Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chatoor v Health Care Complaints Commission [2019] NSWCATOD 124 Hearing dates: 25 and 26 March 2019 Date of orders: 23 August 2019 Decision date: 23 August 2019 Jurisdiction: Occupational Division Before: N Hennessy ADCJ, Deputy President M Kelly, General Member Dr B Bailey, Professional Member Dr J Weaver, Professional Member Decision: 1. Dr Chatoor is reprimanded. 2. The following conditions are imposed on Dr Chatoor's registration for two years from the date of this decision: 1. When recommending and before performing a coronary or device operation the practitioner must obtain a written opinion from another cardiologist (who is a Fellow of the College and approved by the Medical Council of NSW) which supports the procedure(s). If the written opinion does not support the procedure(s) the practitioner cannot recommend or perform the coronary or device operation. A copy of the written opinion from the cardiologist (whether negative or positive) is to be filed in the patient records. (a) The practitioner must maintain a log listing all patients for whom he has obtained a written opinion. The log is to include: • the full names and dates of birth of the patient • the names of the cardiologist who provided the written opinion • a brief description of the written opinion, including whether the cardiologist supported or did not support the procedure(s) (b) The practitioner must forward to the Council a copy of the log within seven days of the end of each calendar month. (c) The practitioner must authorise the Council to contact the cardiologist to verify the written opinion 2. The practitioner must maintain a log listing all surgical and interventional procedures that he performs. The log is to include: • the full name and dates of birth of the patient • the date of the procedure • name of the hospital where the procedure was performed • full description of the procedure(s) • the outcome and any complications (a) The practitioner must forward to the Council a copy of the log within seven days of the end of each quarter 3. To practise under Category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with a particular focus on: • the clinical indications for interventions (coronary and devices) • review of the angiography and PCI films • outcomes and complications • a review of the monthly log of surgical and interventional procedures and log of patients he has obtained a written opinion for. (b) Supervision meetings are to occur on a monthly basis and the supervisor is to report to the Council every 3 months (c) The practitioner must authorise the Council to provide the approved supervisor with: • a copy of the professional standards committee decision and • a copy of the practice conditions 4. The practitioner must nominate an alternative cardiologist (who is a Fellow of the College and approved by the Medical Council of NSW) to fill in whenever the primary cardiologist is not available. 5. The practitioner must authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with these conditions. 6. The practitioner must bear the cost of compliance with these conditions." 3. The Medical Council of New South Wales is the appropriate review body for the purposes of s 163A of the Health Practitioner Regulation National Law (NSW). 4. In event that the practitioner no longer resides in New South Wales then the conditions are to be reviewed in accordance with s 125 to 127 of the Health Practitioner Regulation National Law (NSW). 5. Either party may lodge with the Registrar within 21 days of these orders submissions in writing not exceeding four pages in respect of any application for costs. 6. In the alternate to order (4) the parties may lodge with the Registrar within 21 days of the date of this decision any consent order about costs. Catchwords: MEDICAL PROFESSION – disciplinary proceedings – external appeal from decision of Medical Council that Dr Chatoor guilty of unsatisfactory professional conduct – subject matter and nature of external appeal – whether Tribunal has jurisdiction to re-determine entire complaint or just the findings and orders appealed against – whether Dr Chatoor guilty of unsatisfactory professional conduct – whether protective orders should be made and the nature of those orders Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation National Law (NSW) Amendment (Review) Act 2016 Cases Cited: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Reid [2018] NSWCATOD 162 Health Care Complaints Commission v Schmidt [2016] NSWCATOD 145 Kostas v HIA Insurances Services Pty Ltd (2010) 241 CLR 390 Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 Lee v Health Care Complaints Commission [2012] NSWCA 80 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Texts Cited: College of Cardiology/American Heart Association (ACC/AHA) Guidelines for Implantation of Cardiac Pacemakers and Antiarrhythmic Devices, Executive Summary DC Pearce and RS Geddes, Statutory Interpretation in Australia, (8th ed, 2014) LexisNexis Butterworths The European Society of Cardiology, Vol 1 European Heart Journal, Volume 34, Issue 29, 1 August 2013 Category: Principal judgment Parties: Roger Chatoor (Appellant) Health Care Complaints Commission (Respondent) Representation: Counsel: S Kalfas SC (Appellant) A Petrie (Respondent) Solicitors: Browns legal & Consulting (Appellant) File Number(s): 2018/00260881 Publication restriction: Pursuant to Schedule 5D, cl 7 of the Health Practitioner Regulation National Law, publication of the name of Patient A is prohibited. REASONS FOR DECISION Overview 1. Dr Chatoor was a Senior Staff Specialist in cardiology. A Professional Standards Committee of the Medical Council (the Committee) found that he was guilty of unsatisfactory professional conduct because he had: 1. inserted a permanent pacemaker for Patient A without sufficient clinical indication; (Particular 1A) and 2. approved the transfer of Patient A from Gosford Private Hospital to Dubbo Private Hospital following the insertion of a dual chamber pacemaker in circumstances where there was no definite arrangement for another appropriately qualified specialist to review her before her planned discharge on 17 May 2014 (Particular 2(k)). 1. The Committee found that the facts of Particular 3 of the complaint were not made out. The Committee also found that although other allegations were made out, they did not amount to unsatisfactory professional conduct. Based on those findings, the Committee reprimanded Dr Chatoor and imposed practice conditions on his registration. 2. Dr Chatoor has appealed to the Tribunal from the Committee's adverse findings and orders: Health Practitioner Regulation National Law (NSW) (National Law), s 158. He denies the factual basis for particular 1A – that he inserted a permanent pacemaker for Patient A without sufficient clinical indication. He admits the factual basis for Particular 2(k) but does not admit that his conduct constitutes unsatisfactory professional conduct. He submits that the Tribunal should not make any disciplinary orders. 3. The Health Care Complaints Commission (HCCC) is seeking the same protective orders as the Committee made and its costs of these proceedings. 4. The appeal is an external appeal for the purposes of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The Commission submitted that the subject matter of the complaint was the entire Amended Complaint and that the Tribunal had power to rehear that Complaint. Dr Chatoor criticised the Commission for not amending the Complaint by deleting those particulars that the Committee had rejected. After the hearing, we asked for further submissions on the subject matter and nature of the appeal. 5. The broad issues and our conclusions (in italics) are summarised below: 1. Is the appeal confined to a consideration of the adverse findings made by the Committee, namely that particular 1A and particular 2(k) of the Amended Complaint constitute unsatisfactory professional conduct and that certain consequential orders are appropriate? Yes. 2. What is the nature of the appeal which is described in the legislation as a re-hearing? The nature of the appeal is that it is a hearing de novo based on the evidence before the Committee and the further evidence provided to the Tribunal. 3. Has the HCCC proved the factual basis of Particular 1A (insufficient clinical indication for inserting a permanent pacemaker)? Yes. 4. If so, does that conduct constitute unsatisfactory professional conduct? Yes. 5. Does Particular 2(k) (transfer to Dubbo Private Hospital with no definite arrangement for specialist review) constitute unsatisfactory professional conduct? Yes. 6. What disciplinary orders, if any, are appropriate? A reprimand and certain conditions on registration for two years. 7. What is the appropriate costs order? Our preliminary view is that Dr Chatoor should pay 70% of the HCCC's costs. What is the subject matter of the appeal? The issue 1. The HCCC submitted that the subject matter of the appeal was the entire Amended Complaint, not just the Committee's adverse findings and the exercise of disciplinary powers. Practitioner or HCCC may appeal 1. Section 158(1)(a) and (b) of the National Law provide for the practitioner or the complainant (the HCCC) to appeal against a finding of the Committee and the exercise of a power by the Committee under Subdivision 3 of Division 3: 158 Appeals against decisions of Committee [NSW] (1) If a complaint about a registered health practitioner or student is referred to a Committee, the practitioner or student or the complainant, may appeal against any of the following to the Tribunal— (a) a finding of the Committee; (b) the exercise of a power by the Committee under Subdivision 3 of Division 3; (c) the exercise by the Tribunal List Manager of a power under that Subdivision. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. Consideration 1. In accordance with s 158(1)(a) of the National Law, Dr Chatoor lodged an external appeal. He appealed against the factual finding in Particular 1A, but has admitted the facts alleged in Particular 2(k). He has appealed against the Committee's finding that each of those two matters, separately and together, constitutes unsatisfactory professional conduct. (The Committee's findings are summarised at page 21 of the Committee's decision at paragraph 113). Dr Chatoor also appealed against the exercise of the Committee's power to reprimand him and impose conditions on his registration: National Law, s 158((1)(b). The Committee's decision to reprimand Dr Chatoor and to impose practice conditions set out at paragraphs 128 to 131 of its decision, were based on its adverse findings summarised in paragraph 113. 2. Although it had standing to do so, the HCCC did not appeal against any of the Committee's other findings which were favourable to Dr Chatoor. (Those findings are summarised at paragraph 114 of the Committee's decision.) 3. In support of its argument, the HCCC submitted that the word "finding" in s 158(1) of the National Law should be read together with the s 146A which sets out the powers that a Committee may exercise. If the Committee "finds the subject-matter of a complaint against a relevant health practitioner to have been proved …", it may exercise certain powers. The HCCC's argument is that the word "finding" in s 158(1) must mean the overall finding on the subject matter of the complaint, namely the finding of unsatisfactory professional conduct. According to the HCCC, the word "finding" in s 158(1), does not mean a discrete finding regarding a particular or sub-particular of the complaint. If that were the approach, a health practitioner could artificially confine their appeals and unduly restrict the Tribunal's powers to protect the health and safety of the public. 4. We do not agree with this interpretation of the legislation because it is contrary to the plain meaning of s 158(1). Both Dr Chatoor and the HCCC have standing to appeal against a finding of the Committee and/or the exercise of a power by the Committee. Nothing in the legislative scheme suggests that when a practitioner lodges an external appeal, the Tribunal must re-consider every finding whether favourable or adverse to the practitioner. 5. Contrary to the HCCC's submissions, there is nothing 'artificial' about Dr Chatoor confining the scope of the appeal. The HCCC could have appealed from other findings of the Committee if it considered it necessary to do so to protect the health and safety of the public. 6. The Tribunal heard evidence and submission about the Committee's findings which were not adverse to Dr Chatoor and each party was afforded procedural fairness. But that does not mean that the entire Amended complaint is the subject matter of the appeal. Dr Chatoor appealed against specific findings adverse to him and the Tribunal's orders. Those matters form the subject-matter of the appeal. It follows that the subject matter of the appeal is confined to a consideration of particulars 1A and 2(k) of the Amended Complaint and the consequential orders made by the Committee. Nature of the appeal Re-hearing with fresh evidence 1. Under s 158(2) of the National Law, "[T]he appeal is to be dealt with by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the inquiry, may be given." 2. Section 79 of the NCAT Act deals with the making and determination of external appeals to the Tribunal. The relevant provisions are as follows: "(1) An external appeal may be made to the Tribunal by a person entitled to do so under enabling legislation on such a basis or grounds, or in such circumstances, as may be provided by that legislation. (2) In determining an external appeal , the Tribunal may: (a) in the case of enabling legislation that specifies the orders that may be made by the Tribunal on the appeal—make any of those orders,…" 1. The Tribunal's external appeal jurisdiction is established by s 31 of the NCAT Act which provides in part: "(1) The Tribunal has external appeal jurisdiction over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions). (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its external appeal jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (5) A provision of enabling legislation that provides for a decision of an external decision-maker to be appealed to the Tribunal extends to the following: (a) a decision made by a person to whom the function of making the decision has been delegated… ." 1. The relevant enabling legislation is the National Law. The Committee is an "external decision-maker" within s 4(1) of the NCAT Act. The Tribunal's external appeal jurisdiction includes appeals against decisions made by the Committee's delegates: NCAT Act, s 31(5)(a). 2. Under s 158(3), after dealing with the appeal: The Tribunal may – (a) dismiss the appeal; or (b) make any finding or exercise any power the Tribunal could have made or exercised if the complaint had been originally referred to the Tribunal. Difference in wording between s 158(3) and s 159(3) of the National Law 1. Section 159 of the National Law relates to appeals against actions by a Council, such as the Medical Council. Section 159(3) describes the way the Tribunal is to deal with such an appeal: An appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given. (Emphasis added.) 1. This provision is identical with s 158(3), relating to appeals against actions of a Committee, except that the words "new hearing" are used instead of "rehearing." Is this difference in wording significant? 2. Section 158(2) and (3) are in identical terms to s 87(4) and (5) of the Medical Practice Act 1992 (NSW), the now repealed predecessor to the National Law in New South Wales. Section 159(3) of the National Law was inserted in 2016: Health Practitioner Regulation National Law (NSW) Amendment (Review) Act, 2016. None of the extrinsic materials provide any relevant explanation for the difference in wording. Pearce and Geddes make the point that, [T]here is a presumption that where a legislature could have used the same word, but used a different word, the intention was to change the meaning.': DC Pearce and RS Geddes, Statutory Interpretation in Australia, (8th ed, 2014) LexisNexis Butterworths at 151 and 152. The authors go on to set out the many exceptions and qualifications to this presumption. Given that there is no issue as to the meaning of "new hearing" in s 159(3) in these proceedings, there is no need for us to finally determine the meaning of that provision. It is sufficient for us to record that, in our view, the meaning of the word "rehearing" in s 158(2) is not altered by the adoption of different terminology in the more recently amended s 159(3). Meaning of "rehearing" 1. A re-hearing ordinarily has two features. First, the appellate body is restricted to the transcript of the evidence given below, although it may hear additional evidence: Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 per Basten J at [41]. In this case, s 158(2) expressly states that "fresh evidence, or evidence in addition to or in substitution for the evidence received at the inquiry, may be given." (Emphasis added.) Secondly, the appellant must demonstrate "that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error": Kostas v HIA Insurances Services Pty Ltd (2010) 241 CLR 390 at 400 per French CJ quoting Allesch v Maunz (2000) 203 CLR 172 at 180 at [23]. In an appeal by way of hearing de novo, the appellate body is required to exercise its powers regardless of whether there was an error at first instance. 2. Dr Chatoor submitted that a rehearing under s 158(2) is not confined to identifying some legal, factual or discretionary error. We agree with the submission that it is conceptually impossible for the decision the subject of appeal to be reviewed for error when the very evidence upon which that decision is based can be substituted by other evidence. It follows that the appeal under s 158(2) must be in the nature of a hearing de novo. (A "new hearing" is the same as a "hearing de novo".) The Tribunal expressly characterised an appeal under s 158 of the National law in that way in Health Care Complaints Commission v Schmidt [2016] NSWCATOD 145 at [4]. 3. The Tribunal was given the evidence that was before the Committee. Neither party tendered fresh evidence. The HCCC required Dr Chatoor to attend for cross-examination and the Tribunal asked questions of some of the expert witnesses. The Tribunal must determine the appeal on the basis of the totality of that evidence. 