Day v Medical Council of NSW

Solicitors: Unsworth Legal Pty Ltd (Appellant) Health Professional Councils Authority (Respondent) File Number(s): 2019/00401144 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the disclosure and publication of the name of Patient A referred to in these reasons or in any document filed or tendered in the proceeding is prohibited.

Background

1. Dr Day is a neurosurgeon practicing in Wollongong. In July 2018 he held VMO appointments to Wollongong Public Hospital ("the Public Hospital") and Wollongong Private Hospital ("the Private Hospital").
2. In July 2018 Dr Day was advised by the CEO of the Private Hospital that a review was being undertaken into 6 of his surgical cases during the previous two years where there had been adverse outcomes for patients. Pending the outcome of the review, the Private Hospital placed a condition on his accreditation that he only perform Instrumented Spinal Procedures (Anterior or Posterior) if another neurosurgeon was present who was also accredited to the Private Hospital and had experience with anterior and posterior spinal surgery.
3. On 21 August 2018 the Medical Council of NSW (the Medical Council) convened proceedings pursuant to s 150 of Health Practitioner Regulation National Law (NSW) ("the National Law"). The delegates imposed three conditions on Dr Day's registration.
4. On 13 September 2018 Professor Coyne prepared a report for the Private Hospital. The report made recommendations as to record-keeping and consent procedures.
5. Following receipt of the report of Professor Coyne, the Private Hospital added conditions to Dr Day's accreditation which included that he perform 10 instrumented spinal procedures in the presence of a qualified neurosurgeon who was to then provide a report.
6. In July 2019 the Medical Council lifted the conditions it imposed following the s 150 hearing on 21 August 2018.
7. In September 2019 Dr Day completed the 10 instrumented spinal procedures at the Private Hospital supervised by Dr Thomas Pitham. He then proceeded to operate without supervision.
8. On 24 September 2019 Dr Day performed an instrumented spinal procedure on a patient at the Private Hospital. He did not have an accredited neurosurgeon present. The Private Hospital thereafter terminated his accreditation.
9. As a result of the loss of accreditation, Dr Day reported to the Australian Health Practitioner Regulation Agency ("AHPRA") which led to a further proceeding before the Medical Council pursuant to s 150. The hearing was held on 6 December 2019. The reasons were published on 23 December 2019. Dr Day appeals to this Tribunal against the imposition of some of the conditions imposed by the Medical Council.
10. On 15 November 2019 Dr Day was advised his appointment to the Public Hospital had been suspended pending provision of information regarding the termination of his accreditation at the Private Hospital.
11. The Medical Council imposed conditions on the registration of Dr Day with effect from 12 December 2019. Those conditions are as follows: Pursuant to section 150(1)(b) of the National Law (NSW), the Council imposed the following conditions on Dr Maurice Jerome Day's registration as of 12 December 2019: 1. Not to perform instrumented spinal surgery. 2. 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) The terms of the Council's Compliance Policy - Supervision are varied so that the practitioner is to: i) have review meetings with his Council-approved supervisor each fortnight ii) authorise the Council-approved supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis b) At each supervision meeting the practitioner is to: i) review and discuss his practice with his approved supervisor with particular focus on: i. Patient selection ii. Pre and Intraoperative planning processes iii. Consent processes iv. Clinical decision making v. Record keeping c) When the practitioner undertakes any spinal surgery: i) the practitioner must obtain intraoperative confirmation from the Council-approved supervisor that the correct level has been identified and this corresponds to the level/s consented to by the patient. d) To authorise the Medical Council of NSW to provide the approved supervisor(s) with a copy of the decision which imposed this condition and his current conditions. 3. Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a record of all spinal procedures performed in the last month. The record must include the following: a) The full name and date of birth of the patient b) The date and time of the procedure c) The name of the surgical procedure d) Medicare item number e) The name and signature of the Council-approved supervisor who confirmed the correct level f) any complications arising as a result of the procedure (and specifically advising of any unplanned return to theatre and/or any post-operative infection) 4. To undergo a performance assessment 5. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions.
12. In his "Outline of Submission" document, Marked as MFI1 in the hearing, Dr Day says that "of particular relevance to this appeal are conditions 1 and 2(c). Those conditions make it extremely difficult for Dr Day to carry on the effective practice of neurosurgery."
13. By External Appeal Form, filed 20 December 2019, Dr Day appeals part of the order of the Medical Council of NSW which imposed conditions upon his registration with effect from 12 December 2019 for the reasons published on 23 December 2019. The appeal is filed pursuant to s 159(1)(b) of the National Law.
14. Although reserving the right to amend his grounds of appeal, Dr Day provides two grounds of appeal: 1. The delegates of the Medical Council of NSW erred by demanding that it was appropriate or necessary to impose Conditions upon the appellant's Registration. 2. The delegates of the Medical Council of NSW failed to have regard, or proper regard, to all of the evidence before them.
15. The conditions which Dr Day seeks to have varied/discharged are condition 1 and 2(c). Those conditions are: Conditions of Practice: 1. Not to perform instrumented spinal surgery. … 2. (c) When the practitioner undertakes any spinal surgery: i) the practitioner must obtain intraoperative confirmation from the Council approved supervisor that the correct level has been identified and this corresponds to the level/s consented to by the patient.
16. Dr Day also seeks a dismissal of the supervision condition which requires that he is to have a supervisor attend in the operation theatre with him and observe his procedure whenever he is operating upon a patient. Dr Day accepts that a condition is to be imposed, however, he seeks that condition requires supervision other than the onerous requirement to engage another appropriately qualified supervisor to be present and observing, whenever he is operating.
17. The Medical Council opposes any variation of the current conditions, other than some minor variations which we will set out later in these reasons.

The Appeal

1. The appeal is made pursuant to s 159(1)(b) of the National Law. Section 159(3) provides: The 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.

The Medical Council case

1. The Medical Council relied upon the evidence contained in exhibit R1. That exhibit is a folder of material. Tabs 1 to 5 contained the following:

• Section 150 reasons for decision, 21 August 2018 (the first section 150 hearing).
• Section 150A application.
• Transcript of section 150 hearing (second section 150 hearing).
• Section 150 brief of evidence (second section 150 hearing).
• Section 150 reasons for decision, published 23 December 2019 (second section 150 hearing).

1. Further to that evidence, all of which was evidence before the Medical Council prior to its decision which took effect on 12 December 2019, the Medical Council relied upon documents produced by Illawarra Shoalhaven Local Health District (ISLHD).
2. Of particular importance in those documents are reports provided by Dr Jonathon Ball dated 5 May 2020.
3. In its final oral submission, the Medical Council's counsel advised as follows: The Tribunal is exercising the section 150 powers because the appeal is a merits appeal. The Tribunal has to consider whether the conditions are appropriate for the protection of the public. The power exercised by the Tribunal is about protective matters. It is unnecessary to make determinations about the contest between the evidence of Dr Ball and Professor Coyne. The Tribunal can impose conditions upon the registration of Dr Day even if we accept divergent views of the expert witnesses. Even if we accept there is a potential risk to the public we can impose conditions. In relation to the document identified in MFI 2, the Medical Council accepts there are practical considerations which warrant two changes to the current conditions.
5. The Medical Council informed the Tribunal that it would not oppose the following changes to the current conditions attached to the registration of Dr Day: Condition 2 (c). After the words "Council approved supervisor" add the words "or Council approved neurosurgeon." ALSO. The same words "or Council approved neurosurgeon" may be added by the Tribunal to condition 3(e) after the words "Council approved supervisor".
6. The Medical Council submits that s 41O of the National Law requires that the Tribunal take into account the historical complaints about Dr Day, set out in the evidence the Medical Council provided to the Tribunal.
7. The Medical Council drew attention to the reasons published by the Medical Council following the s 150 hearing on 6 December 2019 (reasons dated 23 December 2019) where, under the heading "Summary" on page 16 of the reasons, the delegates said: We are concerned that we have before us an experienced neurosurgeon who appears to have had a higher range and number of serious post-operative outcomes, than would be expected from, his practice, as described. There are multiple examples of instrumented spinal surgery where there has reportedly been possible misplacement of instrumentation, resulting in significant neurological complications.

The Evidence relied upon by the Medical Council

1. The document which commenced the proceeding under s 150A of the National Law, before the Medical Council in 2019, was a request made to the Medical Council by Dr Day through his solicitors, Avant Law. That letter, dated 21 June 2019, requested the conditions imposed upon Dr Day's practice, in August 2018, be removed.
2. The letter advised that the council approved neurosurgeon, Dr Raj Reddy, had kept and provided "Logbooks" setting out his observations of Dr Day's operations, as required by the conditions imposed against the registration of Dr Day by the Medical Council. The letter also enclosed a report to Avant Law from Dr Reddy dated 22 March 2019 and a report from Dr Day dated 3 April 2019.
3. The letter of 21 June 2019 highlighted the conclusion of Dr Reddy which stated: Based on my observations of Dr Day's documentation, his surgical assessment, and decision-making; I have had no concerns and feel that his clinical approach is sound.
4. The logbook provided by Dr Reddy commences with a description of a procedure carried out on 22 September 2018 and concludes with a description of a procedure carried out on 4 June 2019. The logbook is comprehensive and provides, in relation to each procedure, a description of the procedure, details of the patient, details of the patients' symptoms, a description of the procedure recommended by Dr Day, and finally, the opinion expressed by Dr Reddy in relation to each procedure.
5. By letter dated 22 March 2019, Dr Reddy provided a description of the process followed by him when reviewing Dr Day's cases. That description is as follows: Dr Day provides me with his documentation in the form of letters to the patients' GP's and the relevant imaging reports. These contain information regarding the patient, their presenting symptoms, their clinical examination, a summary of his interpretation of the imaging findings, and his proposed treatment plan. Dr Day also provides me with access to the patient's imaging. I review the notes and imaging independently to formulate possible treatment plans. I discuss and document this plan in a shared online log for Dr Day to access. In the event of a difference in opinion of the treatment offered, we then communicate directly to discuss the pros and cons of each approach.
6. In the last paragraph of the letter from Dr Reddy, he writes: Based on my observations of Dr Day's documentation, his surgical assessment, and decision making; I have had no concerns and feel that his clinical approach is sound.
7. At Tab 2 of the Medical Council's material (exhibit R1) there is a report compiled by Dr Day and dated 3 April 2019. This was addressed to his lawyers at Avant Law and detailed a number of the procedures he had undertaken which were the subject of supervision by Dr Reddy.
8. The Medical Council rely upon a copy of the transcript of the hearing conducted on 6 December 2019.
9. That hearing took evidence from Dr Day about particular patients he had operated upon and where there had been a complaint either by the patient or from another source. We will not name the patients in these reasons unless there is an absolute necessity to do so.
10. Prior to the commencement of the hearing on 6 December 2019, Dr Day was provided with a brief of evidence, which brief was before the Medical Council on the hearing date. That brief is behind Tab 4 of exhibit R1. We have particularly noted the following from that material.
11. There is a chronology prepared for the section 150 hearing which noted the following:

• Complaints dated 9 February 2006, 5 January 2009, 6 June 2014, 9 June 2016, 5 October 2016, 31 October 2017 and 24 May 2018.
• The complaint of 9 February 2006 is that the practitioner performed spinal surgery on the patient three times in 2005. During the first operation, the practitioner placed her discs in the wrong position. The second time, he cut two veins causing her to go into a coma for two days, and during the third, he cut her ural canal close to one of her kidneys.
• The complaint dated 9 January 2009 was that the patient became paraplegic after complications during an operation.
• The complaint dated 6 June 2014 was that the patient had not received a phone consultation he was told he would receive.
• A complaint dated 5 October 2016 was that the practitioner was inadequately qualified to perform surgery to remove a brain tumour, which the complainant advises has left the patient with catastrophic brain injury post-surgery. This patient successfully sued the practitioner in the Supreme Court of New South Wales.
• Complaint made 24 May 2018 was that the practitioner had not informed the patient of additional medical conditions found in imaging reports concerning his back.
• Complaint dated 13 August 2019 was that the practitioner treated the patient for back injury and performed an L5/S1 Fusion along with disc replacement at L4/5. Following the operation, the patient developed significantly more severe left leg pain and loss of sensation and underwent a scan which revealed a fragment of bone had been protruded into the L4/5 disc area causing nerve compression. The complainant had a further operation by the practitioner to remove the bone, however, was in even more pain, weakness and sensory loss following the procedure.

