Dr B v Local Health District

Dr B v Local Health District - [2018] NSWIRComm 1037 - NSWIRComm 2016 case summary — Zoe

Pseudonym Order

Pursuant to s 164A of the Act, I have assigned pseudonyms to the parties and all witnesses who appeared in the proceedings.
For the purposes of the proceedings: Dr B is the applicant; The respondent is a Local Health District (the LHD); The patient is referred to as the patient; A second patient of Dr B named in proceedings is referred to as patient two; The name of the relevant hospital is referred to as "the hospital"; C is a senior industrial officer of ASMOF, the industrial organisation representing Dr B; D is the human resources manager for the LHD; Dr E is a senior staff specialist of another LHD and an officer of ASMOF; Dr F is a specialist/consultant urologist/urological surgeon who attended the operation undertaken by Dr B on 5 December 2014; Dr G is the LHD's director of medical services; Dr H is a registrar - urology; Dr L is the director of clinical governance; Dr M is a specialist urogynaecologist; Dr N is the hospital's medical director of maternity and gynaecology; Dr O is the hospital's director of gynaecology; Ms P is the hospital general manager; Ms I is a service manager for the LHD; Dr J is a senior staff specialist obstetrics and gynaecology; Ms K the LHD"s legal affairs coordinator; The chief executive of the LHD is referred to as the chief executive; The theatre registrar is referred to as the theatre registrar; Ms Q is the acting operations manager - ambulatory care; Dr R is a consultant - urology; Dr T is a registrar - maternity and gynaecology. Dr T was the doctor assisting Dr B with the operation on 5 December 2014; Dr S is a registrar - maternity and gynaecology; Dr V is an anaesthetist; Dr X the patient's doctor (first operation report); Dr Y is the patient's doctor (second operation report); Dr Z is a staff specialist, clinical governance unit; Ms W is an acting nurse manager - theatre; Nurse 1 is a theatre nurse. She was the scrub nurse during the operation undertaken by Dr B on 5 December 2014; Nurse 2 is a theatre nurse; Nurse 3 is an anaesthetic nurse; Nurse 4 is a theatre nurse; and Nurse 5 is a ward RN;
Academic titles have been removed where relevant and references to Dr B are gender neutral.

[5]

The incident that gave rise to Dr B's dismissal

The principal allegation that gave rise to Dr B's dismissal was that the doctor had performed a non-life-threatening surgical procedure on a patient, a colpocleisis, for which the doctor did not have full informed consent and was not necessary in the circumstances. The LHD alleged the relevant consent forms did not record the possibility of a colpocleisis or a severe narrowing of the patient's vagina.
Dr B contended that a range of possible procedures, including colpocleisis, had been raised with the patient prior to the surgery. However, the patient did not consent to colpocleisis. Dr B further contended that the patient was well aware of her current and future sexual function.
The incident was reported to the NSW Health Care and Complaints Commission (HCCC) pursuant to the Health Care Complaints Act 1993. The HCCC referred the complaint to the NSW Medical Council in accordance with the s 150 of the Health Practitioner Regulation (Adoption of National Law) Act 2009. The NSW Medical Council subsequently determined Br B had not breached the Health Practitioner Regulation National Law Act 2009. The Medical Council ultimately determined that the National Law had not been breached and accordingly, no further action would be taken.
Dr B sought to rely on the Medical Council's findings. Dr B also considered the patient had been informed that the proposed surgery could encompass a narrowing of her vagina. In that regard, Br B placed some reliance on that fact which was set out in the following post-operative consent correspondence drafted by the patient and dated 14 December 2014: To whom it may concern, Dr B and I thoroughly discussed the different options of my bladder surgery. I was aware that the vagina could be severely narrowed but seeing my husband and I have had no sexual activity for at least 17 years I just said, don't worry, just go ahead do what you have to do ..
Shortly thereafter, a Review Team was formed to investigate concerns in relation to the management of the patient by Dr B in accordance with NSW Health Policy Directives PD 2014_042 (Managing Misconduct) and PD 2006_007 (Complaint or Concern about a Clinician). These documents are variously referred to below as PD2014_042 managing misconduct and PD 2006_007 complaint or concern.
The Review Team formed to undertake a surgical performance review of Dr B's conduct, comprised Drs G and J, K, and D. It was coordinated by I. the LHD's service manager.

[6]

Terms of Reference for Review Team

The terms of reference for the surgical performance review related to Dr B alleged conduct were settled on 9 December 2014 and included in part the following information: Complaint or Concern Concerns have been raised to relation to the management of a patient, a 68-year-old female who went who underwent anterior repair with mesh cystoscopy, pudendal nerve block and bilateral sacrospinous colpopexy at the hospital on 5 December 2014. The allegations are that Dr B: (i) undertook a procedure cause damage to the bladder during the operation requiring a urologist to be called to repair the bladder; (ii) undertook a further elective procedure on the patient without the informed consent of the patient and in a non-life-threatening circumstance; (iii) undertook this procedure despite a recommendation by a urologist that no further surgery to the prolapse be undertaken immediately following the bladder repair; (iv) undertook this further procedure without informed consent; (v) that the procedure which was undertaken is not considered usual practice or justified by the circumstance; (vi) unduly and indirectly influenced the patient to discharge herself against medical advice; and (vii) influenced the patient's GP to intervene on the doctor's behalf and attend the hospital to persuade the patient to self-discharge. Scope of Review The reviewers were asked to consider the concerns and complaints received by the hospital's Maternity and Gynaecology Services Department against Dr B's standard of professional behaviour, clinical judgement and surgical competence in relation this case and to undertake the following tasks: 1. The reviewers will provide an assessment about the validity of the concerns and complaints. The potential risk to patient safety specifically related to the following categories: Medical expertise Judgment - clinical decision-making Technical expertise Professionalism Communication Patient consent for the procedures undertaken 2. Where the reviewers identify any additional concerns about the clinician's practice to those specified above, consideration will be given as to whether such concerns should be included in the review. This will be done in consultation with the director (of) clinical governance. 3. The reviewers will make recommendations as a consequence of their consideration and evaluation, concerning any action that should occur in regard to Dr B's practice, including, scope of clinical practice, services delivered within the LHD or referral to other authorities. 4. The review report will be provided to the director of clinical governance.
In preparing an investigation report, the terms of reference required the reviewers "to cover the background, the complaint or concern, scope of the investigation, methodology of the investigation, a summary of events, findings and conclusions, and recommendations". A further requirement was that the investigation report should make one or more of the following findings: That on the balance of probabilities, unsatisfactory professional conduct occurred; That their work performance issues not sufficiently serious to warrant reporting to a health professional registration board; That there were behavioural issues; That there were communication(s) issues; That there were patient consent issues; That there may be impairment; That there were systems issues; and That there were no individual performance or systems issues.
The terms of reference further provided that upon receipt of the investigation report, the LHD may take the following action: Request a written response to the report from the clinician. This written response will be considered by the Chief Executive along with the investigation report; Report any finding that there may be unsatisfactory professional conduct to the NSW Medical Council and AHPRA accordance with the Health Services Act 1997 and Health Practitioner National Law Regulation 2010; Report any finding that there may be impairment to the NSW Medical Council and AHPRA accordance with NSW Health policy; and Deal with the other findings and recommendations in accordance with NSW Health and LHD policies.
The Review Team subsequently determined Dr B had exhibited unsatisfactory professional conduct in the care of the patient by: 1. undertaking a surgical procedure without informed consent in a non-life-threatening situation; 2. providing insufficient detail in medical/operating theatre notes with respect to the surgery performed; 3. undertaking a surgical procedure that was not necessary in the circumstances; and 4. failing to comply with documentation requirements regarding consent and intraoperative record-keeping.
The Review Team findings were reviewed by Dr L, the director of clinical governance in early December 2014. Dr L subsequently prepared an Executive Leadership Team briefing concerning Dr B's compliance the relevant policy directives.

[8]

Medical Council decision

In its written reasons for decision dated 10 April 2015, the Medical Council determined: In view of the documentary and oral evidence available, the delegates concluded that the provisions of section 150 of the Health Practitioner Regulation National Law (NSW) were not engaged and no further action was taken.
The Medical Council also considered Dr B's previous suspensions by the LHD: The first commenced in 2008 when (the doctor) became unwell during an operation and the surgeon who came into the theatre to assist … was unable to complete the case, resulting in a complaint by the patient and an investigation by the LHD. Dr B was informed that the suspension related not only to … judgement and actions in relation to this case but also to … punctuality at outpatient clinics and a number of subsequent interactions with members of staff. Dr B stated that … employment was terminated following the LHD investigation into this matter … (but) was reinstated in 2010 after the Union pursued the matter... The second suspension occurred in 2013 in relation to the intraoperative management of a patient. An LHD investigation into this matter found that the incident represented a "serious performance issue" and not "misconduct". Dr B was asked what (pronoun) understood the series performance issue to be and (pronoun) stated that this had never been explained to …despite … requests. Through (the) solicitor (acting on the doctor's) behalf at the time), (pronoun) had requested that the LHD put in writing their concerns but this had never been forthcoming. The doctor returned to work after a six month suspension.
The Medical Council subsequently observed: The material in issue in these proceedings can be conveniently separated into three parts - the triggering event for these particular proceedings, the operation for patient (on 5 December 2014), two matters still being investigated by the HCCC (two patients named) and the (11) complaints between 2006 and 2009, culminating in a Performance Assessment on 29 August 2009.
The balance of the Medical Council decision proceeded to set out "the written material in these proceedings concerning these matters and the relevant evidence taken at the hearing".

[9]

Health Care and Complaints Commission decision

The HCCC provided a written response to the LHD on 21 May 2015. Shortly stated, the HCCC determined that it would take no further action: I understand the main area of concern related your allegation that Dr B undertook a none-life threatening procedure on a patient (colpocleisis) in situation for which there was apparently no consent. You highlighted that this operation involves closing the vagina rendering the patient sexually incompetent. This procedure was allegedly undertaken after a urologist was called into the operating room to advise on an operative complication (a bladder wall injury) advised Dr B to abandon any further procedures on this patient. Also of concern was that there was no documentation of the alleged procedure on the patient's medical record. The Commission has thoroughly assessed this complaint has decided to take no further action. The Commission sought and received internal medical advice regarding this complaint from an Internal Medical Adviser to assist in making an appropriate assessment decision. The Commission also considered the final investigation report findings from the LHD as well as Dr B's Response. Further the Commission consulted with the Medical Council of NSW regarding its assessment decision and it was agreed that no further action would be taken. Consent: NSW Health Policy Directive indicates generally that the law does not require consent or the provision of information including warnings about material risks of a procedure to be documented in writing. The Commission acknowledges that the absence of consent in writing could potentially give rise to the implication that the procedure has not been discussed or that consent was not obtained. In this case, consent was obtained in writing only for an "anterior posterior repair". However Dr B claims (pronoun) discussed both this and the colpocleisis. This was evidenced in the written consent dated 14/12/15 (post-operatively) and confirms that discussions took place with the patient and referred to (the patient's) knowledge that her vagina could be potentially severely narrowed. The Commission acknowledges that good medical practice would include obtaining written consent undertaking such a procedure. However, as consent is not required to be written and the patient has expressed that she consented, the procedure was discussed with her and her satisfaction with the procedure overall, there appear to be no further outstanding concerns regarding the issue of consent and no further significant concerns regarding the clinical management of the patient regarding procedure performed. Record keeping: the allegation of inadequate record-keeping stems from the fact that only "vaginal repair" "no mesh" was recorded and does highlight insufficient detail in the medical/operating theatre notes. The basis of this record is founded on Dr B's insistence that (pronoun) did not perform a classic colpocleisis. Dr B further claimed that (pronoun) did not make lateral tunnels and stitching of the anterior vaginal fascia to posterior. Dr B further acknowledged (pronoun) further narrowed the vagina to manage the ooze from the patient's wound and ensure no risk of post-operative bleeding, consistent with her written consent "anterior posterior repair". The claim by Dr B that (pronoun) did not perform a classic colpocleisis and therefore did not record the procedure as such in the medical/operation notes may highlight a potential gap in … knowledge about the procedure itself which had the subsequent implications concerning consent. The Commission and the Medical Council considered the inadequate record-keeping which is not in line with good medical practice and agree that further detail and adequate notes should have been recorded to accurately describe the procedure performed. In saying this however, overall, there was insufficient evidence found to demonstrate that Dr B's knowledge, skill, judgement or care, exercised in providing care and treatment to the patient was significantly below standard reason expected for urogynaecologist of equivalent level of training. The Commission will write to Dr B with respect to the standards required regarding consent and maintaining accurate and timely medical records.
The LHD did not exercise its right to request a review of the HCCC decision.

[11]

Dismissal decision

Dr B's dismissal was confirmed in correspondence dated 21 May 2015 from the chief executive: I have reviewed your response, provided by (your) lawyers on 30 May 2015, and taken into consideration additional information provided. Under the circumstances I do not believe the additional information provided sufficient evidence to change the proposed action. As advised in earlier correspondence it was determined that on the balance of probabilities and with regard to both the seriousness of the complaint and the potential consequences for you that you exhibited unsatisfactory professional conduct in the care of a patient and specifically you: Undertook a surgical procedure the patient without the informed consent of the patient in a non-life-threatening situation; Provided insufficient detail in medical/operating theatre notes with respect to the surgery performed; Undertook a procedure which was not considered necessary by the circumstance; and, Filed comply with documentation requirements regarding consent and intraoperative record keeping. It was specifically noted that: While the patient provided information the unconsented procedure would not cause a problem for her this would not be the case for all women hence it was considered unacceptable to carry out such procedure without written informed consent and in contravention of Ministry of Health policy; The typed operation report of 5 December 2014 (which formed part of the medical record during the investigation) was different to the operation report received by the hospital on 24 December 2014, subsequent to you your Fact Finding Interview on 16 December 2014. Any retrospective entries in the medical record must be noted as an addendum and dated accordingly. This did not occur. The operation report considered as part of the investigation provided insufficient detail with respect to the surgery performed; and There was no evidence from the others in the operating theatre or documentation of inadequate haemostasis at that time warranting the further major procedure undertaken. The Director Clinical Governance confirmed there were major deficiencies in compliance with Ministry of Health Policies PD 2005_408 "Consent to Medical Treatment - Patient Information and PD 2012_069 "Health Care Records - Documentation and Management" regarding medical record documentation including written consent and intraoperative documentation. Due to the potential serious consequences with respect to patient safety of your actions and previous disciplinary history I have approved the termination of your employment as a Staff Specialist Division of Maternity and Gynaecology Services at the hospital effective immediately i.e. 21 May 2015 with payment in lieu of the award notice of one month.

[13]

Undertaking a surgical procedure without informed consent in a non-life-threatening situation

Dr B agreed that the situation which presented itself was not of itself life-threatening. However, if the suggested advice of the urologist had been accepted, the resultant "closed up and done nothing" response could have led to the patient being returned to the ward with an uncontrolled bleed which could have had very serious consequences. In that regard, Dr B maintained that it would have been foolish to close the wound without dealing with the presenting problem - slow ooze.
Moreover, Dr B maintained that (pronoun) did not perform a fascial repair. The patient's bladder was bulging. Dr B used a Surgicel cell to help with oozing, trimmed the bladder and narrowed it. Dr B subsequently performed a cystoscopy, catheterised the patient, and conducted a rectal investigation before finalising the procedure.
It was Dr B's evidence that at all times the patient's best interests were paramount with the objective of avoiding potentially serious complications.
It was Dr B's evidence that to the extent that the hospital maintains that a colpocleisis was performed, such a procedure was not undertaken.
Several days before the surgery, the patient attended Dr B's rooms for an examination and to discuss the procedure contemplated and provide further counselling. During the consultation, a minor change was made to the then existing informed consent form (for the second time) to reflect the use of a newer lighter mesh with biomechanical properties and generally considered superior to that mesh the patient originally consented to some six months earlier.
Against the backdrop that waiting times for public patients are usually 12 months or more, Dr B contended that a patient's symptoms can change dramatically. Accordingly it was routine practice for Dr B to review every hospital patient shortly after being informed that the patient's surgery had been scheduled. It was also Dr B's evidence that the amended consent form reflected the proposed use of the newer and lighter mesh. Dr B relied on the patient's correspondence dated 14 December 2014 referred to above to support the proposition that "thorough discussions" with the patient had occurred including awareness that her vagina could be severely narrowed.
The possibility of a colpocleisis had previously been raised with the patient as a reasonable option that would avoid the use of mesh. Dr B maintained that two procedures had been discussed with the patient - colpocleisis and vaginal mesh. However, in view of the patient's age and fitness, the patient provided written consent for mesh, anterior and posterior vaginal repair and bilateral sacropinous colpopexy, cystoscopy and a pudendal block.
During the procedure, unusual dense guard tissue was encountered. There was little space to access the ligament from a posterior vagina wall approach which is usually simple. Dr B requested that a more slender suture device, a Capio be obtained by the theatre manager from a nearby private hospital. However the request was not granted. Dr B subsequently used a bulkier device and inadvertently made a 5 mm tear in the right bladder wall while removing the device. It was Dr B's evidence that unlike a Capio, "after placement in the ligament - this bulkier device "must be removed by opening it out to 3 cm to remove it from the vagina".
Dr B also maintained that similar devices are reported to have torn the bladder wall at the removal step. Accordingly, Dr B took immediate action and completed a cystoscopy to ascertain the position of the tear. The tear was sutured and a further cystoscopy determined both ureters were patent and the repair was watertight. Absorbent gauze packing was placed in the wound. The repair area was later documented graphically.
The theatre registrar subsequently suggested that "urology" should be called. Dr B agreed with that approach so as to make absolute certain the tear was safe. However, the urologist in the adjacent theatre was not available to assist at that time. The urology registrar subsequently attended and confirmed "ureteric patency with retrograde studies" and instructed Dr B to remove the suture.
The urology registrar contended that the vaginal tears in the bladder wall did not need repair as a repair was only required when the perforation went into the abdominal cavity. Dr B's preference was not to remove the suture as the doctor considered this would be "incorrect management".
Dr B proceeded to cut the needle off the stitch, trim the suture shorter and tuck the ends into the vagina. However, Dr B did not remove the stitch which in the doctor's opinion had somewhat angered the urology registrar who had asked "why she was called in for advice was not to be taken".
Shortly thereafter, Dr F attended and inspected the vagina with the urology registrar. Dr F only saw the interior of the bladder and the retrograde studies. He subsequently instructed Dr B not to proceed further with the bladder repair as "the problem was not life-threatening". He considered the bladder wall, which had already been injured, must not be touched any further.
Despite Dr F's insistence "the patient could come back again or live with the problem", Dr B express concern about this approach. Dr F subsequently suggested that the urology registrar place bilateral ureteric stents which would reassure him that it was safe for Dr B to proceed with a fascial repair and sacrospinous colpopexy on the other scarred site for which Dr B had already obtained written consent. The urology registrar said she did not have time to undertake the procedure and left leaving Dr B to tie the purse string suture.
The slow ooze continued and Dr B considered that simply closing the vaginal incision with no attempt at haemostasis would be dangerous and risk post-operative bleeding. The patient was in urinary detention which, whilst not life-threatening, was unpleasant. Given the patient had been coping poorly with retention, Dr B stated her primary aim was to stop any further ooze and prevent any risk of post-operative haemorrhage. The secondary objective was to "complete some kind of repair which … would be … the course taken by … peers"
Br B contended that it was generally accepted that the bladder was a "very forgiving organ" and against that backdrop, the doctor considered there was valid consent for a simple fascial repair utilising the exposed sacropinous ligament on the other side of the vagina.
Given the direction and instruction of Dr F, the usual repair technique was not available to Dr B as this would involve touching the bladder fascia and serosa. It was Dr B's opinion had the skin simply being closed as insisted by Dr F, the patient would very likely continue to ooze and in the worst case, could haemorrhage requiring a return to theatre and/or transfusion and/or pelvic haematoma with infection leading to disseminated intravascular coagulation and death. Further, the patient could not empty her bladder and would need to resume self-catheterisation which she disliked intensely. The patient would also have to return to hospital. In that regard, Dr B noted that the patient had in the past expressed anxiety about being in hospital.
Dr B recalled a pre-operative discussion with the patient concerning colpocleisis and also vaginal narrowing. In that regard, Dr B recalled the patient had stated she had had no sexual relationship with her husband for many years.
Dr B did not anticipate a situation developing "where any repair at all would be forbidden"' despite valid consent given by the patient. Dr B considered "the idea of colpocleisis" as it had been discussed with the patient. Dr B recalled stating the word "colpocleisis" aloud to the urology registrar shortly after "checking the patient's notes and consent". At that time, Dr B was conscious of the hospital's strict adherence to patient consent and was aware that there was no written consent for colpocleisis.
Dr B considered it necessary and appropriate to perform a procedure to narrow the vagina and accordingly trimmed away any loose vaginal skin on the basis that the patient's "anterior posterior repair" written consent covered this eventuality - "at least in the case of a tight repair of the vaginal skin alone". Dr B considered this procedure could safely eliminate all oozing without touching the bladder serosa.
Dr B was subsequently able to achieve bladder elevation and restore normal voiding so as to prevent the need for the patient to return to theatre. Dr B stated she proceeded to suture the vaginal edges together without touching the bladder wall as instructed. Shortly thereafter, the wound became dry. In or around that moment in time, Dr B's considered and was satisfied that the hospital's strict requirement that consent be adhered to at all times had been satisfied. Moreover, Dr B understood the patient's procedure was "a classic vaginal repair" in accordance with the technique described in texts such as those written by David Nichols (1993).
It was Dr B's evidence that the patient's procedure did not require lateral tunnels to be made as was the case for a "classic le fort colpocleisis procedure". Dr B stated that the registrar had asked … why this was not the case. In reply, Dr B informed her that it was not going to be necessary. Shortly thereafter, Dr B dictated the operation report consistent with normal practice within the hospital.
Post-operatively, the patient was well and now able to completely empty her bladder. Pain associated with retention had gone and there was no bladder infection. Dr B stated the patient was now completely continent which is the best outcome given the patient's circumstances. The patient's concerns that her ongoing bladder infection could impede or prevent proposed back surgery were no longer relevant. Her surgeon had confirmed same. Shortly thereafter Dr B dictated an operation report consistent with normal practice within the hospital.
In summary concerning this particular allegation, Dr B maintains that a classic colpocleisis procedure, which includes the making of lateral tunnels and stitching of "anterior vaginal fascia to posterior" was not performed. However, Dr B did acknowledge that the vagina was "greatly further narrowed" to manage the ooze from the patient's wound and ensure no risk of post-operative bleeding, consistent with the patient's written consent "anterior posterior repair" and the pre-operative discussions undertaken with the patient.

