Chatoor v Health Care Complaints Commission of NSW

Judgment

1. BELL P: I agree with Macfarlan JA.
2. MACFARLAN JA: This is an appeal under Clause 29 of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW) against a decision of the NSW Civil and Administrative Tribunal ("the Tribunal") dated 23 August 2019 ([2019] NSWCATOD 124). For the purposes of the proceedings, the Tribunal was constituted by four members including a presidential member and two medical professional members. The decision related to two complaints concerning the present appellant, Dr Roger Chatoor, a cardiologist.
3. The Tribunal found in respect of each complaint that Dr Chatoor had engaged in unsatisfactory professional conduct as defined in s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) ("the National Law"). The Tribunal reprimanded him and imposed conditions on his registration as a medical practitioner to be operative for a period of two years from the date of the decision. Dr Chatoor is entitled to appeal to this Court on any question of law but requires its leave to appeal on any other grounds (Clause 29(4)(b)).
4. Section 139B(1) relevantly defines "unsatisfactory professional conduct" as: (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.
5. The Tribunal's decision dealt with an appeal by Dr Chatoor from a finding of a Professional Standards Committee ("PSC") of the Medical Council of NSW 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))."
6. Dr Chatoor appeals, or seeks leave to appeal, to this Court on a number of grounds including in particular that the Tribunal failed to apply the statutory test for unsatisfactory professional conduct and have proper regard to the expert evidence before it.

The agreed factual circumstances

1. There was before the Tribunal a Statement of Agreed Facts dated 12 March 2019 which included a description to the following effect of the circumstances giving rise to the complaints against Dr Chatoor.
2. The Amended Complaint against Dr Chatoor concerned the care and treatment provided by him to Patient A in May 2014. Patient A was then a 92 year old lady who had been living in an aged care residential facility in Dubbo since July 2013. She died on 20 May 2014 as a result of causes to which Dr Chatoor was not alleged in the proceedings to have contributed.
3. Dr Chatoor was aged 49 in May 2014. He obtained his medical qualifications overseas and was first registered as a medical practitioner in Australia in May 2009. In 2012 he 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 by Gosford Private Hospital as a cardiologist, including to perform interventional procedures.
4. Late on 9 May 2014 Patient A was admitted to Dubbo Base Hospital. Her health had declined over several weeks and her general practitioner had found elevated troponin (a bodily protein that may be an indicator of a heart condition) and a low pulse rate. Her GP requested an ECG and also an x-ray of her right shoulder in which she had been experiencing pain. She had been confused and had been found on the floor.
5. Between 9 and 13 May 2014 Patient A was reviewed at Dubbo Base Hospital by a number of doctors. She underwent cardiac monitoring which indicated bradycardia (slow heart beat rate, usually less than 60 beats per minute). The medication which she had been taking, being 180mg per day of diltiazem (a calcium channel blocker, brand names of which include Vasocardol and Cardizem), was stopped on her admission.
6. Dr Chatoor first saw Patient A on 13 May 2014. He subsequently gave evidence to the effect that at that time he saw tracings that he believed demonstrated likely intermittent complete heart block. He accepted however that none of the tracings that were retained in the hospital records demonstrated complete heart block. Rather, they demonstrated Second Degree Type I AV block.