1. On 4 October 2019 the Private Hospital wrote to Dr Day advising him that in the view of the chief executive officer, Dr Day had breached a condition imposed on his accreditation at the hospital and consequently his accreditation at the Wollongong Private Hospital was terminated with immediate effect.
2. Included in the letter from the Private Hospital were details of the alleged breach of condition, which included the name of the patient and the date of the procedure, namely 27 August 2019. The notation included the following: "I note this surgery took place without the assistance of Dr Pitham". The notation further stated that Dr Day had used a Mazor robot in conjunction with the Bodytom. It noted that the Mazor robot had not been used by any of the neurosurgeons operating in the hospital since the death of a named patient in June 2018. That was also said to be a breach of a further condition.
3. By letter dated 23 October 2019, lawyers acting for the practitioner wrote to the Medical Council advising that the practitioner "disputes some of the matters raised in the correspondence from the Wollongong Private Hospital and he has exercised his right of review of the decision to terminate his accreditation." The letter further advised the Medical Council that the practitioner had been notified of a decision by Lawrence Hargrave Private Hospital to terminate his accreditation there.
4. On 9 August 2019 a complaint was lodged with the Health Care Complaints Commission ("HCCC") on behalf of the patient who had been operated upon by Dr Day on 10 April 2018. The operation was an L5/S1 fusion along with disc replacement at L4/5. The patient complained that following the operation she developed significantly more severe left leg pain and loss of sensation. The patient had a further operation conducted by the practitioner on 22 May 2018 to repair "a fragment of bone protrusion". Following that operation the patient had "even more pain, weakness and sensory loss".
5. Included in the material relied upon by the Medical Council in this hearing, is a copy of the written reasons for decision dated 24 September 2018. The reasons were provided by the delegates of the Medical Council, following a hearing pursuant to section 150 of the National Law. That hearing was convened following self-notification by the practitioner, that conditions had been imposed on his accreditation with the Wollongong Private Hospital. Documents provided by the Hospital showed that an external review of the practitioner's accreditation followed the death of a patient on 19 June 2018, during surgery. The hospital had also identified five operations performed by the practitioner, over the past two years, with adverse outcomes. Those adverse outcomes included a number of patients who have sustained an intraoperative vascular injury resulting in significant blood loss; a number of procedures where surgery was conducted on the incorrect level; and higher than expected post-operative complications.
6. The reasons of 24 September 2018 also refer to the practitioner being the subject of previous complaints, two of which are current. It noted that prior complaints have not resulted in action being taken by the Council. It noted one complaint in 2016, relating to a patient left with catastrophic brain injury post-surgery, was the subject of Supreme Court proceedings in 2017 which resulted in findings against the practitioner.

• A letter dated 12 October 2018 from the chief executive officer of the Wollongong Private Hospital to the practitioner advising that his accreditation at the hospital was to continue subject to specified conditions. The conditions were formulated following receipt of a report prepared by Dr Terry Coyne dated 13 September 2018. The report provided an intensive investigation into each of six patient's surgery, conducted by the practitioner, where that surgery was said to have adverse outcomes for the patients.
• A letter dated 14 November 2019 from Dr Day. The letter responds to the letter of 12 October 2018 from the CEO of the Wollongong Private Hospital. It addresses some of the specific concerns detailed in the letter under response.
• Letter dated 5 December 2019 from the CEO of the ISLHD to Dr Day. The letter informs the practitioner that Dr Jonathan Ball, neurosurgeon, had been engaged to undertake a case review of patients who were under the care of Dr Day.

1. The transcript of the proceeding before the delegates of the Medical Council on 6 December 2019 is included in exhibit R1 at Tab 3. We have noted the following from that evidence: 1. Dr Day was asked about particular operations he had performed. He was asked about operations in which it was alleged there were adverse outcomes for the patient or where there was some other apparent departure from best practice. He explained how with one patient he conducted the procedure on the wrong disc. He had operated at 5/6 rather than 6/7. He explained all the steps he had taken to identify the correct site for the operation including identifying the correct site with a needle and localised x-ray. He was clearly perplexed as to how that mistake had occurred. He did subsequently operate at C6/7. He explained to the patient and his family, post operatively, what had occurred. 2. When questioned as to how the mistake could possibly have occurred, he concluded the cause must have been a misinterpretation of the X-ray. He had operated at a time when he was confident the images were correct. He described the checks he had taken to ensure he was about to operate on 6/7. 3. Dr Day was questioned about an operation on another patient where the procedure was said to have resulted in a misplaced cage. Dr Day described how the patient had been very aggressive as he came out of the anaesthetic and was thrashing around. When he was calm enough to undergo a CT scan the next day the scan showed that the spine had fractured and the cage had dislocated. Dr Day said that when the surgery had been completed "his potentials were all normal and the II image showed the cages were in the appropriate position." 4. Dr Day was asked about the circumstances in which one of his patients was scheduled to have a single-level Anterior cervical discectomy and fusion ("ACDF") and in fact received a two-level ACF. Dr Day explained how that may occur. 5. He was asked about a female patient upon whom he had operated. He had undertaken a lumbar arthroplasty on the patient. He was asked to describe how he conducted the procedure. In this case there was a bone fragment found at the site of the procedure. Dr Day explained that the patient had been discharged after the procedure. A week later she had contacted him to say she had a significant fall at home and now had severe leg pain. A further scan was taken of the operation site which showed a fragment of bone which was not present immediately post operation. 6. Dr Day informed the delegates, when asked about other operations, where there had been "wrong level surgeries", that this had occurred only on one or two occasions throughout his whole career. 7. The delegates asked Dr Day about his process of obtaining consent from his patients to the procedure he will perform and also to the use of X-ray and CT imaging. He said that the standard form of the consent document signed by the patient is for the forecast procedure to be undertaken and whatever else might be necessary which becomes apparent during the procedure. In two previous cases, which were dealt with in the s. 150 hearing, the consent to undertake procedure to additional levels, should that become necessary, was given verbally in the anaesthetic bay. 8. In relation to the case where it was suggested that post-operative the patient developed paraplegic complications, Dr Day said "he is not paraplegic". 9. Dr Day was asked about the circumstances in which his accreditation at the Wollongong Private Hospital was cancelled as a result of alleged breach of the conditions the hospital had imposed upon the accreditation. Dr Day explained that he did not intentionally breach the conditions of accreditation. He had been to his mother's funeral in the USA and when he returned his conditions imposed by the Medical Council and APHRA had been lifted. He had assumed that meant the conditions imposed by the Wollongong Private Hospital had also been lifted. He acknowledged there had been an email which advised the hospital conditions continued notwithstanding the conditions imposed upon his registration had been lifted. However, he said he had a very poor memory of reviewing that email. He said it was a difficult time for him. 10. Dr Day acknowledged he had not complied with the Wollongong Private Hospital condition that "At the conclusion of 10 cases, the neurosurgeon must provide a report to the CEO of Wollongong Private Hospital who will then determine if condition 1 will be lifted." He had not done that because it coincided with the deterioration and death of his mother. 11. Dr Day said he sees a clinical psychologist when he feels the need. The death of a patient had led to him seeking assistance from the psychologist in recent times. 12. The delegates asked Dr Day's counsel to address them on a number of identified concerns they had about Dr Day and risk to the public of his continued practice of medicine unrestrained by conditions attached to his registration. The identified areas were as follows: 1. one documented case of wrong level surgery; 2. a number of cases of misplaced instrumentation; 3. a number of cases of neurosurgical complications secondary to spinal surgery; 4. deficiencies in the consent process; 5. Dr Day performing complicated intracranial surgery, such as aneurysms.

The Appellants Case

1. The evidence relied upon by Dr Day in this appeal, is found in exhibit A1 and A3.
2. The reasons provided by the delegates who heard the proceedings under s 150 and s 150A of the National Law (dated 24 September 2018 and 23 December 2019) are included in the material forming part of exhibit A1. We have had regard to those documents; however, the determination of this appeal requires us to reach our own conclusion as to the s 150 appeal as it is a rehearing with fresh evidence.
3. Nonetheless, we are conscious of the fact that the decision of 24 September 2018 was not the subject of appeal by Dr Day.
4. At Tab 3 of exhibit A1 a document titled "Statement of Dr Maurice Jerome Day" is set out. This is clearly a very important document in the case pressed by Dr Day before us. Attached to that document is his CV.
5. In the Statement, we have particularly noted the following matters:

• Dr Day sets out his CV and his working history as a medical practitioner. That history shows he completed his neurosurgical training in 1996 in the USA. He developed a comprehensive adult and paediatric neurosurgical practice including appointments as a clinical instructor with the Marshall University School of Medicine. (We pause here to note there is no challenge to the qualifications and/or credentials of Dr Day.)
• He immigrated to Australia in 2002. He obtained his fellowship in Neurosurgery with the Royal Australasian College of Surgeons in 2003. He was first appointed to the Wollongong Hospital in 2002. In 2016, when the new Wollongong Private Hospital opened, he obtained accreditation for that hospital. Dr Day manages patients with a wide variety of neurosurgical conditions including brain aneurysms and arteriovenous malformations, brain tumours, peripheral nerve tumours/compression and complex spinal conditions.
• Dr Day conducts a private practice under the name "Illawarra neurosurgery" which he shares with another neurosurgeon.
• On 19 June 2018 a patient died during an operation being performed by Dr Day. Following that event Dr Day was advised by the CEO of the Wollongong Private Hospital that an external review was being undertaken of his surgery in that hospital. The reviewer was Professor Coyne. While that review was being conducted, a condition was placed on Dr Day's accreditation which meant he was unable to perform instrumented spinal surgery, at that hospital, unless he had another qualified Neurosurgeon, accredited with the hospital, and who has experience with anterior and posterior spinal surgery.
• As a result of self-reporting to AHPRA, Dr Day was required to attend a section 150 hearing before delegates of the Medical Council of NSW. That hearing gave rise to the imposition of conditions upon the registration of Dr Day. The first condition required that whenever Dr Day recommended and or performed instrumented spinal surgery he must first obtain a written opinion from another neurosurgeon, approved by the Medical Council, which supports the recommendation. There were other conditions which flowed from that requirement.
• Subsequently the Wollongong Private Hospital, having received a report from Dr Coyne, about the six cases he was asked to review, continued the conditions it had imposed, including that Dr Day would need to perform 10 instrumented spinal procedures in the presence of a qualified neurosurgeon. The neurosurgeon was then to provide a report to the Private Hospital so that consideration could be given to the condition being lifted.
• Between 21 August 2018 and 2 July 2019 Dr Day performed a total of 13 instrumented cases at the Wollongong Private Hospital at which Dr Pitham was present. Additionally all instrumented cases planned or performed during that time were reviewed, prior to surgery by Dr Reddy, as required by the conditions imposed on his registration.
• The conditions imposed by the Medical Council in 2018 were removed in June 2019.
• In September 2019 Dr Day's accreditation at the Private Hospital was confirmed. Dr Day said the confirmation of accreditation did not contain any reference to continuing conditions. Dr Day believed that the conditions no longer applied. By September 2019 Dr Day had completed the 10 instrumented spinal procedures supervised by Dr Pitham.
• On 24 September 2019 Dr Day perform instrumented spinal surgery on a patient at the Private Hospital. That procedure was not supervised by another neurosurgeon. The Private Hospital cancelled his accreditation following that procedure.
• Having had his accreditation at the Private Hospital cancelled, Dr Day notified the Medical Board of Australia as required by the National Law. The Medical Council then convened the section 150 proceedings on 6 December 2019.
• On 15 November 2019, having attended a meeting with the ISLHD executive director, Dr Day was informed that his accreditation at the Wollongong Public Hospital had been suspended.
• Dr Day set out detail of the procedure he performed on his patient at the Wollongong Private Hospital on 24 September 2019. This procedure was the subject of questioning of Dr Day by the delegates of the Medical Council in the December 2019 s.150 hearing. Dr Day considered the delegates had focused upon this procedure and had been particularly influenced by same in the conditions they set against his registration.
• Dr Day said, as he had told the Medical Council delegates, that he had explained to the patient that depending on his findings during the surgery, it may be necessary to operate on a different level. The patient had agreed to that condition. Dr Day also set out the following part of the consent form which was signed by the patient: "Please understand that during the course of surgery there is a possibility that additional procedure/s are sometimes necessary as a result of something unexpected being found during the operation."
• Dr Day explained that upon performing the surgery he observed that the surgery had been performed on the C5/6 level and not the C6/7 level. Dr Day said: "the only explanation was that the initial intraoperative images were misinterpreted." Dr Day documented the error in the patient's medical records and informed both the patient and his family of what had occurred. Dr Day said the patient had "an excellent outcome from the surgery."
• Dr Day addressed the effect of the conditions now attached to his registration on his practice. He said the requirement for category C supervision, which requires him to have a supervisor present in the theatre when he undertakes spinal surgery, makes it very difficult for him to be able to operate. There is only one neurosurgeon who he can call on to fulfil the required supervision. The one supervisor who is available, is not approved by the Medical Council as he has previously had conditions placed upon his registration.
• Dr Day said that the events which led to the second section 150 proceedings have been a shock to him and are matters which he takes very seriously. He has been both personally and professionally devastated by what has occurred. Dr Day said he acknowledges his own failures which led to the termination of accreditation at the Private Hospital. However, he does not consider that those failings require his practice to be restricted to the extent that it currently is. He complied with the previous conditions placed on his registration by the Medical Council. His practice has been scrutinised by three neurosurgeons. He said: "like any neurosurgeon performing complex procedures I have had my share of adverse outcomes but none of those neurosurgeons consider that I have practised at a level below the standard expected."

1. Dr Day relied upon reports prepared by Dr Terry Coyne (also called Professor Coyne in some documents). The reports are dated 6 April 2020 and 19 May 2020. The latter report was provided in answer to an email request from Dr Day's lawyer.
2. In the report of 6 April 2020 Dr Coyne informs that he was provided with a copy of the relevant Medical Council proceedings and a copy of Dr Day's patient records by Unsworth Legal (Dr Day's lawyer) on 1 April 2020.
3. Dr Coyne signed the report citing his qualifications and title as OAM, MBBS, FRACS, CIME. There was no objection taken to the tender of his report as part of exhibit A1. There was no challenge to his qualifications to provide the reports which are included in the evidence.
4. Dr Coyne opined as follows:

• The conditions imposed on Dr Day's registration with regard to performing spinal surgery are restrictive to the point that they will all but prevent Dr Day performing any spinal surgery at all. This particularly relates to the requirement for a council approved supervisor to confirm the correct level for every non-instrumented spinal surgery case.
• Dr Coyne explained what was required in order to comply with the conditions set by the Medical Council. The explanation reinforced his conclusion that it was practically impossible to comply with the condition and continue spinal surgery. He further opined that there was a "theoretical risk to patient safety with this condition."
• Dr Coyne opined that non-instrumented spinal surgery is largely limited to posterior cervical and lumbar laminectomies and discectomies. Review of Dr Day's surgical cases and the Medical Council proceedings did not indicate issues with incorrect levels in those situations. Dr Coyne said he would support an easing of the requirement for an approved supervisor to check the level in cases of non-instrumented posterior cervical and lumbar spine surgeries.
• Dr Coyne said that he would be supportive of easing Dr Day's conditions "with regard to instrumented anterior cervical spine surgery (Anterior survival decompression and fusion; disk arthroplasty) for 1-2 levels. It may not be appropriate to classify 1-2 level instrumented anterior cervical spine surgery with anterior spine surgery of more than two levels and lumbar spine instrumentation surgery, which are complex compare to 1-2 level anterior cervical spine surgeries."
• Dr Coyne said: "A review of Dr Day's anterior cervical spine surgery as per my earlier report and the Medical Council proceedings doesn't indicate any issues with the performance of this surgery/placement other than concern regarding the correct level. I would hold there is no demonstrable reason why Dr Day could not perform relatively straightforward anterior cervical spine surgery involving placement of a intervertebral cage/plate or arthroplasty prosthesis given that this instrumentation is not particularly complex and is not the key part of the case."
• Dr Coyne described that the conditions set by the Medical Council would not prevent Dr Day undertaking procedures which used the patient's own bone or a suitable substitute, as that would not constitute "instrumented" spinal surgery". He further said: "There is thus some inconsistency in the conditions in that Dr Day could perform anterior cervical spine surgery in this fashion but would be prevented from performing the same procedure if using a titanium cage or arthroplasty prosthesis instead of a bone plug on the basis that the titanium cage is "instrumentation".
• In relation to who would be a suitable supervisor for Dr Day to determine he had identified the correct site/level of spinal procedure to be undertaken, Dr Coyne said "all neurosurgeons and orthopaedic spinal surgeons have the same capacity to independently confirm the spinal level." He said "if there was some easing of the conditions imposed on Dr Day as indicated above, the concerns expressed by the Medical Council would seem to be addressed."

1. In his report dated 19 May 2020 Dr Coyne said he had received and reviewed the documents provided by Unsworth Legal, being a review by Dr J Ball of a number of Dr Day's cases and Dr Day's responses. Dr Coyne said: I do not consider these additional documents alter the opinions expressed in my previous report of 6 April 2020. In regard to the cases reviewed by Dr Ball, Dr Ball was principally critical of Dr Day's technical performance of complex instrumented thoraco-lumbar spine surgery." The opinions in my report of 6 April 2020 were in regard to Dr Day's capacity to perform simple (one and two level) anterior cervical decompression/fusion and disc arthroplasty surgery, and non-instrumented posterior cervical and thoraco-lumbar spine surgery. The report did not refer to Dr Day performing instrumented thoraco-lumber spinal surgery. Dr Ball did not have any major criticisms of Dr Day's clinical assessment and surgical planning in the cases he reviewed. It is noted that Dr Ball did not have any concerns regarding Dr Day's performance of a C5/6 disk arthroplasty (Case 3 of Dr Ball's reviews), which is an example of the surgery referred to in my report of 6 April 2020.
2. Tab 6 to exhibit A1 contains a reference from a colleague of Dr Day, namely Dr Raj Reddy. Dr Reddy is a highly credentialed neurosurgeon. He has worked with Dr Day between 2012 and 2020. That involved weekly teleconference MDT meetings.
3. Dr Reddy said that during a period in 2019 he was tasked by the Medical Board to oversee some aspects of Dr Day's clinical practice. He said: Over the period of time that I have known Dr Day, including the above period of supervision, I have had the opportunity to observe his interactions with patients and colleagues. He has always shown himself to be a very confident and capable neurosurgeon. His clinical decision-making is sound. During the time I worked with him, I observed him to be an excellent technician. Dr Day's interactions with patients and staff from my observation has always been one of upmost compassion and professionalism. Perhaps the most striking of Dr Reddy's statements we note to be: I would have no concerns if Dr Day was looking after myself, any member of my family, or my friends.
4. At Tab 6a of exhibit A1 Dr Day included a reference from Dr Nick Vrodos a neurosurgeon. The reference is dated 20 March 2020. He has known Dr Day for more than 10 years. Dr Vrodos said: As a supervisor of neurological training and as a board member of the Surgical and Education Training Board for Neurosurgery, I can report that Dr Day is well respected by the trainees that have rotated into his unit. He is viewed as a surgeon with extensive and broad experience, with good and safe results, accepting that our field of neurosurgery does carry significant morbidity at the best of times.
5. Included in exhibit A1, there is a copy of the report, prepared by Dr Coyne and dated 13 September 2018. During the hearing, a passage from that part of the report, which appears under the heading "Overall Comment", was directed to our attention. There, Dr Coyne wrote the following: I am unaware of the denominator (i.e. the total number of cases performed by Dr Day during the two year period encompassing the cases I was asked to review). As a generalisation, intracranial and complex spinal surgery has risk of a significant complication in the order of 5 to 10%.