[16]

Failure to comply with documentation requirements regarding consent and intraoperative record-keeping.

Dr B contended that this particular allegation had been framed without reviewing the patient's consent dated 1 December 2014. It was further put that Dr B had been invited to a meeting on 16 December 2014 convened for the purpose of discussing consent issues and the patient's consent document was not available for review at that meeting. Moreover, it was Dr B's evidence that the "hospital concludes its investigation without reference to the consent documents themselves".
With respect to the intraoperative recordkeeping allegation, Dr B acknowledged that the handwritten record did not include reference to "anterior/posterior repair" and this reference should have been included. However, those precise details were included in the typed post-operative record dated 5 December 2014: I admitted (the patient) to (the hospital) today for repair of recurrent prolapse with voiding impairment being the main problem that she had been suffering. Deep dissection of the anterior wall revealed deep scar tissue round the sacro spinous ligaments bilaterally, more on the right. The suture punch tore the bladder wall on removal and a small puncture ~5 mm was made in the bladder wall. This was closed with a purse string suture. The ureter was found to be patent with indigo dye testing and repair water tight but the urologists were called as was suggested by the registrar and was thought to be proper protocol and they did bilateral retrogrades which showed both ureters to be patent. The registrar strongly suggested that the purse string suture be removed as she said it would not be necessary with a perforation vaginally - only with perforations into the double cavity would it help - she said. I was hesitant to do this - and I did not do so. The vaginal repair could not proceed because the urologist recommended that the bladder wall should not be further touched at all. They did not agree with a sacrospinous on the left - better exposed side. I did not want to use Mesh. With limited options a very tight repair was thus performed to remove dead space and prevent post-operative bleeding which I was concerned about. This was a repair that did not touch bladder wall - very difficult to achieve in the face of large cystocoelel and vault prolapse. A catheter was placed at the end of the procedure. This will stay in one week post surgery. The bladder is well elevated and hopefully this will correct voiding problems. Dr B voiced concern that this document did not appear to form part of the hospital's records pertaining to the management of the patient.
In cross-examination, Dr B stated two written consents were obtained "mainly because it's my routine policy to get two consents on all (hospital name) patients … because I knew that they were trying to catch me out". The doctor also acknowledged that with long public waiting lists, the patient's problem could have changed over time and you might have to revise the procedure or even cancel it. Dr B subsequently further confirmed this concern was apparent when obtaining the patient's initial consent In May 2014.
Dr B confirmed she did not know Dr T, the registrar who suggested the doctor call in a urologist to look at the bladder. Dr B confirmed also confirmed the advice of Dr T and Dr H was not continue with the proposed procedure, but instead, close back out the vaginal wall and insert a catheter and allow the bladder to heal. However, Dr B ignored that advice and instead recalled saying out loud, "I know I will do a colpocleisis" Shortly after the doctor unscrubbed to examine the patient's notes before continuing the procedure.
The doctor proceeded with the "tight repair" and afterwards was concerned "there would be a controversy about the operation" and called Dr N. Dr O later spoke to the doctor with the advice not to contact the patient. Br B immediately contacted the patient's husband and sometime later her GP. The patient subsequently discharged herself without Dr B's knowledge. Dr B later treated the patient at her home.
Dr B was closely involved in preparing the DibbsBarker correspondence and was aware of the hospital's requirements surrounding patient's consent. The following exchange ensued concerning the hospital's strict requirement for adherence to consent: Q. What do you understand or, more precisely at that point in time, December 2014, what did you understand to be the hospital's strict requirement for adherence to consent? A. That the hospital had an unusual view that the procedure had to be exactly as was consented, that you couldn't deviate and I had been told by colleagues that they do deviate quite often, but if you're wanting to catch someone out, you would have to be careful to stick with the exact requirement. Q. Do you agree that that is an acceptable approach or‑‑ A. I suspect it's not their approach. I suspect that most of the time they ‑ I've been told that they do in the O & G Department deviate, but it ‑ if there ‑ if you were not liking somebody, you would ‑ it would be a way to ‑ you know, it would be a way, forward, wouldn't it? But most hospitals, it wouldn't happen and I don't believe it happens in the O & G Department, generally. Q. Are you inferring from your answers there that it's an unusual requirement to strictly adhere to? A. Yes, I think so, because circumstances can change, yes. … Q. You didn't, in any event, agree with that necessity for strict adherence to that written consent? A. Well, I'm aware that I'm there as a public servant, that I have ‑ I'm given rules and that I should try to follow those rules regardless of my views, up to a certain point. There are limits.
In relation to the 16 December 2014 Review Team investigation Dr B agreed that she had read out a prepared statement. Dr B recalled discussing two procedures with the patient, vaginal mesh and colpocleisis: Q. Then say, "She was consented for mesh also for anterior and posterior vaginal repair", and so on? A. Yes. Q. At this point in time, in May 2014, you are conscious of the restrict requirements of the hospital to have written consent thorough written consent‑‑ A. Yes, absolutely. Q. You've discussed with the patient the colpocleisis procedure and you did not get the written consent for the colpocleisis procedure at that point in time did you? A. Yep, that's right, I didn't. Q. Instead you got a specific consent for the other procedures that you crib in there in the second of those two paragraphs, didn't you? A. Yes, yes. Q. Is it your recollection that you had specific consent in May 2014 from for a colpocleisis procedure? A. No, we didn't. No, we consented for the other procedure. Q. Let me make this doubly clear: you obviously didn't have written consent for it? A. No. Q. Did you have, in your recollection, verbal consent in May 2014 for a colpocleisis procedure? A. Yes, she was happy to go either way and she said, "I'd be guided by you, doctor", and I decided go with the mesh.
Dr B contended verbal consent for colpocleisis procedure was obtained and documented "on the side of notes where I always put their sexual preferences. I have a spot where I always put such things as "really concerned about sexual activity; really wants good vaginal capacity or otherwise not interested" and I ‑ it was in that box". Dr B was adamant that a patient's consent was not required to be noted for "options that we don't decide".
Dr B confirmed that in May, two options, mesh and the colpocleisis and probable abdominal surgery were put to the patient as well. The patient said "she would go with" whatever the doctor decided, which in May was the mesh option.
In relation to the patient's hand written letter concerning the procedure and "consent", Dr B stated the patient attended the doctor's rooms on 14 December 2014 and prepared the correspondence herself. Dr B also confirmed that Dr N had earlier suggested that "I should get such a note".
Dr B disagreed with the proposition that "the goal in any gynaecological procedures, is to, wherever possible, preserve the capacity for sexual activity". In that regard and in reference to an email chain between Dr B and an officer of ASMOF, the following exchange ensued: Q. You say there, "So I narrowed the vagina. This is still considered to be a classic type of repair though the general understanding would be it should not have been too tight for function. It is"? A. Yes. Q. Let me just ask you firstly about the words "the general understanding would be it should not have been too tight for function"? A. Yeah, that's the hospital's understanding. Q. That's not your understanding? A. No, because I often do tight repairs. Q. When you say that's the hospital's understanding, are you suggesting that that is an understanding that is unique to the hospital? A. I think so, because lots of people do tight repairs. I'm sure I'm not the only one, given a woman that doesn't want to be sexually active. Q. But your understanding of the general understanding at the hospital, already your understanding what you refer to here in the email of the general understanding at the hospital is that it should not have been too tight for function? A. That's right
Dr B thought the hospital's concerns related, not to the injured bladder, but rather to what Dr O had mentioned verbally "that I'd removed the vagina". Vigorous questioning of Dr B followed concerning the email chain directed to the ASMOF representative culminating the following exchange: Q. Can I suggest to you that it's plain as day in the text that you've use here that you're indicating to the ASMOF representative that your view is it's arguable that you didn't have consent for the operation; what do you say to that? A. No. I think it's an argument that they can make and I tried to put myself ‑ I always try to put myself in the other person's shoes and say, well, how are they going to see this?
Dr B agreed with the proposition that "at best" on 5 December 2014, "you were making an informed guess, and informed guess, but a guess, nonetheless, as to whether the patient would be agreeable to a colpocleisis procedure at that point in time. Br B continued: I was certain that she didn't want sexual function on that last visit, so it would follow that colpocleisis, I would think, wouldn't be, or vaginal narrowing, wouldn't be a problem … Q. - and you didn't have, given at that point in time, a fresh verbal consent for a colpocleisis, did you? A. We may well have discussed the vaginal narrowing ‑ no, we didn't discuss colpocleisis, unless we discussed it again with all the options which would have come under that point, alternatives. So, unless we went over that again, and I haven't written that down, but if I tick that box, I might assume that I did discuss the options which would have been abdominal, vaginal, doing nothing, colpocleisis; they would be the options. Q. You, in your second statement at paragraph 15, an, in fact, many times, saying you do not agree with Dr J's conclusion that the patient could not have penetrative intercourse and you refer a number in other places in that statement to your view that she couldn't have penetrative intercourse? A. Yes. Q. There's a kind of caveat on that view, isn't there, that she'd only be able to have penetrative intercourse if she were to use dilators first and go through that process? A. Yes
Dr B agreed that the patient's letter dated 14 December 2014 acknowledged she was not concerned that her vagina "could be severely narrowed' and that she was not concerned by this. However, the patient's views were not recorded on either consent form in accordance with the mandatory policy directive PD 2005_406 consent and patient information.
In defence, Dr B contended "I did not record severe narrowing on the consent because I did not intend to narrow the vagina". Dr B considered the advice from the urologist, Dr F, not to touch the patient's bladder "was inherently unsafe" and the tight repair was necessary. The following exchange ensued: Q. You called in the urologist and received advice from them about not touching the bladder. How is it that you say it became necessary to do the severe narrowing of the vagina? A. Because I couldn't repair the prolapse. If I couldn't do the hitch on the other side, I couldn't lift the bladder up, unless I trimmed a lot of skin from the front wall, was the only way left to me. Q. The advice from the urologists plural was, "Don't continue the procedure", wasn't it? A. Well, I had to close the skin, yes, but they said I could close the skin and that's all I could do.
Dr B contended the tight repair was necessary to achieve haemostasis and "get the bladder up, so she wouldn't have to come back to theatre another time". The doctor further contended: I didn't want to have to go back a third time and do all that dissection. I didn't think it would be in her best interests and I couldn't think of any other manoeuvre to achieve haemostasis and get the bladder up so that it would drain at that time.
Dr B acknowledged that working in theatre was stressful and considered the "circumstances on the day" were extremely stressful, particularly; … knowing that Nurse 2 is lurking in the background and that she can make trouble for me at any moment, that creates stress and you know that your ‑ people take a dim view of it and you have to be very careful and ‑ very, very careful.
Dr B did not have a view as to whether Dr T's suggestion to call in the urologist was a good idea or not. Dr B had been told to be cautious in the presence of Nurse 2: Because I had been advised to not say anything ‑ I have to be very careful in her presence, because she had previously said that I threw myself around the theatre in a reckless fashion when I felt faint and then at another time that I'd, you know, raved, and, so, I just have to be very careful when she's around.
Dr B could not recall telling Dr T "you weren't going to do the colpocleisis" although it was the doctor's intention to do so: I think the intention was to say her, "No, we don't need to do the colpocleisis", but Nurse 2 had just walked into the room and I didn't want to say anything at all. On previous occasions, Nurse 2 had said that I raved like a mad woman in theatre and a colleague had suggested that I should just be very careful, just say nothing when she was in the room. She'd come into the room then and I just ‑ I was virtually silent for the rest of the procedure.
Dr B agreed that Dr O had given advice not to contact either of the two patients the doctor had in hospital at the time and acknowledged the patient's husband was contacted. The doctor was also told not to speak to hospital staff. The following exchange ensued: Q. You didn't trust that the hospital would properly give the patient's husband that assurance, did you? A. No. Q. Similarly, when you rang the GP, you didn't trust that the hospital would properly give ‑ it's a her, the GP? A. No, it was a him. Q. Properly give him necessary information; is that right? A. No, that wasn't the reason. Q. Why did you ring the GP? A. Because I rang Senior Dr (name) and described the events to him as a way of debriefing, because I was upset, and he pointed out to me that I needed ‑ that it would be in my interests that the patient had a good outcome and he suggested to me that they might muck up the postoperative care, they might take the catheter straight out and we both knew the catheter needed to stay in for at least ten days and he should, "You should ring the GP and just make sure that he knows what's required for postoperative care, that her catheter needs to stay in, that she needs to stay on antibiotics. Make sure he's in the loop".
Dr B defended the decision to contact the patient's GP on the grounds that he was not employed by the hospital and therefore not covered by Dr O's direction. Dr N was also contacted by Dr B contrary to Dr O's advice. When suspended, Br B understood the purpose of the suspension initiated by Dr O was to ensure no contact or care would be provided to the patient: I understood that I wasn't to visit her. I wasn't to set foot into the hospital. I wasn't to speak to her. I wasn't to speak to any employee. However, Dr B subsequently visited the patient at her home at about 7.00 or 8.00pm that night.
Dr B dismissed Dr G's second allegation that Dr B "Undertook a further elective procedure on the patient without the informed consent of the patient and in nonlife threatening circumstance" proven, on the grounds "the procedure seen in the operating theatre by a doctor and observed by two nurses was an obliterative vaginal procedure or colpocleisis".
Dr B considered Dr H had been "hostile from the moment she walked into the room" and that Dr O and Ms I were "watching" the doctor's conduct in operating theatres: There are corridor conversations where colleagues have told me that Dr O had suggested that Dr L was ‑ decided that I had to go, but that's gossip. That's gossip. Q. You, as I'm understanding it, were working under the belief that they were waiting for you to make a mistake; is that fair to say? A. Yes. It could have been paranoia, but that was thought. Q. You think that Dr T was, essentially, a spy for Dr O? A. I never thought about that until after the event. I didn't imagine that at all. Q. You'd never met Dr T before that day? A. Not that I recall, no.
In relation to Dr G's evidence that he considered the allegation that Dr B "Undertook a further elective procedure on the patient without the informed consent of the patient and in (a) nonlife threatening circumstance" proven on the grounds that "the procedure seen in the operating theatre by a doctor and observed by two nurses was an obliterative vaginal procedure or colpocleisis", Dr B acknowledged that in preparing the show cause reply with the assistance of DibbsBarker in February 2015, the concern of the hospital was wider than whether "you had literally performed a colpocleisis": They were concerned that I had narrowed the vagina and they thought that that was just as bad, yes.
In cross-examination, it was also agreed that the LHD contributed approximately 10% of Dr B's taxable income.
In re-examination, Dr B confirmed contact had been made with Dr N from time to time "about things that are happening in the hospital". Dr N also suggested that Dr B obtain a statement from the patient. Following a previous theatre incident where Dr B had fainted during a procedure, Dr N invited the doctor to contact him should a further problem arise. The following exchange ensued: Q. Given that he'd asked you to do that, it occurred to you, did it, that you should take him up on that offer and ring him up on 5 December. When you rang him, did he have any knowledge of what had occurred in the operating theatre? A. I don't believe so, no. Q. Did you then explain to him the position as you saw it? A. Yes, I did. Q. Did he offer any advice then? A. He said not to worry, that that was ‑ it was just a ‑ the bladder injury was just a complication that would be dealt with in a morbidity meeting and that I shouldn't be concerned and that I should ring somebody, but I couldn't ring, I had to notify some department, but ‑ and then Dr O said, "Don't worry, we've already done it". Q. When you say Dr O said that‑‑ A. When he rang later that afternoon. Q. You spoke to Dr O later in the afternoon on the phone. You also said you spoke to the Dr Professor? A. Yes.
It was Dr B's evidence that as a urogynecologist, a bladder is damaged in the course of urogynecology surgery in two to three per cent of cases. The following exchange ensued: Q. Have you, yourself, damaged bladders, from time to time? A. I've never damaged a bladder before that date. I've damaged ureters. Q. Yes? A. I've damaged a urethra, but never the bladder. Q. In those circumstances, have you, yourself, repaired the urethra or the ureter or you've called it‑‑ A. I've called somebody, yes. Q. You proceeded to repair the bladder. Did your training, you feel, equip you to be able to do the bladder repair? A. Yes, because it's a simple thing. The bladder is recognised to be a forgiving organ and it was something I was comfortable to do. Q. Is bladder repair something that is part and parcel of a urogynecological training? A. Very much so. Very heavily emphasised, yes.