7. On 13 May 2014 Patient A was transferred to Dubbo Private Hospital where Dr Chatoor had discussions with her and her family members regarding options for her treatment. They accepted Dr Chatoor's recommendation of the insertion of a permanent pacemaker. As this could not be done in Dubbo, Patient A was transferred by air ambulance to Gosford Private Hospital on 14 May 2014.
8. When he made arrangements for this to occur, Dr Chatoor was aware that he would be leaving Australia on Friday 16 May 2014 to attend a conference in Athens. He had a list of patients, including Patient A, upon whom he was to perform procedures on 15 May 2014. On, the previous Sunday, 11 May 2014, he had exchanged messages with a cardiologist in Gosford, Dr Gunalingam, arranging for him to review any patient of Dr Chatoor in relation to whom there were concerns after the procedures to be undertaken on 15 May 2014.
9. Dr Chatoor subsequently gave evidence that earlier in the same week he had had a face to face discussion with a Dubbo specialist, Dr Colin McClintock, about Dr McClintock's availability to review Dr Chatoor's patients in Dubbo Private Hospital on Friday 16 May 2014 and over the weekend.
10. On 15 May 2014 Dr Chatoor performed a dual chamber pacemaker procedure on Patient A which Dr Chatoor regarded as uncomplicated and uneventful.
11. On the same day he emailed Dr McClintock and the manager of Dubbo Private Hospital about the review of his patients at that hospital on Friday 16 May 2014 and subsequently during his absence overseas. These are referred to further below. On that day Dr Chatoor also reviewed Patient A post-procedurally at Gosford Private Hospital and had no concerns. The post-procedure ECG showed normal pacemaker function and Dr Chatoor wrote to Patient A's GP about the procedure.
12. On Friday 16 May 2014 Dr Chatoor departed on his trip. Whilst in transit he received a message from the pacemaker technician at Gosford Private Hospital stating that "everything is well this morning with the post ops" but noting that Patient A's atrial threshold was not able to be tested at that stage.
13. Before being transferred back to Dubbo Private Hospital by air ambulance on 16 May 2014, Patient A was reviewed at Gosford Private Hospital by a CMO, Dr Campbell, and found to be stable. Dr Chatoor did not make any definite arrangement for another appropriately qualified specialist to review Patient A before her planned discharge from Dubbo Private Hospital on 17 May 2014. Normal procedural care requires review by an appropriately qualified medical practitioner after a procedure such as Patient A had.
14. The email exchanges between Dr McClintock and Dr Chatoor on 16 May 2014 made it plain to Dr Chatoor that Dr McClintock would not be available to review Patient A. Dr McClintock said that he had previously made this clear but Dr Chatoor disputes that.
15. Whilst in Athens on 17 May 2014, Dr Chatoor attempted to arrange for an alternative medical practitioner to review his patients in Dubbo Private Hospital, including Patient A. He ultimately arranged for such review to be conducted by another specialist, Dr Ian Beinart. Dr Chatoor also had a conversation with the manager of Dubbo Private Hospital in which the possibility of a nurse-led discharge of Patient A was mentioned. Dr Chatoor's subsequent evidence was that, despite the conversation, it remained his preference (presumably expressed to the manager) that Patient A (and others) be reviewed by a medical practitioner prior to discharge.
16. On 17 May 2014 Patient A was discharged from Dubbo Private Hospital by nursing staff without her being reviewed by Dr Beinart or any other medical practitioner, notwithstanding that she had been hypotensive during her transfer back to Dubbo by air ambulance and during the previous night. She was returned to the aged care residential facility in which she lived. The following day she was however transferred back to Dubbo Base Hospital where she was considered to have suffered an acute myocardial infarction. After her condition deteriorated further, she died on 20 May 2014.