Oral Evidence of Dr Day

1. Dr Day gave oral evidence on 25 May 2020. In evidence in chief, he affirmed that the content of his statement dated 8 April 2020 was true and correct.
2. Dr Day was cross-examined by counsel for the Medical Council.
3. Dr Day was taken to the report provided by Dr Ball. He acknowledged that Dr Ball had concluded one of his procedures was not up to standard. That conclusion related to case 1 (a patient with initials JM) in the series of cases Dr Ball reviewed.
4. Dr Day was asked if he recalled the procedure he performed on patient JM. He was able to do that in detail.
5. He was asked about case 5 which was patient GN. He described in detail the procedure. He was asked to look at the heading "Surgical Approach" on page 328 of exhibit R1. He said the procedure described was the second procedure he performed on that patient. He said the words Revision L2/3 anterior fusion means returning to a previously operated upon site and replacing an implant at L2/3. The word "anterior" refers to part of the spine compromised by a large part of the disc in front of the spinal cord.
6. Dr Day explained that T12 to L4 posterior fusion describes placing screws through the back part of the spine and using chemical cement to structurally improve the grip.
7. Dr Day was asked to look at item h) "Response to Specific Questions" of Dr Ball's report (page 331 of exhibit R1). Dr Day was asked to note the opinion of Dr Ball that "I do not believe either surgery was performed to an adequate standard." He said he had noted that.
8. Dr Day was asked to see that Dr Ball had formed the view that Dr Day had failed to recognise misplacement of spinal hardware. He was asked if he accepted that opinion as valid. He said he did.
9. Dr Day was asked to acknowledge that Dr Ball had concluded that in the 5 cases where misplaced hardware was asserted, such misplacement contributed to adverse outcomes for the patient post-operative.
10. Dr Day was asked if he accepted that if a neurosurgeon did fail to recognise, in the operation or postoperatively, that instrumentation had been misplaced, it may, in some instances, be an indicator of weakness in the surgeon. He said he agreed with that. However, he denied he had any such weakness. He said the evidence made clear that in his case he recognised the position of the hardware was misplaced and he moved it.
11. Dr Day refuted he had failed to recognise misplacement of hardware. He said he had told Dr Ball that.
12. Dr Day was taken to his statement contained in exhibit A1 and at paragraph 19 of the statement. He agreed that at October 2018 he was still a VMO at the Wollongong Private Hospital. He agreed that on 12 October 2018 the CEO of that hospital imposed conditions on his accreditation to practice at the hospital. He agreed the conditions imposed were set out in a letter sent to him by the CEO of the Wollongong Private Hospital (as set out at Tab 7 exhibit A1).
13. Dr Day was asked if paragraph 19 of his statement, contained at Tab 3 exhibit A1, was referring to the conditions imposed by the Wollongong Private Hospital in October 2018. He said he was referring to those conditions. In context, what Dr Day had said at paragraph 19 of his statement, was that in September 2019 his accreditation to operate at the Wollongong Private Hospital had been renewed and in that re-accreditation there was no reference to any conditions being attached.
14. Dr Day was asked if he agreed that on 6 August 2019 the CEO of the Wollongong Private Hospital had sent him an email advising him that the conditions to his accreditation were still continuing. He agreed that had happened. He was asked therefore why did he assert he was under a misapprehension about the continuation of the conditions on his accreditation post September 2019. Dr Day said: I did not properly comprehend the content of the email. I was in the USA at my mother's funeral and I skimmed the email and responded "OK". When I received a letter from the Wollongong Private Hospital saying my VMO status was removed there was no reference to the conditions. Dr Day agreed the email from the Wollongong Private Hospital telling him the conditions would still continue following the conditions imposed on his registration by the Medical Council in 2018 being removed, his "comprehension" at the time was the problem. He agreed that looking at the email today, its message was clear.
15. Tribunal member Ms Kelly asked Dr Day if it was possible that in the middle of a non-instrumented procedure he might need to go to an instrumented operation. Dr Day said that could happen. If removing bone or tissue it may require insertion of hardware. If that happened with him under current Medical Council conditions, he would have to have another surgeon attend to place the instrument.
16. In answer to a further question from the counsel for the Medical Council, Dr Day said he would not undertake a procedure which might possibly require instrumentation unless he had a prior arrangement with another surgeon.
17. ADCJ Le Poer Trench asked questions of Dr Day. The answers to those questions provided the following further evidence.
18. In the 12 month period prior to September 2018 (the date conditions imposed upon his registration and or accreditation at the Wollongong Private Hospital), Dr Day said he would have operated on 150 patients. Of those approximately 100 were spinal and 50 were cranial. Over the five-year period prior to September 2018 Dr Day said he had performed approximately 150 operations in each of those years. Again, during that time, the mix of surgery undertaken was about 100 spinal and 50 cranial.
19. When he had VMO rights at the Public Hospital he was required to do "on call" one week in three. Dr Day had a scheduled operating day at the Public Hospital each Thursday. In the "on call weeks" he would receive up to 12 extra calls per day from the hospital and he would do an additional three to four attendances at the hospital to attend to inpatients.
20. On Tuesday each week, Dr Day operated at the Wollongong Private Hospital. He averaged three operations per list. At the public hospital he operated on two or three cases each Thursday. At the Wollongong Private Hospital most of the operations were spinal procedures.
21. If Dr Day was to have his accreditation at the Wollongong Private Hospital and the Public Hospital reinstated with a limitation that he could not perform instrumented spinal surgery, he would lose about a third of his workload. It would be unlikely that the space provided would be filled with other work.
22. In the period prior to September 2018 the delay patients experienced in obtaining an appointment to see Dr Day was four to six weeks. If there was a surgical intervention required there would be a further wait of two to three weeks for the Wollongong Private Hospital and 30 to 60 days for the Public Hospital.
23. If the conditions which required Dr Day to have another neurosurgeon identify/check the level to be operate on, having first seen the relevant imaging, and also check the consent form to identify that was the level for surgical intervention which was consented to, it would involve a few minutes of the neurosurgeon's time. The neurosurgeon would have to be prepared to attend at the Wollongong Private Hospital if that supervision was required to be undertaken face to face. However, technology now allows both the images and the consent form to be viewed from a remote locality to the hospital site.

Oral evidence of Dr Coyne

1. Dr Coyne was required for cross-examination and to that end was called by Dr Day. Dr Coyne confirmed that the reports prepared by him and dated 13 September 2018, 6 April 2020 and 18 May 2020 were true and correct.
2. Dr Coyne was cross-examined by counsel for the Medical Council. He was asked about portions of a letter dated 19 May 2020 which formed part of the evidence. He explained that the term "technical performance" referred to the actual surgery as opposed to the decision for the surgery. He explained that the term "clinical assessment" means the diagnosis of the patient's problem and the best approach to management.
3. Dr Coyne confirmed that prior to providing a report for Dr Day, he had been provided with a draft of the report by Dr Ball, the final report of Dr Ball together with the response to the draft of Dr Ball's report provided by Dr Day. He accepted that Dr Ball, after reviewing six cases had concluded that Dr Day had misplaced surgical hardware in five of those six cases. He agreed that included misplaced screws and in one case a misplacement of a cage. He accepted Dr Ball had formed the view that Dr Day did not identify misplacement either intraoperatively or postoperatively of the cage.
4. In relation to the alleged misplacement of instruments Dr Coyne said he could not see imaging but generally accepted there had been misplaced screws. He said that if there was misplacement of screws in 20% of the procedures carried out by Dr Day, across a career, or in recent times, it would be a concern. He said, however, it is hard to say that there was a pattern of one kind of mistake in the procedures he considered. He said this was six cases pulled out of many and those cases were ones where there were adverse outcomes or complaints.
5. Dr Coyne did not think it accurately describes what had occurred with Dr Day to say he showed a failure to identify misplacing of hardware in patients he operated upon, either intraoperatively or postoperatively. He considered in some cases Dr Day did not recognise that, but there was not an adverse outcome from same.
6. Dr Coyne agreed that in each of the 5 out of 6 cases considered by Dr Ball, Dr Day did not recognise misplacement intraoperatively.
7. In relation to case 1 Dr Coyne opined that the adverse outcome of the operation was not so much misplaced hardware but it was preparation for the placement which was problematic. In relation to case 2 he said he agreed with the conclusion of Dr Ball however, even with perfectly placed screws, having regard to the patient's age, it is not unknown for backing out of screws. In relation to case 4, the misplaced screw was unlikely to be a clinical problem. In relation to case five Dr Coyne said: "this is the cage misplacement but there is no clinical data to show this gave rise to a clinical outcome." In relation to case 6 Dr Coyne said he could not see how the procedure could have given rise to left leg weakness.
8. In relation to cases 4, 5 and 6 Dr Coyne said the description, "suboptimal placement" of screws would be his term to describe those cases rather than "misplaced screws".
9. Dr Coyne was asked whether the three cases which illustrated Dr Day's operation on two levels and the suboptimal placement of screws, indicate that Dr Day should not undertake two level procedures. Dr Coyne said: these are not instrumented procedures. A cervical operation is done under direct vision. With the instrumented lumber and thoracic operations, screw placement is performed without visible sight of what is being done.
10. In relation to his opinion that Dr Day should be permitted to undertake cervical surgery with instrumentation up to 2 levels, Dr Coyne said more than 2 levels can be complex. He could remove discs and replace them.
11. Dr Coyne said it was hard to see what evidence Dr Ball had, to find that Dr Day failed to see the misplacement of hardware postoperatively. He was unable to agree that Dr Day had a lack of proper record keeping as he had not seen any of Dr Day's notes.
12. Ms Kelly, a Tribunal member asked Dr Coyne what his complication rate was post-operative. He said globally it is less than 5%. Depending upon the particular type of procedure it can be between 2 and 6%. For spinal surgery it is usually about 5%.
13. Dr Cox asked about the practicality of supervision. Dr Cox asked whether supervision could be via technology rather than having the surgeon in the operating theatre with him. Dr Coyne said it can be done. He said: we do it anyway every day. We receive images for patients every day. For supervision it would be easier to organise supervision via remote device than have to arrange for another neurosurgeon to be present in the operating theatre.
14. ADCJ Le Poer Trench asked Dr Coyne some questions. Dr Coyne was asked about the use of the descriptor "misplaced screws". He said the descriptor "misdirected" was a more accurate description. He said "the ideal screw placement goes down the middle of the pedicle, down the front of the vertebrae into the vertebral body." When imaging is reviewed post operatively, any screw which does not take that pathway would be classified as "misplaced" however that does not mean the screw is not going to do its job.
15. Dr Coyne said that most neurosurgeons, undertaking instrumented spinal surgery, would aim for 90 to 95% correct placement. He considered 95% accuracy would be the norm (set the standard) for spinal surgery.
16. In relation to the cases selected for review (the 6 cases set out in the evidence) by Dr Ball, Dr Coyne was asked "Was a failure rate to optimally locate the screws of 20%, acceptable?" He replied: "There might be mitigating circumstances. For example, with the thoracic spine vertebral screws, there were two out of eight (inserted by Dr Day) I think misplaced but they are more difficult than lumbar spine screws. The displacement was fairly minor ….that is unlikely to have any sort of clinical consequence." Dr Coyne also noted that the six cases were selected from about 100 cases and those were cases with known complications or complaints. Thus, suggesting a failure percentage rate for screw misplacement, in those six cases, may unfairly misrepresent the accurate figure for such misplacement.
17. Dr Coyne said that in 100 instrumented spinal procedures there may be 500 to 600 pedicle screws used. Thus if his average misplacement rate was 20% across that number of screw placements it would be a concern.
18. Dr Christie said that his understanding of the selected six cases for Dr Ball to consider, were cases in which there had been identified complications or complaints. It was not a selection from a pool of 100 of Dr Day's consecutive operations at the Wollongong Private Hospital.
19. Dr Coyne was further cross-examined by the counsel for the Medical Council. The point being pressed was whether Dr Ball's criticism of Dr Day's failure to recognise both intra-operatively or post-operatively the misplacement of screws. Dr Coyne suggested such a generalised statement was simplistic, for the reasons he explained. He said it may not be possible to receive an accurate picture of the placement of screws intraoperatively. Thus, screws which appear to be well placed in intraoperative imaging, may look misplaced in post-operative imaging. He was concerned about the fairness to Dr Day of such a stated view.
20. Dr Coyne was asked to agree with Dr Ball's view that the misplaced screws gave rise to an adverse outcome for the patients in the six cases he reviewed. Dr Coyne did not agree that was the case for all the six. He said the case where there were two screws which backed out post operatively, clearly needed repair, however after that occurred the procedure was seen to be successful.
21. Dr Coyne was then taken to all six cases considered by Dr Ball. He agreed that where there were misplaced screws identified, it could give rise to an adverse outcome. He agreed that misplaced screws in case 1 gave rise to an adverse outcome for the patient. In case 2 he considered that had the screws been optimally placed they probably would not have backed out, however, there was the chance that even optimally placed screws in a patient with her bone condition, may have backed out.
22. Dr Coyne did not agree that the described misplaced screws in case 4 could be identified as the cause of adverse outcome for that patient. In case 5 Dr Coyne said the adverse outcome arose from a misplaced cage. He did not agree that the screw placement in that case led to an adverse outcome. In relation to case 6 he could not agree that a misplaced right pedicle screw could cause left leg symptoms.
23. It was put that cases 4, 5 and 6 involved, at some part of the procedure, operating on two levels of the spine. In each of those operations there was a sub-optimal placement of screws. Dr Coyne was then asked: "Isn't it a cause for concern that Dr Day should be given at least some dispensation to operate, or carry out simple procedures involving two levels of the spine?" Dr Coyne responded, "No. My feeling is that simple non-instrumented cases over two levels or more" ought be permitted. The five cases which have been looked at are all instrumented cases. The placement of pedicle screws, "that's not part of the simpler operations" which Dr Coyne understood would be performed by Dr Day.
24. Dr Coyne explained there is a vast difference in complexity between cervical instrumented surgery and spinal instrumented surgery. He said with cervical surgery the site of the operation is visible to the eye of the surgeon. That is not the case with spinal surgery. Thus, Dr Coyne supports Dr Day having his conditions relaxed to permit him to do instrumented anterior cervical spine surgery for 1-2 levels.
25. Counsel for the Medical Council pressed Dr Coyne to concede that Dr Day was practicing medicine at a sub-standard level. That the six cases reviewed by Dr Ball were representative of all of his surgery. Dr Coyne would not be drawn to give such a concession. He continued to revisit an answer he gave over and over again which was that you cannot just look at the six cases selected because they were cases in which there was a patient complaint or where there was an adverse outcome recognised by the hospital and/or Dr Day. It is necessary to look at his work over a longer series of consecutive procedures and over a range of different patients.
26. Dr Coyne maintained that spinal surgery is complex surgery with a high level of risk. The best of neurosurgeons could expect a certain level of adverse outcome. There is an industry established level of adverse outcomes, misplaced screws and other aspects of spinal surgery which can occur with highly competent neurosurgeons. That level ranges between 5 and 10% of all surgery undertaken. Again, for some spinal procedures the rate is closer to 10% than 5%.