[17]

Dr E

Dr E was not required for cross-examination.
Dr E is a senior staff specialist employed by South East Sydney Local Health District. He is the NSW President of ASMOF, a position held since 2004. Dr E has also been a member of the ASMOF State Council since 1989. Consistent with those roles, Dr E has been directly involved in the consultation process concerning the development of NSW Health policies that impact upon members of ASMOF. In that regard, Dr E stated that he was directly involved in consultation and negotiations that led to the publication of the initial Service Check Register contained in NSW Health Services Policy Directive- PD 2009_004 dated 30 January 2009 (PD2009_004- service check register).
Dr E contended the stated purpose of the Register was to enable employing public health organisations to be aware of serious disciplinary matters taken against health professionals which may include suspension, dismissal, restriction of duties or termination and/or nonrenewal of an appointment following appropriate investigation. Dr E was also involved in the negotiation of PD2009_004- service check register during 2013 which led to the publication of Service Check Register for NSW Health Policy Directive PD 2013_036. The entry of a medical practitioner's name onto the register has a profound effect on the career of that practitioner because it severely limits, if not prevents, employment or promotional opportunities in all NSW public hospitals.
It was Dr E's evidence that during negotiations for PD 2013_036., the parties were conscious that the reputations and careers of medical practitioners should not be adversely affected by unfounded allegations or trivial matters. It was never the intention of the negotiating parties to make or retain an entry on the Register if allegations concerning a clinician could not be substantiated. He was aware that "at least one vexatious allegation has been made the past with automatic addition to the (Register)".
Dr E explained that as President of ASMOF, it was his responsibility to consider whether the Association should allocatesignificant expenditure on unfair dismissal applications such as the present one before the Commission. In that regard, Dr E stated that he was aware of Dr B's actions "which were the reasons given for the dismissal" were independently considered by the Medical Council which determined it was "not appropriate to suspend or impose conditions on (Dr B's) registration".

[21]

Operative planning and intraoperative events

From Dr B's notes, the patient had a recurrent vaginal prolapse resulting in urinary retention, repeated urinary tract infection and pain. The patient needed to self-catheterise her bladder in order to empty it. The patient had a previous vaginal repair which had failed. The doctor contended this is relatively common, occurring in up to one third of patients and is an agreed indication for mesh reinforcement with any subsequent repair attempt. A colpocleisis procedure, as Dr B had also discussed with the patient, would be likely to relieve the distortion and obstruction from her prolapse although is perhaps prone to more incontinence problems. Although sexual function was not an issue for the patient, as a relatively young woman, a vaginal vault suspension (sacrospinous ligament fixation or colpopexy) with the general mesh, was on balance the better option. It was Dr M's opinion that Dr B's initial surgical plan was entirely appropriate.
In relation to the inadvertent small tear to the patient's right lateral bladder wall, Dr M stated that injury to organs is a known complication of any surgery, particularly repeat surgery. The incidence of bladder injury during complex pelvic floor repair can be around 1%. Intraoperative detection and effective repair were important issues. In that regard, Dr B had recognised the injury and carefully assessed the extent of trauma with cystoscopy. Dr B also excluded any associated injury with confirmation of ureteric patency prior to repair. This process would be undertaken by any urogynaecologist as well as many experienced gynaecologists. It is a standard part of sub-specialty training and a regular aspect of urogynaecology practice.
With respect to the review undertaken by the urology registrar, Dr M said whilst it was "a little unusual, it was not unreasonable to ask for a urology review". However, subsequent events were, in her opinion, most unusual. While there was a theoretical risk of unrecognised ureteric injury despite the normal indigo carmine study, a retrograde study as performed by the urology registrar effectively excluded this and no further investigation was indicated. Attention should then have simply turned to the remainder of the procedure. Dr M noted that she could only assume urology registrar was relatively junior, not entirely certain of best management and "the urology consultant wanted to confirm her findings".
In relation to the specific direction given to Dr B by Dr F, Dr M stated: I do not understand cannot agree with the advice given by the urology consultant to do nothing further and simply close the incision. He does not appear to have scrubbed and properly assessed the surgical field. While it was clear the bladder repair was watertight, and the ureters undamaged, a defect in the bladder wall requires further tissue reinforcement to minimise the risk of subsequent vesico-vaginal-fistula. Even apart from the obvious need to ensure haemostasis, it was simply not good surgical technique to avoid further surgery in this area. In the situation of bladder injury, there is some debate over whether planned mesh reinforcement can still be used. However, while care needs be taken not to exert any tension on the side of the bladder trauma, this does not anyway prohibit other parts of the surgical procedure. In the event of an intraoperative complication, it is of course the surgeon's responsibility to correct the injury wherever possible. But it is also important to try and achieve at least some of the planned outcomes. Any experienced surgeon knows it is not rare to have to adapt a procedure due to intraoperative findings or difficulties. (The patient) needed correction of her prolapse to allow return of normal bladder function. This could have been assisted by sacrospinious fixation of the left side of the vaginal vault and there was absolutely no contraindication to this. If surgery was to be abandoned after the bladder injury, any subsequent repair would have to be performed through scar tissue from two prior procedures. This would be very difficult and the risk further of further organ injury greatly magnified. (The patient's) best chance for a successful outcome was for the procedure, even if modified, to continue. I understand at one point the consultant urologist suggested he would be happy for the surgery to continue if ureteric stents were placed to identify the ureters. This is inconsistent with his previous insistence that no further surgery be performed on the bladder as the ureteric stents would only help reduce ureteric injury, not injury to the body of the bladder. In any case, urology registrar refused to do so citing lack of time although insertion of ureteric catheters when the cystoscopic equipment is already in use takes only a matter of minutes. And there is also the critical issue of achieving effective haemostasis. As Dr B stated, merely closing vaginal epithelium over the dissection plane into the pararectal space and onto the sacrospinious ligament not ensure safe haemostasis or provide necessary reinforcement to the region of the bladder repair. This was effectively achieved with the vaginal repair the doctor performed. My personal preference in this situation would have been to continue with the bulk of the intended surgery. However I find it difficult to imagine how I would respond in a surgical situation where a colleague, albeit from another specialty, was so insistent I abandon a procedure which I believed was appropriate. Despite my training and experience, in such a stressful situation, it may have caused me to question my judgement. It may also have made me decide I could not proceed with my original surgical plan. Given a surprising opposition of the urologist, Dr B's decision to achieve both haemostasis and adequate bladder support for normal voiding by employing a tight vaginal repair, was a sound compromise.

[23]

Lack of documentation

Dr M was aware that criticism had been levelled against Dr B concerning the "lack of documentation in the operation report". Although Dr M had not seen this particular report, she was aware it was dictated post-operatively by Dr B via the hospital dictation system. In her opinion, this particular report contained sufficient information so as to enable immediate and subsequent care of the patient. The report detailed the bladder injury and repair with documentation that the ureters were undamaged. The report also specifies that vaginal repair without mesh was performed.
Dr M stated the report also set out the proposal for the urethral catheter to remain in situ for one week with a cystogram to check bladder healing prior to its removal. It was Dr M's opinion that at the time of dictation, Dr B had contemplated reviewing the patient daily so any further management plans concerning the patient would also be documented daily.
Moreover, Dr M considered the report was adequate and to the extent necessary informed any future surgeon of the complications encountered and the procedure undertaken. In that regard, Dr M was unsure how much more information could have been expected. Operation reports require sufficient detail to inform the team caring for the patient and any subsequent surgeons.
In many surgery units, initial operation reports are handwritten by a relatively junior member the team and are of variable quality. It is only the surgeon's subsequent report which contains more specific details as was the case with Dr B's dictated letter. In the immediate post-operative period, it was important for staff to know there had been a bladder injury and at the urethral catheter was to remain in situ for a week. Otherwise, the patient's management would be no different to any other patient undergoing a vaginal repair procedure. This requirement was documented.
In the event the patient required further vaginal surgery, it would be helpful for another surgeon to know about the bladder injury and that mesh had not been used, both of which were documented by Dr B. Anything else would be evident on upon clinical examination.
A further statement prepared by Dr M following the filing of the evidentiary case relied upon by the LHD provides a number of specific comments with respect to that evidence. Dr M contended that having read that evidence she was firmly of the opinion there was nothing in Dr B's conduct to justify suspension.
Dr M contended the evidence of Ms I, the service manager, was nor relevant as it "appears to have little to do with the current matter". Similarly, she considered some of evidence of Dr G, the director of medical services and Mr D, the human resources manager, dealt with historical issues not particularly relevant to her consideration.
In relation to Dr F's criticism concerning the lack of detail in both the handwritten operation report and the formal report dictated post operation on 5 December 2014, Dr M contended that operation reports generally only give outlines of the procedure undertaken and the management of any complication. They do not include detailed suture by suture descriptions. Dr B documented what was important - the repair of the bladder defect, the subsequent fascial repair and the confirmation of the patient's ureteric patency.
Moreover, Dr B had documented the relevant patient information gynaecology ward nurses were required to know. The patient had undergone some type of vaginal repair procedure. There had been a bladder injury sand it was important the urethral catheter remained in situ and drained freely. The fact that no mesh reinforcement was used could prove useful in the event of any further imminent surgery. Should the patient require future pelvic surgery, the surgeon would be totally aware of the tight vaginal repair from the initial examination.
The absence of mesh and the patient's bladder injury, while not evident clinically but of surgical significance, were included in the operation report. Dr B had also documented the need for a cystogram to confirm bladder healing prior to the removal of the catheter, particularly bearing in mind that Dr B anticipated (pronoun) would be reviewing the patient post operatively. This is standard practice.
Dr M reiterated that it was not uncommon for surgeons to have "to adapt the planned procedure in view of intraoperative findings or complications". Experienced surgeons know this and it is also the reason surgical consent forms contain the phrase "additional treatments may be needed if the doctor finds something unexpected". Surgical experience and judgement subsequently determine the most appropriate surgical course for a patient. For example, it is not uncommon to find under anaesthesia that a patient has a greater degree of prolapse than had been initially determined.
Dr M stated the ideal surgical management for a prolapse patient was sacrospinous ligament fixation rather than a simple fascial repair. Dr M posed the following: Do we proceed with the ideal operation although this is not listed on the consent form or do we perform simply what has been consented for knowing that she will have to return for further surgery and that the outcome of that further surgery may be compromised by the repair? Or do we simply cancel a procedural together after she has waited many, many months then rebook her at a later date after further counselling? Quite honestly, for a patient I knew well, I would perform an operation most likely to achieve the best outcome for her and with the least risk of further surgery. When surgical plans are first made and the consent signed, we list what is thought to be the best operation. However, when circumstances change them only to reconsider how to achieve the best outcome
With respect to the specific criticism that Dr B's "tight repair was inadequate … for intercourse and this was not stated on the consent form", Dr M noted that the patient had not been sexually active prior to surgery nor did she require ongoing coital function. Dr B knew this and had already discussed the option of an obliterative vaginal procedure with the patient. In her opinion, no surgeon in such circumstances would have included vaginal narrowing on the consent form.
The circumstances of the patient demonstrate the importance of detailed consultation with patients so that surgeons can make sound decisions in the event there is a need to it to adjust the proposed surgical plan. Given the patient's problems, "vaginal narrowing was of absolutely no consequence" and Dr B knew this to be the case.
Dr M acknowledged both Dr J and Dr G appear to consider Dr B should have abandoned the procedure on the advice of the urologist, Dr F, as this was not a life-threatening situation. Dr G's assessment was that Dr B exercised poor clinical judgement in not doing so.
Dr M stated that having now read the evidence of Dr F, the urologist, she now considered his suggestions for surgical management were based on a misrepresentation of the operative site which is quite understandable "as he is primarily a uro-oncologist and laparoscopic / robotic surgeon, not a pelvic floor surgeon.
In relation to the contention of Dr G that Dr B should have heeded the advice of Dr F and stopped the operation, Dr M stated she had worked in the public hospital system for almost 30 years and had been called to another surgeon's theatre "many times" and vice versa, where assistance or advice might be offered. However, in her experience: … we would never presume to give instructions on the remainder of the case and I find the advice of the urology team quite unusual. There was absolutely no reason for Dr B not perform the left-sided sacrospinious ligament fixation. It would not compromise the repair of the bladder injury while it would give support for the anterior wall weakness. And yes, given the scar tissue from her previous surgery, there was a risk of organ injury on left side of the pelvis. But this risk was not going to disappear by closing the operative field and coming back at a later date. In fact a third vaginal procedure would be even more difficult with increased intra-operative risks. This lady had obstructed voiding from her prolapse such that she needed to catheterise herself multiple times a day. It was far better to try to correct these problems at the time and have a return for a more technically conflict procedure. I believe this is sound political decision-making. … Pedantry aside, the crux is whether in this case there was any significant diversion from good practice or potential harm to the public warranting Dr B suspension. Certainly the Medical Board found the consent was adequate no action was indicated. When I was first approached for an opinion in this matter I was surprised that Dr B's actions had triggered such excessive response. In my own institution we would certainly have discussed the bladder injury at our morbidity review meetings (as are all intra-operative organ injuries). And we may well have used this as a teaching exercise for registrars, e.g. how do we best repair the bladder, should we abandon mesh reinforcement, how may we need to alter our planned surgery? However there would have (been) no significance concern over a procedure which was varied due to a complication in which resulted in a very satisfactory outcome for the patient.
In cross - examination, Dr M confirmed that in preparing her evidence, she did not consider the Medical Council report which stated, inter alia," There have certainly been a significant number of complaints over an almost 10-year period, which may be suggestive of performance issues, but there is no clear pattern to the clinical issues with complaints" because the Medical Council made no adverse findings against Dr B.
In relation to Dr B's immediate suspension on the day of the procedure, Dr M did not consider it relevant for the LHD take into account whether there had been allegations made the past in relation to either the capability or the conduct of the practitioner. Dr M agreed there had been "plenty of allegations" but they cannot be taken into account unless they have been proven.
Dr M was adamant Dr B had not done a colpocleisis on the patient and accordingly, on that ground, the doctor should not have been suspended. Regard should have been taken for the care of the patient by Dr B. However, Dr M considered that where a colpocleisis was required, "There would have to be a very good reason" for the procedure to be undertaken without the written consent of the patient: If you knew the patient circumstances can you knew the anatomy and you knew what you had to achieve, yes. I would not do it on a patient did not know about her sexual activity, no. But this lady, remember, had already had previous repairs.
Dr M described the difference between a tight vaginal repair and a colpocleisis as follows: With a colpocleisis you tend to narrow ‑ you take the back wall of the vagina and the front wall of the vagina and you fuse them together. Now, if someone has a uterus, you leave little tunnels down the side, because if they get postmenopausal bleeding, you can still investigate. The disadvantages with it, and why we don't do it for everyone ‑ because it's actually technically reasonable ‑ is you can't have intercourse with it. Now, you can equally do a very tight vaginal repair where you bring together the posterior wall or the anterior wall, and that can equally narrow the vagina so much that intercourse isn't possible, and it has happened quite frequently. So in fact the reason to go for ‑ I'm assuming, the reason to go for the anterior repair, the tight anterior repair, was that this lady's problems were to do with her bladder, right. Because of her prolapse she had a kinking, so she couldn't wee, so she had to put her own catheters in, so what you need is some sort of operation that will keep the top of the vagina up so she no longer gets the kinking. You can achieve the bladder aims much better if you do a tight anterior repair. If you do a colpocleisis you can actually cause some other bladder problem, so in this lady's case, I would ‑ yeah, the tight vaginal repair solved more of her problems, yeah. Had it been a lady who didn't have those voiding problems, it's probably technically easier perhaps to do a colpocleisis, and if you could achieve the same result for her, knowing that sexual function didn't matter. Following this response from Dr M, the following exchange ensued: Q. Am I right in understanding from that answer that you don't see a material difference between performing a narrow repair as against a colpocleisis, in terms of the necessity to get consent ‑ written consent? A. Look, I think ideally, if you knew exactly what you were going to find, yes, of course you would consent for a colpocleisis, and if you were doing a vaginal repair on a younger lady, yes, you would make that distinction. But, do you know, in reality, tight vaginal repair can inhibit intercourse just as much as a colpocleisis can, but it's better for the bladder so do I see a huge difference? Sorry, tell me again, what did you want? Q. In the investigation process there was a factual contest between whether (pronoun) had done a tight repair or whether (pronoun) had done a colpocleisis, right, and ‑ well, you need to answer out loud, that's right, isn't it? A. I'm sorry, darling. Yes, there was some dispute over that, yes. Q. There was a contest about that? A. Yes. Q. One is a more severe procedure than the other, is it not? A. They're different. Q. A colpocleisis in terms of the outcome it's more severe, is it not? A. In terms of coitus, in terms of intercourse? Q. Yes. A. Potentially, yes. But severe is not the right word. But, yes. Q. Does it need any higher level of attention at the written consent stage if you were contemplating or had to do a colpocleisis, as opposed to a tight repair? A. In your discussions, yes. I don't know that I would put it in writing, no, because you had had those discussions and the patient knew what the outcome would be so much depends on the ladies. The distinction can be irrelevant in some cases and super important. Q. Meaning the patient? A. The Patient I mean, yes, sorry. Q. What you're referring to there is the knowledge of the patient's history, particularly - A. Very much so.
Dr M disagreed with the advice of urology, namely Dr F and H, for Dr B to "stay away from the bladder" even when doing the tight vaginal repair. Dr M agreed Dr B continued the procedure "contrary to what the urologist had advised the doctor to do" and she considered Dr B's response was "a sound compromise". It was necessary to proceed with the he tight repair. The best course for Dr B to follow in this case "was to have continued the whole procedure": Q. Do you agree that even though it was not the best option, it was nonetheless one option to do what the urologists had said? A. It was one very poor option. It would have been wrong. Q. You say it's a sound compromise, so I'm assuming by your use of the word "compromise" that you're talking about doing something that is not necessarily the best thing to do, but compromising on what (pronoun) might have otherwise wanted to do? A. Yeah. The best thing to have done in this case was to have continued the whole procedure. Now, the only thing that you would not do ‑ absolutely standard management, if you have a bladder perforation we tend not to then put a synthetic mesh reinforcement, right, we abandon that but otherwise the best thing to do would have been to have done the original procedure. I would have had no hesitation. I would have reinforced the bladder.
In relation to the written consent forms obtained ahead of the surgery, Dr M agreed there was consent for an anterior repair, but the forms did not record consent for a tight repair or a colpocleisis as, "It's not something you would put down": Q. Your view is that that's right, that it wouldn't necessarily have been put down in any written consent? A. You wouldn't specify that level of detail, no. … Q. Your view is that, firstly, if you're doing a colpocleisis, that would be nonetheless within the anticipate scope of that written consent, is that your view? A. Anterior - posterior vaginal repair. No, I would ‑ probably if I had planned to do a colpocleisis for a particular reason, yes, then I would have put colpocleisis, yes. You write down what your best plan is at the time, of course, and it doesn't always cover all eventualities. Q. Yes. I mean, your view is, is it not, that because of the change in circumstances during the procedure‑‑ A. You need to make some changes. Q. - the tight repair became the viable option? A. Yes. Q. Therefore it didn't necessarily need to have been in the written consent in the first place. Is that your view? A. I think that's right. You can never imagine all the possible things that may happen. You only go in with that best intention and that best plan, yeah. Q. Ideally you would want the tight repair noted in the written consent, wouldn't you? A. No.
In re-examination, the following exchange ensued in relation to the patient's consent forms: Q. Do you still have that consent form there in front of you? A. Yes. Q. Can I just direct your attention to those dot points under that sort of subheading, "Patient consent to be completed by patient", and invite you to look at that, and it says, "The doctor has told me that" and then there are four dot points. The third of which says, "Additional procedures or treatments may be needed if the doctor finds something unexpected", do you see that? A. Yes. Q. In your experience, is this a standard consent form that you're familiar with? A. Yes. It's identical wording, yes. Q. It's exactly the same form that you use at Westmead Hospital, for example? A. Yes. Q. That every procedure that you do in urogynaecology involves a consent form like this? A. Yes. Q. With that additional dot point saying, "Additional procedures or treatments may be needed if the doctor finds something unexpected". A. Yes.
In relation to the urologists' recommendation, the following exchange ensued concerning the demarcation between the role of a urogynaecologist and a urologist in the operating theatre: Q. On your experience, when you do invite a urologist to come in and talk to you about a particular operation, what's usually the scope of the urologist's involvement? A. Well, if there's a specific thing that I'm worried about, yeah. Generally the ureter. I have occasionally called them because I've been concerned about flow from the kidney, and they will say, right, that can be left, you do whatever, but that's it, yes. Q. In your experience has a urologist ever given you advice, or anything amounting to a recommendation or direction about how you should conduct your gynaecological surgery? A. They give advice that I ask them for. They don't tell me how to do the operation, no. No, that's a bit unusual, yeah. Q. Had the urologist's advice been followed, in your assessment what would have been the likely result? A. Can I spend a little bit of time on this, because it comes into two areas? Q. Yes, please. A. The first, most basic thing is redo vaginal surgery it's very difficult. You're working through weak tissues, torn tissues, yeah, intrinsically poor tissues. Second time procedures are hard. Third time procedures are a nightmare. You never get as good results, you get much greater risk of organ injury, and - yeah, so that was something potentially that you would try to avoid. You try to get -