4. The standard of proof required to prove the disputed particulars of the Amended Complaint is the civil standard of proof, that is, on the balance of probabilities. However, given the seriousness of the allegations and the gravity of the consequences, the Tribunal must be "reasonably satisfied" that the disputed particulars of the Amended Complaint have been established: Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J at 362 to 363. Brief chronology of events 1. On 9 May 2014, Patient A, who was 92 years old at the time, was admitted to Dubbo Base Hospital from a high dependency aged care facility. She presented with tiredness, left shoulder pain, confusion and decreased mobility. Over the previous two days, the nursing home staff had noted that Patient A had a slow pulse rate of around 60 beats per minute (bradycardia). On the night of 9 May 2014, Patient A continued to be bradycardic. 2. On 10 May 2014, an X-ray of Patient A's shoulder revealed that she had an anterior inferior space glenohumeral dislocation. She also had elevated troponin levels. The levels of troponins in the blood help detect heart injury. 3. On 13 May 2014, following a request from Dr Chatoor for cardiac review, Patient A was transferred to Dubbo Private Hospital. Patient A remained under Dr Chatoor's care for ongoing management and review, follow up of her shoulder dislocation and consideration of the insertion of a pacemaker. 4. On 14 May 2014, Patient A was transferred to Gosford Private Hospital under Dr Chatoor's care for implantation of a dual chamber pacemaker. On 15 May 2014, Dr Chatoor inserted a pacemaker in Patient A. On 16 May 2014, a chest X-ray and check of the pacemaker function were both satisfactory and Patient A was transferred to Dubbo Private Hospital. Dr Chatoor admits he did not make a definite arrangement for another appropriately qualified specialist to review Patient A before her planned discharge on 17 May 2014. She was discharged without review. Patient A died on 20 May 2014, five days after the implantation, but the complaint does not relate to her death. Is Particular 1A proved? Overview 1. Particular 1A is that: "On 15 May 2014 the Practitioner inserted a permanent pacemaker for Patient A at Gosford Private Hospital without sufficient clinical indication in circumstances where: 1. the ECGs and tracings were not consistent with complete heart block; 2. the ECGs and tracings showed Second Degree Type I AV block; 3. Second Degree Type I AV block is not in itself an indication for permanent pacing; 4. there was no history given of syncope, presyncope or falls; 5. Patient A was taking Vasocardol (Cardizem) 180mg daily, a potential reversible cause for bradycardia; 6. the Practitioner failed to trial the withdrawal of Vasocardol (Cardizem) 180mg daily prior to undertaking the pacemaker insertion; 7. Patient A was 92 years old; and 8. Patient A was more susceptible to procedural complications and adverse outcomes due to her age." 1. Dr Chatoor admits that he inserted a permanent pacemaker in Patient A at Gosford Private Hospital but denies that there was insufficient clinical indication for that procedure. In answer to the whole of Particular 1A, Dr Chatoor says that, in the circumstances of Patient A's presentation, the decision as to whether or not to proceed to insert a pacemaker was a matter of professional judgment. What did the ECG and tracings show? - Particulars 1A(a) and (b) 1. Broadly speaking, there are four kinds of heart block: First degree AV (Atrioventricular) block, Second degree AV block (which is further divided into Mobitz type I (Wenckebach) and Mobitz type II second degree AV block) and third degree (complete AV) block. We will refer to these conditions as First degree AV block, Second degree type I AV block, Second degree type II AV block and complete heart block. 2. In the Dubbo Private Hospital medical records, the Gosford Private Hospital operation report and Dr Chatoor's letter to Patient A's GP, Dr Tadros after the surgery, Dr Chatoor recorded that Patient A had intermittent episodes of complete heart block. In his statement to the Coroner of 7 January 2015, Dr Chatoor wrote that his understanding was that Patient A had been admitted to hospital "with increasing confusion and decreased mobility over 2 weeks and heart rates of down to 32 bpm with intermittent Mobitz II block. (Second degree type II AV block.) Her ECGs demonstrated varying degrees of heart block." (Words in brackets added.) 3. In his letter of 7 April 2014, Dr Chatoor denied that complete heart block was the reason he inserted a pacemaker. Dr Chatoor believes that he saw an ECG strip that demonstrated complete heart block but now acknowledges that there was no such evidence. At the Tribunal hearing, Dr Chatoor agreed that all the traces, including the ECG, demonstrated Second degree type I AV block, not complete heart block or Second degree type II AV block. Consequently, two of the three diagnoses he made were incorrect. It follows that Particulars 1A(a) and (b) are proved. The ECGs and tracings were not consistent with complete heart block. They showed Second Degree type I AV block. 4. Particulars 1A(c) – (f) deal with the issues of whether, if Patient A was not "symptomatic" or had a reversible cause for bradycardia, such as taking the drug diltiazem, pacing was clinically indicated. Compliance with guidelines 1. One measure by which a practitioner's conduct can be assessed is whether it complies with relevant guidelines. Two guidelines were relied on in this case: the American guidelines and the European guidelines. 2. The American guidelines (College of Cardiology/American Heart Association (ACC/AHA) Guidelines for Implantation of Cardiac Pacemakers and Antiarrhythmic Devices, Executive Summary at 1326) state, in summary, that pacing is not indicated for Second degree type I AV block: Type I second degree AV block is unlikely to progress to advanced AV block when the delay is within the AV node. Consequently, pacing is not usually indicated in this situation. 1. According to the American guidelines, pacing is not useful or effective and could be harmful if the patient is asymptomatic or the cause of the AV block is reversible. At 1327, the American guidelines classify the following indications as Class III (conditions for which there is evidence and/or general agreement that a pacing is not useful/effective and in some cases may be harmful): Asymptomatic type I second-degree AV block at the supra-His (AV node) level or not known to be intra- or infra- Hisian. (Level of Evidence: B, C) AV block expected to resolve and unlikely to recur (eg, drug toxicity, Lyme disease) (Level of evidence: B) 1. The ranking levels - A, B and C - are explained in the American guidelines at p 1325: Evidence supporting the current recommendations is ranked as level A if the data were derived from multiple randomized clinical trials involving a large number of individuals. Evidence was ranked as level B when data were derived from a limited number of trials involving comparatively small numbers of patients or from well-designed data analysis of nonrandomised studies or observational data registries. Evidence is ranked as level C when consensus of expert opinion was the primary source of recommendation. 1. Under heading 2.1, "Pacing for Bradycardia due to Sinus and Atrioventricular node Dysfunction", the American guidelines state that: In some patients, bradycardia is the consequence of essential long-term drug therapy of a type and dose for which there is no acceptable alternative. In these patients, pacing therapy is necessary to allow maintenance of ongoing medical treatment. 1. One of the expert witnesses, Dr O'Donnell, relied on this quote in his report of 6 June 2018 to conclude that Dr Chatoor acted within the guidelines. We refer to that opinion in more detail below. 2. In his statement Dr Chatoor referred to the following passage at p 1326 under the heading "Indications for Permanent Pacing in Acquired Atrioventricular Blocks in Adults": Arrhythmias and other medical conditions that require drugs that result in symptomatic bradycardia. (level of evidence: C) 1. This is a classified as a Class I indication, meaning that there is evidence and/or general agreement that a given procedure or treatment is beneficial, useful and effective. However, the recommendation applies to complete heart block (third-degree AV block), not to Second degree, type I AV block. Consequently, it is not relevant to Patient A. 2. The European Society of Cardiology Vol 1 European Heart Journal, Volume 34, Issue 29, 1 August 2013, pages 2281–2329 at 2288) state that: 6) Acquired AV block. Pacing is not indicated in patients with AV block which is due to reversible causes. Class III 1. As with the American guidelines, a Class III recommendation is "Evidence or general agreement that the given treatment or procedure is not useful/effective, and in some cases may be harmful." 2. At p 2288 the European guidelines describe the decision to pace for Second degree type I AV block, when there are no symptoms, as "controversial": In second-degree type I AV block, the indication for permanent pacing is controversial, unless AV block causes symptoms or the conduction delay occurs at intra- or infra-His levels.w31–w36 The cause–effect relationship with symptoms is sometimes difficult to determine, especially when symptoms are non-specific and subtle. Evidence and findings on whether Patient A was "symptomatic" - Particulars 1A(c) – (d) 1. As to (c) and (d) of Particular 1A, Dr Chatoor admits that Patient A's presentation was as a patient with Second degree type I AV block. In his view, if Patient A was symptomatic that is sufficient clinical indication to insert a permanent pacemaker. 