Submissions of the Medical Council

1. The Medical Council relied upon the document marked as MFI 3 entitled "Submission for the Respondent".
2. The Medical Council was advised that the appeal by Dr Day is against the conditions numbered 1 and 2(c) imposed following the s 150 hearing before the delegates of the Medical Council on 6 December 2019.
3. The Medical Council submits that Dr Day's practice, in particular the management of spinal surgery, poses a risk to the health and safety of the public. The Medical Council relies upon the report prepared by Dr Ball in May 2019 which it says indicates there are failures on part of Dr Day in the conduct of most of those surgeries. That suggests, submits the Medical Council, that Dr Day's clinical abilities and professional judgement may not be adequate.
4. The Medical Council points to the circumstance that Dr Day remains suspended by the ISLHD. The Medical Council said that the health district had undertaken an audit of 100 spinal cases performed by Dr Day in 2017 through to 2019. That was done with a view to having Dr Ball review select cases and prepare a further report. It is submitted by the Medical Council that the pending investigations should be a cause for serious concern to the Tribunal. The Medical Council submits that consistently with the protective purpose of section 150(1) of the National Law, the Tribunal should not, at least at this stage, when there remains a pending investigation, amend any of the conditions imposed in the decision of the Medical Council.
5. The Medical Council points out that prior to the hearing in 2019, Dr Day had been the subject of multiple complaints by patients which resulted in disciplinary action being taken against him in 2018. At Tab 4 pages 81 to 85 of exhibit R1 is a chronology prepared for the s150 proceedings conducted in December 2019. That document demonstrates complaints being made about surgery undertaken by Dr Day in February 2006, January 2009, June 2014, June 2016, October 2016, October 2017, May 2018, August 2019.
6. We note from the chronology, there is no entry demonstrating that disciplinary action was taken against Dr Day other than the s 150 proceedings in 2018 and 2019 as a result of any of the complaints. Both those outcomes are in the nature of interim determinations pending the outcome of further investigation of hearing before the Tribunal.
7. The complaint lodged on 13 August 2019 was the subject of a letter which became exhibit A3 and which showed that the complaint had been dismissed by the HCCC.
8. The Medical Council relied on a decision of Jambrovic v Day [2017] NSW 1468. In that decision, Dr Day was the defendant. Schmidt J found that "relevant negligence on Dr Day's part has been established." The surgery which gave rise to the action took place in March 2011. The negligence was found to be established primarily because of the advice Dr Day gave the patient prior to his decision to undergo surgery. It was a surgery which His Honour found Dr Day "had neither prior experience of, or training in". It seems the way in which Dr Day explained the options available to the patient, pressed him for the option he was seeking, namely surgery. His Honour found that option carried greater risk than the available option which was to monitor the tumour and establish its progress.
9. The Medical Council referred to the s 150 hearing on 21 August 2018. It submitted that in that hearing the delegates considered six cases identified by the Wollongong Private Hospital and concluded that Dr Day's practice posed a risk to the health and safety of the public. In the decision the Medical Council points to the conclusion stated as: The evidence before us, including Dr Day's oral evidence, does not raise significant concerns about Dr Day's clinical capacity for surgical technique. Nevertheless, we cannot fully endorse Mr Barnes submission that there is "no question about Dr Day's surgical technique or his performance of surgery.
10. Further, the Medical Council relies on the following extract from the 2018 s 150 decision: In our view, the major concern that these cases raise relates to Dr Day's selection of patience and willingness to perform complicated high-risk surgery on complex patients, where it may not be the best approach.
11. Also set out in the Medical Council submission is the following extract from the s 150 decision of 2018: Dr Day has told us that he has reflected on his practice and has chosen to scale back on complex spinal surgery as a result of the matters identified in this notification and acknowledged that he may need to review his processes for selecting patients for surgery.
12. The Medical Council pointed to the report of Dr Coyne prepared for the Wollongong Private Hospital and his opinion in 13 September 2018 that he did not have concerns regarding Dr Day's technical skills and his competency".
13. On 25 June 2019 the Medical Council Performance Committee resolved to lift the 2018 Council Conditions. That followed advice from Dr Reddy, the supervisor for Dr Day, which advice stated he had no concerns in relation to Dr Day's pre-operative surgical assessment and decision making.
14. The Medical Council pointed to the operations performed upon patients at the Wollongong Private Hospital by Dr Day on 27 August 2019 and 24 September 2019 in contravention of the conditions attached to his accreditation with that hospital. On 4 October 2019 his accreditation was terminated. One of the operations was referred to in the 2019 section 150 hearing where the delegates were concerned it had been carried out at the wrong spinal level.
15. The Medical Council referred to the suspension of Dr Day from the Wollongong Hospital as a VMO. That occurred as a result of the termination of his accreditation at the Wollongong Private Hospital. The ISLHD advised Dr Day on 28 November 2019 that it had decided to engage an external, independent neurosurgeon to conduct a case review of patients who were under the care of Dr Day in recent years to assess and determine if his knowledge, skill and judgement are at the standard expected of a person in his position. That independent neurosurgeon was Dr Ball. The final report of Dr Ball, dated 5 May 2020, was signed having had the advantage of comments from Dr Day in relation to a draft of the report which had been provided to him.
16. The Medical Council submitted that the final report of Dr Ball did not motivate the ISLHD to reinstate Dr Day's accreditation for the Public Hospitals under its control. It is currently undertaking a review of 100 consecutive spinal surgeries conducted by Dr Day during 2017 to 2019.
17. The Medical Council set out matters it said were relevant to the principles which would guide the Tribunal in the determination. The provisions of section 150 of the National Law were highlighted. The Medical Council pointed out that the appeal pressed by Dr Day is made pursuant to section 159 of the National law. As such, it is an appeal by way of a new hearing.
18. The Medical Council referred to the decision of Hill v Medical Council of NSW [2019] NSWCATOD 52 and in particular paragraph [22]. It also referred the Tribunal to portions of the decision of Karimi v Medical Council of NSW [2017] NSWCATOD 180 at [123].
19. Hanna v Medical Council of NSW [2017] NSWCATOD 27 and Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 provide useful guidance as to the nature of an external appeal under s 159 of the National Law against a decision of the Council to suspend a medical practitioner's registration under s 150. The applicable principles derived from the relevant provisions of the National Law, as discussed in Crickitt and Hanna, may be summarised as follows: (1) Nature of the appeal The Tribunal is to conduct the appeal by way of a new hearing and may consider evidence that was not before the Council as the original decision-maker. The Tribunal's task is not to review the decision of the Council and determine whether its decision was reasonably open in the circumstances. The Tribunal is called on to exercise afresh the administrative discretion in s 150(1) having regard to the material before it. (s 159(3) of the National Law and Hanna at [17]-[18]). (2) Protective jurisdiction The jurisdiction being exercised is directed to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest. (ss 3A and 150 of the National Law, Hanna at [17] and Crickitt at [47]). (3) ……. (4) No need for a detailed enquiry The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that the Tribunal need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (Crickitt at [56]; see also Lindsay at [76]). (5) Not required to make any conclusive findings Because the circumstances in which the power under s 150 is to be exercised include that there may be a continuing dispute as to precisely what occurred and why and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. (s 150 of the National Law and Hanna at [19]). (6) …… (a) Scope of "protection of the health and safety of person or persons" The "protection of the health and safety of any person or persons" does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. (Section 150 of the National Law and Crickitt at [48]). (b) Scope of "public interest" The "public interest" consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession (ss 150 of the National Law, Hanna at [18] and Crickitt at [56]). (7) No need to determine whether conduct is "professional misconduct" or "unsatisfactory professional conduct" Apart from what is involved in assessing the risk referred to in the preceding subparagraphs, it is not otherwise necessary for the Tribunal to determine whether the conduct under notice constitutes "professional misconduct" or "unsatisfactory professional conduct" or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. Those are matters that may fall to be addressed at a later stage, if and when disciplinary proceedings are taken against the appellant. (s 150 of the National Law and Hanna at [22]). (8) …..
20. The Medical Council also referred the Tribunal to the decisions in DHO v Medical Council of NSW [2018] NSWCATOD 13 at paragraphs [41] to [43]; Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56(f)]
21. The Medical Council submitted that, subject to the concession it made in oral submissions, the appeal should be dismissed. It submits that the Tribunal should conclude that: A. The current conditions of registration are appropriate for the protection of the health and/or safety of any person or persons; and that B. The current conditions of registration are in the public interest.
22. The Medical Council submits that the evidence would satisfy the Tribunal that there is an "abnormally high number" of Dr Day's patients who have suffered serious post-operative outcomes. The Medical Council refers to the finding of the delegates in the decision under appeal, as follows: It is unclear to us if Dr Day's practice, particularly in relation to operative planning and intra operative and post-operative imaging, is below the expected standard. It is possible Dr Day has deficits in his knowledge and skill of appropriate use and interpretation of perioperative imaging techniques. It is also possible that instances of misinterpretation of perioperative imaging reflects issues with Dr Day's attention to detail and/or a failure to place a level of importance on highly accurate imaging interpretation as is warranted. We note Dr Coyne's comments regarding the inherent risk in neurosurgery and the significant complication rates in the order of 5 to 10%. This makes it even more important for neurosurgeons to perform with extreme care and precision, at all times, to reduce the possible risk of avoidable errors/complications. If these possible contributory factors were also reflected in other areas of Dr Day's practice, such as cranial surgery, this would pose risks to the health and safety of the public.
23. The Medical Council points out that Dr Day does not take issue with the conclusion reached by the delegates in the decision of December 2019; rather he confines his challenge to the terms of conditions 1 and 2(c).
24. In its submission, the Medical Council refers to the submissions of Dr Day and says that the issue is not whether the conditions he seeks to be varied, are "necessary" for the protection of the health or safety of the community, rather the question is whether conditions 1 and 2(c) are "appropriate" for that purpose. It submits the relevant criteria in section 150(1)(a) is appropriateness, not necessity. In the case of section 150(1)(b) the question is simply whether the conditions are in the public interest. The Medical Council submits that all of the current conditions of registration are appropriate for the protection of the health or safety of the community.
25. It is submitted by the Medical Council that the matters discussed in the evidence, relative to Dr Day's performance as a neurosurgeon, "are indicative of sub-standard clinical ability and deficiency in professional judgement." The Medical Council submits the deficiencies in Dr Day's medical skills are not limited to instrumented spinal surgery.
26. The Medical Council highlighted the evidence from Dr Ball where he identified in Dr Day a "failure to recognise the issue". Further it is submitted that Dr Ball opined "such alleged failure is more likely to be a weakness of clinical ability or judgement than a technical issue related to instrumentation." The Medical Council submits that the Tribunal would have serious concerns for the public arising from the stated opinions of Dr Ball.
27. It is further submitted by the Medical Council, that any determination to vary the conditions imposed by the delegates of the Medical Council, is premature given that there remains an outstanding investigation by the ISLHD of 100 cases where Dr Day had operated, with a view to referring to Dr Ball, for his opinion, any operations which may raise concern about Dr Day's ability as a surgeon.
28. Finally, it is submitted by the Medical Council that any practical difficulties arising from Dr Day's inability to find a suitable supervisor, even if that could be taken into account as a relevant consideration, is not a matter that could justify a change to the conditions numbered 1 and 2(c), given the nature of the failures on the part of Dr Day and the risk posed to the health or safety of the community. The Medical Council also submits that the conditions, which have been imposed on the registration of Dr Day do not prevent him from performing non-instrumented surgery. Further, it is submitted, that he would not be prevented from assisting another surgeon in performing such surgery, provided he is not the primary surgeon responsible for the operation.
29. In oral submissions the Medical Council specified the material contained in exhibit A1, which it submitted was necessary for the tribunal to have regard to. Further, it submitted that the material specified should be read on the basis that the findings of the Medical Council delegates in the December 2019 decision, have not been challenged, rather what is challenged is the nature of some of the conditions imposed.
30. Counsel for the Medical Council pressed for the Tribunal to recall it is exercising the same power the delegates for the Medical Council exercised in the determination made in December 2019. Counsel submitted that s 150 is a power which serves a protective purpose. He said it is not a prerequisite for the Tribunal to make conclusions about contested matters, for example between Dr Ball and Dr Coyne. He submitted that what the decided cases establish is that the Tribunal can decide that it is either in the public interest or that it is appropriate for the health or safety reasons that conditions be imposed, even if the Tribunal accepts there are divergent views between the experts. He submitted that the Tribunal could/should impose conditions even if it concludes there is potential, as opposed to actual, risk to the health or safety of the community.
31. During the submission from counsel for the Medical Council, the Tribunal members asked about the evidence which illustrated how the six cases selected for Dr Ball to review and report on, were in fact selected. There had been reference in the evidence to the possibility the cases were either chosen because they showed adverse outcomes for the patients or because the patient had made a complaint to either the Wollongong Private Hospital or some other body. However, counsel took the Tribunal to a letter from Dr Bassett to Ms Kennedy (Tab 24 of exhibit R1) where the selection was identified as "The investigation by Dr Ball was limited to six patients whose outcomes were a concern to us."
32. The Medical Council submitted that if the Tribunal was to consider, permitting the condition imposed upon Dr Day's registration, should be relaxed to permit Dr Day to undertake instrumented anterior cervical spine surgery for 1-2 levels, then it should then also consider requiring that another neurosurgeon be present throughout the whole of the operation rather than being required only to identify the correct site for the procedure on the subject patient.
33. The Medical Council also requested there be an order made, pursuant to Clause 7 of schedule 5D of the National Law, prohibiting the publication of the names of any complainants or patients set out in the published reasons.
34. The Medical Council seeks an order for Dr Day to pay its costs.

