking on food, petechiae may occur in the same areas. If a person is choked with strong hands around the neck, the area held and the face and eyes may suffer petechiae. If someone was suffocated, this could cause petechiae in the area where pressure is applied and above. Similarly, if a child were lying face down in a cot, pushing the child forcefully on the back into the mattress could cause petechiae. It can also be caused by a crushing hug to shoulder and chest areas.
2. The practitioner was aware at the time that a petechial rash is caused by a bad cough in some children, along with vomiting, which was not present with child N.
3. Dr Russell, the haematologist, said in a Police statement that:-
"Following a viral illness a sudden onset of bruising can occur in a condition called transient lupus anticoagulant and can be an explanation for a one-off episode of petechia."
Section 27 of the Children and Young Persons (Care and Protection) Act 1998
1. The relevant requirement of para (d) in section 27 of the Act is that if a person with the responsibility for provision of health care to children has reasonable grounds to suspect that a child is at risk of significant harm that person has a duty to report as soon as possible to the Department details of the child and of the reasons for suspecting the child is at risk of significant harm. Relevant to particulars 3 and 4 of complaint 1, before 1 January 2007 the risk specified in the section was 'risk of harm' and effective that date an amendment changed it to 'risk of significant harm'.
Particular 1 of Complaint 1
1. At all material times the practitioner was registered as a medical practitioner practising as a specialist in paediatrics. He practised in private rooms in Campbelltown and attended Campbelltown and Camden hospitals as a Visiting Medical Practitioner.
2. Child N was only 11 months at the time his mother took him to the Emergency Department at Camden Hospital on 19 July 2006. He had discolouration below both eyes and on his chin. The doctor at the Emergency department sent him home with a letter to his GP which included the statement "I could not totally rule out battery in this patient" and also said "I hope you can investigate and review the patient".
3. The mother took N to the practitioner at his rooms the next day (20 July 2006). She took with her, and showed the practitioner, a copy of the letter to the GP. The allegation in complaint one is that the practitioner's clinical response although he ordered a CT scan of child N's head, was inadequate because he (a) failed to raise concerns regarding the location of the injuries to Child N; and (b) failed to admit child N to hospital to ensure his safety.
4. The practitioner denies that his response was inadequate due to a failure to raise concern regarding the location of the injuries. He ordered a CT scan of child N's head. But he otherwise did not "raise concern regarding the location of the injuries".
5. He relied upon the fact that the child had attended Camden Hospital the previous day and, although the medical officer there included in the referral letter to the GP "I could not totally rule out any battery in this patient", the child had been discharged from the hospital and "the treating team on 19 July had not treated this as a child abuse case". He said that this fact coupled with his assessment of the mother fortified his opinion that further medical investigations were required (but he did not consider any investigations of the possibility of child abuse were required).
6. His position was illogical. The statement by the medical officer was that he could not exclude battery, which meant he considered it a possible cause; not that he excluded it. Indeed he said directed to the GP. "I hope you can investigate and review the patient". In that situation it was not logical to conclude from the fact that child N had been discharged from the hospital that those responsible had decided that child abuse was not a possible explanation for child N's injuries. On the contrary, the medical officer was saying it was a possible explanation. It was also a situation where the practitioner, a paediatric specialist, relied upon what he wrongly thought was a judgment (of a medical officer junior to him) dismissing the possibility of child abuse, to not seriously consider the possibility.
7. He failed to note the statement on the discharge summary from the hospital medical officer that "The patient was left in the care of the mother's bf the night before for about 10 minutes". He did not make any entry in his clinical notes about this and said at the hearing he had no recollection of the mother ever telling him that history and said he had not read it on the hospital discharge summary or the letter to the GP.
8. At the time the practitioner believed the man cohabiting with the mother was child N's father (and the father of her 2 elder children). He was unaware that she was not cohabiting with the father, but with Mr G.
9. He said in his s 40 response to the Health Care Complaints Commission:-
"[Child N's] mother presented very differently to any of the other cases that I had dealt with where suspicion arose in relation to child abuse. She presented immediately when there was bruising or petechiae and when either presentation re-occurred. She was direct and forthcoming in the history she provided and I never found her to be evasive or silent when I sought information. She was prompt with follow-up appointments with the doctors I referred [Child N] to and completed tests that I had ordered. [Child N's] mother had brought her children previously to my office. I had seen [Child N's] sister … as a baby and [his brother]. I had an opinion that she was a good and caring mother and often came with concerns that were justifiable. I believed at the time that she was taking the appropriate action to help and care for her children.
At the initial consultation with [Child N] following referral from Camden Hospital in July 2006 I did have concerns that the hospital may have underestimated the injury because of [Child N's] sleepiness and grumpiness. [Child N] responded normally on the day I saw him. He had a normal CT scan and normal Skeletal Survey and was very active in the cot in hospital. These tests results and his presentation alleviated my original concerns regarding the severity of the injury. I thought the cause of injury may well have occurred as a result of him banging his head against the cot, as described by his mother."
1. He said that he had seen child N three times in 2005 and had the impression "that the mother if anything – had a tendency to overreact to illness in her children and was a concerned protective mother". He said:
"I met this family frequently and did not have any concerns about any form of abuse. I never met the boyfriend namely [Mr G]."
1. The practitioner also denied that his failure to admit child N to hospital on that occasion to protect him was inadequate. He relied upon the fact that the "treating team" at Camden Hospital on 19 July did not admit child N to ensure his safety. He relied upon this to "fortify" his opinion that it was not case of child abuse.
2. Paras (a) and (b) of particular 1 are proved.
3. Dr Waugh found that the conduct of the practitioner in these instance was not significantly below the reasonably expected standard. It was not unsatisfactory professional conduct.
Particular 2 of Complaint 1
1. On 21 July 2006 when child N presented at Campbelltown Hospital accompanied by his mother, he had two black eyes and was haemorrhaging in the white of his left eye. There was also some other pale bruising to the left temporal, right leg and left forearm that was not noted by the practitioner. The mother said that he liked banging his head on objects, including banging his head on the side of his cot. The practitioner again ordered a CT scan, and also an x-ray and blood tests. He arranged for child N to be accommodated overnight in the hospital. He was discharged the next day.
2. The paediatric registrar, in notes made the next day at the hospital, noted that child N had faint bruising to the right lower eyelid, right anterior tibia, left lower eyelid (very faint), right chin, left proximal forearm, and left temporal and also had subconjunctival haemorrhage in his left eye.
3. The particular alleges that the practitioner's assessment and treatment were inadequate because of (a) his failure to seek further information from the mother about the reported head banging behaviour including the frequency and severity, (b) failure to seek further information about the child's cot, including where it was placed, how it was constructed and about other objects the child had been banging his head against, (c) failure to enquire about the carer of the child at the time his injuries were sustained, and (d) failure to involve an in-hospital social worker.
4. The practitioner admits that he did not obtain further information regarding the head banging behaviour. He said he witnessed the child in his cot "standing up and actively banging the cot and holding on and jumping around". It appears he did not witness the child hitting or injuring his head or banging his head on the cot or on anything else and there is no evidence that anyone witnessed such conduct while the child was in the hospital overnight. He said in his response to the complaint: -
"I observed him during his admission on 21/22 July 2006 and he was 'pretty active and rattled around in the cot'. This was not uncommon in a 10 month old; and lots of babies bang their heads and fall and it didn't seem to be obsessive in the hospital".
1. He said that he could not recall precisely what history he was given regarding the banging, but he did not form an opinion that it was "excessive" and indicative of abuse. But he did not testify that he observed the child banging his head on the cot or any other object while he was in the hospital. He did not recall any discussion with the mother regarding the frequency or severity of "head banging" and he said that this was because it was "a first-time presentation with bruising in a mobile toddler".
2. The practitioner admitted that he failed to seek further information from the mother about the child's cot including where it was placed, how it was constructed and about any other objects that the child had been banging his head against. He admitted that he did not enquire about the care of the child at the time the injuries were sustained or enquire as to whether the mother had a new partner. He admitted that his understanding was that the mother was living with the father of child N. But it was a different man.