2. In his letter of 7 April 2017 Dr Chatoor says that his decision to pace "was based on the fact that (Patient A) presented with a symptomatic bradycardia (symptoms of hypoperfusion – fatigue, declining functional state and mobility, increasing confusion and at least one fall as evidenced by the presence of a fractured and impacted shoulder). 3. In his evidence to the Committee in July 2018, Dr Chatoor said that "…the history to me, which I took at the bedside, was one of a fall and being found on the floor on the day she came in." He said that information was "in her daughter's sworn submission and it is what the juniors told me and it is what I recalled being told. It is one of deterioration over two weeks and that deterioration was thought to be more acute deterioration and it was in the context of someone with culpable bradyarrhythmias." (bradycardia) 4. At the hearing, Dr Chatoor repeated this view saying the history he was given was that Patient A's functional state had deteriorated, that she was more confused and less mobile. He thought that she had dislocated her shoulder after falling over. He concluded at that time that she was "symptomatic". 5. In a statement dated 6 November 2014, nearly six months after the procedure, Patient A's daughter said that a representative from the aged care facility where her mother was living had told her brother that her mother had been found on the floor and had been transported to hospital. The ambulance notes refer to elevated troponin (a possible indication that she may have had a heart attack) but there is no reference to her having fallen over. Dr Chatoor's own handwritten notes on 13 May 2014 in Dubbo Private Hospital record that the shoulder injury is due to a chronically dislocated left shoulder. There is no reference to a fall. Dr Chatoor acknowledges that the hospital clinical notes expressly state that there had been "No recent falls". 6. Dr Singarayar is a Cardiac Electrophysiologist and Staff Specialist Cardiologist who provided a report at the request of the HCCC. In Dr Singarayar's view, "symptomatic bradycardia" in the American guidelines means syncopal or truly pre-syncopal. These terms refer to faints or near faints with subsequent injury. Dr Singarayar wrote in his report of 20 May 2017, that symptomatic bradycardia is a plausible reason for pacing but in his view that diagnosis is not supported by the contemporaneous notes. Dr Singarayar pointed out that in Dr Chatoor's own notes he did not attribute Patient A's shoulder injury to a fall and that the X-ray showed a dislocation, not a fracture. Based on Dr Chatoor's letter to Patient A's GP, Dr Tadros, after the surgery and the admission consult notes, Dr Singarayar concluded that the recorded symptoms "are not of cerebral hypoperfusion and would imply that her symptoms predated the noted change in pulse rate." 7. Dr O'Donnell is a cardiologist and interventional electrophysiologist who prepared a report at the request of Dr Chatoor. His opinion was that Patient A's ("tiredness, confusion and decreased mobility") could be attributed to cardiac conduction abnormalities. He also noted that Patient A's dislocated left shoulder might have been the result of a fall. The Tribunal questioned Dr O'Donnell as to the meaning of "symptomatic bradycardia" in the American guidelines and how definitive the symptoms needed to be. In his view, symptoms are very rarely clear-cut and tiredness, lethargy and confusion can constitute symptoms. However, he accepted that there might have been other explanations for Patient A's vagueness and lethargy. 8. Dr Barnaby, a consultant cardiologist from 2005 to 2016, prepared a report at the request of Dr Chatoor. In his view, the word "symptomatic" in the guidelines means that the symptoms have to be typical of the disease. General complaints of having a fall or being vague are not indications of the relevant symptoms. 9. Dr Hendel, a consultant cardiothoracic surgeon, prepared an expert report for the Coroner. His evidence to the Committee was that there was a case to be made for putting a single chamber pacemaker to stop Patient A from falling over. When asked about the evidence that Patient A had fallen over, Dr Hendel said that he assumed Patient A had fallen over some time in the two weeks before admission and had dislocated her shoulder. In those circumstances, there was a risk that she could suddenly go into complete heart block and experience a syncopal episode (fainting) associated with bradycardia. However, he agreed it was a "non-urgent" situation. He also said that he has been asked to insert pacemakers in similar situations. 10. We have not given significant weight to Dr Hendel's evidence for three reasons. First, his opinion is based, at least to some extent, on an assumption that is not directly supported by the evidence, that Patient A's dislocated her shoulder when she fainted and fell over. Secondly, in the absence of any evidence about the similar cases where Dr Hendel had been asked to insert pacemakers, we give that evidence little weight. Thirdly, Dr Hendel acknowledged that he is more often inserting pacemakers, rather than making decisions about whether a pacemaker should be inserted. His level of experience and expertise is not the same as a cardiologist who routinely makes those decisions. 11. Professor Jelinek is a consultant cardiologist who prepared several reports at the request of the HCCC. He did not write a report about the appropriateness of pacing because that was not part of the complaint at that stage, but he did give evidence on that point at the Committee hearing. In their written reasons for decision at page 23, the Committee said that Professor Jelinek agreed that there was an absence of evidence that Patient A was symptomatic. 12. In summary, Dr Barnaby, Dr Singarayar and Professor Jelinek agreed that there was an absence of evidence that Patient A was symptomatic. Dr O'Donnell's opinion was that Patient A did have general symptoms of tiredness, confusion and decreased mobility and that those symptoms could be attributed to cardiac conduction abnormalities. In our view, Patient A's vague symptoms could have been caused by conditions other than bradycardia such as her age, dementia and lack of mobility. They may also have been due to the fact that she was taking diltiazem, a possibility that we will address later in these reasons. 13. Even if Dr Chatoor had been informed that Patient A had fallen over, there was no reason to attribute a single fall to bradycardia. We agree with the experts, except Dr O'Donnell, that the evidence supports a finding that there was no history of syncope, presyncope or falls. Particular 1A(d) is proved. It follows that Patient A did not present with "symptomatic bradycardia". 14. Particular 1A(c) is that Second Degree Type I AV block is not in itself an indication for permanent pacing. We have found that Patient A's symptoms could not be attributed to bradycardia. In other words, she was asymptomatic. In his report of 6 June 2018, Dr O'Donnell expressed the view that most Australians follow the American guidelines which do not recommend pacemaker implantation for second-degree Type I AV block in asymptomatic patients. Dr O'Donnell highlighted the fact that the European guidelines are less definitive stating, in effect, that pacing is "controversial" in asymptomatic patients. Dr O'Donnell did not point to any medical literature or other evidence that supported the view that pacing may be appropriate even in asymptomatic patients, and none of the other experts agreed with his view. 15. Despite the use of the word "controversial" in the European guidelines, asymptomatic Second Degree Type I AV block is not, itself, an indication for permanent pacing. Particular 1A(c) is proved. Evidence and findings on whether diltiazem is a reversible cause for bradycardia and whether Dr Chatoor should have trailed its withdrawal – Particulars 1A(e) and (f) 1. As to (e) of Particular 1A, Dr Chatoor admits that Patient A was taking diltiazem (brand names include Vasocardol and Cardizem) but does not admit that that drug is a potentially reversible cause for bradycardia. As to (f) of Particular 1A, Dr Chatoor says that says Patient A ceased diltiazem on 9 May 2014. 2. Diltiazem is a calcium channel blocker which lowers a person's heart rate and is used to treat high blood pressure and chest pain. It is sometimes referred to as a rate limiting medication. We accept Dr O'Donnell's evidence that "[M]any patients with cardiac problems or cardiac risk factors are on medications including Beta blockers and calcium channel blockers" and that "one of the common side effects of these medications is slowing of cardiac electrical conduction." 3. In his statement to the Coroner of 7 January 2015, Dr Chatoor stated that: On 14 May 2014 at 0400, there was a MET call for heart rate of 34 bpm. Later that day after having been off her diltiazem for 4 days, (Patient A) developed slow VT (ventricle tachycardia) with rates of between 100 and 120 bpm which were documented on telemetry. Following the withdrawal of diltiazem Patient A developed a brady-dependent tachyarrhythmia postoperative atrial fibrillation. This would have made it unsafe to restart rate limiting or antiarrhythmic drug therapy (which remained indicated) without pacemaker implantation. (Words in brackets added.) 