The Submission of the Appellant

1. Dr Day filed a written outline of submission on 21 May 2020. That document outlined the history of Dr Day's interaction with the Medical Council, the Wollongong Private Hospital and the ISLHD since the beginning of 2018.
2. Dr Day submitted: in proceedings of this nature the council and this Tribunal should only impose upon a practitioner's registration such conditions as a necessary to protect the public on an interim basis pending a full investigation and hearing, if required. Such an objective would be achieved by varying the conditions as recommended by Professor Coyne. That would also make available to the public Dr Day's relatively rare neurosurgical skill and experience. (We note the relevant test, as required by the section, is not one which uses the word "necessary" but rather the word "appropriate").
3. In his oral submissions, counsel for Dr Day pointed to the following.
4. In the report of Dr Coyne to the Wollongong Private Hospital (Tab 7 page 20 of exhibit A1), Dr Coyne said, under the heading "Summary": Review of the six cases provided does not indicate that Dr Day has practiced at a below standard of care. Of the four patients who experienced intra- or post-operative complications, these complications were inherent in the nature of the surgery undertaken. The complications are all different in nature, and there is no overreaching pattern of poor surgical skills, which could be identified.
5. Counsel reminded the Tribunal of the evidence that Dr Day had been required, by the Wollongong Private Hospital, to perform 10 instrumented spinal surgeries under the supervision of an accredited neurosurgeon. He had completed those surgeries and received a "glowing report" from the supervisor.
6. Counsel for Dr Day took issue with that part of the written submission of the Medical Council which asserted that Dr Day had been the subject of numerous complaints by patients prior to the 2019 s 150 hearing. Counsel said that in the chronology prepared for the s 150 hearing (exhibit R1 Tab 4) seven complaints are listed commencing in 2006. Five of the complaints were discontinued with no adverse action against Dr Day. Two of the complaints have no further information provided and the submission is that they should be seen to have not given rise to any proceeding against Dr Day.
7. It was submitted that the evidence of Dr Day should be accepted in preference to the submission of the Medical Council, in relation to the performing of an operation at the Wollongong Private Hospital in contravention of the conditions the Hospital had set for his continued accreditation during 2019. It was submitted we would accept the act was not a deliberate flouting of the condition, rather a misunderstanding based upon the circumstances then existing.
8. Counsel submitted the evidence of Dr Coyne should be accepted in preference to that of Dr Ball. It was submitted the Tribunal would be satisfied Dr Day can operate safely upon his patients both private and public and that the public in the Wollongong area and surrounding districts, which look to Wollongong for the performance of complex surgery, will benefit from having him available to them.
9. In relation to costs, Dr Day submits the Tribunal could leave the question of costs until after the decision is published and enable the parties to have an opportunity to reach agreement in relation to same. If the Medical Council presses for the Tribunal to determine the question of costs then Dr Day submits the Medical Council should pay his costs if he is successful in having the conditions changed, as he seeks.

Determination

1. In the determination of this appeal, the Tribunal is required to consider the evidence afresh, including any new evidence, by way of a new hearing (s 159(3)).
2. This appeal is somewhat unusual in that the findings which necessitated the imposition of conditions upon the registration of Dr Day are not challenged. That is, the findings, which we have set out earlier in these reasons, which specify the delegates concerns and gave rise to their conclusion that it was appropriate to impose conditions on Dr Day's registration for the protection of the health and/or safety of members of the public, and otherwise in the public interest. What is sought to be established is that the conditions imposed, which of necessity under s 150 of the National Law are temporary conditions pending further investigation, ought be adjusted/varied in two areas only.
3. The conditions which are sought to be varied are conditions 1 and 2(c). The Medical Council concedes there should/could be two minor amendments/adjustments to the conditions. That would mean condition 2(c) would read as follows: When the practitioner undertakes any spinal surgery: (i) the practitioner must obtain intra-operative confirmation from the Council-approved supervisor or Council-approved neurosurgeon, that the correct level has been identified and this corresponds to the level/s consented to by the patient. (The underlined words are the words the Medical Council agrees can be added.)
4. The Medical Council further agreed that in condition 3(e) the words "or Council-approved neurosurgeon" can be inserted after the words "Council-approved supervisor". Thus condition 3(e) would read: The name and signature of the Council-approved supervisor or Council-approved neurosurgeon, who confirmed the correct level.
5. On 25 May 2020 Dr Day's counsel provided the following document to the Tribunal which set out the conditions he submitted would be appropriate to impose upon his registration. The proposed conditions do include variations of the current conditions beyond condition 1 and 2(c) as set by the delegates of the Medical Council in December 2019. We have underlined and made bold, where the proposed conditions depart from the conditions set by the delegates of the Medical Council in December 2019. Dr Day v Medical Council of NSW - Proposed Conditions 1. The practitioner's performance of instrumented spinal surgery is limited to the following procedures: (a) Instrumented anterior cervical spine surgery (anterior cervical decompression and fusion, disc arthroplasty) for 1-2 levels ('Instrumented Surgery'). 2. When the practitioner undertakes any Instrumented Surgery: (a) the practitioner must obtain intraoperative confirmation from a Council approved neurosurgeon or orthopaedic spinal surgeon that the correct level has been identified and this corresponds to the level/s consented to by the patient. 3. To practice 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) The terms of the Council's Compliance Policy - Supervision are varied so that the practitioner is to: i. have review meetings with his Council-approved supervisor each fortnight ii. authorise the Council-approved supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis (b) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: i. Patient selection ii. Pre and Intraoperative planning processes iii. Consent processes iv. Clinical decision making v. Record keeping (c) To authorise the Medical Council of NSW to provide the approved supervisor(s) with a copy of the decision which imposed this condition and his current conditions. 4. Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a record of all spinal procedures performed in the last month. The record must include the following: (a) The full name and date of birth of the patient (b) The date and time of the procedure (c) The name of the surgical procedure (d) Medicare Item number (e) If an Instrumented Surgery, the name and signature of the Council-approved supervisor who confirmed the correct level (f) Any complications arising as a result of the procedure (and specifically advising of any unplanned return to theatre and/or any post-operative infection). 4. To undergo a performance assessment 5. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 6. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).
6. The proposed conditions omit condition 2(c) which is: Whenever the practitioner undertakes any spinal surgery: i) the practitioner must obtain intraoperative confirmation from the Council-approved supervisor that the correct level has been identified and this corresponds to the level/s consented to by the patient.
7. As can be seen, however, the wording in proposed order 2 almost mirrors the former condition 2(c) as set out above, with the differing provision that it would only apply to "instrumented spinal surgery".
8. We commence this determination by finding, to the extent it is necessary to do so, that we are satisfied, on the evidence relied upon by the Medical Council, as we have reviewed and specified herein, that there are identified risks and/or potential risks, associated with the practice of medicine by Dr Day, which make it appropriate for us, in the exercise of powers set out in s 150 and elsewhere in the National Law, for the protection of the health or safety of persons (including the public at large) and otherwise it is in the public interest, to impose conditions relating to the practice of medicine by Dr Day, such conditions to attach to his registration as a medical practitioner.
9. In so determining, we are conscious of the potential for an unjust outcome to Dr Day, arising from the circumstances in which the six identified cases of alleged adverse outcome, are expressed to be representational of Dr Day's skills and standard of practice as a generality, in a field of medicine which is acknowledged by expert evidence to be "high risk" surgery. We are concerned that a review of 100 consecutive spinal surgery operations carried out by Dr Day at the Wollongong Private Hospital has yet to be completed. We are conscious that the review by an expert neurosurgeon may conclude that the rate of adverse outcome for spinal surgery, of any description, performed by Dr Day, is well within the acceptable rate, namely 5 to 10% of all cases. If that should transpire to be the case, then we would trust that immediate review of Dr Day's circumstances would take place by all relevant bodies.