[24]

Mr D

Mr D is a human resources manager employed by the LHD and is responsible for the provision of high level strategic advice to a range of managers. Much of Mr D's affidavit dealt with historical matters and the application of various policy directives, the establishment of the Review into Dr B's conduct, materials and witness evidence considered therein and what evidence was drawn to support the recommendation to dismiss.
On 5 December 2014, Dr B performed an operation on a particular patient. Following that surgery, a Review Team was formed to investigate concerns raised in relation to Dr B's management of the patient in accordance with PD2014_042 managing misconduct and PD 2006_007 complaint or concern.
Copies of those policy directives together with terms of reference for the Review and GL2006-002 Complaint or Concern about a Clinician - Management Guidelines were annexed to his affidavit.
The Review Team selection was based on the serious concerns raised and the clinical subject matter. Dr G was involved in his capacity as the director medical services; Dr J because of her clinical expertise and Ms K for her legal and governance roles within the LHD.
The Review was conducted in accordance with terms of reference prepared by Dr L, director of clinical governance and examined relevant documentation and interviewed a number of witnesses. The Review ultimately determined that Dr B "exhibited unsatisfactory professional conduct" in the care of the patient by:

Undertaking a surgical procedure without informed consent in a non-life threatening situation;
Providing insufficient detail in medical/operating theatre notes with respect to the surgery performed;
Undertaking a surgical procedure that was not necessary in the circumstances; and
Failing to comply with documentation requirements regarding consent and intraoperative record keeping.

The findings were reviewed by Dr L who prepared an Executive Leadership Team Briefing concerning Dr B's compliance with the relevant policy directives. It was subsequently determined that Dr B had failed to comply with PD 2005_406 consent and patient information and PD 2012_069 records and documentation management.
On 27 April 2015, the LHD wrote to Dr B concerning the Review's finding and the recommendation concerning termination of employment. That correspondence included a reference to Dr B's overall "disciplinary history" and, in particular, a "serious clinical performance issue" identified arising from an incident on 6 September 2013 when Dr B performed an operation on another patient (patient two). Those issues concerned Dr B's "management of, and communication regarding, the patient's bleeding during the procedure".
A recommendation that the chief executive proceed to terminate Dr B was made following consideration of the Review Team materials. Dr B was advised of the chief executive's decision to terminate on or around 21 May 2015.
In cross examination, Mr D stated he was satisfied Dr B had been afforded procedural fairness and there had been compliance with all relevant LHD policies and procedures.
Mr D explained the role of a Review Team established following an incident involving a clinician. He confirmed Dr L prepared the terms of reference based on a "standard template" consistent with the policy directive PD2006 007 and he was not involved. The policy directive is mandatory. There was no specialist urogynecologist on the Review Team. The hospital was concerned Dr B undertook a procedure without proper consent from the patient. The following exchange subsequently ensued: Q. You've said in connection with the complaint so far as it relates to the consent question, the difficulty, the conclusion you reached about the consent issue was that the consent did not strictly comply with the relevant policy directive; that's right, isn't it? A. Yes Q. So far as that consent issue went, that was the limit of the finding about consent, that it was not strictly, in your view, in compliance with the PD that deals with consent? A. Yes. Q. You'll agree that the patient who was affected in this incident had a perfectly satisfactory result? A. I can't say the patient had a perfectly result. That's up to her, I think. Q. You can't gainsay the suggestion that the matter was resolved, the outcome was fine as far as the patient was concerned? A. Again, I don't know that I can really answer that. Q. That's all right, if you can't answer it. Can I ask you this, then, part of your function, can I suggest to you, and tell me if I'm wrong, is that when a complaint about an incident like this arises, you're obliged to refer it to the HCCC? A. Depending on the severity of the complaint in the finding, yes. Q. This was regarded to be of sufficient seriousness or severity to warrant referral to the HCCC? A. Or through ‑ for the regulation agency. Q. But, as a matter of fact, this was referred to the HCCC? A. Yeah. Q. And you know, and again this is a fairly standard thing, that if the HCCC seems it's necessary, it is then escalated to the Medical Council? A. Yes. Q. That's right, isn't it? A. Yes. Q. You are aware that that was occurring while your review was happening? A. I was aware it had been lodged with them, yes. We ‑ we don't hear much back from the from the HCCC while they're looking at things.
Mr D estimated matters referred to the Medical Council by the hospital "probably average one every couple of months". The hospital conducts its own investigations "independent" of the Medical Council. It was not privy to Medical Council's internal deliberations.
Mr D acknowledged the policy directive required "independence and impartiality" where conflicts of interest should be avoided wherever possible and where unavoidable, must be disclosed. Moreover, there should be no relationship between the investigator and the clinician being investigated or other significant party which could reasonably be perceived to bias the investigation. In that regard, Mr D considered Dr G, a physician and Dr J to be quite senior clinicians. Dr J is a specialist gynaecologist, a senior staff specialist and works in private practice.
Mr D did not consider Dr J to be a sub-specialty peer of Dr B given the size and structure of the gynaecology department at the hospital. He did not accept that Dr J could be classed as "a competing clinician" within the hospital's operating area.
Mr D confirmed the hospital's "concern was really with behaviour that seriously breached an expected standard, namely compliance with the PD on consent". The hospital's risk management strategy required incidents to be investigated and "If Dr B had done something inappropriate to one patient, you want to protect the next patient".
Mr D understood the chief executive was involved in the decision to stand down Dr B following a risk assessment "because of some perceived ongoing risk to the safety of patients". Mr D subsequently confirmed the risk assessment advice to the chief executive was verbal. Dr O had also confirmed there was no written risk assessment. However, he had no knowledge of the risk assessment itself or whether it had addressed specific matters. Mr D understood the risk assessment was verbally reassessed 30 days after Dr B's initial suspension without change.
Mr D understood the Medical Council engaged independent medical experts to investigate any complaint but was not familiar with those nominated to investigate Dr B.
Mr D stated he did not see the HCCC letter to the chief executive dated 21 May 2015 advising him of the Commission's assessment decision until some months later when preparing for this particular case. He agreed that the chief executive did not seek to appeal the Council's findings. The following exchange ensued: Q. Would you agree with me that this finding and the attached medical council finding was very relevant to the activities of the review committee? A. It would have been relevant consideration but we didn't receive it. Q. Did you ever consider when you were deliberating as a review committee that it might be prudent to wait until the medical council report was issued or the Health Care Complaints Commission report was issued before you took the next step? A. No. Q. You didn't? A. No. Q. Why not? A. Health Care Commission's and other registered bodies can take months and months and months to get any decision to action what we have at that point in time, and simply because the medical board may not take action against somebody doesn't mean, or doesn't place conditions on their registration doesn't mean that they haven't done something that warrants their termination or other disciplinary action
Dr B was sent a show cause letter on 27 April 2015 and a letter of termination dated 21 May 2015. Against that backdrop, Mr D contended the Medical Council decision would not have had any impact on the decision of the Review Team because the termination brief was submitted to the chief executive before the show cause letter dated 27 April 2015 affording Dr B the opportunity to respond. If the Council's findings were sent by mail, they would have been received after Dr B's termination. Mr D conceded the decision was not passed on to members of the Review Team at his initiative on the grounds that this matter was by the stage subject to conciliation.The following exchange ensued: Q. Mr D, can I make this suggestion to you, that albeit that it was many months after the event when you received and read the letter of the Health Care Complaints Commission and/or the medical council report it would have been a proper thing for you to do, to go back to Dr L and the clinical governance people, and to the chief executive and point out to them what the Health Care Complaints Commission had determined, and the medical council, say to them that those conclusions had directly contradicted the conclusions of the review committee, that would have been a proper thing to do wouldn't it? A. Not necessarily. … Q. The weight of medical or clinician opinion as far as those external reviews was concerned was completely contrary to the clinicians that sat on the review committee, wasn't it? A. The findings weren't completely contrary, the action they took was. They chose to take no action, they comment in that document, or in the letter, that, you know, things were not necessarily good practice or words to that affect. That commission acknowledges that good medical practice would include obtaining written consent when they undertake such a procedure, so it wasn't completely "Oh hang on, everything's different".

[26]

Review Team

Dr G was the lead clinician on the Review Team established by Dr L, the director of clinical governance on 9 December 2014. The Review Team was asked to investigate a complaint or concern raised about Dr B and the management of the patient in accordance with PD 2006_007 complaint or concern. On 11 and 12 December 2014, Dr J, Mr D and Dr G conducted interviews with the following LHD employees: Ms Q, acting operations manager - ambulatory care; Dr R, consultant - urology; Dr F, consultant - urology; Dr T, registrar - maternity and gynaecology; Dr S, registrar - maternity and gynaecology; Dr O, director of gynaecology; Dr V, anaesthetist; Dr H, registrar - urology; Nurse 3, anaesthetic nurse; Nurse 1, theatre nurse; Nurse 2, theatre nurse; Nurse 3, anaesthetic nurse; Nurse 4, theatre nurse; Nurse 5, ward RN; and NUM 1, acting nurse manager.
Dr B was interviewed on 16 December 2014 and provided the Review Team with a written statement which was subsequently considered along with Dr B's interview responses. The Review report, submitted to Dr L on 12 January 2015, found Dr B had performed a surgical procedure, for which (pronoun) did not have full informed consent and which was not necessary in the circumstances.
On or about 13 February 2015, Dr G was provided with a letter from Dr B's solicitors, DibbsBarker which set out various responses to the findings made by the Review. That correspondence also included the following documents:

The patient's signed consent form dated 1 December 2014
Dr B's first operation report addressed to Dr X dated 5 December 2014 and signed; and
Dr B's second operation report addressed to Dr W dated 5 December 2014 and signed.

The DibbsBarker materials did not change Dr G's views regarding Dr B's conduct. He maintained Dr B had performed a surgical procedure, for which (pronoun) did not have full informed consent and which was not necessary in the circumstances.
Dr G met with Dr J on 20 March 2015 to discuss the DibbsBarker letter dated 13 February 2015. Again, his views remained unchanged despite the patient being satisfied with her care. The bladder injury incurred was not a threat to the patient's wellbeing. No surgical or nursing staff present at the operation on 5 December 2014 had given evidence to the Review Team that the patient's bleeding was excessive creating a need for a surgical procedure to be performed against the advice of Dr F.
Shortly thereafter, Dr G and Dr J sent a memorandum to Mr D and Dr Z setting out their views following consideration of Dr B's response and confirmed that the response had not changed the earlier findings made.

[27]

Informed Consent

Dr G stated informed consent was the process whereby a surgeon discusses with the patient, sometime prior to surgery, the surgical procedure proposed to be undertaken, so that the patient can understand exactly what is going to happen and give consent.
PD 2005_406 consent and patient information sets out how consent should be obtained and for a valid consent to be given it must be (a) from a person who has capacity to do so; (b) freely given; and (c), it must be specific. In relation to (c), the consent is valid "only in relation to the treatment or procedure for which the patient has been informed and consented to."
As part of the Review, Dr G also reviewed the consent form completed by Dr B dated 28 May 2014 and the procedure to be performed was described as "anterior repair with mesh, cystoscopy pudendal nerve block, bilateral sacrospinous colpopexy".
A second consent form dated 1 December 2014 provided by Dr B as part of the investigation reflected the use of a different mesh to that which had been contemplated in May 2014 and stated "anterior posterior repair anterior repair". Neither consent form records the possibility of a colpocleisis or a severe narrowing of the vagina.
Informed consent recorded on the consent form was important for a number of reasons, including: (1) to record the discussion between patient and surgeon as to what is proposed to be done; (2) as part of good clinical practice and compliance with PD 406; (3) so that the surgical team is aware of the procedure being proposed, how long it should take; and (4), so the anaesthetist can be fully aware of the procedure for the purposes of their role in the surgery.
PD 406 also states that the consent is specific and is valid only in relation to the treatment or procedure for which the patient has been informed and agreed to.
During surgery, complications may arise which require additional steps to be taken by the surgeon which may not have been discussed during the meeting with the patient to obtain consent. In that regard, PD 406 sets out the few limited exceptions when consent is not required and in the following circumstances: 1. immediate treatment is necessary to save an adult person's life or is required to prevent serious injury to them when they are not in a position to consent; 2. there are legal requirements for the procedure to be conducted or consent is obtained from an order of a court; or 3. when consent is obtained from another means, such as a guardian.
Where complications arise, the surgeon can, if time and the situation permits, talk to the next of kin/family to explain what must be done to save the patient's life or fix the problem.
At other times when responding to emergency life and death situations, as contemplated by PD 406, the surgeon must make a decision in the best interests of the patient and then explain it to the patient after the operation. The patient's circumstances were not life threatening and did not fit within one of the exceptions contemplated by PD 406 where Dr B was not required to obtain consent of the patient. Dr G stated that had that been the case, he would have expected to see comprehensive notes in the clinical file - but this was not the case and theatre staff could not recall that the patient's circumstances were a life and death situation.
Dr G maintained that Dr B had at one time scrubbed out, left the operating theatre and checked the patient's notes and history before proceeding to conduct what he considered a colpocleisis or severe narrowing of the vagina.
Dr B met with the Review Team on 16 December 2014 and relied exclusively on a typed statement prepared by DibbsBarker. Br B acknowledged the patient had not given written consent to perform a colpocleisis nor severe narrowing of the vagina but there had been a "pre-op discussion" about "vaginal narrowing". Dr G considered "vaginal narrowing" and obtaining informed consent to severely narrow the vagina "were not the same" and did not "constitute consent in accordance with PD 406".
The Review did not find there was an emergency situation which required immediate intervention by Dr B to save the patient's life and, as a result, Dr G considered the major surgical procedure performed was without the informed consent of the patient.
In that regard, Dr G considered the patient's letter dated 14 December 2014 stating she was "aware the vagina could be severely narrowed" and the fact she was not concerned by this, was not recorded on either consent form and "does not overcome the fact that Dr B did not comply with PD 406, which is mandatory". Rather, he contended the the usual accepted procedure was to wake the patient, discuss the procedure in detail after recovery from anaesthetic and, if the patient consents, to perform that procedure at a later time.
In relation to the DibbsBarker correspondence, Dr G observed that Dr B does not describe the procedure performed as a colpocleisis but rather that the procedure "greatly further narrowed the vagina." However, the ramifications for the patient were no different to that where a colpocleisis was performed.

[28]

Inadequate documentation

Following surgery, the policy directive requires a surgeon to provide a report on the operation performed so as to specifically document the procedure performed; whether there were any complications which arose and how they were addressed; the post-operative care plan setting out information for the patients care in the ward and after discharge.
PD 2012_069 records and documentation management sets out at 2.13 that an outline of the surgery/ procedure performed is required to be included in operation reports. Dr B submitted two typed operation reports and a hand written report as part of the clinical file. The first report addressed to Dr X dated 5 December 2014, describes the vaginal repair as "proceeded without any mesh being used." It does not refer to the narrowing or obliteration of the vagina.
The second report addressed to Dr Y also dated 5 December 2014 described the vaginal repair differently and called it a "tight repair." The hand-written operation report dated 7 December 2014, signed 5 December 2014 describes the vaginal repair as "vaginal repair - no mesh."
Dr B has said that the first typed report was completed by the registrar and upon review more information was added. Dr G contended compliance with PD 069 was mandatory and any "changes to, deviations from, the planned operation/procedure, including any adverse events that occurred, must be recorded."
The three reports state that the bladder was variously injured or torn during the procedure. Dr B's description of a "tight repair" in the second report is not specific enough to meet the requirements of PD 069. A "tight repair" suggests that the vagina remained functional and the patient would remain capable of sexual intercourse. However, on the available evidence, it appears the patient's vagina was closed to an extent that would have prevented her from being sexually active in the future.
The absence of detail and the inconsistencies in the operation reports make it difficult for those involved in the post-operative care of the patient to know exactly what occurred during surgery.