3. If the practitioner had asked the mother in whose care the child was when the injuries occurred, he might have been told it was Mr G and by further questions might have discovered information about Mr G such as that Mr G had, in about 2005, been involved in a serious truck accident and nearly died as a result of his injuries. He suffered serious head injuries, a metal plate was inserted in his head, he had multiple other injuries, he suffered memory loss and Post-Traumatic Stress Disorder, he spent time in the Brain Injury Rehabilitation Unit at Liverpool Hospital, he and his wife separated, and as at 21 July 2006 he had not worked since the accident.
4. The practitioner did not fail to consult the in-hospital social worker, Ms McAlpine. He stood with her watching child N in his cot and his evidence is "we both agreed that he could reasonably have hit his head as reported by the mother". The social worker discussed with him whether the case required reporting to the Department of Community Services, but the practitioner, given the normal CT findings and Skeletal Survey and seeing the child so active decided they had an explanation as to the cause of the injury, being head banging by the child.
5. Ms McAlpine did not have any recollection of that conversation but she did give evidence that he frequently consulted with her regarding child patients.
6. Paras (a), (b) and (c) of particular 2 are proved. Parra (d) is not.
7. Dr Waugh's evidence is that each of these incidences proved was conduct significantly below the reasonably expected standard of a practitioner with an equivalent level of training or experience as the practitioner. Each was unsatisfactory professional conduct.
Particular 3 of complaint 1
1. On 22 July 2016 the practitioner received blood test results for child N which disclosed no abnormalities and did not suggest there was any organic cause or causes of child N's presentations at the hospital. The practitioner did not deny this. The particular then alleges that the practitioner failed to (a) re-evaluate his previous clinical opinion regarding child N's injuries. The practitioner's response is that that he did re-evaluate his opinion and for the reasons described in particular 2 formed a view after the test results were available (which were normal blood tests and not, as wrongly alleged, from a paediatric haematologist) it was not a case of child abuse. He said that from observing child N in the cot the injuries seemed consistent with accidental hitting and he and the social worker agreed that notification was unnecessary in the circumstances because they had a reasonable explanation. He said that was reinforced by what he described as "my long-standing contact with the mother and family" and his opinion of her as a "caring and protective mother who would not expose her child to known harm".
2. The particular alleges that his clinical management of child N was inadequate too because he failed to consider the possibility of non-accidental injury. It is clear on the evidence that he made no real attempt to explore the possibility of child abuse or non-accidental injury. He did not ask the mother who was caring for the child before the injuries were observed, or for details of the cot and its location, or for details of occasions when the child was observed to, or believed to, hit himself on his cot or another object, or for details of such other objects, or for details of injuries occasioned in that way other than those the practitioner had already observed.
3. Paragraphs (a) and (b) were proved.
4. Para (d) alleges that the practitioner failed to make a notification to the Department of Community Services ("DOCS") as required by section 27 of the Children and Young Persons (Care and Protection) Act 1998.
5. The practitioner relied upon his understanding that mandatory reporting applied only where there were "reasonable grounds to suspect that the child was at risk of significant harm". His understanding was that the provision was subjective and required that the practitioner believe that there were reasonable grounds. But the section is objective and applies where there are reasonable grounds, even where the subject practitioner does not recognise them as such.
6. The circumstances were such that the injuries suffered by child N already constituted significant harm for a child of only 11 months. The practitioner was obliged by the section to report to DOCS if there were reasonable grounds to suspect (whether or not he recognised them) that whatever the cause of the injuries, child N was at risk of further harm if he continued in his present living arrangements. The Tribunal finds that at this stage of events there were not sufficient grounds for such a suspicion. Para (d) was not established.
7. Dr Waugh's opinion is that each of the conduct in paras (a) and (b) was significantly below the standard reasonably expected of practitioners of an equivalent level of training or experience to that of the practitioner. Each was unsatisfactory professional conduct.
Particular 4 of Complaint 1
1. Child N was 13 months of age when his mother presented him again at the Emergency Department at Campbelltown Hospital on 25 September 2006. She alleged that he had fallen from his bed onto his head. He had petechiae on the shoulders and neck, a small graze on the left side and a bad cough. The practitioner assessed child N and ordered blood tests. The practitioner in his statement alleges that this was in fact child N's "first presentation with petechial rash".
2. By that time child N had undergone numerous tests. The practitioner's view was that the injuries were the result of some blood disorder to do with lack of clotting. No such explanation was supported by the blood tests.
3. He had already failed to entertain the possibility that the injuries were the result of child abuse. He had failed to question the mother relevantly in that regard. He had failed to recognise the possibility of non-accidental injury as a possible explanation for the child's injuries. The practitioner did not admit that he failed to consider that child N may have been a victim of child abuse. He relied upon the reasons he had stated earlier in relation to his failure to recognise the significant possibility the child was being abused.
4. The practitioner denies that he failed to consider the possibility of non-accidental injury of child N when he saw the child on 25 September 2006. However, his conduct contradicts that. He did nothing to explore such a possibility. He did not even ask questions of the mother as to who was caring for the child at the time. The Tribunal finds that on the balance of probabilities on 25 September 2006 the practitioner did not recognise non-accidental injury of the child as a possible explanation for the injuries. He continued with his belief that it was some medical disorder.
5. The complaint alleges that the practitioner's clinical management of child N was inadequate in circumstances that it was his third presentation to a hospital with similar symptoms and recent test results from a haematologist disclosed no abnormalities and did not suggest any organic cause or causes. It is alleged that his clinical management was inadequate because he failed to:
(a) re-evaluate his previous clinical opinion concerning Child N's injuries;
(b) consider the possibility of non-accidental injury; and
(d) make a notification to the Department of Community Services ("DOCS") as required by Children and Young Persons (Care and Protection) Act 1998.
1. The practitioner denied it was the child's third presentation with similar symptoms and that appears to be correct. He said:-
"It was his second presentation with a new symptom, namely a petechial rash. He presented for the first time at Camden Hospital on 19 July and was discharged that same day. When he presented to my rooms on 20 July to review his present condition I sent him for re-admission to Campbelltown Hospital for a CT scan under sedation, which occurred on 21 July. It was not a new presentation of injury. It was in relation to the 19 July presentation."
1. He did not seek further information from the mother about child N's cot, including where it was placed, how it was constructed and about other objects that she had alleged he had been banging his head against. He did not explore the issue of how the injuries occurred, how often they occurred and how serious they were when they occurred. He did not enquire as to who else was living in the home and who had been caring for the child when the injuries occurred.
2. He was acting under the mistaken belief that the mother was living with the father of Child N. He did not know that she had separated from the father of her three older children and was living with Mr G, her boyfriend. He did not know this because the mother did not tell him and he did not ask her.
3. Particular four alleges he failed to consider the possibility of non-accidental injury, and consider whether child N may have been at risk of harm. He said in response he did re-evaluate his clinical opinion but continued his opinion, even after the test results were made available (which were normal blood tests and not from a paediatric haematologist as erroneously stated in the complaint), that it was a medical problem.
4. He relied also on his observations of the child in the cot and he and the social worker agreed that notification was not necessary in the circumstances because they had a reasonable explanation for the injuries. That was also supported by his long-standing contact with the mother and family and his opinion that "she was a caring and protective mother who would not expose her child to known harm".
5. He said that was discussed with the social worker and they both concluded "that the injuries may well have been accidental, given our own observations of the boy in the hospital cot".
6. He also said that his conduct was influenced by the fact that his treatment of Child N related to a single occasion of bruising when he presented on 19 July and there had not been any previous presentations of the child or any of the mother's other two children with bruising, so far as he was aware.
7. The Tribunal does not accept this stance because of the fact the practitioner was on notice from when he saw the child on 19 July 2006 and he read the letter prepared by the doctor at Camden Hospital who saw the child, which he addressed to a GP and in which he stated "I could not totally rule out any battery in this patient". The letter also asked the GP to investigate the issue. It clearly indicated the possibility that the child's injuries were attributable to child abuse had not been excluded. Although he could not recall it, the practitioner also had notice from that letter or the hospital discharge summary that the mother's boyfriend had been minding child N for about 10 minutes before the injuries the subject of the hospital visit on 19 July 2006 were observed.