The appropriateness of the insertion of a permanent pacemaker - Particular 1A

1. The first complaint that the NCAT found established (Particular 1A) was framed as follows: "On 15 May 2014 the Practitioner inserted a permanent pacemaker for Patient A at Gosford Private Hospital without sufficient clinical indication in circumstances where: (a) the ECGs and tracings were not consistent with complete heart block; (b) the ECGs and tracings showed Second Degree Type I AV block; (c) Second Degree Type I AV block is not in itself an indication for permanent pacing; (d) there was no history given of syncope, presyncope or falls; (e) Patient A was taking Vasocardol (Cardizem) 180mg daily, a potential reversible cause for bradycardia; (f) the Practitioner failed to trial the withdrawal of Vasocardol (Cardizem) 180mg daily prior to undertaking the pacemaker insertion; (g) Patient A was 92 years old; and (h) Patient A was more susceptible to procedural complications and adverse outcomes due to her age." (Judgment [31])
2. It is necessary first to address the Tribunal's findings and the evidence in relation to the "circumstances" alleged in paragraphs (a) to (h) of this Particular.

The circumstances specified in Particular 1A

1. Circumstances (a) to (c) were concerned with the extent of Patient A's heart block. In this regard, the Tribunal identified the following four types of heart block: "[33] 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. The Tribunal stated that "[i]n the Dubbo Private Hospital medical records, the Gosford Private Hospital operation report and Dr Chatoor's letter to Patient A's [general practitioner] after the surgery, Dr Chatoor recorded that Patient A had intermittent episodes of complete heart block" (Judgment [34]). It was however agreed before the Tribunal that the ECG traces that were before it did not show that Patient A had complete heart block, whether intermittent or otherwise. The Tribunal proceeded on the basis that Dr Chatoor must therefore have been mistaken in his interpretation of the traces. It was open to it to do so and therefore to find that circumstances (a) and (b) had been established.
3. As to circumstance (c), the question of whether permanent pacing is justified where there is only evidence of Second Degree Type I AV block is a question that is dealt with below.
4. As to circumstance (d), the Tribunal found that Patient A was relevantly asymptomatic. Although Dr Chatoor disputed that finding in this Court, it was not shown to be clearly wrong.
5. As to circumstances (e) and (f), the Tribunal found that Patient A's use of diltiazem 180mg daily was a potentially reversible cause of Patient A's bradycardia and that Dr Chatoor did not sufficiently consider this as a possibility. It therefore found that circumstances (e) and (f) were proved.
6. The Tribunal found that circumstances (g) and (h) concerning Patient A's age were established but were of no significance because age per se is not a contraindication to permanent pacemaker insertion.

Whether permanent pacing shown to be unjustified

1. The essence of the lengthy expert evidence before the Tribunal on this topic was as follows.

Professor Jelinek

1. In his report of 27 October 2014 Professor Jelinek was not critical of Dr Chatoor's decision to insert a permanent pacemaker, saying that Dr Chatoor had made "a good case for [it]". In the expert conclave before the PSC, Professor Jelinek said that he would not have chosen to insert a permanent pacemaker himself but "I have read the opinions and I think … [i]t could be justified".

Dr Barnaby

1. In his report of 9 August 2016 Dr Barnaby said that the decision to implant the pacemaker was "reasonable" and in his evidence before the PSC he said it was a matter for "judgment" and was "not unreasonable". The latter views at least seem to have been given on the assumption that Dr Chatoor may have seen a trace showing third degree heart block. In the expert conclave, Dr Barnaby said that the decision to pace was reasonable if there was third degree AV block, which Dr Chatoor thought there was. But that if there had only been Second Degree Type I AV block, he would have obtained the opinion of a cardio electrophysiologist.

Dr Hendel

1. In his report of 12 October 2015, Dr Hendel said that a good case for a pacemaker could be made because, despite being taken off her calcium channel blocker some days before, Patient A continued to have variable heart block, leading to a risk of sudden complete heart block. In the expert conclave before the PSC, Dr Hendel said that Dr Chatoor's decision to implant could be justified and was a "value judgment". Before the Tribunal he said that "mostly you'd want some symptoms".

Dr Singarayar

1. In his report of 1 February 2017, Dr Singarayar described the decision to implant the pacemaker as "significantly below what is reasonably expected of a practitioner of an equivalent level of training". He based this opinion on his conclusion that the ECGs showed only Second Degree Type I AV block. In his second report of 20 May 2017, he said that pacing was not indicated for a Second Degree Type I AV block "with a reversible cause, unless the cause was likely to recur and to result in symptoms".
2. In the expert conclave he said that pacing is not warranted in a case of Second Degree Type I AV block where there is a reversible cause for symptoms of bradycardia or the symptoms do not show significant bradycardia. Dr Singarayar's evidence before the Tribunal was to similar effect.

Dr O'Donnell

1. In his report dated 6 June 2018, Dr O'Donnell said that the relevant European guidelines were "more open to pacing" where there was Second Degree Type I AV block in asymptomatic patients than the American guidelines which did not recommend it. If the patient was symptomatic, both guidelines agreed that pacing was indicated. Dr O'Donnell took the view that the symptoms he saw recorded, of tiredness, confusion, decreased mobility and a possible fall, rendered Patient A symptomatic.
2. In the expert conclave before the PSC, Dr O'Donnell said that permanent pacing for asymptomatic patients with Second Degree Type I AV block was controversial, although he thought that Patient A was "possibly" symptomatic. He said that "at the very worst this is a controversial decision" but "not unreasonable", it is a "judgment call". He also said that allowing four days to see if the withdrawal of Patient A's Cardizem medication had an effect on Patient A was "plenty of time" before making the decision to pace. He ultimately took the view that putting a pacemaker into Patient A was "not unreasonable".