1. In September 2015, Dr Chatoor wrote that: Her bradycardias were largely the consequence of diltiazem which had been stopped on 9 May. On the day of the transfer she been off the drug for 5 days and her bradycardias had effectively resolved. 1. Dr Chatoor provided a statement dated 26 July 2016 to the Committee, he gave the following justification for inserting a pacemaker: Although Patient A's bradycardias had improved upon transfer to Dubbo Private Hospital, she remained at risk of tachyarrhythmias and device implantation needed to be undertaken within days. 1. In his 7 April 2017 statement, Dr Chatoor wrote that: Although bradycardias which resolve after cessation of rate-limiting medication can be managed conservatively, my decision to pace was based on evidence in the literature that drug induced AV block is a serious disease which requires permanent pacing in almost half of patients, that AV block is commonly related to drugs but is rarely caused by drugs and survival is significantly better in paced than for unpaced patients, especially for those over the age of 45. 1. We understand that the evidence in the literature is a reference to two articles footnoted in Dr O'Donnell's report. We discuss that issue when addressing Dr O'Donnell's report. 2. Dr Chatoor added that the rise in Patient A's troponin levels was an indication that she had significant coronary disease and that was another clinical indication for rate controlling medication. 3. Dr Chatoor said that his intention was to assess Patient A two weeks after implanting the pacemaker. Depending on the prevalence of tachycardia, he would then decide whether to prescribe any drugs. However, Dr Chatoor's letter to Patient A's GP, Dr Tadros, after the procedure does not mention the reintroduction of Cardizem. On discharge from Gosford Private Hospital and from Dubbo Private Hospital, Cardizem had not been reintroduced. 4. The clinical notes show that on 13 May 2014, Patient A had a heart rate of 100 at 5 pm and 98 at 6.20 pm. The Tribunal asked Dr Chatoor whether those readings suggest that the bradycardia had resolved with the cessation of diltiazem in which case Patient A should have been managed conservatively. Dr Chatoor responded by saying that a pacemaker was warranted even with the cessation of the medication. Furthermore, the documented tachycardia on 13 May 2014, if it was sinus tachycardia, would not justify rate-limiting medication. (Sinus tachycardia is elevated heart rate due to exercise or a physiological response to stress, trauma or illness). 5. We note that Dr Chatoor did not think at the time that diltiazem was the cause of the bradycardia. We agree with Dr Singarayar, that the readings on 13 May 2014 could not have been a reason for inserting a pacemaker, as Dr Chatoor did not see them until after he had made that decision. 6. At the hearing, the Tribunal questioned Dr Chatoor as to whether he allowed sufficient time following the withdrawal of diltiazem to determine whether there was some recovery of the conduction of Patient A's heart. Dr Chatoor said he did not know why Patient A was on diltiazem and there is no reference in the notes as to the reason she was taking that medication. 7. Diltiazem had been reduced in the aged care facility and stopped when Patient A was admitted to hospital on 9 May 2014. According to Dr Chatoor, five half-lives would have been observed in that time and that was a sufficient period. Dr Chatoor said that the half-life of diltiazem was between 4-6 hours. He agreed that it might be longer in elderly patients. In our view, even if the half-life of diltiazem is slightly longer than 4-6 hours, four or five days would have been sufficient time for the effects of that drug to be minimal. 8. In his report of 20 May 2017, Dr Singarayar was of the opinion that neither the American nor the European guidelines, support pacemaker implantation for Second degree type I AV block (which he refers to as Mobitz type I AV block) with a reversible cause. That is the case unless the cause was likely to recur and to result in symptoms. Dr Singarayar also expressed the opinion in the same report, that Dr Chatoor's argument that pacemaker implantation was warranted because "rate limiting medication could only be re-introduced safely after permanent pacing" was not supported by the contemporaneous notes. There was no record of the reason Patient A was on diltiazem. Dr Chatoor's letter to Dr Tadros of 15 May 2014 does not mention reintroducing that drug and the drug was not re-introduced. 9. Dr Singarayar also said that Patient A's heart rate in the two weeks before admission are in the 70's and 80's bpm range which is not consistent for bradycardia. In Dr Singarayar's view, the conclusion of brady-related arrhythmia would be highly unlikely as this would suggest very particular circumstances such as long QT syndrome and additionally would not support Cardizem as a treatment of choice for such an arrhythmia. 10. At the Committee hearing, Dr Singarayar summarised the situation as he saw it, in the following way: So I think what we saw during the admission was the gradual increase in heart profile with increase in other aspects of the effect of Cardizem, sinus bradycardia and the degree of second degree type I AV block. So there was a higher level of conduction seen through that. Then I think also what we saw was the ability to conduct a faster sinus rate later in the admission. I think put together what that means is that the effect of Vasocardol or Cardizem was dissipating and I think therefore the value judgment in significant bradycardia resulting in prospective symptoms was dissipated. … I think in my mind the rates already achieved in terms of conduction across the AV node and the decrease in AV block was enough to suggest that she didn't need a pacemaker at this stage where a pacemaker was contemplated. 1. Dr Singarayar admitted that these opinions were value judgments but insertion of a pacemaker was not in the best interests of Patient A. 2. Dr Barnaby's evidence was that in this situation, he would have been inclined to get the opinion of a cardiac electrophysiologist like Dr Singarayar or Dr O'Donnell. In Dr Hendel's report of 10 December 2015, he said that, "a good case could be made for implanting a pacemaker" in circumstances where Patient A "had been taken off her calcium channel blocker some days before and remained in variable heart block even after sufficient time had passed for the effect to have worn off." 3. Dr O'Donnell told the Committee that he would not monitor a patient for an extended period. In the public hospital where he works, decisions are made within 24-48 hours with the patient either being discharged or a decision made to insert a pacemaker. He thought four days was plenty of time to make the decision. But he agreed that if he had been looking after Patient A and she had significantly improved within 48 hours from being taken off diltiazem, he would not have inserted a pacemaker assuming she was asymptomatic. 4. In Dr O'Donnell's report of 6 June 2018, he concluded that Dr Chatoor had acted within the American guidelines and in keeping with the contemporary published scientific evidence because "many patients with medication related abnormalities of cardiac conduction will require a pacemaker even if the potentially problematic medications are ceased." The contemporary guidelines to which Dr O'Donnell was referring is the passage under heading 2.1, "Pacing for Bradycardia due to Sinus and Atrioventricular node Dysfunction", in the American guidelines: In some patients, bradycardia is the consequence of essential long-term drug therapy of a type and dose for which there is no acceptable alternative. In these patients, pacing therapy is necessary to allow maintenance of ongoing medical treatment. 1. Dr O'Donnell refers to two papers where the rate of AV block that persisted or recurred after cessation of medications was well above 50%. (Osmonov D, Erdinler I, Ozcan KS et al PACE 2012;35:804-810 and Zeltser D, Justo D, Halkin A et al JACC 2004;44:105-8.) 2. We acknowledge that a significant proportion of patients have a recurrence of AV block despite cessation of these drugs. But that does not mean that inserting permanent pacemakers is appropriate for this group of patients. All the experts agreed that diltiazem is a potential reversible cause for Patient A's bradycardia. Even though Patient A had slow rhythms, her symptoms could have been multifactorial or from other causes. Furthermore, after withdrawal of diltiazem, her heart rate and rhythm disturbances had substantially improved. Dr Chatoor did not give enough attention to the possibility that diltiazem was a reversible cause contributing to her symptoms. Rather than insert a pacemaker, he should have contemplated a conservative strategy and discussed this with the patient and her family. 