8. The practitioner seeks to use that statement "I could not totally rule out any battery in this patient" and the fact that the child was not reported by the Emergency Department of Camden Hospital staff to the authorities as a possible victim of child abuse, as implying that the person or persons who attended on the child at Camden Hospital decided that he was not a victim of child abuse. But that is not so. On the contrary, what the letter said was there had been no conclusion that he was not a victim of child abuse. That implied that there was a possibility that he was. It requested the GP to investigate.
9. On 22 July when those further test results were returned it did not identify any organic cause or causes of child N's injuries. But he did not re-evaluate his previous clinical opinion, and the opinion he apparently still held, that the child had some unidentified blood disorder that was needed for him to entertain, the possibility of other explanations including non-accidental injury, neglect or abuse. Item (b) is that he failed to entertain the possibility of non-accidental injury. The Tribunal finds on the balance of probabilities that the practitioner failed to give any serious consideration to the possibility of non-accidental injury. From his oral evidence at the hearing, it is clear at that time that he was fixed on a belief that the child was suffering from some blood disorder which was causing the injuries and he was not giving any serious consideration to the possibility of child abuse, or even incompetent care.
10. Paras (a) and (b) of the particular were proved.
11. Para (d) alleges that the practitioner failed to make a notification to the Department of Community Services ("DOCS") as required by section 27 of the Children and Young Persons (Care and Protection) Act. The practitioner failed to make a notification to the Department of Community Services of reasonable grounds to suspect Child N was at risk of harm, because he did not seriously entertain the possibility.
12. The injuries he had observed including bruising and petechiae constituted significant harm for a child of only 11 months or 13 months and the practitioner was obliged by the section to report to DOCS because he had reasonable grounds to suspect (although he didn't) that whatever the cause of the injuries, child N was at risk of further significant harm if child N continued in his present living arrangements.
13. In all the circumstances there were reasonable grounds to suspect child N was in at risk of significant harm if his current care arrangements continued, regardless of how his injuries were caused. The practitioner breached the requirement to report to DOCS as soon as possible. Particular 4(d) was proved.
14. Dr Waugh's opinion is that the conduct in each of (a), (b) and (d) of particular 4 was significantly below the reasonably expected standard for practitioners of equivalent training or experience to Dr Dunstan. Each was unsatisfactory professional conduct.
Particular Five of Complaint One
1. On 17 October 2006 Child N (then aged 14 months) presented to the practitioner at his rooms. He was accompanied by his mother. Child N had a petechial rash and a subconjunctival haemorrhage. This was at a time when the paediatric haematologist had discovered no abnormalities and found no organic cause or causes for the child's injuries. The practitioner believed that the child was suffering from "an underlying bleeding disorder". After reviewing him at his rooms on 17 October 2006, he referred the child to the paediatric haematologist, Dr Russell, for further review.
2. The practitioner admits, and the evidence proves, the whole of the amended Particular Five. He admits that he failed to (a) re -evaluate his previous clinical opinion concerning Child N, (b) consider the possibility of non-accidental injury, and (c) enquire about the carer of Child N at the time the injuries appeared.
3. He also admitted he failed to make notification to the Department of Community Services as required by s 27 of the Children and Young Persons (Care and Protection) Act. He admits the breach in that he failed to consider that child N may have been at risk of harm, and to notify the department, as required the Act and also in breach of 3.6 of Good Medical Practice: A Code of Conduct for Doctors in Australia.
4. He wrote in his statement "I accept that at this point in time my management of [Child N] was inadequate. It was at this point in time where I should have continued with exploring a medical cause behind the presentation but simultaneously reported the matter to the authorities for investigation. My failure to do so has haunted me since".
5. On that occasion the practitioner believed that the subconjunctival haemorrhage was a sign of superficial bleeding. He referred child N to the paediatric haematologist, Dr Sue Russell and queried whether or not child N had "some problems with the quality of his platelets which caused the episode of petechial rash with which he presented on 25 September 2006".
6. Paras (a), (b), (c), and (e) of the particular are proved.
7. Dr Waugh's opinion is that each of the conduct in those paragraphs was conduct which fell significantly below the reasonably expected standard for a practitioner of an equivalent level of training or experience to the practitioner. Each was unsatisfactory professional conduct.
Particular Six of Compliant One
1. Child N was 16 months of age when on 7 December 2006 his mother took him again to the practitioner's rooms. He presented with recent bruising and blood in his urine. Test results disclosed no abnormalities and did not suggest there was any organic cause for his injuries.
2. The evidence establishes and the practitioner admits, that he (a) failed to re-evaluate his previous clinical opinion and (b) consider the possibility of non-accidental injury. He did not make a notification to the Department of Community Services ("DOCS").
3. He did not admit the allegation of inadequacy by failing to ask the mother about the carer at the time the injuries appeared and says that he did not do this because according to the mother the child went to sleep and awoke with the problem. He said that according to what information she gave him, she was the carer at the time the injuries appeared.
4. But the practitioner said in his statement "I agree that I ought to have probed further in relation to who was living in the home and who cared for the boy on the occasions when the mother was not home. I made a false assumption that given the grandmother lived next door, she was the one assisting the mother with the children". However, because there was a possibility which had been highlighted by the medical officer at Camden Hospital on 19 July 2006 when he noted "I could not totally rule out any battery in this patient", there was good reason for the practitioner to ask questions that might assist to decide whether it was or was not a significant possibility of child abuse. There was also a record on the hospital records for child N, if the practitioner had reviewed them, that the boyfriend had been minding the child for 10 minutes prior to the injuries being discovered that were the subject of the first consultation. It appears, there were reasonable and adequate reasons for the practitioner to question the mother further to explore the possibility that child N had been suffering non-accidental injuries.
5. Paras (a), (b), (c) and (e) of the particular were proved. In the opinion of Dr Waugh, however, each of them was conduct consistent with what is reasonably expected of a practitioner with an equivalent level of training and experience to that of the practitioner at the time. None of them was unsatisfactory professional conduct.
Particular Seven of Complaint One
1. On 3 March 2007 the mother took Child N (aged 19 months) to Campbelltown Hospital. Child N had a lump on the right side of his forehead with a bruise around it, red marks across his eyebrows, a bruise under his right eye with bruising to the top of his eyelid, bruising on his right ear and petechiae on his head, chest, tops of his shoulders and top of his back. The Paediatric Registrar contacted the practitioner to discuss the matter. The mother was sent home with the child with a plan that he would be reviewed by the practitioner.
2. On 9 March 2007 Child N attended the practitioner's rooms with his mother and the mother complained that Child N, who had just started walking, was having sudden falls.
3. The complaint alleges that the practitioner's clinical response to the child's presentation in circumstances where test results disclosed no abnormalities and did not suggest there was any organic cause or causes of the child's injuries was inadequate because he failed to:-
(a) Consider the shape of the petechiae and the odd distribution of injuries to the child on the front and back of the head;
(b) Enquire about the carer of the child at the time the injuries appeared;
(c) Re-evaluate his previous clinical opinion concerning the child's injuries;
(d) Consider the possibility of non-accidental injury;
(e) Admit the child to hospital to ensure his safety; and
(g) make notification to DOCS as required.
1. All but (a) of those allegations were admitted by the practitioner. All of them were proved by the evidence. He said that he was not present on 3 March 2007 when child N presented at Campbelltown Hospital and did not review him. He said that he had advised the mother to bring child N to the Emergency Department with her.
2. The clinical records for Campbelltown Hospital did not disclose petechiae at the front of the head but rather along the right ear and at the back of the head. An assessment was made by a registered nurse who then had the Paediatric Registrar review him. The paediatric Registrar called the practitioner at 10:00 pm. He said that Child N had a petechial rash but did not indicate where. The practitioner could not recall whether the Registrar also said that the child had bruising.
3. The practitioner told the Registrar that the practitioner did not understand "What was going on with this boy". He asked the Registrar to confirm that Child N was not deteriorating whilst in hospital and suggested that if he was not, then he should be scheduled for a review in the PACS Ward the following day. The practitioner's evidence is that he has no memory of child abuse being raised or discussed "as a differential diagnosis by the Registrar". Child N was discharged on the night of 3 March.