The Tribunal decision

1. The Tribunal referred to the American and European guidelines relating to the implantation of cardiac pacemakers.
2. It stated that in the case of Second Degree Type I AV block, the American guidelines said that "pacing is not usually indicated …" and that the European guidelines said that pacing where there are no symptoms is "controversial". It quoted the following from the European guidelines: "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."
3. In its conclusion on Particular 1A, the Tribunal stated that "[a]ll the experts agreed that they would not have inserted a pacemaker in Patient A based on her clinical presentation at the time". This was however a finding about what the expert witnesses would themselves have done. It was relevant to, but far from decisive on, the question of whether Dr Chatoor had engaged in unsatisfactory professional conduct. It was not a finding on the question of whether insertion of a pacemaker was within the range of reasonable responses that a practitioner of Dr Chatoor's training and experience could have had to the situation with which he was presented, this effectively being the question that the Tribunal was required to answer for the purposes of s 139B(1)(a) (see [4] above).
4. In considering the expert evidence, the Tribunal first referred to that of Dr Singarayar. The Tribunal said, correctly, that he was critical of the decision to pace on the assumption that there was no evidence of complete heart block.
5. The Tribunal then said that Dr Barnaby's view was that unless he had seen complete heart block he would not have inserted a pacemaker. That was correct but Dr Barnaby also said that Dr Chatoor's decision was a matter for judgment and was not unreasonable.
6. The Tribunal then said that Dr Hendel thought that a case could be made for pacing, but that this was not an urgent procedure. Dr Hendel however said also that the decision to pace could be justified and it was made in a situation where he had been asked to pace before.
7. The Tribunal said that Professor Jelinek would not have inserted a pacemaker and that he considered the decision "dubious" but "possibly one could justify it". However he also gave evidence that he had "read the opinions and I think … [i]t could be justified".
8. The Tribunal said that Dr O'Donnell gave evidence that he would not have put a pacemaker in but "he did not think it was unsatisfactory professional conduct to do so". Dr O'Donnell also said, after considering the American and European guidelines, that Dr Chatoor's decision was "at the very worst … a controversial decision", but "not unreasonable" and a "judgment call".
9. The Tribunal opined that Dr O'Donnell overstated the position when he stated that Dr Chatoor acted "within the contemporary guidelines". (Dr O'Donnell did say this but his view was based on Dr Chatoor's view, with which the Tribunal disagreed, that Patient A was symptomatic). The Tribunal said that the American guidelines were clear in indicating that in Patient A's position (that is, asymptomatic and with Second Degree Type I AV block) "pacing is not useful/effective and in some cases may be harmful". For present purposes, the critical statement in those guidelines as quoted by the Tribunal is however that in the case of Second Degree Type I AV block where the patient is asymptomatic, "pacing is not usually indicated" (emphasis added), whilst in the European guidelines pacing in that situation is described as "controversial".
10. From these references to the guidelines, the Tribunal proceeded to state its conclusion on Particular 1A as follows: "[100] Inserting a pacemaker in Patient A fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience."
11. The Tribunal did not however state why that was so. To the extent that the Tribunal had regard to the overseas guidelines, they did not adamantly condemn Dr Chatoor's decision. His decision arguably did not conform to them because, if he had no evidence of complete heart block and the patient was asymptomatic, he undertook a procedure that is "usually" not indicated (the American guidelines) or was "controversial" (the European guidelines). The guidelines were not however strongly enough expressed to found the Tribunal's decision that Dr Chatoor had acted in a manner "significantly below" the standard to be reasonably expected.
12. Moreover, as both Drs O'Donnell and Hendel recognised, compliance with the overseas guidelines was not mandatory. The Tribunal itself did not put their relevance higher than as "one measure" by which a practitioner's conduct could be assessed. In those circumstances, Australian practices and expert opinions were of particular significance. Yet the Tribunal in its conclusions gave a summary of the opinions that was materially deficient for the reasons I have given above. Four of the five experts (Professor Jelinek and Drs Barnaby, Hendel and O'Donnell) at various points in their evidence put Dr Chatoor's conduct within the range of reasonable conduct, using expressions such as "could justify", "not unreasonable", "open", a "value judgment" and "controversial". Only Dr Singarayar strongly condemned the conduct. This was a far cry from the Tribunal's conclusion quoted at [41] above which, although it only stated that the experts would not themselves have implanted the pacemaker, seemed to imply (incorrectly) that those experts all considered Dr Chatoor's conduct to have been unreasonable and therefore significantly below the relevant standard.
13. Whilst the Tribunal was not bound by the expert opinions, and was entitled to take into account the professional expertise and experience of the medical professionals sitting on the Tribunal, it needed to state why it thought it appropriate to depart from the expert evidence if it decided to do so. It did not state this. Instead it proceeded on the erroneous basis that the expert evidence supported its decision.
14. For these reasons, the Tribunal's decision on Particular 1A cannot be sustained and leave should be granted to Dr Chatoor to extend his appeal to the factual as well as legal challenges to it. As neither the expert evidence nor the overseas guidelines supported the complaint, it should be rejected.