3. Based on all the evidence, we find that diltiazem 180mg daily was a potentially reversible cause for Patient A's bradycardia. Dr Chatoor did not sufficiently consider this as a possibility. Dr Chatoor failed to trial the withdrawal of diltiazem prior to undertaking the pacemaker insertion. Particulars 1A(e) and (f) are proved. Evidence and findings on whether Patient A was more susceptible to procedural complications and adverse outcomes due to her age -- Particulars 1A(g) and (h) 1. Patient A was 92 years old. Dr Chatoor said that her age was not a contraindication for the insertion of a pacemaker. In relation to Patient A's age, Dr Singarayar expressed the view that clinical judgement needs to reflect the need to avoid harmful intervention particularly in a group much more susceptible to procedural complications and adverse outcomes. The experts agreed that age and susceptibility to complications would not exclude pacing. Dr Hendel thought that those factors could indicate that a more conservative approach was warranted. 2. In spite of the higher complication rate, the decision to insert a pacemaker in this age group requires careful balancing of the risks compared with benefits. In an appropriate patient, who has undergone informed consent, age per se is not a contraindication to permanent pacemaker insertion. We agree with the experts, except Dr Hendel, that the fact that Patient A was 92 years old and that she was more susceptible to procedural complications, were not, in themselves, clinical indications against inserting a pacemaker. Particulars 1A(g) and (h) are proved but have no significance. Does Particular 1A constitute unsatisfactory professional conduct? Definition of unsatisfactory professional conduct 1. Unsatisfactory professional conduct is defined in s 139B(1)(a) of the National Law: (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 1. Dr Chatoor does not admit that he is guilty of unsatisfactory professional conduct. Dr Chatoor's training and experience 1. Dr Chatoor is 54 years of age. At the time of the procedure involving Patient A, he was a consultant cardiologist. In 1990, he graduated from the University of the West Indies with a Bachelor of Medicine/Bachelor of Surgery. From 1992 to 2009, he held various registrar, then consultancy positions in the United Kingdom. During his time in the UK, he said he did a lot of device implantation work. In 2004, Dr Chatoor spent six months working in Canada. In May 2009, he was registered as a Medical Practitioner in Australia. 2. From May 2009 to June 2010, Dr Chatoor worked at the Cairns Private Hospital as a General and Interventional Cardiologist. In March 2011, he commenced work at Dubbo Base Hospital as a Senior Staff Specialist in Cardiology. He conducted outpatient clinics and managed inpatients, as well as conducting procedures such as transoesophageal echocardiography and cardioversion. 3. In 2012, Dr Chatoor became a Fellow of the Royal Australasian College of Physicians. In May 2014, he was a Senior Staff Specialist in Cardiology at Dubbo Base Hospital and a Consultant Cardiologist at Dubbo Private Hospital. He was also accredited at Gosford Private Hospital as a Cardiologist, including being accredited to perform interventional procedures. 4. Dr Chatoor had considerable experience in implanting pacemakers. His conduct is to be assessed on the basis of a practitioner of an equivalent level of training or experience. Expert opinions 1. All the experts agreed that they would not have inserted a pacemaker in Patient A based on her clinical presentation at the time. Dr Singarayar was critical of Dr Chatoor's decision and viewed his conduct as being significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 2. It was Dr Barnaby's view that unless he had seen complete heart block on one of the tracers, he would not have inserted a permanent pacemaker. Dr Hendel thought that a case could be made for pacing, but this was not an urgent procedure. Professor Jelinek would not have inserted a pacemaker in Patient A. He considered the decision "dubious" but "possibly one could justify it". 3. Dr O'Donnell's view was that it was not below that standard. None of the other experts agreed with Dr O'Donnell's view that even if Patient A was asymptomatic, the decision to pace was within the standard reasonably expected of a practitioner of an equivalent level of training or experience. 4. Dr Chatoor relied most heavily on Dr O'Donnell's evidence. He is currently a cardiologist and interventional electrophysiologist at The Valley Private Hospital and has 17 years' experience in similar roles. In oral evidence before the Committee, Dr O'Donnell said that he would not have put a pacemaker in Patient A but he did not think it was unsatisfactory professional conduct to do so. As an electrophysiologist, patients with a deteriorating clinical state and AV block are referred to him every week. On many occasions he will opt to wait and see what happens but in some cases, they will return after a fall. Dr O'Donnell's general conclusion was that if a patient is symptomatic, pacing is indicated. However, if "there's a deterioration in clinical status related to higher grades of AV block, then it's controversial to pace." 5. Dr O'Donnell also expressed the view that Dr Chatoor acted within the guidelines and the scientific evidence because many patients with medication related abnormalities will require a pacemaker even if the problematic medications are ceased. We noted this opinion but do not see any direct support for it in the guidelines or contemporary practice. 6. For the reasons we gave above, Dr O'Donnell has overstated the position when he says that Dr Chatoor acted within the contemporary guidelines. The American guidelines are clear that there is level B and C evidence that on Patient A's presentation, pacing is not useful/effective and in some cases may be harmful. The European guidelines describe the decision to pace when there are no symptoms as "controversial." 7. Inserting a pacemaker in Patient A fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Particular 2 – transfer from Gosford to Dubbo 1. Particular 2(k) is that: "On 16 May 2014 the Practitioner approved the transfer of Patient A from Gosford Private Hospital to Dubbo Private Hospital under his care, following the insertion of a dual chamber pacemaker ("the procedure"), in circumstances where: (k) there was no definite arrangement for another appropriately qualified specialist to review her before her planned discharge on 17 May 2014; 1. In his reply, Dr Chatoor admitted this particular in writing: National Law, s 149(b). He had operated on Patient A and other patients at Gosford Private Hospital on Thursday 15 May 2014. Dr Chatoor stated that he approved the transfer of Patient A from Gosford Private Hospital to Dubbo Private Hospital on 16 May 2014, the day after the procedure. He says he approved the transfer because he understood that Dr McClintock would be available to review Patient A at Dubbo Private Hospital. He now says that he made a definite arrangement with Dr McClintock to review two other patients but that he did not mention to Dr McClintock that three patients, including Patient A, were also returning to Dubbo Private Hospital from Gosford. Dr Chatoor said he assumed that if Dr McClintock was attending Dubbo Private Hospital on the Friday and Sunday, he would be able to review Patient A. Later that day, Dr Chatoor flew to Athens. 2. Dr Chatoor says he had a face-to-face discussion with Dr McClintock earlier in the week about discharging patients. Dr Chatoor says that he asked Dr McClintock to review two other patients at Dubbo Private Hospital on Friday 16 May and on Sunday 18 May 2014. In a statement dated 27 March 2015, Dr McClintock stated that Dr Chatoor telephoned him on the morning of Thursday 15 May 2014 to enquire if he was available to review patients at Dubbo Private Hospital. He does not mention any face-to-face conversation earlier in the week. Dr McClintock said that he told Dr Chatoor on the phone that he was only available early on the Friday morning and on Sunday evening because of other commitments. He reviewed two of Dr Chatoor's patients on Friday morning, 16 May 2014. 3. After he had left Australia, Dubbo Private Hospital contacted Dr Chatoor about the arrangements for discharging Patient A. At 1.49 pm on Thursday, 15 May 2015 Dr Chatoor emailed Dr McClintock, Dr Yamba and the manager of Dubbo Private Hospital advising that he had three patients, including Patient A, coming back from Gosford 'today'. The email said that they "just need a quick once over prior to their discharge tomorrow". Dr Chatoor added that he was happy for Dr Yamba to see them if Dr McClintock was not able to do so. 4. Dr McClintock emailed back that evening at 10.59 pm writing, in part, that: As I explained quite clearly to you over the phone: I was on annual leave on Thursday and not available in Dubbo from Friday afternoon until Sunday afternoon. This would therefore make it difficult (if not impossible) to assist to cover your patients during your undefined length of absence. I agreed under some persuasion from yourself to see 2 patients on your behalf early on Friday morning which I have done. Beyond this I certainly would not 'clerk-in' patients for you from North Gosford on a Friday evening. 1. Dr Chatoor stated that had he been aware at the time of his original conversation with Dr McClintock that his availability was restricted, he would have sought to make alternative arrangements with another doctor. 