4. The following day he was examined by a Senior Medical Officer with extensive paediatric experience. She told the practitioner that the child was well and her notes did not mention the petechial rash. They did note a bruise to the forehead and a questionable bruise to the cheek. The practitioner told the Senior Medical Officer who arranged an appointment for Child N in the practitioner's consulting room for review in a week's time. The Senior Medical Officer did not raise with the practitioner the possibility of child abuse. The practitioner did not see child N or examine him on 3 or 4 March 2007 at Campbelltown hospital.
5. When the practitioner saw child N again on 9 March, there was no evidence of a petechial rash and the practitioner therefore had not seen the petechial rash observed earlier and had no information as to the pattern or distribution of the rash. When he saw Child N on 9 March he had "bruising to the forehead and a questionable bruise to the cheek". The practitioner admits that those bruises alone should have resulted in him reporting the injuries.
6. In relation to his failure to re-evaluate his previous clinic opinion concerning Child N's injuries, he said in his statement:-
"The only explanation I can give as to my failure is as outlined in Particulars 5 and 6, namely my erroneous focus on a medical explanation rather than simultaneously reporting the matter to investigate abuse."
1. He also said in relation to his failure to re-evaluate his previous clinical opinion concerning the child's injuries, that when he saw the child on 9 March, he was aware that two medical practitioners had discharged him from hospital, "which I believe, may have fortified my view that my previous clinical opinion that there were not reasonable suspicions to make a notification was a correct view" However he conceded that the mother expressed concerns that child N was having staring episodes and sudden falls to the ground. The practitioner organised an EEG test to exclude a seizure disorder.
2. The practitioner admitted that his clinical response was inadequate because he failed to admit the child to hospital to ensure his safety and he also failed to make a notification to the Department of Community Services as required by the Children and Young Persons (Care and Protection) Act.
3. The practitioner admitted, and the evidence proved, items (b), (c), (d), (e), and (g). of the particular. Dr Waugh's opinion is that in the circumstances the conduct in paras (a), (e) of the particular was not conduct significantly below the standard reasonably expected of a practitioner with an equivalent level of training or experience of the practitioner at the time.
4. Dr Waugh's evidence is that the conduct in each of paras (b), (c), (d), and (g) was conduct significantly below what is reasonably expected from a practitioner with an equivalent level of training or experience to Dr Dunstan. The failure to report ((g)) was deemed unsatisfactory professional conduct under the National Law. Those 4 instances were therefore unsatisfactory professional conduct.
Particular Eight of Complaint One
1. On 26 April 2007 Child N attended Campbelltown Hospital accompanied by his mother. The mother reported to the practitioner that Child N had been vomiting blood, had bruising and petechiae to his face and head, blood in his nappy and on the tip of his penis and bite marks on his right hand and foot and blood coming from the inside tear duct of his left eye. Test results disclosed no abnormalities and did not suggest there was any organic cause or causes to child N's presentation. The mother told the practitioner she had potential concern about her new partner. The practitioner admits, and the evidence proves, that his clinical response to Child N's presentation was inappropriate because he:-
1. Failed to consider the possibility of non-accidental injury;
2. (c) Failed to re-evaluate any previous clinical decision concerning Child N's unexplained injuries; and
3. (e) Failed to make a notification to the Department of Community Services as required by s 27 of the Children and Young Persons (Care and Protection) Act 1998.
1. It was also alleged in the complaint that his clinical response to the child's presentation was inappropriate because he failed to:-
1. (b) Inquire about the carer of Child N at the time the injuries appeared.
1. The practitioner conceded this and said in his statement the reason was the mother told him the child was in her care at the time. Given the nature and cumulative extent of the injuries to child N and the mother's expression of suspicion of her boyfriend, it was remarkable that the practitioner did not question the mother despite her statement. Her statement raised more questions than it answered. But he made no enquiry. Allegation (b) is proved.
2. He had had a conversation with the mother and the grandmother of Child N about the possibility the injury could have been inflicted. The mother and the grandmother, who lived next door to each other, told the practitioner that they had undertaken "specific measures to check on her partner" when the mother went out leaving child N with him. They said that the grandmother had positioned herself outside the window of the bedroom occupied by child N and had not heard any concerning noises. There is no evidence that this was done on more than one occasion or as to for what period(s). They also told the practitioner that when her partner had been away for 4-6 weeks, the petechiae had continued to occur in his absence.
3. On 30 October 2015, replying to a letter from the practitioner, the mother informed him that her partner was not the father of Child N but the father of her youngest child born on 22 December 2006.
4. The tribunal finds that item (b) is proved on the balance of probabilities and items (a), (c) and (e) are proved on the evidence and the practitioner's admissions.
5. Item (g) was the practitioner's failure to notify DOCS as required. It is proved on the evidence. The items proved were (a), (b), (c), (e) and (g). Dr Waugh's opinion is that each of these was conduct that fell significantly below the standard reasonably expected of a practitioner with an equivalent level of training or experience to the practitioner. They therefore were each occasions of unsatisfactory professional conduct.
COMPLAINT ONE CONCLUSIONS
1. Complaint one is that the conduct in each of particulars 2, 3 4 and 7 constitutes unsatisfactory professional conduct. The following items of conduct in those particulars that have been proved are in the opinion of the expert 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 protected of the practitioner of an equivalent level of training or experience:
2 (a), (b), (c); 3 (a), (b); 4 (a), (b), (d); 7 (b), (c), (d), (g)
Each of those particulars includes multiple instances of unsatisfactory professional Conduct. Complaint one is established.
Particular 1 of Complaint 2
1. The mother brought child N to the practitioner's rooms on 12 June 2007. Child N had petechiae on the left side of his neck and the right shoulder. The mother told the practitioner that she and her partner were under suspicion and requested that the practitioner provide her with a letter stating that the cause of child N's symptoms was being investigated and that the practitioner was actively trying to find a cause. The practitioner inappropriately provided an open letter to the mother in circumstances where test results disclosed no abnormalities and did not suggest there was any organic cause or causes for child N's presentation in which he stated:
1. child N to be "experiencing a problem of spontaneous petechiae";
2. "these events are unlikely to be caused by inflicted trauma"; and
3. The pattern of the Petechiae was not consistent with injury.
1. The letter said :
To whom it may concern: [child N] has a problem of spontaneous petechiae without a cause being found. There was concern that it may have been caused by his father [Mr G] as it had occurred a couple of times whilst [child N] was in his care. The pattern of the petechiae was not consistent with injury. He has had a subsequent episode of petechiae when not in his father's care. We have no explanation for these events. They are unlikely to be caused by inflicted trauma.
1. The practitioner admitted he wrote that open letter. He described it as "an error of judgment" in his statement. He said they were opinions that he "honestly yet mistakenly held". He had no intention to mislead anyone.
2. Notes of the practitioner made at the time include: "Inpatient – St John of God". The practitioner later testified at the coroner's inquest that at that consultation the mother told him that she thought Mr G may have been involved in child N's injuries because he had episodes of depression requiring treatment at St John of God Hospital.
3. On the opinion of Dr Waugh because of these statements (a), (b) and (c), giving the letter was 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 protected of a practitioner of an equivalent level of training or experience as the Practitioner. It was therefore unsatisfactory professional conduct.
Particular 2 of Complaint 2
1. The practitioner was advised by Dr Russell the haematologist, on 17 June 2007 that extensive clotting studies had been done and there was no medical reason for bruising and bleeding to occur to child N. Dr Russell and the practitioner agreed that the practitioner would notify DOCS on their joint behalf.
2. But the practitioner:
1. failed to make an immediate telephone notification to DOCS in circumstances where the nature and frequency of the injuries to child N should have alerted the practitioner to act immediately; and
2. wrote a draft letter to DOCS on 5 July 2007 (18 days after they agreed he would make the notification) but did not send the letter until 19 July 2007 after he was contacted by a DOCS worker that day who advised that she was acting on information independently acquired and was making enquiries about child N.
1. The evidence proves, and the practitioner admits, (a) and (b). His evidence is that he did not send the letter to DOCS until 19 July. The evidence is that it was received by DOCS on 23 July 2007, 36 days after he agreed to make the notification. He also testified that he was surprised when Dr Russell told him that it could be a child protection case and they should notify DOCS. He testified at this hearing that he delayed because he wanted things to be "fair" to the mother. He said he undertook to Dr Russell that he would contact the mother first and talk to her and then notify DOCS. He delayed. Then he knew the mother had an appointment on 27 July so he planned to talk to her then. But before then the DOCS worker rang and he then sent the letter.