Arrangements for review at Dubbo - Particular 2(k)

1. Particular 2(k) of the Amended Complaint was in the following terms: "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." (Judgment [101])
2. As the Tribunal stated, Dr Chatoor admitted in the proceedings that he did not have a definite arrangement with Dr McClintock to review Dr Chatoor's patients at Dubbo Private Hospital, including Patient A. Dr Chatoor accordingly admitted the accuracy of this particular and that in that respect he had departed from normal practice (see for example the Statement of Agreed Facts outlined at [19] above). As well, as the Tribunal also indicated, the expert evidence supported the conclusion that Dr Chatoor had failed to meet the standards reasonably to be expected of him. Professor Jelinek in particular was highly critical of Dr Chatoor's conduct in this respect, variously describing it as "unconscionable" and "appalling". Dr Barnaby was also critical, although less so, because he was unsure who was to blame for what occurred, that is, whether it was Dr McClintock or Dr Chatoor, but said that in any event the arrangement should have been in writing. Dr Hendel was highly critical of the conduct, describing it as "basically bad". Dr Singarayar's evidence was that he saw the issue as a miscommunication or a misunderstanding more than a failure. Dr O'Donnell was not critical of Dr Chatoor, stating that Dr Chatoor made efforts to have another doctor present but failed.
3. In these circumstances, it was in my view open to the Tribunal to conclude, as it did, that Dr Chatoor's conduct fell significantly below the standard reasonably to be expected of a practitioner of his training and experience and therefore constituted unsatisfactory professional conduct. Whilst Dr Chatoor attempted to make the relevant arrangement, his efforts to do so were inadequate. The Tribunal was entitled in reaching its conclusion to draw on the experience and expertise of its professional members (Gray v Geoff Groom Building Pty Ltd [2019] NSWSC 1081 at [23]-[27] per Leeming JA).
4. In seeking to challenge this aspect of the Tribunal's decision, Dr Chatoor did not establish any error of law or any basis upon which this Court should grant leave to extend Dr Chatoor's right to challenge the Tribunal's decision beyond questions of law.
5. In his submissions, Dr Chatoor complained that the Tribunal wrongly failed to identify the standard which it applied. The Tribunal did not however need to do more than apply the statutory definition of unsatisfactory professional conduct which is conduct that falls "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience" (s 139B of the National Law - see [4] above). Certainly in a case such as the present, it was unnecessary, and indeed would have been undesirable, for the Tribunal to restate these simply expressed words.