2. We do not need to make a finding as to whether Dr Chatoor had a face-to-face conversation with Dr McClintock earlier in the week. Dr Chatoor admits that he did not make a definite arrangement for anyone to review Patient A. Rather, he assumed that if he was attending Dubbo Private Hospital to review two other two patients, Dr McClintock would be willing and able to review Patient A. Dr Chatoor now accepts that he did not make it clear to Dr McClintock that that was his expectation. 3. Dr Chatoor then attempted to arrange for another doctor, Dr Beinart, to review his patients on the morning of Saturday 17 May 2014. On 17 May 2014, Patient A was discharged from Dubbo Private Hospital without any medical review. Dr Chatoor acknowledged that it was not appropriate for Patient A to leave hospital without being seen. 4. Dr Chatoor also acknowledged that Patient A was a relatively complex patient because of her age and co-morbidities. However, she was returning to an aged care facility and he did not anticipate any need for complex post-operative care. Does this conduct constitute unsatisfactory professional conduct? 1. Dr Chatoor denies that the transfer of Patient A from Gosford Private Hospital to Dubbo Private Hospital in the circumstances amounts to unsatisfactory professional conduct. He relies on the opinions of Drs Hendel, Barnaby and O'Donnell. 2. Professor Jelinek was highly critical of the transfer back to Dubbo Private Hospital without a written arrangement for another cardiologist to review Patient A. He described that conduct as "unconscionable" and "appalling". His criticism was based on the fact that the cardiac intervention had been performed the previous day and that the "normal procedure demands a review by an appropriately qualified medical practitioner after the procedure." 3. Dr Barnaby was "mildly to moderately" critical of Dr Chatoor's conduct. He said he was unsure whether Dr McClintock or Dr Chatoor is to blame for the failure in communication. Dr Chatoor now admits that the fault was his. Dr Hendel described the conduct as "bad" and below the standard that one would expect. Dr Singarayar was of the view that normal procedural care requires review by the appropriately qualified medical practitioner after the procedure. 4. Dr Chatoor agrees that the failure to make arrangements was less than ideal but that his conduct should be viewed in the context of the arrangements he sought to make and his misunderstanding about Dr McClintock's availability. 5. Apart from Dr Barnaby, who was unsure whether Dr Chatoor or Dr McClintock was at fault, all the expert witnesses agreed that this conduct falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Dr Chatoor made no definite arrangement with Dr McClintock for him to discharge Patient A. Dr Chatoor characterised his conduct as him wrongly assuming that Dr McClintock would be available. He now agrees that there was no basis for his assumption. The seriousness of the breach in standards is not mitigated by the fact that Patient A was returning to an aged care facility or that Dr Chatoor did not anticipate any need for complex post-operative care. 6. Dr Chatoor is a cardiologist with considerable training and experience. Approving the transfer of Patient A from Gosford Private Hospital to Dubbo Private Hospital when there was no definite arrangement for another appropriately qualified specialist to review her before her planned discharge, constitutes unsatisfactory professional conduct. Protective orders Powers on appeal 1. The Tribunal's powers on appeal are listed in s 158(3) of the National Law: (3) The Tribunal may-- (a) dismiss the appeal; or (b) make any finding or exercise any power the Tribunal could have made or exercised if the complaint had been originally referred to the Tribunal. 1. We have found that Particular 1A and particular 2(k) constitute unsatisfactory professional conduct. In those circumstances, we may make certain orders including cautioning or reprimanding Dr Chatoor and imposing conditions on his registration: National Law, s 149A(1). Our role is to determine, as at the date of the Tribunal hearing, the protective orders, if any, that should be imposed. In doing so, we should take into account that the Committee imposed conditions on Dr Chatoor's registration which have been in place for about 8 months. 2. The Committee found Particulars 1A and 2(k) proved and exercised its powers under s 146B of the National Law to reprimand Dr Chatoor. Because the Committee regarded Dr Chatoor's failings to be a lack of judgment rather than skills, they did not require him to attend an educational course. Rather, the Committee imposed conditions requiring a second opinion before performing a coronary or device operation and a Category C supervision condition. The Committee noted that these conditions should only remain in place as long as it is considered necessary to protect the public. 3. The conditions imposed by the Committee on 30 July 2018 related to obtaining a written opinion from another cardiologist before performing a coronary or device operation and giving a copy of the opinions to the HCCC, keeping a list of the procedures he performs and participating in monthly supervision meetings. "1. When recommending and before performing a coronary or device operation the practitioner must obtain a written opinion from another cardiologist (who is a Fellow of the College and approved by the Medical Council of NSW) which supports the procedure(s). If the written opinion does not support the procedure(s) the practitioner cannot recommend or perform the coronary or device operation. A copy of the written opinion from the cardiologist (whether negative or positive) is to be filed in the patient records. (a) The practitioner must maintain a log listing all patients for whom he has obtained a written opinion. The log is to include: • the full names and dates of birth of the patient • the names of the cardiologist who provided the written opinion • a brief description of the written opinion, including whether the cardiologist supported or did not support the procedure(s) (b) The practitioner must forward to the Council a copy of the log within seven days of the end of each calendar month (c) The practitioner must authorise the Council to contact the cardiologist to verify the written opinion 2. The practitioner must maintain a log listing all surgical and interventional procedures that he performs. The log is to include: • the full name and dates of birth of the patient • the date of the procedure • name of the hospital where the procedure was performed • full description of the procedure(s) • the outcome and any complications (a) The practitioner must forward to the Council a copy of the log within seven days of the end of each quarter 3. To practise under Category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with a particular focus on: • the clinical indications for interventions (coronary and devices) • review of the angiography and PCI films • outcomes and complications • a review of the monthly log of surgical and interventional procedures and log of patients he has obtained a written opinion for. (b) Supervision meetings are to occur on a monthly basis and the supervisor is to report to the Council every 3 months (c) The practitioner must authorise the Council to provide the approved supervisor with: • a copy of the professional standards committee decision and • a copy of the practice conditions 4. The practitioner must authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with these conditions. 5. The practitioner must bear the cost of compliance with these conditions." 1. The Committee's view was that the supervisory role could be performed by an interventionist cardiologist while the second opinion supervisor could either be a specialist in angioplasty or electrophysiology. Dr Chatoor chose Dr Oldfield, a colleague at the Lingard Private Hospital, to perform both roles. 2. Dr Chatoor submitted that the current conditions are onerous and time consuming. 3. The HCCC submitted that, on appeal, the Tribunal should make the same orders – a reprimand, a second opinion condition and a Category C supervisory condition. The HCCC relies on the compliance documents. The HCCC also raised the possibility that rather than Dr Oldfield being given both roles – giving a second opinion and supervising – another cardiologist should be appointed to perform one of those roles. Legal principles 1. One object of the National Law is "to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": National Law, s 3. In exercising a function under the National Law, "the protection of the health and safety of the public must be the paramount consideration": National Law, s 3A. Section 4 requires the Tribunal "to exercise its functions having regard to the objectives and guiding principles" set out in section 3. 2. The Tribunal should focus on the protection of the public and the maintenance of proper professional standards, not on punishment: Lee v Health Care Complaints Commission [2012] NSWCA 80 Barrett JA at [21] – [22]. As Basten JA observed in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognize the importance of complying with professional standards and the risks of failing to do so. Current circumstances 1. In September 2014, following the events which are the subject of the Amended Complaint, Dr Chatoor was suspended from Dubbo Base Hospital. He is currently working at Dubbo Private Hospital and has private rooms in Dubbo where he consults and conducts echocardiograms, stress tests and holter monitors. Dr Chatoor also works at Lingard Private Hospital in Newcastle where once a fortnight he has a procedural list conducting angiography and angioplasty. He does clinics for an Aboriginal Health Service. He is not working at Dubbo Base Hospital. 