[31]

Dr M's expert opinion

Dr M's expert opinion evidence did not change his view of the actions taken to suspend and terminate Dr B. The care and safety of patients is paramount and notwithstanding the patient did not complain, the standard of care expected was not upheld. Br B showed poor clinical decision making.
While Dr M makes a number of assumptions throughout her report, such as the urology registrar may have been short on time, the evidence was that the registrar took appropriate action and involved the consultant, as was expected. Dr B did not comply with PD 2005_406 consent and patient information and PD 2012_069 records and documentation management.
Br B showed poor clinical decision making. Instead of heeding the advice of a specialist in the field, Dr B proceeded to conduct a non-life saving procedure for which (pronoun) did not have consent and which, on the advice of the consultant urologist, may have put the patient at unnecessary risk. Dr B should have re-scheduled the surgery with a treatment plan in place for which fully informed consent of the patient was obtained and recorded in the clinical notes consistent with PD 2005_406 consent and patient information and PD 2012_069 records and documentation management.
With respect to the specific procedure performed by Dr B, Dr M takes the view that criticism of Dr B's decision to perform the procedure without express consent "is not really valid". Dr G stated he found this opinion "at odds" with the standards expected at the hospital and it did not alter his view that Dr B's decision to perform a colpocleisis or conduct a procedure that severely narrowed the vagina was neither appropriate nor acceptable.
Dr B's alleged "close relationship with the patient" and knowledge "that she did not wish to be sexually active in the future". That discussion concerning the prospect of the procedure severely narrowing her vagina was "different to obtaining explicit informed consent to perform the procedure".
Dr G stressed that a requirement of PD 2005_406 consent and patient information was that no operation be undertaken without the consent of the patient. PD 406 also specifies that written consent be obtained "using the consent form for major procedures including all operations or procedures requiring general anaesthesia". The consent must be specific and is valid only in relation to the treatment or procedure for which the patient has been informed and has agreed to.
Dr G disagreed strongly with Dr M's statement suggesting that as Dr B had "discussed the option of vaginal narrowing or obliteration with the patient", the doctor was able to perform a procedure that rendered the patient incapable of having sexual intercourse as it was known this would not an issue for the patient.
Dr G stated the mere discussion of possible surgical options with the patient is very different to the patient agreeing to have a specific procedure performed on them. A patient may have a very different view or opinion about a procedure when discussing the procedure in a hypothetical sense compared to how they may feel about the procedure knowing that this specific procedure was will be performed and that the implications and risks associated with that procedure are a reality.
While the patient did not raise any issues concerning the outcome of her procedure, Dr B could not have been certain of this. The patient had agreed to undergo a particular procedure that would result in a particular outcome. What occurred was a very different procedure that resulted in a different outcome for her. While Dr M expresses the view that Dr B was confident in her assessment that rendering the patient incapable of having sexual intercourse would be acceptable to her, Dr B still elected to perform a procedure that was not medically necessary without the clear and specific consent of the patient and inconsistent with PD 2005_406 consent and patient information.
Dr G did not agree that Dr B's knowledge of the patient's personal circumstances and the patient's surgical options that had been discussed with her rendered Dr B able to make decisions as to what the patient would or would not consent to when formally asked. Dr G considered Dr B had compromised the provision of health care in the public sector and was not confident the doctor would adhere to the relevant policy directives and the standard of care required if re-instated.
Dr G further stated that as the director of medical services, had he been asked about Dr B's altered plan before it occurred, he would not have allowed Dr B to perform this type of surgery in light of the advice from Dr F and the absence of formal and fully informed consent. Dr G contended he had lost confidence that Dr B was competent to perform surgery on patients at the standard expected by the hospital and within the LHD.
The determination of the Medical Council that no further action would be taken did not alter Dr G's view concerning the appropriateness of the findings of the Review Team. A non-essential procedure was performed without consent in contravention of mandatory NSW Health policy directives. Dr B's actions compromised the reputation of the hospital and LHD as a provider of health care in the public sector. Any loss of confidence and trust in the provision of public health care services has significant ramifications for the hospital, the LHD, other LHDs and NSW Health.
Should the Commission decide to re-instate Dr B IT, would be difficult to accommodate the doctor in a non-surgical role that does not include operating. It is acknowledged that some specialists recognise surgery is not their best skill and they consult with patients through all requirements of surgery but hand the patient over to an operating surgeon. However, the hospital cannot afford to expend resources employing surgeons who are unable to perform surgery. If the hospital is to provide a surgeon with a package of employment that includes significant benefits, such as tenure, it should benefit from the surgeon being able to perform the full range of skills expected of someone in that role.
Dr B has a good rapport with patients. However, the advice from members of the maternity and gynaecology service is that Dr B is relatively isolated and does not engage with colleagues in a way that would make the doctor a strong team member of that service.
The evidence before the Medical Council was that Dr B tends not to get referrals from specialist maternity and gynaecology colleagues within the hospital's immediate catchment area. Dr G contended that the evidence before the Commission that Dr B's has encountered enormous difficulty finding a local anaesthetist and has to use one from another city reflects the impact of a poor reputation as a clinician that affects the ability to maintain the trust and confidence of peer surgeons. Dr G speculated whether Dr B could effectively perform a surgical or non-surgical role within the hospital and the LHD in such circumstances. It was essential for patient care that surgeons maintain the trust of their peers and have a positive reputation as a clinician to ensure effective co-operation and collaboration within and across specialties.
With respect to a non-operating staff specialist role, there is a major problem if a doctor's peers who operate do not have trust in the clinical judgement of the non-operating doctor. This would result in the surgeon doing a second full assessment of the patient causing unnecessary duplication and markedly limit the contribution to patient care that could be made by the non-operating specialist.
In cross-examination, Dr G stated the patient appeared quite happy with the outcome of the procedure. Against that backdrop, he was not surprised that the HCCC or Medical Council did not make an adverse finding against Dr B. On the other hand, the LHD and the hospital are "held responsible for the safe effective care of patients that we look after and I think that we have to be fair but robust in ensuring that we provide patients with the best patient care and outcome". The LHD took the importance of formal consent very seriously. Hence its response in this particular case.
Dr G was unaware of the requirement that the decision to suspend a clinician be reassessed after 30 days and was confident this requirement was not part of the investigation's terms of reference.
Clinical performance issues of health practitioners must be assessed and managed in accordance with the managing a complaint or concern policy directive. Having interviewed a number of witnesses, the Review Team determined there were a couple of issues of concern, one being the precise nature of the consent that had been signed by the patient, and whether in fact the consent was satisfactory? Another was the extent to which Dr B's postoperative documentation was adequate. All concerns identified by the Review Team were ultimately set out in the show cause letter dated 27 April.
Dr G contended Dr B's failure to adhere to the advice of urology, particularly that of Dr F, was a serious issue: A. It's certainly considered it was a serious issue on the advice of the ‑ to complete the process and stop as much surgery as possible. And the understanding was that that wasn't done. There was a further procedure taken. Q. The vaginal repair was affected albeit by slightly different means and the outcome for the patient was satisfactory was it not? A. The report by the theatre staff and others indicate that the procedure was much closer to that of the colpocleisis and as such presented a major difference to the consent provided by the patient. I'm personally delighted the patient had a good outcome, however I think under certain ‑ other circumstances it would have been a disastrous outcome. Q. But we're not talking about other circumstances are we, we're talking about this case? A. We're talking about this patient; we're also talking about the process by which a procedure was undertaken in an operating theatre at the hospital without the documented, on the consent of the patient. Q. You're not able to say that there was not patient consent, are you? A. We have to work on the documentation provided by the surgeon beforehand and what's signed by the patient. Q. You're not able to say that there was not patient consent, are you? A. We have to work on the documentation provided by the surgeon beforehand and what's signed by the patient. Q. But you learned, did you not, when further inquiries were made that the patient, as you've indicated, was perfectly happy with the result of her surgery and she wrote a letter to that effect to the medical council didn't she? A. That's correct. Q. Dr B said that (pronoun) made … own notes about the consultation (pronoun) had with the patient and that (pronoun) in fact consulted those notes again just to satisfy …that what (pronoun) was doing was appropriate and in accordance with the patient's wishes, and undertook the completion of the surgery because (pronoun) thought it was medically indicated and desirable in the interests of the patient didn't (pronoun), that's as you understood it? A. That's the ‑ what I understood is the argument made by Dr B, yes.
The LHD is responsible for the safety and care of patients. It cannot tolerate a situation where surgeons are undertaking procedures with assumed or implied consent, particularly: where a procedure moves into quite a major impact on a woman such as the closure of the vagina in ‑ circumstances such as vascular surgery may require the removal of a limb the expectation is that they would try, if the surgery demanded, they would do that to get some consent for it.
Moreover, Dr G considered it was a duty of a surgeon to identify and set out for a patient explicitly the procedure to be undertaken, the variations that may be required and the potential risks in the consent: Q. You've taken issue with what Dr M's said have you? A. Well that's correct. I think the responsibility of an institution like the hospital is to ensure that there's standardisation and adherence to good practice, particularly in the area, high risk area such as surgery. And that maintains that when a procedure is anticipated to change that should be documented as having been discussed with a patient and we were presented with a situation where the consent form did not list specifically the degree to which the procedure was going to be done, and hence for me and for the committee that represented undertaking a procedure beyond that consented under circumstances where the procedure was not urgent and necessary as lifesaving and where there could have been the opportunity to talk to the patient before undertaking such a dramatic procedure.
Dr G agreed the consent form acknowledged that complications may occur and a surgeon may have to take alternative action in "lifesaving situations". . However, he did not consider that to be the case with the patient.
Dr G's evidence was that the LHD's clinical governance unit was satisfied the composition of the Review Team "could do a fair assessment of the circumstances of the incident". Additional specialist gynaecologist advice from outside the hospital to mirror the composition of the Medical Council review was not necessary. He considered the Review proceeded "without bias" consistent with the overriding requirement of the policy directive that members act in a fair and impartial manner
Dr G agreed that Dr J was a peer of Dr B. He was aware Dr O had suspended Dr B on the recommendation of Dr N. He was unaware of the professional relationship between Dr O and Dr J in that "they were in rooms together and private practice as gynaecologists". He was unaware of any commercial relationship between them. As far as Dr G was concerned, the role of Dr J was to provide expert advice on gynaecological matters related to the procedure and the consent process. Dr J is a senior staff specialist who has been acknowledged as a leader in her field of expertise. He was not aware at the time "of any reason to believe that she would have a conflict of interest within the advice that she would give of this matter". The following exchange subsequently ensued: Q. I've just drawn your attention to this particular provision now but is that something that you've seen before; you remember having seen before? A. I think that's considered in all these appointments and you're seeking from that person their speciality expertise wherein the context of the questions being raised. It's a knowledgeable committee with me as chair and Mr D as HR and I believe that the advice that can be delivered can be done in such a way that there would not be conflict of interest. The ‑ there is a challenge in getting independent advice along these lines within any form of unit in any hospital in any state, so I think that we had a genuine independent chair, in my case, and we sought and obtained gynaecological expert advice from Dr J. Q. You've agreed that Dr J is a competing clinician and a peer of Dr B? A. I wouldn't use the word "competing" I believe that (pronoun) is in the same department, the same service together with a large number of other medical staff, nursing staff and others in quite a large service at the hospital. I would not contemplate using the word "competing". Q. There are two options there, aren't there, first as competing clinician, but the separate and distinct one is whether they're a peer in the same clinical unit and you've already agreed that the doctor's a peer in the same clinician unit, haven't you? A. The doctor's in the same service, yeah, I can't deny that. They're both members of the maternity and gynaecology service. Q. It says here in this dot point that conflicts of interest should be avoided wherever possible and where unavoidable must be disclosed, so can I suggest to you it was, first of all, incumbent upon anyone on the committee to attend to the requirements of the PD and disclose any relevant conflict of interest? A. Yes, as you say. Q. Of course as I said earlier the idea of that is that the onus is on the person to disclose because you don't necessarily know whether there's a conflict of interest do you, that's right isn't it? A. I was certainly aware (pronoun) was a member of the same unit, so that was quite clear and was deliberately chosen to provide the expertise that resides in that medical unit
Dr G conceded Review Team members were not formally asked to declare any conflict of interest and, it may have been the case that some members were unaware of their obligation to disclose any conflict. They were, however, directed to ensure they were providing independent information in response to the terms of reference so as to provide an independent and just outcome.
In relation to the patient's pre-operative medical condition, Dr G was unable to comment or speculate about her particular circumstances because he had not undertaken the relevant clinical assessment. He agreed the patient was in her late 60's. In relation to Dr M's expert evidence that there was nothing improper with Dr B's surgery on the patient, the following exchange ensued: Q. She gave advice along those lines, that it was not desirable to bring the patient back in for yet a third major operation in the circumstances? A. That's Dr M's advice, I recognise that. Q. You've got no really substantial basis to say that that was advice that was unmerited or somehow or other not proper advice, have you? A. All I can work on is that the advice from the urology specialist was to undertake minimal procedures and to stop the operation in their opinion was in the patient's best interests at that time. I would require more information to be able to answer the details about whether a subsequent definitive operation would or would not be better or worse than a procedure done at the time. Q. That would be a pretty relevant bit of information for you to make your mind up about; whether what was done was medically indicated in the circumstances wouldn't it? A. The matter we're discussing is the conditions under which either life threatening circumstances or urgent circumstances required the operator to change the nature of the procedure with the events happening at that time. It's my understanding that consent process does not incorporate the degree to which there may be weight or other things to get something else done, and so I think what we're talking about is that event that afternoon and the degree to which the procedure was recommended that the ‑ that there be no further procedures undertaken. And those procedures according to the consent can be done if it's a life threatening situation where an additional procedure has to be done and that's accepted. But it's not accepted on the advice that we received from the members of the staff interviewed that there was a life threatening problem at the time for the patient. It required an additional operation.
Dr G confirmed that he was not involved in the making of the recommendation to the chief executive that Dr B be dismissed. His role did not extend beyond chairing the Review Team: I was involved with … the investigation that determined that the patient had had a colpocleisis, and that that wasn't specified on the consent form.
The Medical Council findings were made some months after the Review had completed its investigation and had made its findings. He was unaware why those findings were not subject to appeal by the LHD.
Dr G agreed the hospital was obliged to take decisions of the HCCC and Medical Council "very seriously". However, the hospital also has to make sure it operates safe and effective services. The fact that the HCCC or Medical Council do not find within their range of criteria an issue: … it doesn't automatically mean that there's a clean slate within the health service
In relation to the findings of the Medical Council compared to the Review Team, the following exchange ensued: Q. Doesn't it strike you as odd that you persist with that view, yet the medical council took a different view? A. I suppose you just have to true to what you think is the right thing to do by your patients, and the right thing to do is ‑ to me, is quite clear. And, as I said, the patient has had a great outcome and I'm delighted for her. The success of the outcome indicates that she must have had a colpocleisis, or very close to it, because it's ‑ the most effective way of correcting a bladder prolapse through the vagina is to close up the vagina. So, you know, I think, in one way, the success of the operation speaks for itself, that the operation was a colpocleisis, and we're ‑ you know, we're saying that it wasn't absolutely essential, on the basis of the circumstances, and that it would have been appropriate to stop, re‑discuss and then book another time to carry out the formal colpocleisis, as planned.
Dr G contended the Medical Council was an agency that attempts "to do the right thing" and the hospital takes its findings "very strongly": I - as I said, I think it is inherent within hospitals and health services that they have a robust system of quality assurance for their patients and I don't believe that we can make an excuse of doing nothing just because the medical board did not find a strong enough case to put conditions on a doctor's - Q. If it had been a serious lapse, surely you'll agree with me, the medical council would have put a condition on the doctor's practice? A. I can't answer. I think, potentially, the medical council might be like the law; you know, they prefer to make sure that onus and proof is one way but, you know, as I said, I think it comes back to the duty of us as a hospital and a health service to maintain standards in the interests of the safety and effectiveness of our patients. And, from my point of view, that report did that. I think the decision that you're talking about incorporated some intelligence about Dr B, to ‑ which I wasn't aware, in terms of previous matters ‑ I wasn't director medical services when they were there, and so I think the decision, having looked at this document, would indicate to me that it was a cumulative decision that wasn't available for the medical board. So, as I said, I think ‑ take very strong notice when the medical board puts a condition on but I think, just because a matter has not been seen by the medical board and the HCCC as a problem, it doesn't necessarily affect us and a very strong determinant in this, clearly, was the successful outcome for the patient, and I think the HCCC and possibly the medical board looks upon no complaint from the patient ‑ the patient is very happy. As you know, there's a very strong analogy between airlines and safety in health services, and if a flight is going from Cairns to Brisbane and the pilot pushes something and something goes wrong and they're told by the safety people, "Land in Brisbane", but the pilot says, "I'm okay. I think I'll go on to Sydney" and lands successfully, everyone is happy, they're home on time but, basically, a procedure has been undertaken that was contrary to the requirements for the operation and I think we're in the same boat. The outcome has been very happy, the patient, by all accounts ‑ you know, no one that I know has examined her, Dr M I don't think examined the patient after the operation, or subsequently, so she's making hypothetical statements. I'm delighted about that but, you know, what we're focused on are the circumstances about the operation on 5 December and whether or not our processes were followed.
In relation to the advice of the urologists that Br B stop the procedure, Dr G believed that in circumstances where "a sub-specialty group come in to assist with a problem during a procedure and provide advice as to the next steps, I think, it is not unreasonable to expect that the person to whom that advice has been provided would follow it". The advice to Dr B to "close up" was appropriate. The following exchange ensued: Q. Would you agree with me, there appears to be quite a significant divergence of view between the urology prognosis and what's said by Dr B and Dr M? A. Yes. It's my understanding that the bladder is an organ under some dispute between the subspecialty groups and that those undertaking pelvic surgery need to have an expertise within this area, certainly to avoid tying off ureters and doing damage to the bladder. However, I think, once advice has been obtained from an expert within an area, it is pretty hard not to suggest that that advice is taken on board. … we would anticipate that when doctors get advice from a subspecialist in the area to do something ‑ that it would be preferable that they take that advice.
Dr G agreed that in essence, the outcome for the patient was satisfactory and the key issue in dispute was whether the consent form extended to embrace the procedure undertaken.
The success of the procedure indicates that there was an obliteration of the vagina because there was no further prolapse. This is a "gold standard" procedure to prevent prolapse because you close off the vagina. The staff in the operating theatre said there was no visible vagina opening at the end, of the procedure and it was a reasonable, and remains a reasonable assumption that a colpocleisis was performed and there was no specific consent for that operation.
Dr G agreed he was aware that Dr B Dr B had interviewed the patient, knew her reasonably well and knew about her sexual activity and function: A. Yes. Yes, I know and, as I ‑ in answer that ‑ I can draw your attention to the MH4 from DibbsBarker on 13 February, saying, point 11: "The possibility of colpocleisis has also been discussed as a reasonable option that would avoid misuse. Dr B and her patient discussed two procedures, the vaginal mesh and colpocleisis, but, in view of her age and fitness, the patient provided written consent for mesh anterior and posterior vaginal repair and bilateral sacrospinous colpopexy, cystoscopy and pudendal block." (T)hat item states to me fairly clearly that they discussed the option and the patient opted for the mesh, that the patient did not provide written consent for the colpocleisis, which was the alternative procedure that must have been done to achieve such a good outcome.
It was Dr G's evidence that the consent form completed by Dr B was clear: This states quite clearly they discussed colpocleisis or the mesh and (pronoun) agreed on the mesh, signed off the mesh. The mesh operation came to a halt because of bladder damage and advice from the urologists and it appears that, rather than stopping and reconsidering the operation for which the patient specifically didn't give consent at the time that procedure was undertaken.
It was put to Dr G that Dr M considered "operation reports generally only give the outline for the procedure and management of any complication, not detailed suture by suture descriptions". With input from Dr J, the Review Team had agreed Dr B's operation report did not reflect "what we understood was the operation ‑ the operation report just had to say colpocleisis was carried out". The procedure was not lifesaving and colpocleisis was a major procedure to undertake on a patient without consent.
Dr B did not find "something unexpected". There was hole was put in the bladder and the urology recommendation was not to complete the consented procedure and therefore, stop the procedure and revisit the patient's care at a later date..
The evidence of operating theatre staff was that the patient had a colpocleisis. The patient came in for one operation and was provided another. The extent of that operation was such that it went beyond what would be anticipated as additional treatments or lifesaving: Q. Can I move to this, then, and go directly to the point, and that is, can I suggest to you that what Dr M has produced in her report provides a very sound basis to undercut the assumptions that you acted under when you participated with the review committee and made the recommendations to the chief executive of the hospital? A. I don't ‑ as a matter of degree, I don't think that is correct. I think the patient had a more extensive procedure than that for which she provided written consent and, as a consequence, a procedure was undertaken without what was fully ‑ to the hospital, fully documented written consent, and I think ‑ so, from that point of view, I don't change ‑ the comments by Dr M indicate that, within certain circumstances, you vary procedure, within ‑ but the variation she's described is within the confines of the procedure, whether you do hitches or meshes or something else. I don't ‑ I didn't see, reading there, that, if you haven't got informed consent by the patient for colpocleisis, you go ahead and do it. And I think that's the major issue done here and it's added to by the fact that, in the same incident, advice was given to stop the definite procedure and revisit that for the patient on a later day. So, we have ‑ and they're the two issues that I don't think have changed in the light of these other matters. I think ‑ well, that's my advice.
Dr G disagreed with the proposition the Review Team failed to take into account or consult proper expert urogynaecological advice: No, we consulted a ‑ we had an expert senior staff specialist in obstetrics and gynaecology and we obtained the advice, we sought the evidence, and I believe that we did enough to make a decision about whether the procedure undertaken was that for which consent was given.