2. The conduct (a) and (b) is proved. The opinion of Dr Waugh is that it was 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 protected of the practitioner of an equivalent level of training or experience to the practitioner. It was therefore unsatisfactory professional conduct.
Particular 3 of complaint 2
1. On 24 July 2007 the mother brought child N to the practitioner's rooms. She reported that child N had had about 5 episodes of petechiae since his last attendance. The practitioner's clinical response to child N's presentation was inappropriate in circumstances where by letter sent 19 July 2007 he had notified DCS of unusual events that are suspicious and without medical explanation in that he:
1. Continued to ignore the possibility of non-accidental injury; and
2. Failed to make an immediate telephone notification to DOCS.
1. The practitioner admits, and the evidence establishes, allegation (b). The practitioner said in his statement in these proceedings that he had the letter on his desk from 5 to 19 July. He said he was "struggling with the realization that this was a possible case of abuse". He was planning to send the letter after he saw the mother at her appointment on 27 July, then the DOCS worker phoned him on 19 July and he sent the letter.
2. In his statement he denied para (a). But his failure to phone DOCS or promptly notify DOCS of the mother's statement that child N had suffered 5 more episodes of petechiae, his procrastination about sending the letter, his delay in sending the letter, his failure to amend the letter to disclose the mother's statement that child N had suffered 5 more episodes of petechiae, the fact that he said in the letter "we do not have any indication they have been inflicted" all demonstrate his failure to accept the proposition that there was a possibility that child N's injuries were the result of non-accidental injury.
3. Both Allegations (a) and (b) are proved.
4. The opinion of Dr Waugh is that each was conduct of the practitioner 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 protected of a practitioner of an equivalent level of training or experience as the Practitioner. It was therefore unsatisfactory professional conduct.
COMPLAINT 2 CONCLUSIONS
1. The following items of conduct in complaint 2 that have been proved are in the opinion of the expert 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 protected of the practitioner of an equivalent level of training or experience: They are instances of unsatisfactory professional conduct.
1 (a), (b), (c); 2 (a), (b); 3 (a), (b).
1. Complaint two is established.
COMPLAINT 3- DISCUSSION & CONCLUSIONS
1. Complaint 3 alleges that the practitioner between 21 July 2006 and 24 July 2007 failed to keep proper medical records in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003 in that he failed to record:
1. An adequate assessment of child N's injuries including aetiology, shape, distribution, pattern and location; and
2. An assessment of alternatives to child N's presentation, such as consideration of potential indicators of physical abuse.
1. The requirements of Schedule 2 of the Medical Practice Regulation 2003 include in clause 2(2) that the records "include sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's care".
2. In cross-examination, the practitioner's attention was drawn to his hospital clinical notes of child N's overnight stay in hospital on 21/22 July 2006. He conceded that there was no clinical note of observations of any conduct of child N in the cot. He conceded too that he did not make any clinical notes of that. He also conceded that he made no mention in his Police statement of 18 March 2008 of observations of the hospitalisation of child N on 21 July 2007 and no statement of seeing him in the cot.
3. The practitioner's handwritten records about child N in the period 21 July 2006 to 24 July 2007 are in evidence and are extremely brief, occupying less than 2 pages in total. For most of the occasions where child N presented with bruising, petechiae or other injury there is no adequate description of the injury, its shape, distribution, pattern and location recorded in the practitioner's records, which include copies of letters he sent to GP's or specialists he consulted. For all the consultations there is no differential diagnosis. There is no suggestion that child abuse could be a possible explanation for any of child N's presenting problems.
4. Dr Waugh also reported
Dr Dunstan's records of the bruising and petechiae were repeatedly inadequate and this falls significantly below what is reasonably expected of a practitioner with an equivalent level of training or experience as Dr Dunstan at the time of the events.
This is evidenced by comparing Dr Dunstan's handwritten notes and letters to the handwritten notes on the hospital file. In each presentation when [child N] was admitted to hospital directly from Dr Dunstan's rooms there are more bruises or petechiae documented by other clinical staff, including junior doctors and nurses, than documented by Dr Dunstan in his rooms. Dr Dunstan repeatedly failed to adequately document the bruising, petechiae and subconjunctival haemorrhages and this would have limited his ability to reconsider the child abuse in his differential diagnosis.
The record keeping includes his handwritten notes along with his letters to the general practitioner. In the context of Dr Dunstan's clinical impression they are too brief but still contain most, but not all of the essential information. Adequate detail of the bruising /petechiae and history of events and care in the home prior to discovery of bruising is persistently missing. This would have limited his ability to reconsider the history and clinical findings in subsequent presentations and may have limited his ability to consider non-accidental injury.
1. Dr Dunstan did not record a diagnosis or a differential diagnosis regarding the bruising and petechiae in his notes or his letters. The only time he alluded to a possible diagnosis was when he wrote that he "wondered if he has some problem with the quality of his platelets" in a letter to Dr Chouefati on 3/11/2006. Dr Dunstan noted "Spontaneous Petechiae" in the open letter given to the mother on 12/6/2007. "Spontaneous Petechiae" is not a medical condition. Dr Dunstan saw [child N] for bruising or petechiae on 10 occasions in his private rooms and did not record a diagnosis or differential diagnosis."
2. The practitioner does not concede Complaint 3, but in his statement he made the following admissions:
1. He failed to record a differential diagnosis of non-accidental injury and record indicators of same because he failed to consider such a diagnosis; and
2. "My record keeping is poor on some consultations, but not all".
1. The practitioner's records for child N for the period 21 -24 July 2007 do not satisfy the requirement of Clause 2(2) of the Second Schedule of the Medical Practice Regulation 2003, which was at the time a New South Wales Regulation. Para S139B(1)(b) of the definition of "unsatisfactory professional conduct" in the National Law is "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".
2. In relation to allegation (b) of the complaint, the practitioner did not notify DOCS of the mother's statement to him that child N had suffered 5 further instances of petechiae, and in his consultation with child N on 24 July 2007, in his dealings with the mother he ignored the possibility that child N had been suffering non accidental injuries.
3. Accordingly Complaint 3 is proved and his conduct in paras (a) and (b) is deemed by, para 139B(1)(b) of the National Law, to be unsatisfactory professional conduct.
4. Dr Waugh in his report also found that each of (a) and (b), is 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 protected of a practitioner of an equivalent level of training or experience.
5. Complaint 3 is proved.
COMPLAINT 4 DISCUSSION & CONCLUSIONS
1. Complaint 4 alleges professional misconduct and relies upon the findings in respect of particulars 2, 3, 4, and 7 of complaint 1, and particulars 1, 2 and 3 of complaint 2 or the findings in respect of Complaints 1, 2, and 3.
2. In addition to the 12 instances of unsatisfactory professional conduct found under particulars of 2, 3, 4 and 7 of Complaint 1 there were the following other such findings particular 5 (a), (b), (c) and (e), and particular 8 (a), (b), (c), (e) and (g), so that the total such incidents under particulars 1 to 8 of Complaint 1 was 21.
3. The total number of such findings is as follows:
Complaint 1 particulars 1 to 8 21
Complaint 2 7
Complaint 3 2
Total 30
1. Individually some of those instances are extremely serious in terms of the potential risks of harm to child N. Some too, such as inadequate clinical records, demonstrate a failure of a very basic and essential skill for a medical practitioner.
2. Many of the instances of unsatisfactory professional conduct were instances of the practitioner failing to entertain the possibility of an explanation other than a medical one. The ability to recognise ambiguity when diagnosing is an essential skill for a medical practitioner. Repeatedly over a considerable period he failed to exercise such a skill.
3. Together the instances of unsatisfactory professional conduct in complaints 1, 2 and 3 are so serious that when considered together they amount to conduct of a sufficiently serious nature to justify suspension of the practitioner's registration and therefore amount together to professional misconduct.
4. Complaint 4 has been proved.
The Other Evidence
1. The practitioner said he had not re-notified DOCS after he spoke to the officer because that officer had told him that DOCS was already investigating the issue of child N's possible child abuse. He did not notify them of the mother's statement to him that child N had suffered another five episodes of Petechiae.