Orders

1. In light of the success of Dr Chatoor's challenge to the Tribunal's finding concerning Particular 1A, the orders referable to that finding should be set aside. The reprimand of Dr Chatoor should thus be set aside so far as it relates to Particular 1A, and the conditions imposed on his licence to practise should be removed because their content indicates that they were imposed as a result of the Tribunal's finding that Particular 1A was established.
2. What remains is the reprimand of Dr Chatoor insofar as it relates to his conduct described in Particular 2(k). That also should in my view be set aside because the reprimand was expressed as a single order referable to both complaints. One doesn't know whether the Tribunal would have reprimanded Dr Chatoor if the only complaint established had been Particular 2(k). In these circumstances, it falls to this Court to re-exercise the Tribunal's power to make an order consequent on the establishment of Particular 2(k).
3. Under s 149A of the National Law, the Tribunal's powers include the power to caution or reprimand the practitioner if a complaint is established. A caution is clearly the less serious of these two alternatives as it is only against a reprimand that a right of appeal exists under s 159 and only a reprimand is required to be recorded in the public National Register (see s 225(j)).
4. In my opinion Dr Chatoor's conduct which was the subject of the complaint that was established warrants the lesser sanction of a caution, rather than a reprimand, in circumstances where Dr Chatoor did not neglect the need to have Patient A examined before her discharge from Dubbo Private Hospital but made inadequate arrangements for that to occur.
5. So far as the costs of the appeal to this Court are concerned, the complaint on which Dr Chatoor succeeded (Particular 1A) was that which occupied the greater proportion of the written submissions and hearing time in this Court. As the issues relating to Particulars 1A and 2(k) were quite discrete, it is appropriate to reflect in the costs orders the success and failure of the parties on the two issues, as well as the effective reduction in the penalty imposed in respect of Particular 2(k). I would accordingly award Dr Chatoor 75% of his costs of the appeal. Prima facie, a similar approach should be taken in relation to the costs at first instance. If it is considered that there are aspects of the proceedings below which would not have been obvious to this Court, either party may challenge an award of costs on this basis by an application made within 14 days of this judgment under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) for that order to be reviewed. The party applying would of course be at risk as to costs in the event of failure on such an application.
6. For these reasons, I propose the following orders: 1. Grant leave to Dr Chatoor to challenge the Tribunal decision of 23 August 2019 on the grounds set out in his notice of appeal. 2. Appeal allowed. 3. Set aside orders (1) and (2) made on 23 August 2019. 4. Caution Dr Chatoor in relation to his conduct the subject of the complaint in Particular 2(k) of the respondent's Amended Complaint. 5. Order the respondent to pay 75% of Dr Chatoor's costs of the appeal to this Court. 6. Order the respondent to pay 75% of Dr Chatoor's costs of the proceedings below.
7. EMMETT AJA: These proceedings are concerned with a complaint made under the Health Practitioner Regulation National Law (NSW) (the National Law) in relation to the conduct of the appellant, Dr Roger Chatoor. The complaint arose out of the treatment by Dr Chatoor of a 92 year old woman (referred to as Patient A) in Dubbo and Gosford.
8. The complaint was dealt with by a Professional Standards Committee (the Committee) constituted pursuant to Pt 8 of the National Law. The Committee concluded that Dr Chatoor should be reprimanded and imposed practice conditions on him. Dr Chatoor appealed to the NSW Civil and Administrative Tribunal (the Tribunal) from the orders made by the Committee. On 23 August 2019, the Tribunal made orders that Dr Chatoor be reprimanded and imposed conditions on his registration for two years from the date of the decision. By notice of appeal filed on 17 January 2020, Dr Chatoor appeals to this Court under cl 29 of Pt 6 of Sch 5 to the Civil and Administrative Tribunal Act 2013 (NSW).
9. By its amended complaint of 2 February 2018 (the Complaint), the respondent, the Health Care Complaints Commission of New South Wales (the Commission), having consulted with the Medical Council of New South Wales in accordance with ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 (NSW) and s 145A of the National Law, complained that Dr Chatoor, being a medical practitioner registered under the National Law, was guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law. The Complaint asserted that Dr Chatoor had engaged in conduct that demonstrated that the knowledge, skill or judgment possessed or care exercised by him in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
10. Dr Chatoor is a medical practitioner and a fellow of the Royal Australasian College of Physicians. In May 2014, Dr Chatoor was a senior staff specialist in cardiology at Dubbo Base Hospital and a consultant cardiologist at Dubbo Private Hospital. He was also accredited by Gosford Private Hospital as a cardiologist, including being accredited to perform interventional procedures. On 9 May 2014, Patient A was admitted to Dubbo Base Hospital under the care of another medical practitioner. On 13 May 2014, Patient A was reviewed by Dr Chatoor and later that day Patient A was transferred to Dubbo Private Hospital under the care of Dr Chatoor for ongoing management and review. On 14 May 2014, Patient A was transferred to Gosford Private Hospital under Dr Chatoor's care for implantation of a dual pacemaker. Dr Chatoor performed that procedure on 15 May 2014 and on 16 May 2014 Patient A was transferred back to Dubbo Private Hospital by air ambulance under his care. She was discharged from Dubbo Private Hospital on 17 May 2014.
11. The Complaint contained four particulars. Two were held by the Committee to be made out and, on appeal, the Tribunal confirmed the findings in relation to those particulars.
12. The first particular is that, on 15 May 2014, Dr Chatoor inserted a permanent pacemaker for Patient A at Gosford Private Hospital without sufficient clinical indication, in circumstances where:

• the ECGs and tracings were not consistent with a complete heart block;
• the ECGs and tracings showed only second degree type 1 AV block;
• the second degree type 1 AV block is not in itself an indication for permanent pacing;
• there was no history given of syncope, pre-syncope or falls;
• Patient A was taking Vasocardol (Cardizem) 180 mg daily, a potential reversible cause for bradycardia;
• Dr Chatoor failed to trial the withdrawal of Vasocardol (Cardizem) 180 mg daily prior to undertaking the pacemaker insertion;
• Patient A was 92 years old; and
• Patient A was more susceptible to procedural complications and adverse outcomes due to her age. The essence of the first particular, in effect, is that Dr Chatoor misdiagnosed Patient A as suffering from complete heart block and that that constituted unsatisfactory professional conduct.

1. Dr Chatoor's response is that there were indications of complete heart block. Indeed, hospital records indicated that the view had been expressed that Patient A suffered from complete heart block intermittently, although the identity of the author of those records was not clear. Dr Chatoor accepted that the ECGs and tracings that are available did not show complete heart block, but said that it was a common occurrence for some ECGs and tracings not to be included in the hospital records.
2. The second relevant particular of the Complaint was that, on 16 May 2014, following the insertion of a dual chamber pacemaker in Patient A, Dr Chatoor approved the transfer of Patient A from Gosford Private Hospital to Dubbo Private Hospital in circumstances where there was no definite arrangement for another, appropriately qualified, specialist to review her before her planned discharge on 17 May 2014. Dr Chatoor's response was that he mistakenly believed that he had made arrangements with another medical practitioner to review Patient A before her planned discharge. He accepted that there was a miscommunication with the other medical practitioner as a result of which Patient A was discharged by nurses without being reviewed by another medical practitioner.
3. The opinion evidence before the Tribunal included that of several specialist medical practitioners each of whom indicated that, in the particular circumstances surrounding Patient A, he would not have directed the insertion of a pacemaker. However, it was by no means clear that any of them said that to do so demonstrated knowledge, skill or judgment significantly below the standard reasonably expected of a practitioner of a level of training or experience equivalent to that of Dr Chatoor. It was not suggested by any of them that, if there was in fact an indication of intermittent complete heart block, directing the insertion of a pacemaker would be significantly below the relevant standard. There are good grounds for upholding the appeal against the adverse finding in relation to the first particular.
4. Dr Chatoor acknowledged that there was a degree of fault in the arrangements that he made for the discharge of Patient A prior to his leaving Australia on a pre-planned trip. However, once he was made aware of the fact that the other medical practitioner was not available to review Patient A before her discharge, he acted expeditiously and diligently in arranging for a third practitioner to review Patient A. While the actions of Dr Chatoor, in the circumstances, were less than ideal, his actions involved a misunderstanding, which certainly should not have been allowed to occur, but did not in my view, according to the opinion evidence before the Tribunal, demonstrate a knowledge, skill or judgment significantly below the relevant standard.
5. I have had the advantage of reading in draft form the proposed reasons of Macfarlan JA. I agree for the reasons proposed that the Tribunal's decision in relation to the first particular cannot be sustained and that particular should be rejected. I also agree with Macfarlan JA that it was open to the Tribunal to conclude that Dr Chatoor's conduct in relation to the second particular fell significantly below the standard reasonably to be expected of a practitioner of his training and experience and therefore constituted unsatisfactory professional conduct. Whilst Dr Chatoor attempted to make the appropriate arrangement, his efforts to do so fell short of the relevant standard.

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