[33]

The incident

Dr F was the consultant urologist on call at the hospital 5 December 2014. He received a telephone call from the registrar on duty, Dr H and recalled a conversation to the following effect: Dr H: I've received a call from theatres. A bladder injury has been recognised during a surgery being performed by Dr B. It's close to the ureter. Dr F: Ok, you should perform a cystoscopy and bilateral retrograde.
A cystoscopy is a procedure used to inspect the patient's urinary tract. It involves a flexible tube, called a cystoscope, being inserted into the urethra. This allows the person performing the procedure to look inside the urethra and bladder to identify signs of damage or bleeding.
A retrograde pyelogram is used to confirm if an injury has occurred to the ureter. A thin plastic tube is passed through the cystoscope and up the ureter which leads to the kidney and dye is used to show abnormalities in the ureter on an X-ray. Dr B subsequently informed me the bladder injury was close to the ureter, so it was necessary to check the bladder injury and determine whether the ureter had been damaged.
Dr F stated he had asked Dr B to perform these tests so he could assess how serious the injury was as a bladder injury can sometimes be serious depending on size and location. A ureter injury can also be serious depending on whether it is a partial or complete tear, which can occur without being recognised. A severe ureter injury can cause urine leak and potentially severe infection. It might also cause a ureteric stricture obstruction potentially leading to a blocked kidney and renal failure.
A short time later, Dr F received a further telephone call from Dr H who said words to the following effect: Dr H: I've performed the cystoscopy and bilateral retrograde. There is an obvious injury to the bladder. I need you to attend the theatres. I'm confused about the procedure being performed. There is no injury to the ureter.
Following his conversation with Dr H, Dr F attended the theatre where Dr B was performing the procedure. The patient's operation notes stated Dr B was performing a prolapse repair - elective non cancer gynaecological surgery. Dr F stated he didn't scrub into the theatre as he was not expecting to perform any surgery. In any event, Dr H was a specialist registrar and capable of performing the cystoscopy and bilateral retrograde pyelogram.
Dr F said he observed the patient was in a stable condition and her vital signs did not indicate any significant drop in blood pressure consistent with significant blood loss at the time. He could see the vaginal orifice and there was no obvious severe bleeding. The cystopscope projected image screen showed a perforation in the bladder at the right side of the bladder wall less than 1 cm in size and next to the right ureteric orifice which is where the ureter joins the bladder. He did not observe any significant signs of bleeding from the bladder wall injury on the screen projecting the cystopscope image. It appeared Dr B had perforated the bladder when dissecting the vaginal wall to locate the ligament which is used to suspend the prolapse.
Shortly thereafter, Dr F had a conversation with Dr B to the following effect: Dr F: Dr B, you should close the vaginal mucosa and stop this procedure. There is an injury to the bladder but it is not life threatening. A catheter can be inserted for 10 days and the bladder should heal without being stitched. Dr B: I think I should keep going and with the repair. Dr F: I disagree; this is not a life threatening condition. I'm happy for you to close the vaginal mucosa. If you proceed there could be complications like causing bleeding from the bladder or further injury to the bladder or the ureter. You have already encountered some difficulty- you should just close the vagina wall and the bladder will heal. Dr B: I think I should keep going and finish it.
Dr F understood Dr B's comments to mean the doctor wanted to finish the prolapse repair. Dr F was comfortable for Dr B to repair the vaginal wall where the dissection had been made. However, it was not necessary to repair the bladder as it would heal on its own. Dr F did not consider it appropriate for the prolapse repair to continue as the bladder had already been damaged. Dr F subsequently said words to the following effect: Dr F: I can recognise the bladder injury. This will normally heal with a catheter in the bladder for around 7 days. Do not stich it. It's not a life threatening complication and it can be managed with a urinary catheter. You can close the vagina mucosa.
Dr F recalled Dr B "was talking slightly quickly … (and) kept interrupting my conversation when I tried to give … advice". Dr B said on more than one occasion, words to the effect of: Dr F, I think I should finish the repair.
As a result of this conversation, Dr F became concerned that Dr B was unwilling to stop the procedure, which while not a life threatening complication, was elective surgery. Dr F opined in such circumstances, his usual practise was "to do damage control and manage the bladder injury with ,, (a) urinary catheter". Moreover, from his distant view of the operation, Dr F couldn't tell whether Dr B had attempted to repair the bladder. Later, Dr H said to Dr B, words to the effect of, "there is a stitch in the vaginal wall".
Dr F contended it was normal practice to repair the vaginal wall but allow the bladder to heal on its own. He wasn't concerned about the stitch in the vaginal wall from the bladder point of view. But he was concerned Dr B wanted to press ahead with the procedure rather than stop. The following exchange ensued: Dr F: Don't proceed with the prolapse repair. Dr B: Don't you think I can finish the repair? Dr F: No.
Dr F stated that for about 20 minutes, Dr B seemed frustrated with his advice and asked him a number of times whether the prolapse repair could continue. Dr F replied that the procedure should cease. Eventually Dr B replied with words to the effect of: "Ok, I will leave the catheter in". Dr F understood that response to mean Dr B was taking his advice and ceasing the operation. Dr F and Dr H subsequently left the theatre.
Dr F's urology operation report dated 5 December 2014 and prepared by Dr H stated in part: Dr F was the specialist in charge and operating surgeon. The surgical assistant was Dr T. The patient was already anaesthetised and was undergoing a planned anterior vaginal repair with mesh for prolapse voiding dysfunction on a background of prior native tissue anterior vaginal repair. I received the following handover from Dr B: When using a stitch throwing device a hole was made in the right lateral bladder wall adjacent to but remove the right ureteric orifice. This injury was recognised by Dr B… Extensive discussion occurred between the urology team (Dr F) and Dr B. We advised that the stitch thrown adjacent to the bladder perforation should not be tied down due to the proximity of the ureter. We advised that the bladder injury should heal with catheterisation. We were then informed that the stitch had earlier been tied down at some stage during the procedure. Given that the RGPs were normal, and it would prove very difficult to remove the stitch, we stated we were happy with it remaining in situ. We advised to abort the anterior repair and to definitely not put any mesh in. We advised a urethral catheter for seven days and cystogram prior to removal. Dr B expressed a wish to complete the repair on the left hand side. We expressed strongly that our advice would be to completely abort the repair due to the recognised complication. We advised closing the vaginal mucosa and aborting the repair. we again reassured that the bladder injury could be managed with a catheter and that we would not advise any further stitches be placed in the area of the injury due to its proximity to the ureter.
In relation to the evidence filed by Dr B concerning the patient's treatment, Dr F:

Disagreed with the contention that it was considered "incorrect management" to not repair the bladder wall in circumstances where the patient's perforation did not go in to the abdominal cavity. As a urologist who specialises in the urinary system, including the bladder and ureters, my usual practice for repairing extraperitoneal injuries is to place a catheter and allow the bladder to heal without surgical intervention. This is what Dr F had recommended to Dr B. Further, in order to prevent further bladder damage, he recommended Dr B cease performing the prolapse repair and return to complete the operation at other time once the bladder injury had healed.
Disagreed that he was not "on site" at the time of the procedure. This is incorrect. He was conducting an outpatient clinic. Upon being made aware of the complication that had occurred during Dr B's procedure Dr F instructed his registrar, Dr H, to attend theatre immediately and seek his assistance if required.
Recommended Dr B close the vagina wall using superficial sutures and not place deep sutures that would also incorporate the bladder wall as the vaginal wall and bladder wall sit next to each other in the patient's body. Had Dr B proceeded to place deep sutures that incorporated the bladder wall there would be a risk of incorporating the ureter and causing further damage. Suturing the ureter can result in severe complications including blocking of the ureter, infections and even kidney and renal failure. The appropriate course of action was for Dr B to place sutures in the vagina wall without incorporating the bladder.
Was concerned Dr B seemed unwilling to accept his advice with respect to the treatment of the patient's bladder injury? The recommendations he made to Dr B as a urologist were consistent with his usual approach to managing an extraperitoneal bladder injury. From a urological perspective, Dr F was concerned Dr B wanted to continue with the prolapse repair after the bladder injury had occurred. The patient's condition was not life threatening and continuing with the prolapse repair could have placed the patient at risk of further bladder trauma or damage to the ureters. Moreover, from a urological perspective, closing the vagina without incorporating the bladder wall would not place the patient at risk of experiencing excessive post-operative bleeding from the bladder.

Dr F stated ongoing care following the patient's procedure was very important. He had sought to see the patient the next day but she had discharged herself. Hospital care to observe the patient's post-operative recovery and administer IV antibiotics, check the catheter and undertake a dye cystogram to confirm bladder healing prior to the catheter removal was important.
In further evidence in chief, Dr F confirmed he had assessed a small perforation in the patient's bladder on a screen and had suggested to Dr B that the procedure be abandoned with the patient being required to return for further surgery on another occasion. He was also concerned if mesh was used as it could impede healing. In his view, it was best to allow the bladder to heal without surgical intervention.
Dr F suggested Dr B was quite stressed when he entered the theatre. He considered his role was to give the doctor support and "calm the doctor down". Dr F also understood that Dr B had the patient's best interests at heart. His advice to Dr B was to stop the prolapse surgery, close the vagina incision and leave the catheter in the bladder so as to allow the bladder injury to heal.
In relation to Dr M's report, he disagreed that the proper course to adopt in the circumstances of this particular case was other than abandon the surgery.
In cross-examination, Dr F stated that he was concerned mesh was going to be used in accordance with the original prolapse repair procedure and in his opinion, the use of mesh could cause more damage to the bladder and impede repair of the perforation. Dr F had read Dr M is expert report and notwithstanding her views concerning the procedure undertaken by Dr B, Dr F maintained, the best course of action for Dr B to adopt was to stop the procedure.
Dr F agreed that the LHD has a standard consent form which states amongst other things, that "additional procedures or treatments may be needed if the doctor finds something unexpected". In so far as urology was concerned, Dr F considered leaving a catheter in the bladder, removal of a cancer from the kidney or bowel, removing a cancerous kidney, damage to a blood vessel spleen could be regarded as "additional procedures or treatments".

[38]

Review Team findings

A copy of the confidential Review Team Report dated 12 January 2015 was annexed to Dr J's affidavit. Dr J set out central findings of the Review: The exact nature of the procedure was unable to be determined without examination of the patient post operatively. The patient's early self-discharge against medical advice and the negative emotion displayed by the patient and her husband in the immediate post-operative period to discharge prevented formal examination of the patient. It was deemed inappropriate to ask the patient to represent for examination. Evidence from the doctor who assisted and the two perioperative nurses assigned to the theatre was sufficient for the Review Team to form the opinion that an obliterative vaginal procedure or colpocleisis was undertaken. There is no evidence in LHD documentation that colpocleisis was an anticipated procedure. … The intraoperative record was incorrect. Ministry of Health Policy PD2012_096 Health Care Records - Documentation and Management (clauses 2.8, 2.9 and 2.13) addresses the quality of information required to be documented in the patient's health record. By failing to accurately record all the surgical procedures undertaken, this policy has been breached. … While not binding, the expert advice from the urologist that surgery should be terminated and that the patient be rebooked for the consented procedure after the bladder had healed should have been influential. There is no evidence that this advice was seriously considered by Dr B.
Dr J stated that she had been performing this type of procedure for around 15 years and estimated that she had performed this procedure "hundreds of times". Dr J agreed with the findings of the Review Team for the following reasons: 1. The information provided by the clinicians involved in the procedure, specifically Dr T and Nurse 1 indicated that the patient's vagina had been fully closed by Dr B. Both Dr T and Nurse 1 were experienced in their roles and had the necessary skills to identify whether a procedure that was not listed on the consent form had been performed by Dr B. 2. None of the witnesses interviewed corroborated Dr B's statements that the patient was experiencing a level of bleeding that could put safe haemostasis at risk. 3. There is no medical basis to justify Dr B's decision to progress from performing a sacrospinous colpopexy to a colpocleisis (or any other procedure resulting in the patient's loss of sexual function). A sacrospinous colpopexy specifically allows for a functional vagina to be maintained and for the patient to remain capable of having sexual intercourse. The patient's prolapse was not so severe that it should have prevented the procedure from being stopped and finished at a later time nor was there any other factor that necessitated a colpocleisis or a significant narrowing to be performed to ensure the safety of the patient. 4. The procedure that was ultimately performed by Dr B resulted in a far different surgical outcome for the patient than the procedures listed on the consent form as the patient is now rendered incapable of having penetrative sex. Dr B did not simply perform a 'tight repair' as such a procedure would not result in the patient being rendered incapable of having sexual intercourse. In my view the procedure performed by Dr B went beyond a 'tight' anterior vaginal repair. 5. Had the procedure been undertaken consistent with the consent forms, it should be possible to insert two fingers inside the vagina to check that the vagina is functional. This technique is used by surgeons at the end of the procedure "to check the vagina can still be used". Neither Dr B nor any of the witnesses reported that this occurred at the conclusion of the surgery. Both Dr T and Nurse 1 reported the patient's vagina had been closed completely. 6. In circumstances where the patient's scar tissue meant that further dissection would be technically difficult and a bladder injury had already occurred, Dr B's decision to continue the operation despite the recommendation from Dr F to cease the procedure placed the patient at unnecessary risk of further bladder trauma. The patient's prolapse was not so severe that immediate intervention was required, meaning, in view of the risks to the patient and the advice given by Dr F, who as a urologist is a specialist in the urinary system, it was appropriate to close up and finish the procedure at another time.

[39]

Expert Report of Dr M

Dr J agreed with most the comments made by Dr M her report. However, she contended that Dr M's report was based on Dr B's recollection of events. In that regard, Dr J stated that she had interviewed staff who worked in the theatre on 5 December 2014 when Dr B was operating on the patient. Having subsequently spoken to Dr F, Dr J said she agreed with his recommendation to stop the surgery. Unlike normal bladder injuries, the patient in this case had scar tissue which meant that the dissection of further layers would be technically difficult.
Further, in Dr J's opinion, the prolapse was not so large so as it to necessitate continuation of further surgery despite the bladder injury and scar tissue. It would have been more appropriate to "close up discuss the complications and potential alternative procedures with the patient". Written consent from the patient could then be obtained as was necessary. The operation was not life-threatening.
Dr J stated that no witness to the operation on the patient reported that significantly bleeding occurred during the procedure nor was inadequate haemostasis present. Accordingly, Dr J considered it was not necessary for Dr B to continue to perform the "vaginal repair" in order to achieve safe haemostasis.
Shortly stated, Dr M's report did not alter Dr J's support for the Review Team findings. In any event, Dr M was not privy to the information obtained by the Review Team and the witnesses involved in the operation. Dr J disagreed with Dr M's comments that it was not valid to criticise Dr B for performing a procedure that "narrowed the vagina and prevented intercourse" without written consent. While Dr B may have known the patient well, Dr J contended the surgical team involved in the operation could not be expected to be aware that the doctor had such a relationship.
Dr J considered there was a duty on all members of the surgical team to act in the interests of the patient. This means that the surgical team has a duty to ensure the procedure is performed in line with the relevant consent form. Further the consent form used by the LHD requires the surgeon to document the procedure has been discussed with a patient and they have consented to it. It also forms part of the patient's clinical record. Dr J stated that surgeon should not perform procedures that are not documented on the consent form except in a medical emergency.
In further evidence in chief, Dr J stated she had opted out of urogynaecology. She had also been undertaking complex general gynaecological surgery involving prolapse repair, sacrospinous fixation, colpocleisis, complex laparoscopic surgery, hysterectomies and the like at both (overseas hospital) and the hospital for some 15 years. The following exchange also ensued: Q. And do you have some kind of rooming arrangement or clinical arrangement with Dr O? A. No. If I could explain? Q. Yes? A. I'm a senior staff specialist at the hospital. Dr O is the director of gynaecology. So that's the only interaction we have. In my practice outside of the hospital I do not practise uro-gynaecology at all. I'm predominantly an obstetrician and I do have a general gynaecology practice and that has no connection whatsoever with Dr O. My rooms are completely separate. It's based at a place called (suburb name 1) and I think Dr O's rooms are based at (suburb name 2). I do not share any clinical arrangement with him outside. Q. And could it be said it any way that you're in competition with Dr B? A. I doubt that because uro-gynaecology is not an area of my private practice at all. I do probably half of my private practice as obstetrics and the rest is general gynaecology and probably complex gynaecological surgery, but I do not do uro-gynaecology in private practice.
In cross-examination, Dr J confirmed she undertook took her specialist training overseas. Her public clinics at the hospital were gynaecology clinics and she worked completely independent from Dr O as she was a senior staff specialist. Dr J recalled that the service manager, Ms I invited her to be a member of the Review Team because she had over 15 years of experience in gynaecology and could assist "in sort of assessing the clinical side of the story" and was not a urogynaecologist. in private practice.
It was Dr J's evidence that whilst she could not say whether she had read the managing misconduct and complaint or concern about a clinician policy directives, she had an understanding about what they contained. Dr J was aware that the patient was happy with treatment she received from Dr B and had advised the Medical Council accordingly. In relation to the requirement concerning patient consent, Dr J stated: It's the responsibility of us surgeons to make sure that what we think we are going to do for the patient is written on the paper and prior to operating the team (takes) time out (and) discusses and concerns and confirms what the procedure's going to be. We are bound by regulations, no matter who the Dr is, to stick with this consent form, except in life-threatening situations. We are faced with complications, all of us. I've been faced with it multiple times. You do deviate from the norm. But, at the end of the day, when we deviate, the outcome cannot be completely different from what was anticipated at the beginning of the operation. The rest of the team is there to check on Dr B or me, on all of us, to make sure that we perform the operation we started out with (at) the outset, understanding that we know what our patient wishes and that should be on paper when we start. That's the idea of consent for us.
Dr J stated that she had read the Medical Council report and did not dispute its findings. The following exchange ensued: Q. So we're not talking about the outcome of the operation at all, are we? A. No, not at all. Q. So, what we're talking about is really certain events that occurred in the operating theatre? A. Yes. Q. And in terms of the procedure that was undertaken, does it boil down, in your view, to the fact that the you say that the actual operation that was performed was inconsistent with the signed consent form? A. Yes. Q. And is your view limited to that distinction? A. Yes.
It was Dr J's evidence that if a clinician determined that a colpocleisis was necessary and was discussed with a patient the day before surgery, it would have been documented as required by the consent form. The following exchange ensued: Q. And you know that what was contemplated in the consent form was a narrowing of the vagina; that's right, isn't it? A. No, what's contemplated on the consent form was to leave a functional vagina. That's the problem. The consent form said ante-posterior repair, sacrospinous fixation. The idea of the sacrospinous fixation, the main idea is to leave some length and depth of the vagina, so that's the consent form. And when the end of it, a narrowing or obliterating the vagina, the outcome is the opposite of what was written on the consent form. That was what was contradictory.
Dr J stressed that consent was critical. The evidence given to the Review Team by the scrub nurse and the senior registrar in theatre was that vagina was completely obliterated. We had no other records to go by: The patient had consented for a sacrospinous fixation, which aims to leave, whether she's sexually active or not, that's a different story altogether, but when you consent somebody for a sacrospinous fixation, we are expecting, the idea of that particular operation is to leave some part of the vagina functional, and then to end up with a vagina that's completely obliterated is the opposite result.
Dr J acknowledged that Dr B was adamant the operation performed was not a colpocleisis. However she maintained the end result was still an obliterated vagina: Q. What she said in her statement was at the end there appeared to be the obliteration of the vagina, but she made no examination after the procedure, did she, to determine whether that was so? A. We don't have to examine that. So when the surgery is finished and the patient's been catheterised and prepped and draped, it is very obvious to those of us who know what they are seeing, we do not have to examine a patient to figure out the end result of an operation. … Q. But the evidence that you operated upon, upon which you made your decision, was incomplete, was it not? A. No. It was the evidence given by Dr T and Nurse 1, and I've got reason to trust their evidence, because Dr T and Nurse 1 work with me on a regular basis in theatre, they have seen me doing a sacrospinous fixation, they have seen me doing a colpocleisis, and they know exactly what it looks like at the end when there is a vagina left and when the vagina is obliterated. So I have no reason not to trust their judgment.
In relation to Dr F's advice for Dr B not to close the bladder, Dr J considered it was appropriate to close the bladder as was the procedure undertaken by Dr B. Following that procedure," I would close up and leave". If necessary, advice could be obtained from another surgeon such as Dr O, for example, who can do laparoscopic fixation through the abdomen.
Insofar as the actual procedure undertaken by Dr B was concerned, Dr F contended a vaginal repair can be undertaken in a number of ways. However from Dr B's operation notes, was not possible to determine with a degree of clarity what steps the Dr B actually undertook.
In relation to Dr M's report, Dr J stated she was more inclined to rely upon the evidence of those clinicians attending the patient in the operating theatre than rely upon what Dr B had provided: The anaesthetist, the scrub nurse, the senior registrar and all of them and even with regards to the surgery and a lot of, you know, the details in there, we had no reason to sort of believe that Doctor - Dr T or the scrub nurse who has worked with me on several occasions, multiple times, doing these same operations and they should know what the outcome of each procedure is and I know for a fact that this covered me. So, there's no reason for us, for the Review Team, to believe that there are any reason to give us a false statement about the procedure on the day. And when we reviewed the notes, the operation notes, and the first typed notes from Dr B, did not tell us a few things. For instance, any operational notes for a prolapse should start off with the findings. What did we find before we start the surgery. We go on to do the surgery and we write what happened in the end and that's basic principle of prolapse surgery, the fine things. That is absolutely missing from the operation notes. It doesn't tell us where you start. When you do a prolapse surgery, for instance, we talk about what the findings are before we start the operation. That wasn't there to start off and we had to rely on the findings sort of mentioned to us by the staff being interviewed and that is basically the main reason I had to take their views rather than rely on what Dr B had given us on the second operation letter, which was only made available to us after 24 December, when the review had already finished. That was the problem.
Dr J contended that when a surgeon has a complication, the operation notes have to be thorough and was no excuse for them not being so. In response to a series of questions that the Review Team could have sought further and better particulars concerning operation from Dr B at the time the doctor was interviewed, Dr J stated Dr B attended the interview with a solicitor and subsequently read a prepared statement: We weren't allowed - we were trying to ask the doctor questions, and we were nearly rebuked, saying, "Are you challenging my client?" So we sad to stick with what was read out to us.