2. He said that he had discussed child N's case "with everyone" and that included other paediatricians. He also said he had presented child N's case at a group clinical meeting, which included paediatricians, to discuss puzzling or difficult cases. Another paediatrician told the mother at the hospital, "we are all aware of [child N]". The practitioner was greatly troubled by child N's problems and lack of diagnosis.
3. But in cross-examination he conceded that he had never asked any other paediatrician to see child N and that he had never suggested to the mother that she obtain another paediatric opinion. He conceded that he could have suggested that she get another opinion. He said he believed that the mother was very concerned about child N and that part of the practice as a paediatrician is to obtain information from parents and carers if available if the child can't give that information.
4. He conceded that the mother had mentioned her boyfriend on about the third occasion that he had seen child N with bruising and he said that he knew about the boyfriend living with her from about December 2006.
5. When asked whether he thought the boyfriend might be a possible abuser of the child when he found out about him he answered: "I was pursuing tests". He said that he knew in April 2007 that it was important to be critical of histories given by adults regarding children and the importance of testing for the truth.
6. He said he knew that doctors had to be hyper-vigilant for child abuse. When he was asked about what he did about that, he avoided the question. When he was asked about whether he was vigilant with the child, he referred to the various tests that he had undertaken and also his background knowledge of the mother and her family and his understanding that they were "a good family".
7. He conceded that in his treatment, and also in the observations by him and the hospital social worker of the child in the hospital, no-one had seen how child N obtained any such injuries.
8. When asked about his delay in reporting the matter to DOCS, he said that he thought that DOCS was busy and that child N had not been abused. He said he thought the system was "stressed" and "I thought I had an adequate explanation". He said he therefore thought that the child was not in any danger of harm so he did not notify. He conceded that the child was in danger of abuse and DOCS would help to protect the child. When asked if anyone else would, he said "No".
9. He said that child N was "behaviourally normal" and there was no indication of any self-inflicted injury. He was asked whether "Every time he came you were thinking about the possibility of child abuse?" and he replied "No, I was looking for a haematological problem".
10. When he was asked whether he ever questioned the mother about whether she had left child N in the care of anyone else, he said "I did ask her, but not until the 26 April 2007 event" and he conceded that that was nine months after child N had been admitted to hospital.
11. He said in paragraph 22 of his statement that he thought he needed to have "reasonable grounds to suspect that a child was at risk of significant harm". He said at that stage they believed that the child was self-injuring and bashing his head on the cot and other objects. Clearly he knew that the child was suffering significant harm. He did not know the explanation for it and he did not think it was child abuse. But he did know that even if it was self-injuring, child N was at risk of significant harm if the existing care arrangements continued.
12. He was shown the letter that Dr Bello, the medical officer at the Emergency Department of Camden Hospital, had given to the mother to take to child N's general practitioner. In the first paragraph of that letter it stated that:-
"The patient was left in the care of his mother's bf the night before for about 10 minutes, and the mother claimed the patient was cranky, was inconsolable for about 20 minutes when she came back and refused to drink his milk and slept".
"The patient slept alright and woke up ok, and the mother noticed the abovementioned signs and was worried, hence the consult at our Department".
1. In the last paragraph Dr Bello said:-
"I could not totally rule out any battery of this patient, I hope you can investigate and review the patient soon accordingly."
1. When the practitioner was shown the letter he acknowledged that child N's mother brought the letter with them when they came to see him and "I read the letter". However, he later maintained that he had not read the sentence that referred to the boyfriend or "It didn't register with me".
2. He conceded that the sentence "I hope you can investigate and review the patient" indicated that the doctor wanted the possibility of abuse to be reviewed. He was then asked what he did and he said that he arranged tests including a CT scan and a skeletal survey.
3. When cross-examined about his Police statement for the inquest, he conceded his evidence about the letter did not acknowledge that it contained a request for the possibility of child abuse to be investigated.
4. He acknowledged that his understanding of what the Police wanted in his statement was "To put honestly what had happened".
5. When it was put to him that he didn't ask the "basic question" of "did someone hit [child N]", he avoided the question. When it was repeated, he conceded the proposition.
6. When he was asked at the inquest whether being told that child N liked to bang his head on objects "Did it cause you concern as a paediatrician?" His answer was that it didn't and the reason he said was "He was pretty active, rattled around the cot and lots of babies bang their heads and fall and it didn't seem to be obsessive in hospital, no".
7. However, he did not say at any time that he observed child N to "bang" his head on the cot or on any other object and when asked whether he sought clarification from the mother as to whether the alleged behaviour was obsessive, he replied "I don't think I did at the time".
8. In his statement in these proceedings signed on 16 February 2018, nearly 10 years after the incidents, he said in paragraph 13 "I personally witnessed child N in his cot standing up and actively banging the cot and holding on and jumping around" but he did not say that he observed child N to bang his head on the cot or any other object.
9. Similarly, in his statement for these proceedings, where he referred to he and the hospital social worker observing child N in the cot, he did not say that he observed the child to bang his head on the cot or any other object.
10. In cross-examination on 13 December 2010 at the coronial inquest, it was put to him, and he conceded, that as at 1 August 2006 there was no medical explanation for the injuries to child N and there had been no re-occurrence of the injuries in that week or so, but one conclusion he could come to is that the injuries were inflicted. He replied "That could be one of them, yes". He made the same concession in the hearing before the Tribunal. He conceded in the hearing before the Tribunal that as at 1 August 2006 there was a possibility that the injuries were inflicted. He conceded that his report to child N's general practitioner on 4 August 2006 did not mention the admission to Camden Hospital in July and did not include any opinion as to what caused the injuries observed. He said, "At the time I didn't think it was that important".
11. His attention was drawn to the nursing notes of 25 September 2006. Those nursing notes commenced "Presents to ED following onset today of petichia (sic) to head and neck regions this afternoon. The child also has had fall from bed to floor today? Time mother not sure as dad was looking after child". In answer to a question he said that he did not ask the nursing staff for any additional history when he saw child N. He said they were "extremely busy".
12. He denied that at 25 September he was thinking that there was a real possibility that injuries had been inflicted on child N. Then he said that "The nurse's report was given after I had seen him". He conceded in cross-examination that it was his responsibility to consider whether child N's injuries had been from child abuse. He said no-one had suggested that to him and, "No-one raised it".
13. He said that the blood tests around 25 September showed no abnormality and he was only looking at the petechiae and that his concern was wrong. He said "I trusted this family". When asked whether he questioned the mother about how the injuries had happened, he replied "Not specifically". He said he "would have", but he couldn't "specifically recall". He said "She went in. He woke up with them. I probably didn't press her enough about how they arose".
14. When he was asked whether he questioned the mother on 17 October 2006 as to whether she was in a new relationship, he avoided the question twice. Then he said "I don't recall. At some stage I put it in the records". He conceded that it would have been important to include that information in the records if he found out that she was.
15. He conceded in cross-examination that trainee paediatricians are taught to ask questions to recognise the possibility of abuse, to ask relevant questions and to ask whether someone is possibly abusing the child. He conceded that he didn't ask any of those questions because "I knew her and felt comfortable with the person". He said "She always presented well to me and presented a lot better than she was behaving".
16. He said he never asked her if there had ever been any involvement by DOCS and "I don't usually". But he said that he has a clear recollection that at 26 April 2007 he asked the mother and the maternal grandmother whether they thought someone was "doing it to child N".
17. When he was asked in cross-examination about the occasion when N presented having passed blood in his urine, he conceded that he had not asked the mother whether child N bled easily, but he said he was "very concerned" about blood in his urine and he thought that he did a urine test and it was clear but he conceded that he did not ask whether the child had previously had blood in his urine. He said "I thought he had a blood clotting problem – causing bleeding and blood in the urine". He acknowledged that it was a fairly serious thing for a 13 month old child to have blood in the urine, but he said "It resolved". He was asked whether he should have then thought that there was a possibility child N was being abused, he avoided the question and replied "I didn't".