2. Dr Chatoor seeks a second opinion from Dr Oldfield by sending him the consultation letter and copies of stress tests. Dr Oldfield then reviews the paper work and scans back the approval three or four days later. In supervisory meetings, Dr Chatoor says that they discuss the cases and whether there are any issues. Dr Chatoor conceded that he now avoids complex cases which have significant risks of complications and that he consults with colleagues more than he used to. He also says he makes definite arrangements about hand over after surgery if he is not available. 3. Dr Chatoor says he has complied with the conditions but has found them onerous and time consuming. His staff spends considerable time supporting the process. To date his supervisor, Dr Oldfield, has approved every case he has proposed doing and has agreed with his clinical justification for undertaking each procedure. Dr Oldfield provided three brief reports. Despite some of the requested information not being included, Dr Chatoor stated that all the relevant issues were discussed. 4. Dr Chatoor is comfortable with Dr Oldfield but noted that if he became unavailable for any period, he would need to refer any patient requiring a procedure to another cardiologist. Dr Chatoor identified other cardiologists who may be available. 5. The HCCC raised concerns about the level and standard of reporting. As we have pointed out, our role is to determine, as at the date of the Tribunal hearing, the protective orders, if any, that should be imposed to protect the public. While we can take into account how the conditions have been working, our focus is on whether conditions are currently required for the protection of the public and the maintenance of proper professional standards. Consideration 1. A reprimand is appropriate given our findings about unsatisfactory professional conduct. 2. Dr Chatoor still believes that the decision as to whether to insert a pacemaker was a matter for professional judgment. He does not appear to appreciate that in circumstances where Patient A did not have complete heart block, the guidelines and the strong preponderance of the expert opinion is that he should not have gone ahead with the procedure. While all the subsequent procedures have been approved, the level of reporting does not allow us to determine whether Dr Chatoor is moving towards a more complete understanding of when permanent pacemakers are clinically indicated. 3. This apparent lack of understanding makes it necessary to continue with these conditions for another two years. The conditions should be worded so that another cardiologist is available if Dr Oldfield is not able to fulfil either of these roles. Costs Tribunal's powers 1. The Tribunal has power to order that one party pay another party's costs: National Law, Sch 5D, cl 13. That provision states that: "The Tribunal may award costs (1) A Tribunal may order the Commission (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate." 1. The general rule is that the unsuccessful party should be ordered to pay the successful party's costs. In legal terms, that principle is expressed as costs following the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Meagher JA, Emmett JA and Beech-Jones J at [42]. The HCCC foreshadowed that if the Tribunal made a finding of unsatisfactory professional conduct, it would seek an order that Dr Chatoor pay their costs "as agreed or assessed" or make a costs order in a fixed amount under clause 13(3A) of Schedule 5D to the National Law. 2. Dr Chatoor submitted that depending on the Tribunal's orders, we may consider it appropriate for one party to pay the other party's costs. However, if Dr Chatoor is only partially successful on the appeal, it may be appropriate to make a costs order in percentage terms or to order the parties to bear their own costs. In those circumstances, Dr Chatoor submitted that it would be reasonable to follow the approach of in Health Care Complaints Commission v Reid [2018] NSWCATOD 162. In that case, the Tribunal formed a preliminary view that the practitioner should pay 85% of the HCCC's costs. The parties were invited to lodge consent orders dealing with costs if they agreed with the Tribunal's preliminary view. If there was no agreement, the Tribunal foreshadowed that it would direct parties to lodge written submissions. We agree that this approach ensures that procedural fairness is afforded if either party disagrees with our preliminary view and saves any further unnecessary costs and delays. Consideration 1. Dr Chatoor has not been successful on appeal. We have found unsatisfactory professional conduct and made protective orders in similar terms to those made by the Committee. However, our preliminary view is that Dr Chatoor should only be ordered to pay 70% of the HCCC's costs. As discussed above, the HCCC incorrectly characterised the subject matter of the appeal as being the entire Amended Complaint. In fact, the appeal is confined to a consideration of particulars 1A and 2(k) of the Amended Complaint and the consequential orders made by the Committee. 2. The HCCC submitted that those additional particulars did not increase the hearing time. It would still have taken two days. We do not agree. A significant amount of the Tribunal's time was spent considering Particular 1 relating to the transfer of Patient A from Dubbo Public Hospital to Dubbo Private Hospital. Some time was also spent on Particulars 2(i), (j) and (l) and Particular 3 even though those particulars were not in issue. Orders 1. Dr Chatoor is reprimanded. 2. The following conditions are imposed on Dr Chatoor's registration for two years from the date of this decision: "1. When recommending and before performing a coronary or device operation the practitioner must obtain a written opinion from another cardiologist (who is a Fellow of the College and approved by the Medical Council of NSW) which supports the procedure(s). If the written opinion does not support the procedure(s) the practitioner cannot recommend or perform the coronary or device operation. A copy of the written opinion from the cardiologist (whether negative or positive) is to be filed in the patient records. (a) The practitioner must maintain a log listing all patients for whom he has obtained a written opinion. The log is to include: • the full names and dates of birth of the patient • the names of the cardiologist who provided the written opinion • a brief description of the written opinion, including whether the cardiologist supported or did not support the procedure(s) (b) The practitioner must forward to the Council a copy of the log within seven days of the end of each calendar month (c) The practitioner must authorise the Council to contact the cardiologist to verify the written opinion 2. The practitioner must maintain a log listing all surgical and interventional procedures that he performs. The log is to include: • the full name and dates of birth of the patient • the date of the procedure • name of the hospital where the procedure was performed • full description of the procedure(s) • the outcome and any complications (a) The practitioner must forward to the Council a copy of the log within seven days of the end of each quarter 3. To practise under Category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with a particular focus on: • the clinical indications for interventions (coronary and devices) • review of the angiography and PCI films • outcomes and complications • a review of the monthly log of surgical and interventional procedures and log of patients he has obtained a written opinion for. (b) Supervision meetings are to occur on a monthly basis and the supervisor is to report to the Council every 3 months (c) The practitioner must authorise the Council to provide the approved supervisor with: • a copy of the professional standards committee decision and • a copy of the practice conditions 4. The practitioner must nominate an alternative cardiologist (who is a Fellow of the College and approved by the Medical Council of NSW) to fill in whenever the primary cardiologist is not available. 5. The practitioner must authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with these conditions. 6. The practitioner must bear the cost of compliance with these conditions." 1. The Medical Council of New South Wales is the appropriate review body for the purposes of s 163A of the Health Practitioner Regulation National Law (NSW). 2. In event that the practitioner no longer resides in New South Wales then the conditions are to be reviewed in accordance with s 125 to 127 of the Health Practitioner Regulation National Law (NSW). 3. Either party may lodge with the Registrar within 21 days of these orders submissions in writing not exceeding four pages in respect of any application for costs. 4. In the alternate to order (4) the parties may lodge with the Registrar within 21 days of the date of this decision any consent order about costs. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2019