What are the identified Risks of Dr Day's Medical Practice

1. The identified risks or potential risks, in relation to Dr Day performing spinal surgery, which we are satisfied are established by the evidence before us, are as follows:

• The potential, although apparently rare, for Dr Day to misinterpret imaging.
• His potential to not prioritise the requirement to comply with conditions set by the Medical Council as he did with the Wollongong Private Hospital (operating unsupervised in September 2019 and failing to provide reports for the 10 spinal procedures the Hospital required)
• The possibility that his placement of pedicle screws, during procedures, was not to an acceptable level of competence.
• The possible failure to recognise the misplacement of pedicle screws during a procedure.
• The possible failure to recognise "the wound breakdown as a complication of construct failure".
• In relation to record keeping, the potential to fail to recognise an issue and thereby not record it.
• Failure to recognise misplacement of spinal hardware during a procedure.
• The potential misuse of cement in procedures.

1. We are conscious that instrumented spinal surgery is a high-risk surgical procedure because of its complexity. We are conscious of the adverse outcome rate of 5 to 10% of all procedures undertaken with the risk rate being closer to 10% in certain types of instrumented spinal surgery. We are conscious of the fact that six cases have been selected by the Wollongong Private Hospital and/or the ISLHD out of possibly more than 100 cases performed by Dr Day during the same period in which the six cases were carried out. We are conscious of the needs of patients who suffer back pain of varying degrees and constancy, who are at the end of their endurance and seek any help/procedure which might give them relief, either fully or partially. We are conscious of the possibility that across the profession of neurosurgery, there will be a number of surgeons who are prepared to undertake the most complex of spinal procedures where others would not do so because of their assessment of risk to the patient of adverse outcome. We have considered the current circumstance of Dr Day which has prevented him from undertaking any surgery at hospitals in the ISLHD, thus depriving patients of his services.
2. We are reminded of what the delegates said in the 2018 s 150 decision, namely: In our view, the major concern that these cases raise relates to Dr Day's selection of patience and willingness to perform complicated high-risk surgery on complex patients, where it may not be the best approach. That seems to us to possibly refer to surgery where more conservative neurosurgeons would consider the risk of an adverse outcome would be too great and which Dr Day considers the potential for a good outcome for the patient is worth that elevated risk. Which approach is to be preferred is for another Tribunal to determine. It is not a determination which we are required to make here.
3. We have considered the conditions which were imposed by the Medical Council following the hearing on 6 December 2019 and those conditions which the Medical Council concede can be varied, AND we have considered the variation to the conditions sought by Dr Day. We have concluded there is an established reason to discharge the current conditions and impose the following:
4. The conditions attached to the registration of Dr Day, by order of the Medical Council of NSW, published 23 December 2019, are discharged and the following conditions are to be entered: A. That the practitioner's performance of spinal surgery is limited to the following procedures: (a) Non-instrumented surgery. This includes surgery to relieve compression of the spinal-cord and nerves roots, as well as surgery to deal with tumours and infections. (b) Instrumented anterior cervical spine surgery, including anterior cervical decompression and fusion, disc arthroplasty, only for 1-2 levels, where the purpose of that surgery is for the relieving of spinal cord and nerve root compression, AND only where it is approved by a neurosurgeon or orthopaedic spinal surgeon, approved by the Medical Council and noted by both Dr Day and the said neurosurgeon or orthopaedic spinal surgeon, to be the preferred approach to address the pathology found in the patient. B. Whenever the practitioner undertakes any spinal surgery: (a) For non-instrumented surgery, the practitioner must obtain intraoperative confirmation from a Council approved neurosurgeon or orthopaedic spinal surgeon (the confirmer) that the correct level has been identified and this corresponds to the level/s consented to by the patient. The confirmation by the confirmer can be obtained in a face-to-face meeting between the practitioner and the confirmer or by other media provided the confirmer has the capacity to see the relevant documents and images, in an acceptable form and can provide the confirmation in a form which can be recorded for the purpose of providing same to the Medical Council of NSW. (b) For anterior cervical spine instrumented surgery, a Council approved neurosurgeon must be present to document the correct level and to supervise the procedure. C. The conditions set out herein do not operate in relation to spinal or cervical surgery, of any nature, when the practitioner is assisting another surgeon who has principal carriage of the surgery and who is present to supervise any aspect of the surgery performed by the practitioner. D. 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) The terms of the Council's Compliance Policy - Supervision are varied so that the practitioner is to: (i) have review meetings with his Council-approved supervisor each fortnight (ii) authorise the Council-approved supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis (b) At each supervision meeting the practitioner is to: (i) review and discuss his practice with his approved supervisor with particular focus on: i. Patient selection ii. Pre and Intraoperative planning processes iii. Consent processes iv. Clinical decision making v. Record keeping (c) To authorise the Medical Council of NSW to provide the approved supervisor(s) with a copy of the decision which imposed this condition and his current conditions. E. Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a record of all spinal procedures performed in the last month. The record must include the following: (a) The full name and date of birth of the patient (b) The date and time of the procedure (c) The name of the surgical procedure (d) Medicare item number (e) The name and signature of the Council-approved supervisor who confirmed the correct level (f) any complications arising as a result of the procedure (and specifically advising of any unplanned return to theatre and/or any post-operative infection) F. To undergo a performance assessment. G. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. H. The Medical Council of NSW is the appropriate review body for the purpose of Part 8, Division 8 of the Health Practitioner National Law (NSW).
5. The reason we consider it is appropriate to vary the conditions which were imposed by the Medical Council, as referred to above, include the following: 1. The current conditions imposed by the Medical Council in December 2019, do not, by their wording, prevent Dr Day from undertaking any cervical and spinal surgery which is not instrumented spinal surgery. That, in our view, at this time, and pending completion of the consideration/investigation of the 100 cases the ISLHD is conducting and the review of any cases identified in that 100, by Dr Coyne, would potentially pose a risk to the public at large. 2. Dr Coyne opines as follows:

• The current conditions create restrictions to the point where the conditions all but prevent Dr Day doing any spinal surgery at all.
• The restriction should ease to permit Dr Day to undertake non-instrumented posterior cervical and lumbar spine surgeries.
• Dr Coyne supported Dr Day being permitted to undertake anterior cervical spine surgery (Anterior cervical decompression and fusion; disc arthroplasty) for 1-2 levels. That would include placement of an intravertebral cage/plate or arthroplasty prosthesis. Thus, it would be instrumented. Dr Coyne said more than 2 levels can be complex.
• There is inconsistency in the current conditions as the conditions would not prevent Dr Day performing anterior cervical spine surgery using a patient's own bone as that would not be instrumented surgery.
• Dr Coyne's view that for a supervisor to determine Dr Day had selected the correct level for operation, "all neurosurgeons and orthopaedic spinal surgeons have the same capacity to independently confirm the spinal level."
• Dr Coyne said Dr Ball's criticism of Dr Day's skills was principally in relation to technical performance of complex instrumented thoraco-lumbar spine surgery. That included suboptimal screw placement in some of the procedures included in the six cases considered by Dr Ball.
• Dr Coyne said Dr Ball did not have any major criticism of Dr Day's clinical assessment and surgical planning.
• Dr Coyne's evidence that a cervical operation is done under direct vision of the operation site as opposed to lumbar and thoracic surgery which is performed without being able to directly see the sight which is being operated upon. 1. The reference from Dr Day's supervisor Dr Reddy. He said Dr Day's clinical decision making was sound and he was an excellent technician. He also said: "I would have no concerns if Dr Day was looking after myself, any member of my family, or my friends". 2. There is a risk that following a full review of a larger consecutive number of Dr Day's spinal operations, the review will reveal his adverse outcome rate is well within the accepted level for complex spinal neurosurgeons with the same level of experience and training as Dr Day (5 to 10%). The consequent loss of continued practice, at complex level spinal surgery, by Dr Day, may impact upon his technical skill level and also deny the population who use the facilities he operates at, his services. 3. There does not appear to be any evidence to show the supervision necessary to ensure Dr Day has selected the correct level to operate and then to check it corresponds with signed consent of the patient, could not be adequately done remotely rather than the supervisor having to be present as the surgery is about to commence. 4. The conditions should not prevent Dr Day from being an assistant neurosurgeon in respect of any operation where the principal carriage of the surgery rested with another neurosurgeon who was present throughout the operation and able to observe and supervise any part of the operation performed by Dr Day at his/her request. 5. The submission from the Medical Council urging the Tribunal to consider requiring another neurosurgeon to be present when Dr Day operates at cervical level 1-2 if the Tribunal is persuaded to vary condition 1 of the current conditions, as sought by Dr Day. 6. The risk to the public safety of not being able to use the skills and experience of Dr Day in a safe and acceptable manner. 7. The impact upon a skilled surgeon of having been refused operating experience if it should transpire that a review of his work as a spinal surgeon over the last few years of his practice was at an entirely acceptable standard. (We note there is currently a review of 100 consecutive cases conducted by Dr Day). Such a risk is real if the opinion of Dr Coyne, in his report to the Wollongong Private Hospital, is found to be correct, namely: Review of the six cases provided does not indicate that Dr Day has practiced at a below standard of care. Of the four patients who experienced intra- or post-operative complications, these complications were inherent in the nature of the surgery undertaken. The complications are all different in nature, and there is no overreaching pattern of poor surgical skills which could be identified. 1. The balance of the conditions which were imposed by the Medical Council in December 2019 are not the subject of challenge, however, we still need to consider those conditions as the hearing we have embarked upon requires us to consider the case afresh. We have considered the Medical Council's submission that the unchallenged conditions should be imposed by the Tribunal. Dr Day does not oppose that course. We think the conditions are a necessary adjunct to the conditions we have otherwise determined should be imposed.