18. In his report of 19 December 2006 by the practitioner to the GP the practitioner stated "There is no history of trauma". He said in his oral evidence that he must have asked the mother for him to make that statement. He said that the trusted her and so far as he was aware there was no history of trauma. He said that she came to all appointments and was on time. He said he gave the referral to Dr Russell.
19. In cross-examination the practitioner conceded that when he first received a phone call from the Registrar in March 2007, he asked whether the Registrar had asked the mother what may have caused the injuries. He said he asked the Registrar and the Registrar told him that child N had woken up with the injuries.
20. He was asked "When you got that call, you must have thought something deliberate is happening to [child N]?" and he replied "No, I should have". He said at the time I should have realised "that it was something different – a non-accidental incident".
21. He said he was concerned that "We weren't sorting it out for him". He said that when he allowed child N to go home, "It didn't at all cross my mind I was sending him to a place that was unsafe".
22. He said that when he saw Dr Russell's results he asked himself what could possibly have caused the injuries. "I thought I was missing something organic" and conceded that he missed the possibility of child abuse until June 2007.
23. He said he didn't think that the child might be being abused until Dr Russell spoke to him and informed him on 17 June 2007 that as there was no organic abnormality or cause identified for the injuries, child abuse was a possibility and they should report the matter to DOCS.
24. The practitioner conceded in cross-examination that "I was at fault as to not knowing what could cause petechiae in that distribution" when he was referring to the consultation with child N on 3 April 2007. He said "I had never seen this pattern of petechiae in cases of child abuse". He described it as "a limitation to my teaching and my knowledge".
25. He was questioned about the occasion on 17 October 2006 when child N presented with petechial rash and subconjunctival haemorrhage. He said that the mother had said that child N had been vomiting blood, had blood in his nappy and on the end of his penis. The practitioner said that that was extremely serious and he sent the child to hospital. He said the cause of the petechiae was not what was causing the vomiting of blood. He thought that the problem was a bleeding problem causing a leaking of capillaries and he thought that bleeding of the penis was related to that. He said that when he asked the mother what had happened, she said she went to the cot and he had blood on his nappy and she took him straight to the hospital. He had vomited blood and had blood on his nappy, so she brought him to the hospital to see the practitioner. He said he did not contemplate that the child had some injury.
26. He said he thought the pattern was bleeding, not a significant event, and he thought something trivial was triggering it.
27. After admitting child N to hospital on 26 April 2007, the practitioner said that he asked the mother whether she thought anyone could be "doing something" to child N. He raised this question with the mother due to the fact that the Registrar/ Resident Doctor placed "child abuse" as part of his differential diagnosis.
28. The practitioner had not placed child abuse or non-accidental injury as a differential diagnosis on any of the previous consults. He had become fixated on the opinion that the child had a problem "with some type of vascular fragility or a qualitive platelet problem". In cross-examination when asked why he asked her that, he said "Because of the unusual marking on the foot". It appeared to be a bite mark by a human mouth, as did a bite mark to the hand. He said he asked the mother and the maternal grandmother. He said he also asked whether there had been anyone else caring for the child and the mother said "No, he was never not in my care".
29. He said that he would have been concerned when told "A couple of the 'events' occurred when the child was in her boyfriend's care", but the mother and grandmother had told him the injuries were sustained when the boyfriend was not there, although he said he thought the marks on the foot were unusual, he said that bite marks are usually from other children on the extremities and he had not considered that it might have been a mark inflicted by an adult". He said that he thought it was unusual, but "I just couldn't put a cause to it". He said he didn't think it could have been a bite by an adult.
30. Dr Wong, the RMO, made notes on 26 April 2007 after the practitioner had first seen child N at the hospital. Dr Wong noted that there was petechial rash. The practitioner did not note that and said he was not aware at the time of it.
31. The mother at one stage told the practitioner of a history in her family of aneurysms and strokes. She provided him with a document listing the people in various generations of the family who had suffered strokes or aneurysms and she expressed concern as to whether child N had some connection that was triggering the bleeding. A geneticist the practitioner consulted advised him that there was no evidence that would suggest such a connection.
32. When asked about giving the open letter to the mother when she requested it, he conceded that he didn't ask her who was asking her about the injuries to child N. He said that "I assumed that it was people such as pre-school, and other places". He said he thought it was better to give her a note than to have her telling people to phone him.
33. He conceded that her statements to him indicated that other people had seen bruising on child N. When asked, he said he didn't consider who she might show the letter to and he didn't ask her whether she had had any contact from DOCS. He also said he didn't tell her that DOCS might contact her and he didn't contemplate that she might show such a letter to DOCS. He said "No, I didn't think about DOCS".
34. He had said in the letter that the petechial rashes were "spontaneous". When asked whether it was spontaneous, he said "To my mind it was".
35. He conceded that he had omitted to refer to bruising, vomiting blood, and blood in the nappy when he prepared the open letter. He said "Yes, my concern was the petechiae and the bruising to me was a minor matter. I was more set on the petechiae problem. I couldn't sort it out".
36. He said that at the time he did not think that the letter could be used by the mother to mislead others. He denied that the purpose of the letter was for anyone who read it to believe that any injuries were not caused by the boyfriend. He said he thought the letter was "a fair estimate of where I was at the time". When asked about the "difficulties" with the letter, he said "I had it completely wrong". He said that he now believes that the mother went to see Dr Russell three days before she asked him for the letter and he provided the letter three days before Dr Russell spoke to him raising the possibility of child abuse.
37. When asked whether he thought child N was in danger when Dr Russell spoke to him on 17 June and advised they should report the matter as possible child abuse, he said he wasn't. He said he was "still digesting" the suggestion that it was child abuse. He said he wanted to speak to the mother first before he reported it and said "I just couldn't believe it was a case of child abuse". He said he wanted to speak to her face-to-face because he couldn't believe she would be a party to abuse of her child but he said he wasn't then thinking that there was a different medical cause "I just couldn't believe it".
38. He was contacted by Belinda Kasep, an officer of DOCS on 19 July 2007,. She asked him if he still stood by the contents of the open letter that he had given the mother. He said that he told her that he didn't, because of the concern that they could not find a cause and his concerns about Mr G. He told her what the mother and the maternal grandmother had told him, but said that they could find no reason for the injuries. He said he told the DOCS officer that he had a letter prepared and would send it the following day.
39. When it was put to him that he could have told the DOCS officer not to pay any attention to the open letter, he said he couldn't and he "didn't know they were investigating the boyfriend because she specifically asked me about the open letter". He was asked whether he spoke to the mother on 24 July about the question of whether child N was being abused. On that occasion she had come and told him that child N had suffered five more episodes of petechiae. He answered "No, but that evening on the telephone I told her we needed to notify DOCS because we have no explanation for these events". (He rang her after work on 24 July.)
40. He was asked why he telephoned the mother to warn her of the notification and he said "Because I was trying to keep things honest so she didn't think I was going behind her back". The letter of 5 July was sent to DOCS on 19 July.
41. The letter of 5 July to DOCS did not refer to three presentations by child N in July 2006, two of which involved hospitalisation.
42. His evidence was that on 3 March 2008 after child N's death he spoke to the mother and expressed his regrets and sympathy. He then visited child N's body. He said "I was shocked for all the bruises on his body".
43. In answer to questions from members of the panel he said that when he qualified as a medical practitioner they weren't taught about petechiae and now it is taught. He said that there is now a recognised long list of possible causes of petechiae.
44. He said that since the events in question there are different arrangements for doctors from Camden and Campbelltown dealing with the local office of DOCS and they can now check with DOCS as to whether particular people have had complaints or investigations against them and also an abuse reporting line to facilitate such contacts with the Department. He has discussed the problems with other paediatricians, child N's history and the implications for him, with other paediatricians. There is a separate officer now in the hospitals in which he works, who is available two days each week in-house to discuss issues regarding suspected child abuse.
45. There have also been one day educational sessions for junior medical staff on child abuse and the protocols for screening people suspected of child abuse. The course includes considerations of the dangers of preconceived ideas such as those that he says he had. He said that he now has considered the various reasons that the mother might mislead him including protection of herself from her partner, protection of herself from welfare investigations or criminal proceedings, and protection of her partner.