[43]

Incidents between 7 November and 21 November 2008

On or around 7 November 2008, Dr B was found to have performed a surgical procedure on a particular patient in circumstances where the doctor :

proceeded to operate while unwell which resulted in extended delays for the patient's surgery;
did not have a senior assistant present, as was required for this type of procedure;
had not seen or clinically reviewed the patient for a two year period immediately prior to surgery; and
had not provided the patient's medical record.

Dr B was acutely ill during the procedure was unable to complete the surgery. A subsequent investigation found that Dr B did not recognise the "unwell condition" and another specialist surgeon was called to take over. The investigation also found that Dr B's conduct displayed an absence of safe clinical judgement and decision-making.
In light of the serious concerns and complaints about Dr B's performance, a decision was made in consultation with clinical governance, the director of gynaecology, medical workforce and human resources.to recommend to the then chief executive to relieve Dr B of clinical duties whilst the investigation was in progress consistent with the NSW Health Policy PD 2006_007 complaint or concern.
Ms I contended there were ongoing issues raised with Dr B concerning the doctor's late attendance at outpatient clinics. On or around 21 November 2008, Dr B was found to have arrived late at a clinic which required appointments being moved to accommodate an interpreter and patient who were waiting to be seen. Accordingly, other patients were not seen as scheduled and patient appointments were delayed by approximately two hours causing some significant distress. Some complaints were made by patients to LHD.
On 27 November 2008, Ms I prepared a briefing paper on Dr B's disciplinary history for the then chief executive following various discussions with the then director of gynaecology and a review of LHD internal records. That review drew to the doctor's attention to various performance and conduct issues that had been raised with respect to Dr B prior to the incident on 7 November 2008. A copy of that paper, titled "Chronology of concerns and complaints concerning Dr B" was annexed to Ms I's affidavit.
The briefing paper noted that on or about 21 November 2008, concerns were raised about Dr B's conduct at an outpatient clinic which had left several patients distressed. Moreover, a senior doctor from clinical governance had advised LHD management that Dr B's colleagues were now: … so concerned for the doctor's competence that they are refusing to support the doctor in … operating procedures because they do not wish to be accessories to risks to patient safety.
Concerns had also been raised about this time concerning the doctor's private practice morbidity rates. It was subsequently determined the Dr B should be removed from clinical duties immediately pending resolution of the 7 and 21 November clinical concerns and complaints
It was Ms I's evidence that she understood the then chief executive subsequently wrote to Dr B on 28 November 2008 to advise the doctor's clinical privileges had been suspended.. A copy of that correspondence was also sent to the Medical Council. On or about 19 December 2008, Ms I and Dr O sent a further letter to Dr B setting out the specific nature of the concerns raised in relation to the incidents that occurred between 7 November 2008 and 29 November 2008.
On 5 June 2009, Ms I and Dr O prepared a further briefing paper for the then chief executive concerning the 7 to 29 November 2008 incidents investigation and the recommended remedial steps. A subsequent investigation conducted by Dr O and herself, with the support of clinical governance and human resources, concluded Dr B's conduct displayed poor clinical judgement and decision-making. Shortly thereafter on or about 22 June 2009, Ms I and Dr O wrote to Dr B and reported the findings of the investigation. Dr B was provided an opportunity to respond.
Following consideration of Dr B's response and discussions with ASMOF, Dr B was subsequently returned to work on or about September 2011 under a return to work plan designed to support Dr B with clinical decision making and assessment. Dr B agreed with this plan which included a condition that Dr O would be required to supervise the doctor's surgery, outpatients patient reviews, clinical documentation and audit of clinical outcomes as well as attend performance review meetings.
It took considerable time to return Dr B to work due to the need to resolve issues with ASMOF regarding the terms of the return to work plan. Following the doctor's return to work, various recommendations of the LHD credentialing sub-committee concerning required performance measures were formalised in a documented and agreed performance plan "to ensure a safe work environment and patient safety".

[46]

Nurse 1

Nurse 1 is employed by the LHD as a theatre nurse and was rostered to assist Dr B with the operation performed on the patient on 5 December 2014.
Nurse 1 stated she had experience assisting with prolapse repair surgery and "would usually assist with this type of procedure every week or two weeks depending on the number of gynaecological cases booked". On 5 December 2014, she was the nominated instrument nurse for the procedure, responsible for passing any instruments, equipment or supplies needed by Dr B. Nurse 1 stated that during the operation, she stood next to Dr B who was on her left side and was facing towards the patient's vagina.
It was Nurse1's evidence that during the course of the operation, she saw Dr B "go through the vagina to dissect the right side of the patient's vaginal wall". As Dr B went deeper into the vagina, she noticed some blood come out of the vagina. Later, Nurse 1 saw clear water coming out the vagina. It was at this point that Nurse 1 thought the patient's bladder might have been punctured.
Nurse 1 recalled Dr B appeared to be suturing in the vagina around the area where the puncture had been made. However, there was still liquid coming through the vagina. Dr B undertook a cystopscopy and shortly thereafter asked the anaesthetist to inject the indigo carmine through the IV to check the ureter patency. Nurse 1 observed 'blue' coming out of the patient's urethra and Dr B subsequently said words to the following effect: "I'm happy with that result but not sure". Nurse 1 thought at this time, "we should call urology". Someone else in the theatre subsequently made the call.
Nurse 1 subsequently recalled Dr B then said words to the effect of, "Can we call someone from Urology to get their opinion" ? Nurse 1 could not recall who contacted urology. However, a short time later Dr H, a urology registrar came into the operating theatre. After a discussion between Dr B and the urology registrar, Dr B said words to the effect: "I made a hole in the bladder wall. I have stitched it up to fix it. I've done a cystoscope and checked the patency of the ureter." In response, the registrar said words to the effect of: "Why did you stitch the bladder?" In reply, Dr B the said words to the effect of, "I have fixed the hole in the bladder." Nurse 1 heard the registrar say at that time words to the effect of: "I need to speak to the consultant (Dr F)."
The urology registrar subsequently made a telephone call and had a discussion on the telephone. After that, the urology registrar said words to the effect of, "I recommend that a bilateral RGP be performed before anything else is done". Nurse 1 stated an RGP is urological procedure to check the patency of the ureter. It is different to the indigo carmine test Dr B had already undertaken.
The urology registrar performed a cystopscope and RGP while waiting for Dr F, the urology consultant to arrive. Nurse 1 recalled Dr B said words to the effect of, "Can we obtain another instrument, called a Capio"? Nurse 1 also recalled Dr B saying words to the following effect, "I can fix this". The hospital did not have a Capio instrument. A short time later, Dr F arrived in theatre when he and Dr B had a conversation to the following effect: Dr F: "I think you should stop doing what you're doing. You should close the wound and stop the procedure. Let the bladder heal before you finish that procedure." Dr B: "I can repair the other side."
The conversation between Dr F and Dr B continued for about 10 minutes with Dr B stating words to the effect of, "I can finish what I started". Dr B repeated this statement "more than once". Dr F repeated his advice to stop the procedure and "it seemed like they were trying to convince each other who was right". She could not recall how the conversation ended. Dr F and the urology registrar subsequently left the theatre. Dr B also left the theatre and according to Nurse1 did not say anything when leaving.
Dr B later returned scrubbed back in and continued the procedure. Nurse1 contended she "was not completely sure what Dr B was doing" but assumed the doctor was following Dr F's advice and was stitching the area where she had made the dissection in the vaginal wall. Nurse 1conceded she was not watching the procedure closely at that point as she was busy handing Dr B the sutering instruments. Moreover, as the procedure was coming to an end, Nurse 1 stated she had also commenced "counting instruments and equipment to make sure they were all present before the procedure was completed".
Shortly thereafter, Nurse 1 stated as she was about to clean the patient, the scout nurse entered the theatre and when looking at the patient's vagina said words to the effect of, "Check the vagina- it looks closed up." Nurse 1 subsequently "had a look at the patient's vagina to see if this was correct" and when cleaning the vagina area that had been prepped for surgery, "I could not see any vaginal opening and I could not feel any opening at all". Nurse 1 was concerned as she "had not been watching the procedure closely … (and) wanted to ask if the vagina had been closed". Nurse 1 subsequently stated: I then went to Dr B or the registrar who assisted Dr B said words to the effect of: "Has the vagina been closed?" And they replied: "Yes." I didn't ask any more questions after that. I had never seen a closed vagina before. After the surgery I felt like I hadn't advocated for the patient enough in the surgery. I was worried for the patient. I didn't report anything to my manager after the operation. I wasn't sure how to approach it and I thought more senior people who were in the operation would raise it with management. It was an unusual procedure because of the interactions between Dr B and the urologists and the end result of the operation. I could not understand why the procedure ended up the way it did with the vagina appearing to be closed.
In cross-examination, Nurse 1 conceded she had no knowledge of the patient's post-operative health or conduct. Nurse 1 also stated that she could not be "completely sure" that Dr B said words to the effect of, "I'm happy with the result but not sure" following the procedure: I don't exactly remember what (pronoun) exactly said. That's how I understood what (pronoun) ‑ happy about or satisfied with that result.

[48]

Incident on 5 December 2014

Prior to this procedure, Dr T had not worked with Dr B regularly. She recalled assisting Dr B in surgery on one occasion and on another in the doctor's clinic sometime earlier in her career at the LHD. Dr T stated she was generally aware from working at the hospital that Dr B had differences with LHD management regarding clinical performance.
Dr T contended that when she became aware that she had been rostered on Dr B's surgical list on 5 December 2014, she "was concerned about having to assist Dr B to perform potentially complex procedures due to what I had heard about the doctor's performance history". Against that backdrop and prior to 5 December, Dr T conferred with Dr O, director of gynaecology as follows: Dr T: Why have I been rostered to Dr B's list? I thought Dr B wasn't able to do major operations at (the hospital) any more, only minors? Dr O: The patient is one of Dr B's private patients. You are just there to assist...
Dr T could not recall why she thought Dr B was prevented from performing complex operations at the hospital, "however, I believe this was due to the doctor's clinical privileges recently being suspended as a result of a prior surgical complication".
Dr B's patient was a 68 year old female who had presented with recurrent, symptomatic prolapse. This was a vaginal prolapse that required an anterior repair and sacrospinous fixation. The patient had had a previous repair and was scheduled to undergo a further anterior repair with ultramesh, bilateral sacrospinous colpoplexy, cystocoele and a pudendal block. This procedure involved attaching a suture to the sacrospinous ligament in the pelvis and anchoring this to the apex of the vault to reduce the prolapse. The ultramesh helps anchor the suture to the vault of the vagina.
The patient's operation was scheduled to commence at approximately 10.45 am and be completed by about 1.30pm. Prior to the operation and when the patient was in the anaesthetic bay, Dr T briefly introduced herself in the presence of Dr B. Dr T recalled that Dr B asked the patient general questions about how she was feeling and if she was ready for the procedure. She did not recall Dr B discussing the technical aspects of the procedure during that time.
The surgical team subsequently proceeded to conduct a "time out", which is a team meeting prior to the operation "where the patient's identification is checked against our records to ensure the correct patient is in the operating theatre and the surgical team go through the consent form to ensure everyone understands the procedure being performed". Dr T could not recall a colpocleisis or any procedure other than those on the consent form being discussed during the "time out" meeting.
Dr T contended she would have recalled a colpocleisis or a procedure involving a substantial narrowing of the vagina being discussed during the "time out" as such procedures were uncommon. Following the "time out" meeting, Dr T "understood the surgical team would be performing the procedure as was expressly set out on the consent form".
During surgery, a vertical incision was made by Dr B and the patient's bladder was reflected with metsenbalm scissors and bluntly bilaterally with Dr B's index finger in order to dissect the fascia and move the bladder away from the vagina. A vertical incision was then made and "there was dissection of the rectum and fascia with metsenbalm scissors and fingers". The incisions in the anterior and posterior vaginal walls were then joined and the patient's complete vaginal cavity was opened.
Dr B continued with dissection and Dr T recalled Dr B at the time said words to the effect of, "the spines and sacrospinous ligaments aren't very prominent". Dr T contended that when performing a procedure of this kind, the sarcrospeinous ligament needs to be located so that the surgeon knows where to place the suture. This is done by "feeling for a protrusion of bone in the pelvis (the "spine") and moving your finger back towards the patient's sacrum to locate the ligament". In the patient's case, the dissection process was difficult due to the scar tissue that was present from the patient's previous repair. As a result, a hemostat, which is a type of forcep, was used to assist during blunt dissection. This process creates more room to correctly place the suture.
Shortly thereafter, Dr B attempted to place a prolene suture to the patient's sacrospinous ligament using an orthopaedic instrument used for such procedures. Dr T considered with this procedure, it was preferable to use a thinner instrument, known as a Capio, to place the suture. However, the instrument Dr B used was much bulkier and perhaps generally used in orthopaedic surgery. Dr T did not know whether the instrument Dr B used was unsuitable for the procedure. It was not an instrument that she had seen used in this kind of procedure and was also unaware whether any alternative instruments were available for Dr B's use on that day. The use of a Capio was not approved for use at the hospital.
It was Dr T's evidence that as Dr B was about to deploy the suture, the doctor was not happy with the placement. When Dr B removed the orthopaedic instrument, a bladder injury occurred which caused a significant amount of urine to pour from the surgical site. Dr T contended the injury "probably occurred because, as Dr B attempted to remove the instrument, it became snagged on the bladder causing a tear".
Dr B proceeded to perform a cystoscopy which showed a hole in the bladder adjacent to the right ureteric orifice and left the cystoscope inside the bladder while attempting to find and close the hole externally. While there was some bleeding around the surgical site, but not excessively so, Dr T considered the level of bleeding to be normal and consistent with the level of bleeding normally experienced at that stage of the operation. She did not consider the level of bleeding to be a risk to the patient at that time. Around this time, Dr T also recalled she and Dr B had a conversation to the following effect: Dr T: Do you think we should involve urology? Dr B: Yes but I'll try and fix it first.
According to Dr T, she and a theatre nurse proceeded to remove excess fluid and Dr B was able to place sutures in the fascia around the hole to seal it. Dr T understood the hole in the bladder was sealed because the flow of urine had stopped. A call was subsequently made "for someone from urology to come to the surgical theatre to assist".
Dr T stated that while gynaecologists were trained to repair bladder injuries, urologists are generally consulted following a repair "to ensure they are happy with how the repair has been performed" and limit any complications arising from the repair. Moreover, it is urology that will ultimately be responsible for treating the patient. In her view, the timely involvement of urology reduces the risk of a later complication occurring because it ensures the most appropriate steps are taken with respect to treating the bladder injury at the earliest opportunity.
The ureter and the bladder hole were subsequently viewed via cystoscopy. Urine could be viewed flowing from the ureters into the bladder and it appeared that the ureters were patent. Dr B later attempted to take a picture of the injury using the tower and camera. The first tower and camera were not working and a second set was brought to the theatre.
Dr T agreed that Dr B later said to her, "won't put mesh in now because of the complication". Dr T also agreed with Dr B's decision because "introducing mesh in this situation may have created an environment for a fistula, or a more permanent hole, to form in the bladder".
A short time later, the urology registrar, Dr H arrived in theatre and introduced herself to Dr B and Dr T. Dr T could not recall the exact words that were spoken, however, she did recall that Dr B attempted to explain to Dr H what had occurred and that Dr H did not understand where Dr B had placed the suture. Dr T recalled Dr H said words to Dr B to the effect of, "I don't know what you're talking about".
Dr H subsequently left theatre to contact the consultant urologist on call, Dr F. Shortly thereafter, Dr H returned to theatre and Dr T recalled Dr H and Dr B had a conversation to the following effect: Dr H: Dr F said there is no need for a suture. The bladder will heal with a catheter. Dr B: I've used indigo carmine to test the ureter. 'Blue jets' were seen. As a result, it appears that the ureter is patent. Dr H: Indigo carmine does not exclude an injury. Dr F thinks an RPG needs to be performed. I'll do this.
Dr T explained that an RPG is a stent or catheter which is fed up the cystoscope through the ureters to the kidneys and takes a live x-ray of the tract to confirm that the ureters are intact and patent. Such a procedure must be undertaken by a urologist and not a gynaecologist.
Dr T stated that while Dr H was preparing to perform the RPG, Dr B further dissected the patient's left side and said words to the following effect, "I can feel the ligament much better now. However, I'll need a Capio to place the suture in the ligament. It will need to be borrowed from the private hospital". Dr T was concerned that Dr B wanted to continue with the repair as the bladder had already suffered trauma and by continuing the procedure there was a risk the bladder could be injured further. Dr B was informed that a Capio, a thinner instrument, not authorised for use at the hospital.
Dr H performed the RPG which showed patent ureters bilaterally. By this time, Dr F had arrived and the following conversation ensued: Dr F: The ureters are patent. I think you should stop the procedure because of the complication. I recommend closing the vaginal mucosa and leaving an IDC in for 10 days. The hole in the bladder will heal on its own and you can come back later and complete the surgery. Dr B: This won't fix the problem. I need to finish the repair. If I put another suture in the left ligament while you are here you can then do another RPG at the end and check the ureters again.
The discussion between Dr F and Dr B continued for approximately 10 minutes. Dr F repeated that the procedure should be stopped to avoid further injury to the bladder and a catheter should be placed, while Dr B wanted to continue the procedure to repair the vagina. Towards the end of the discussion Dr T recalled D F saying words to the following effect, "I can't force you to do anything but you have my recommendation".
Dr H and Dr T subsequently repeated Dr F's recommendation to Dr B in similar words to those expressed by Dr F and the following exchange ensued: Dr T: I think it would be better to be safe than sorry. Dr B: Yes, I agree.
Dr B and T proceeded to thank Dr F and Dr H as they left the theatre. The following exchange ensued: Dr B: I know what I'm going to do. Dr T: What is it? Dr B: I'm going to do a colpocleisis. I just need check the patient's notes to see if she is sexually active. Dr B subsequently left the theatre check the patient's notes.
Dr T stated that while waiting for Dr B to return, she and a member of the nursing staff had a conversation to the following effect: Nurse: What is (pronoun) going to do? Dr T: A colpocleisis. Dr B's going to close the vagina.
A short time later, Dr B returned to theatre and began placing deep stitches in the patient's vagina. Prior to this operation, Dr T stated that she had only witnessed two colpocleisis procedures. Dr B's technique was not consistent with how she had previously seen the procedure performed. In her experience, the surgeon would leave channels in the vagina, whereas Dr B "appeared to be completely closing the vagina by stitching it from the inside out". Accordingly, the following exchange ensued: Dr T: In a normal colpocliesis we leave channels. Dr B: You only leave channels if the patient has a uterus. This patient does not.
Dr T recalled that it did occur to her at the time that colpocleisis or any other procedure that would result in such significant narrowing of the vagina was not on the patient's consent form - but she found it difficult to say something to Dr B and "there was already a lot of tension in the theatre following Dr B's conversation with urology".
As Dr B proceeded to tie and cut the sutures around the bladder hole and trim the vaginal mucosa, Dr T stated Dr B put "interrupted sutures" in the "deep layers to the superficial layers" of the vagina from the inside out which effectively obliterated the patient's vagina. Following this procedure by Dr B, Dr T observed she could see the patient did not have recognisable vagina left. Only a shallow indentation in the vagina and the urethra were visible.
A cystoscopy was again performed by Dr B and ureteric jets were seen. Dr B also said words to the following effect, "the bladder seems elevated" and inserted a catheter before leaving the theatre.
Dr T stated that she was not involved in the completion of any operation reports concerning the patient's procedure.
Post-operation and later on 5 December 2014, Dr T stated she had a conversation concerning Dr B's procedure with Dr O. She explained what had occurred and recalled Dr O had replied in words to the effect of, "Ok. Write everything down and leave it with me". She prepared some notes on the procedure undertaken, a copy of which was annexed to her affidavit.
In relation to patient discharge, it was Dr T's evidence that she would not have recommended the patient be discharged within 12 hours of the procedure. The patient's catheter should have been left in for a period of 10 days. A cystogram should also have been taken before removing the catheter to ensure the bladder hole had healed. The patient should also have been treated with antibiotics.