Costs

1. Each of the parties seeks an order for their costs to be paid. Each is represented by lawyers who are well acquainted with the jurisdiction and the circumstances in which costs orders will be made by the Tribunal against one party or the other or some variant thereof.
2. As a general rule, as seen in the hereafter cited cases, a costs order will follow the outcome of the hearing. In this case neither party has been wholly successful. Neither party has been shown to have conducted themselves/itself in a manner which requires recognition in a costs order.
3. Each party has been partially successful in this litigation.
4. The Tribunal has the power to award costs pursuant to cl 13, Sch 5D of the National Law: The Tribunal may order the complainant (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.

Principles to be applied in determining a costs application

1. The relevant principles are subject of well-established authority. In Health Care Complaints Commission v Phillipiah [2013] NSWCA 342 Meagher JA explained at [42]-[44]: As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.
2. Those principles are also referred to in Health Care Complaints Commission v Do [2014] NSWCA 307.
3. In Rajesh Dinakar v Medical Council of NSW, 12 December 2012, Medical Tribunal of NSW, the Tribunal noted at [54] that: [A]s we are satisfied that it was necessary for the Council to be represented before us to test the Applicant's evidence and propose suitable conditions, we are of the view the Applicant, although successful, should pay the Council's costs.
4. In Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49, the Tribunal made the following findings relating to costs: [90] Proceedings of the present kind arise because of the prior misconduct of the Applicant, and can be seen as ancillary. While it might be said that the Applicant has been 'successful', and thereby should, at the least, not be exposed to the respondent Council's costs, that misunderstands the nature of the respondent's involvement at the inquiry. As noted by the Tribunal in Kazmierczak at [54] (and set out at [76] in Parajuli): '[A]ltough the Applicant has been successful, the fact is that it was entirely appropriate for the Medical Board to oppose his application. The Medical Board in such applications plays a highly significant part on behalf of the public and the medical profession in putting Applicants to the test and in ensuring that their background or at least their character is properly ventilated: that no Applicant is reregistered without a sufficient investigation into what they have done since the deregistration.' [91] Parajuli was a case where the respondent had actively opposed the application, but the Applicant had prevailed. The Tribunal continued: 'Because it was entirely appropriate for the application to have been opposed and because it was in effect the Applicant's conduct which has brought about this application in any event, he should pay the costs of the application'. [92] Here the ultimate position of the respondent was one that was not opposed to reregistration, though the ultimate decision is always that of the Tribunal. The same rule should apply.
5. Further, in Ake v Health Care Complaints Commission [2019] NSWCATOD 165, the Health Care Complaints Commission neither supported nor opposed the application for reinstatement and the practitioner was reinstated subject to conditions: [48] This issue was addressed in Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 (Ameisen). There, the Tribunal considered it a misnomer to describe an Applicant who is reinstated following an inquiry to review a "relevant order" as having been "successful". Reasoning that this characterisation "misunderstands the nature of the respondent's involvement in the proceedings", the Tribunal pointed out at [90] that reinstatement proceedings "arise because of the prior misconduct of the Applicant [practitioner], and can be seen as ancillary [to the original proceedings which resulted in the cancellation of the practitioner's registration]". The Tribunal ordered Dr Ameisen to pay the respondent Council's costs, notwithstanding its decision that he be reinstated to the register of medical practitioners. [49] This approach was followed in Ristevski v Medical Council of NSW [2016] NSWCATOD 18. There the Tribunal concluded at [87]: "Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused." [50] In Ristevski the Tribunal examined a number of cases where on review of the relevant order, the Applicant practitioner was reinstated but not ordered to pay the costs of the respondent Council or Commission: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43, Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 and Roberts v Medical Council of New South Wales [2015] NSWCATOD 35. The Tribunal concluded that each case had "exceptional features" and the relevant Tribunal had been critical of aspects of the respondent's participation in the inquiry: Ristevski at [74], [78], [82] and [88]. (See also Vo v Medical Council of NSW [2018] NSWCATOD 18 Submissions on behalf of the Medical Council of NSW at [144]. Cf Haber v Health Care Complaints Commission [2018] NSWCATOD 16; Shah v Health Care Complaints Commission (No 2) [2016] NSWCATOD 102) [51] We agree with the view expressed by the Tribunal in Ristevski at [70]-[71] that in conducting a review of a relevant order under s 163B of the National Law, there is a public interest in the Tribunal being assisted by the relevant practitioner Council or the Commission. Without a respondent in this class of matters, there is a risk that the Tribunal might only have available the self-serving evidence adduced by the Applicant practitioner. The involvement of, to use the term coined in Ristevski, a "public interest respondent" in review proceedings, assists the Tribunal in discharging its obligation to ensure that all relevant material is disclosed so as to enable it to determine all relevant facts in issue: s 38(6)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).
6. It is of particular note that the Medical Council has been awarded costs in proceedings in which the Council has opposed the making of a reinstatement order, yet the order was made. See Vo v Medical Council of NSW [2018] NSWCATOD 18: [141] The Council properly appeared as respondent to the application. Its appearance came as a consequence of the disciplinary offences of the Applicant that led to his deregistration, and the need for him to demonstrate persuasively that he should now be reinstated. It is plainly in the public interest that there be a participant in the proceedings of the kind that the Council is, a peak regulatory body who can bring a detached, knowledgeable perspective to an application of this kind. [142] While the power to order costs is discretionary, there is nothing about this case that might suggest that the Council should not receive an order for its costs of responding to the application. See also Reimers v Medical Council of New South Wales [2018] NSWCATOD 180, In re Andrzej Kazmierczak, unreported, NSWMT, 6 May 2010 and Parajuli v Medical Council of New South Wales [2011] NSWMT 4 in which the Council opposed the application and was awarded costs in the proceedings.
7. In Donnelly v Health Care Complaints Commission [2011] NSWSC 705 at [66] - [67] the following was said: In determining what to do about costs in this case, we note that neither the HCCC nor the successful applicant, Dr Donnelly, have done anything in the way they conducted their parts in these proceedings to warrant a reduction in any costs awarded in an order in their favour…. To award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the facts that costs are involved in acting as a contradictor or vice versa. We saw no basis for doing that in the circumstances of this case. Consequently, we declined to exercise our discretion to make a costs order under cl 13 of Sch 5D of the National Law. As a result the parties will bear their own costs in relation to this application.
8. Applying all those guiding principles we consider that it is appropriate that Dr Day pay 75% of the costs of the Medical Council of NSW as agreed or as assessed. The reasons for exercising the discretion permitted, in the making of an order for costs, is as follows:

• Neither party has been wholly successful in the proceeding.
• A small reduction in the costs which Dr Day will pay to the Medical Council recognises partial success on his part in the proceedings.
• Dr Day, had a proper case to bring as an appeal to the Tribunal.
• The Medical Council brought evidence before the Tribunal which demonstrated the potential for (if not actual) risk to the public through the practice of spinal procedures by Dr Day.
• The evidence of Dr Coyne, which supported, in part, the case being pursued by Dr Day, was provided shortly before the hearing commenced before the Tribunal.
• The proposal of Dr Day to vary the conditions imposed by the Medical Council through the s.150 proceeding, required opposing by the Medical Council, for the right reasons.
• The involvement of the Medical Council in the hearing permitted the Tribunal to see the evidence, in this very difficult case, tested.
• The Medical Council provided detailed and very helpful submissions and guidance to the Tribunal through its involvement in the hearing.

1. An order will be made for costs as set out above.

Orders

1. Bringing together all the orders we propose to make, we make the following orders: 1. The conditions attached to the registration of Dr Maurice Jerome Day, by order of the Medical Council of NSW, published 23 December 2019, are discharged and pursuant to section 150(1)(b) of the National Law, the following conditions are to be entered. 2. That the practitioner's performance of spinal surgery is limited to the following procedures: 1. Non-instrumented surgery. This includes surgery to relieve compression of the spinal-cord and nerves roots, as well as surgery to deal with tumours and infections. 2. Instrumented anterior cervical spine surgery, including anterior cervical decompression and fusion, disc arthroplasty, only for 1-2 levels, where the purpose of that surgery is for the relieving of spinal cord and nerve root compression, AND only where it is approved by a neurosurgeon or orthopaedic spinal surgeon, approved by the Medical Council and noted by both Dr Day and the said neurosurgeon or orthopaedic spinal surgeon, to be the preferred approach to address the pathology found in the patient. 1. Whenever the practitioner undertakes any spinal surgery: 1. For non-instrumented surgery, the practitioner must obtain intraoperative confirmation from a Council approved neurosurgeon or orthopaedic spinal surgeon (the confirmer) that the correct level has been identified and this corresponds to the level/s consented to by the patient. The confirmation by the confirmer can be obtained in a face-to-face meeting between the practitioner and the confirmer or by other media provided the confirmer has the capacity to see the relevant documents and images, in an acceptable form and can provide the confirmation in a form which can be recorded for the purpose of providing same to the Medical Council of NSW. 2. For anterior cervical spine instrumented surgery, a Council approved neurosurgeon must be present to document the correct level and to supervise the procedure. 1. The conditions set out herein do not operate in relation to spinal or cervical surgery, of any nature, when the practitioner is assisting another surgeon who has principal carriage of the surgery and who is present to supervise any aspect of the surgery performed by the practitioner. 2. 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. 1. The terms of the Council's Compliance Policy - Supervision are varied so that the practitioner is to: 1. have review meetings with his Council-approved supervisor each fortnight 2. authorise the Council-approved supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis 1. At each supervision meeting the practitioner is to: 1. review and discuss his practice with his approved supervisor with particular focus on: i. Patient selection ii. Pre and Intraoperative planning processes iii. Consent processes iv. Clinical decision making v. Record keeping 1. To authorise the Medical Council of NSW to provide the approved supervisor(s) with a copy of the decision which imposed this condition and his current conditions. 1. Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a record of all spinal procedures performed in the last month. The record must include the following: 1. The full name and date of birth of the patient 2. The date and time of the procedure 3. The name of the surgical procedure 4. Medicare item number 5. The name and signature of the Council-approved supervisor who confirmed the correct level 6. Any complications arising as a result of the procedure (and specifically advising of any unplanned return to theatre and/or any post-operative infection) 1. To undergo a performance assessment. 2. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 3. The Medical Council of NSW is the appropriate review body for the purpose of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 4. Dr Day is to pay 75% of the costs of the Medical Council of NSW as agreed, or as assessed.

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: 20 January 2021