46. The practitioner had been practising as a medical practitioner for 29 years prior to the conduct which is the subject of the adverse findings. For 28 years he has practised in paediatrics, for the first eight years as a resident then as a Registrar, then as a paediatric fellow, then working in adult rehabilitation and then as a paediatric locum. For the last 18 years he had been working as a paediatric specialist.
47. Prior to child N's death, In his whole period as a medical practitioner, he had not been the subject of any complaint through the Health Care Complaints Commission, the medical Council or otherwise. He had not been the subject of any investigation or prosecution and the current proceedings are the only proceedings taken against him.
48. He has never had any condition placed on his registration. He has been a Fellow of the Royal Australian College of Physicians since 1986, and a Fellow of the College of Rehabilitation Medicine since 1993. He has trained and been accredited for injection of Botulinum toxin to children with Cerebral Palsy (2013). He has attended numerous courses in relation to child abuse and child protection. He worked in paediatrics in the Sydney Children's Hospital from 1978 to 1982.
49. At the end of his written statement in these proceedings he said:-
"I believe that I have learnt from the errors of judgment I made in this case. I am confident they will never be repeated. It has been close to 10 years since the tragic death of [child N]. As I stated above, this case continues to haunt me. I struggle often with guilt over my errors and my failure to protect this boy from harm. For that I am truly sorry."
1. In his evidence the practitioner spoke with genuine and deep remorse. He said that he had let down child N and "he must have suffered pretty much before and later". He said also "it has affected me terribly". He said that after the coroner's inquest he had obtained a referral to a psychiatrist about his "remorse" and that he later obtained a referral to a psychologist for therapy. His regular monthly therapy meetings with this psychologist are still continuing, 10 years after child N's death.
2. He also said that his estimation of his worth and his ability was considerably damaged and "it shook my whole confidence in myself". After the inquest he attended a child abuse course and has adopted a different approach in dealing with children and regarding the presentations of children. He said that in the petechiae course he did in 2017 there was reference to petechiae from asphyxiation and suffocation and the lack of evidence of restraint or other injury to other parts of the body.
3. In cross-examination, he listed the paediatricians that he had told about him being required to attend the Tribunal for a "case of child abuse I missed".
4. The practitioner has in the period since child N's death experienced the investigations by the Police, the Coroner's Inquest and having to give evidence, the criminal trial and having to give evidence at it, the investigation by the Health Care Complaints Commission and then these proceedings including a 4 day hearing, and the preparations for this hearing. He gave lengthy evidence at the hearing. He was cross-examined extensively.
Possible Outcomes – the Legislation
1. The powers of the Tribunal in disciplinary proceedings where there is a finding of professional misconduct, are set out in the Health Practitioner National Law (NSW)(the National Law). The Tribunal may caution the practitioner, impose conditions on the practitioner's registration, order the practitioner to seek and undergo medical or psychiatric treatment or counselling, order the practitioner to complete an educational course specified, order the practitioner to report, and order the practitioner to seek and take advice from a specified person or persons. The Tribunal may impose a fine if the Tribunal is satisfied there is no other order or combination of orders that is appropriate in the public interests. The Tribunal may suspend or cancel the registration of the practitioner. These powers are set out in sections 149A, 149B and 149C of the National Law.
2. The jurisdiction of the Tribunal in such proceedings is primarily to protect the public, rather than punitive. (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; HCCC v Gillett [2007] NSW NMT 7 [at 13]; HCCC v Rutner [2009] NSWD 2 at [14]).
3. There are other considerations and indirect considerations part of the protective jurisdiction which include maintenance of standards in the medical profession and preservation of public confidence in the profession. Accordingly, on some occasions the outcome has to involve some level of penalty that will discourage the offending practitioner and others from such conduct.
The Outcome
1. It is more than 10 years since child N's death. From the practitioner's evidence and involvement in the hearing before the Tribunal, the Tribunal members have no doubt that the practitioner has for more than 10 years since child N's death lived with very deep feelings of inadequacy, failure and remorse because of his conduct the subject of these proceedings.
2. His career has been a long career by a dedicated paediatrician and has been marred by the conduct the subject of these proceedings. The practitioner, because of his feelings of responsibility, has experienced considerable discomfort in his life from issues such as insomnia, guilt, embarrassment and regret.
3. The Tribunal has no doubt that the practitioner for the rest of his years of practice will be vigilant for possible child abuse and doing what he can to ensure that the risk of child abuse is minimised for any child who is his patient. The Tribunal is satisfied that there is no need for the outcome to be orders aimed at deterring the practitioner from neglecting the interests of a child from a risk of child abuse.
4. The Tribunal has concluded that cancellation of registration, imposition of a condition or conditions on his registration, suspension of his registration, or imposition of a fine is not required in order to deter the practitioner from conduct such as that which was the subject of adverse findings in these proceedings.
5. The evidence in the practitioner's case includes testimonials from five specialist paediatricians who work in the same region as him, one from a rural region, one from Sydney Children's Hospital and two who practice in the City of Sydney. It also includes testimonials from five general practitioners in metropolitan Sydney, western Sydney and other areas. There is one from a professor of paediatrics and two from specialist medical practitioners in other areas of medicine. There is also a testimonial from a children's nursing specialist, a parent of a patient, and a physiotherapist who is an officer of the Cerebral Palsy Service.
6. All those testimonials establish clearly that the practitioner is extremely well respected for his integrity, the quality of his clinical skills, his compassion, the remorse that he has suffered since the death of child N, the leadership role that he has taken in the community, particularly in the establishment and operation of the Kids of Macarthur Health Foundation, and also his commitment to his patients, reliability, humility, leadership and trustworthiness. It is clear that the practitioner is a person of excellent character and of enormous enthusiasm and generosity. Those that have worked with him, whether in paediatrics or in some other professional role, describe him in the most positive terms, not just because of his work, his character and his clinical skills, but also because they enjoy working with him.
7. There are also other testimonials from parents of patients, the Director of Services of the Mater Dei Early Intervention Program in Camden, the principal of a school where his children attended and other patients of the practitioner attended, and a parent of three children who were patients of his, There are also references by a pharmacist who has known the practitioner for more than 30 years, a solicitor who has known him more than 30 years, a paediatric nurse who has worked with him over 28 years and a medical secretary who worked for him over 30 years.
8. All of those testify to the practitioner's integrity, professional commitment, respect in the community, generosity, excellent clinical skills and his character generally.
9. It is clear that the adverse findings about his conduct in these proceedings are completely inconsistent with his character and his attitudes generally. The Tribunal is satisfied that the appropriate sanction should be a reprimand of the practitioner. For reasons below he will also have to pay the costs of the Health Care Complaints Commission of these proceedings in addition to his own.
Costs
1. The Tribunal's power to award costs is in cl 13 of schedule 5D of the National Law. It provides that generally costs follow the event (See Health Care Complaints Commission v Philipiah [2013] NSWCA 342). In these proceedings the applicant seeks an order that the respondent pay the applicant's cost of or incidental to the proceedings. The respondent did not oppose that application. The Tribunal is satisfied that there is no circumstance that would displace the usual rule that an unsuccessful party the cost of a successful party. The Health Care Complaints Commission has succeeded in establishing professional misconduct and should have its costs paid by the respondent.
Non-Publication Order
1. On application of the parties at conclusion of the hearing a non-publication order was made. For protection of the privacy of the mother there should be a similar order.
ORDERS
1. The orders of the Tribunal therefore are:
1. The respondent practitioner is guilty of professional Misconduct;
2. The respondent is reprimanded;
3. The respondent must pay the costs of the applicant of or incidental to these proceedings; and
4. Publication or broadcast without the leave of the Tribunal of the name or any other identifying information of the persons referred in these reasons as "child N" and "the mother" is prohibited.
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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
Amendments
03 July 2018 - Solicitors for Applicant corrected to HCCC
20 August 2018 - Pursuant t s63 CAT Act the following amendments were made by the Presiding Member:
(1) [12] substitute "9" for "12";
(2) [34] Add to para: "Relevant to particulars 3 and 4 of complaint 1, before 1 January 2007 the risk specified in the section was "risk of harm " and effective that date an amendment changed it to "risk of significant harm."
(3) [64] line 5 omit "significant";
(4) [82] last line omit "significant";
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: 20 August 2018