[49]

Dr B's account of the operation

Dr T stated she had read Dr B's account of the operation on 5 December 2014 as set out in the letter from DibbsBarker dated 13 February 2015 and noted the following:

Did not agree that there was an hour between when Dr F was called and when he arrived. I recalled the period being 30 to 45 minutes;
Did not agree that the patient's bleeding caused a risk to safe haemostasis or a risk to the patient's safety or wellbeing. More generally, in procedures where tissue is cut, there is always some bleeding. However, Dr T did do not consider the level of bleeding experienced by the patient to be inconsistent with the level of bleeding experienced by other patients during posterior or anterior vaginal repairs that she had either witnessed or performed herself. Dr T estimated she had previously witnessed and assisted in approximately 50 of these operations and had also performed over 100 herself under supervision;
Did not consider that the patient's bleeding put her at any risk that would justify Dr B performing a colpocleisis. In her view, the patient's bleeding would have been addressed by closing the vagina. Any oozing during the operation while the discussions were had was managed by placing a sponge on the area;
Agreed that Dr B did not necessarily perform a "classic colpocleisis procedure" in the sense that during the other colpocleisis procedures, Dr T had witnessed channels were left at the sides of the patient's vagina. Dr B pushed the bladder back and placed deep stiches in the vagina. This effectively closed the vagina from the inside out leaving no channels; and
The procedure Dr B performed achieved the same result as a "classic colpocleisis" in that the patient's vagina was significantly shortened and closed leaving only a shallow concaved area of skin. Following the procedure, the area where the vagina had been had no depth. In my view the patient would not be able to be sexually active following the procedure as she did not have a functional vagina.

Dr T gave further evidence in chief via videoconference.
In relation to the following paragraph set out in Dr B's evidence: It is correct that Dr T was the one who wanted urology. I had to obey her, as in the eyes of Dr O and the hospital staff, she was (the) supervisor in this case … discussion with Dr O prior to the case collaborates this. It appears she had been sent to OT to supervise me, although I was unaware of this at the time. I just was aware that I was always at (name) hospital being very closely scrutinised. Dr T stated Dr B's opinion was not her understanding of her job in theatre. Rather, Dr T contended her job was to assist Dr B and she was not sent there to supervise anyone as she was a junior and "I can't supervise my boss".
Dr T confirmed that she initiated the conversation with Dr O early in the afternoon following operation on her way to another operating theatre as "frankly, I needed to tell somebody what it happened, so mentioned it to him at the time".
In cross-examination, Dr T stated she became aware that Dr B had "differences with the management at the hospital regarding … clinical performance" l through the "rumour mill", but was unable to remember anybody in particular who might have engaged in such conduct.
Dr T agreed proposition that when she became aware that she had been rostered on Dr B's 5 December surgical list, she was concerned about having to assist the doctor perform a potentially complex procedure given what she had heard anecdotally about the doctor's performance history. Dr T also agreed that she had questioned Dr O to determine whether Dr B was able to perform major operations as she was of the view the Dr B was restricted to minor operations given the doctor's performance history. Dr O subsequently assured her there was no restriction in place and the patient was one of Dr B's private patients.
In relation to the bladder injury, Dr T stated Dr B was able to place sutures in the fascia around the hole to seal it. She had made the call for urology to attend theatre as "we were trying to stop the flow of urine and the doctor was trying to find the hole". Dr T agreed that gynaecologists and in particular, urogynaecologists, were trained to repair bladder injuries which occur in the course of vaginal surgery. It was their primary responsibility. However, it was Dr T's experience that urology was always called in circumstances where there was injury to the ureters or the bladder. In her opinion, Dr B was correct in determining to leave the suture alone, rather than remove it as pressed by Dr H.
It was Dr T's evidence that Dr B had stated a colpocleisis would be performed on the patient subject to a check of the patient's notes to establish whether she was sexually active. Dr T denied that Dr B had said that channels would not be left because a colpocleisis procedure was not to be undertaken. Rather, Dr T contended that Dr B had said to her, "the reason we don't leave channels is because the patient doesn't have a uterus anymore".
In re-examination, the following exchange ensued: Q. Dr T, just a short question for you. You were asked just a moment ago about what you knew of the end result in terms of whether the patient then had a vagina that was capable of intercourse and, well, you were asked about the end result of the procedure and you said you only have the image of the patient on the table. Can I just ask you what you what you were referring to there? A. Yeah. I was referring to the way the vagina looked at the end of the operation. Q. And how was that? A. It looked like there wasn't much length to the vagina at all. Q. How could you tell a length by looking at it? A. It just looked like a shallow saucer, like a saucer facing me. That's what it looked like, like that. Q. Right, okay. A. That's what it looked like to me at the end of the surgery, but, as I said, I didn't, you know, examine and I don't know what it is like now. Q. And do I take it that it looking like a shallow saucer is different to what an ordinary vaginal repair looks like at the end of the procedure? A. Yes. Q. And what's the difference? A. Well, a normal vaginal repair actually looks like a normal - pretty much a normal vagina. You should - I am normally able to get two fingers in or at least one finger and to some length to it, not just - not just a small amount, like a normal amount of length usually Q. And do you recall anybody testing the length? A. No.

[52]

Tripartite Test

When determining whether a particular dismissal is harsh, unreasonable or unjust, the Commission is required to deal expressly and specifically with the tripartite statutory test. In Outboard Marine Pty Ltd T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, the Full Bench observed that in order to avoid the possibility of misunderstanding or error, the Commission should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust.
The words "harsh, unreasonable or unjust" set out in s 84(1) are ordinary non-technical words which are intended to apply to an infinite variety of circumstances where employment is terminated. The High Court in Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 determined that a particular dismissal may be: Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct; Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.
In Corrective Services NSW v Danwer [2013] NSWIRComm 61, the Full Bench observed at [21]: The Industrial Relations Act 1996 (IR Act) provides for certain remedies where the Commission finds that the dismissal of an employee from employment was "harsh, unreasonable or unjust": see s 89. It has been said those words constitute a "tautological trinity" (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a "tautological trinity". As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. (See also NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25] - [32]).

[53]

Was the dismissal harsh, unjust and unreasonable?

Whether the dismissal of Dr B was harsh, unjust or unreasonable must be decided on the facts of the case. The Commission does not stand in the shoes of the employer and determine what action it would take in the circumstances. In Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681.at 685, , Moore J stated: In my opinion, the evidence does establish that the employer had a valid reason for terminating the employment of Mr Walton. I should, however, make plain - and this has been made plain in many cases decided by this court - that it is not the court's function to stand in the shoes the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct, and in these proceedings I have concluded it did.
It is only where the Commission considers the dismissal was a disproportionate and unreasonable response to the employee's conduct should a finding that the dismissal was unjust or unreasonable be made. Rather, the Commission must make a finding based on an assessment of the evidence before it, whether, on the balance of probabilities, the conduct alleged actually occurred.
Dr B was required to observe workplace policies and policy directives. Such policies and directives represent a lawful order that an employee to comply with them.
In A v Local Health District [2017] NSWIRComm 1079, the Commission as presently constituted stated: 163 A serious breach of a workplace policy or an incident where an employee places say, health and safety at risk, will generally constitute a valid reason for dismissal. It is also recognised that any breach of a workplace policy and procedure can have potentially disastrous consequences for the employer, the employee who triggers the breach, employees in the workplace generally and third parties who may be adversely impacted. 164 The requirement to observe workplace policies concerning workplace safety was considered by a Full Bench of the Fair Work Commission in Parmalat Food Products Pty Ltd v Walilo: FWAFB [2011] 1166 at [18] - [19]: [18] In our view this case raises important questions about the respective rights and obligations of employees and employers in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences. [19] In this case the employer considered, and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so sends a message to the workforce that safety breaches can occur with impunity. The application of the unfair dismissal provisions to this case is a matter of general importance and in our view clearly attracts the public interest. We therefore grant permission to appeal. 165 The Full Bench at [24] also considered that where findings had been made that an applicant had been afforded procedural fairness and there was valid reason for termination, it would only be in circumstances where significant mitigating factors were present that a particular dismissal could be determined "harsh": … The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.
In my view, the principles enunciated in Parmalat Food Products Pty Ltd v Walilo, a decision of the then Fair Work Australia, are relevant to these proceedings insofar as they relate to breach of the LHD's established workplace policies and directives..
Moreover, the Full Bench in in Woolworths Limited (t/as Safeway) v Cameron Brown [2005] AIRC 830 at [34] held "a breach of an employer's policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify the dismissal of common law will amount to a valid reason for termination" provided of course, that the policy in question is lawful and reasonable. It follows that a failure to comply with a direction to do or refrain from doing something in compliance with an employer's policy will not provide a valid reason for termination where the policy is unreasonable. However, there was no evidence before the Commission that the policy directives were not reasonable or that Dr B was unaware of them.
Of course, it may be determined that in particular circumstances, a breach of policy may be rendered harsh, unjust and unreasonable: Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 per Sheppard and Heerey JJ at 39: Employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in particular circumstances of an individual case, be harsh, unjust and unreasonable.

[55]

The allegations put against Dr B

The decision in May 2015 to dismiss Dr B was taken by the LHD following an investigation which determined on the civil standard of proof that Dr B had engaged in unsatisfactory professional conduct when on 5 December 2014, the doctor undertook a surgical procedure on a patient without informed consent in a non-life-threatening situation. The LHD also took into consideration the seriousness this incident and the fact that there was some history of complaints against the doctor. The specific allegations put against Dr B and subsequently investigated were that the doctor: 1. Undertook a surgical procedure on a patient without the informed consent of the patient in a non-life threatening situation; 2. Provided insufficient detail in medical/operating theatre notes with respect to the surgery performed; 3. Undertook a procedure which was not considered necessary in the circumstances; and 4. Failed to comply with documentation requirements regarding consent and intraoperative record keeping.
The evidence before the Commission was that a number of complaints had been made against Dr B in recent years. Dr B's own evidence acknowledged that working in theatre was stressful. Potential stressors, other than Nurse 1 who was working in the theatre on the day of the incident, were not identified. There was no medical evidence brought to explain why the doctor considered working in an operating theatre caused stress.
The LHD contends Dr B's dismissal was not harsh, unjust or unreasonable. That said, the reason for the dismissal must be justified on an objective analysis of all relevant facts. The standard of proof to be applied in deciding whether an employee has engaged in misconduct is proof on the balance of probabilities. That is the case notwithstanding that the strength of the evidence necessary to establish proof to the required standard may vary because of the seriousness of the allegations. Accordingly, any findings in relation to the allegations put against Dr B must be based on clear and cogent proof: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others [1992] HCA 66; (1992) 110 ALR 449 at 449-450.
Dr B contends that the findings of the Medical Council to take no action or impose any ongoing restrictions as a result of the LHD's referral vindicate the decision to undertake a further surgical procedure on the patient on 5 December 2014 following the bladder injury. Dr B further contended it was improper for the LHD to re-litigate matters that had been conclusively determined by the Medical Council.
In response, the LHD contends that the Medical Council did not conduct a full contested hearing into Dr B's conduct and employment history. It was also inappropriate to suggest that the Commission should defer its powers under the Act to the Medical Council.
The LHD submitted that while the Medical Council had conducted a review and determined that there were no ongoing concerns about Dr B's professional conduct, it was entitled to protect its own reputation and make decisions concerning the conduct of its staff independent of any findings made by the Medical Council. In support of that proposition the LHD urged the Commission to follow the approach adopted by Boland AJ in Dr A v Health District (No 2) [2014] NSWIRComm 50 at 380: I should make it clear, however, that I do not rely in any way on the outcome of the Medical Council's review. The conduct of that review cannot, with respect, be compared to the thoroughness and extent of the adversarial proceedings before this Commission and it provides no assistance in determining whether the threatened dismissal of the applicant is harsh, unreasonable or unjust.
The Review Team received a submission from DibbsBarker in February 2015 and considered that submission prior to finalising its report on or about 30 March 2015 and prior to the Medical Council determination. Contrary to the assertions held by Dr B, the evidence before the Commission, particularly that of Dr G, was that the LHD gives serious consideration to the decisions of the Medical Council in so far as they involve medical staff. However, there is absolutely no obligation for the LHD to implement each and every Medical Council decision as it is entitled and obliged to make its own decisions concerning measures to manage and maintain safe and effective patient care in accordance with its governance objectives.

[56]

Undertaking a surgical procedure without informed consent in a non-life-threatening situation

There is no conclusive evidence before the Commission, including the evidence of Dr B, to support the proposition that the patient was in a life-threatening situation. It is clear on the evidence that Dr B was given consent on or about 28 May 2014 for an "anterior repair with mesh, cystoscopy pudendal nerve block, bilateral sacrospinous colpopexy". On the evidence of Dr F, that procedure would have left the patient with a functioning vagina. There was no written consent for a colpocleisis procedure.
On or about 1 December 2014, further consent was obtained from the patient authorising an "anterior posterior repair, anterior repair with Restorelle mesh, bilateral sacrospinous colpopexy".
It was Dr B's evidence that "I never write down the options that we don't decide". In that regard, Dr B's evidence was that during the course of a discussion with the patient in May 2014, at least two options, one being the mesh repair and a colpocleisis were raised the patient's response was she would be happy "to go either way" and "be guided by you, doctor". Hypothetically, Dr B was confident that had the patient been asked to consent to a colpocleisis, it would have been readily granted.
Dr B further maintains that (pronoun) was well aware of the patient's sexual history and had discussed procedures in addition to those specified on the consent form with the patient. Dr B subsequently decided to pursue the mesh option and obtain written consent for that procedure only, a procedure that would have left the patient's vagina intact.
Dr B's expert witness, Dr M essentially based her report in part on what Dr B's case file. Dr M was critical of the LHD's handling of Dr B and considered that in the particular circumstances facing Dr B on 5 December 2014, the distinction between a colpocleisis and a tight vaginal repair, whilst normally requiring patient consent, may not be necessary where the procedure involves an older woman and was necessary to ensure a "good outcome" for the patient when circumstances change mid-way through a particular procedure.
In cross-examination, Dr G stated it was for important for a surgeon to have proper written consent as opposed to an implied or assumed consent, particularly where a procedure has quite a major impact on a woman, as was the case here or other cases such as surgery that requires the removal of a limb. Dr J's views on the importance of obtaining written consent for a particular procedure were very clear. Dr J contended it was the responsibility of surgeons to ensure that the procedure to be undertaken was clearly written down prior to the operating team discussing confirming the nature of the procedure to be undertaken. Further, Dr J considered a surgeon was bound by the requirements of the consent form except in life-threatening situations.
In terms of the nature of the additional procedure undertaken, it was Dr T's evidence that Dr B had stated in the theatre, "I will do a colpocleisis". Both Dr T and Nurse 1 observed a narrowing of the patient's vagina. The evidence of Dr T was that colpocleisis or any other procedure that would result in such significant narrowing of the vagina was not part of the patient's consent form.
While Dr T agreed that Dr B did not necessarily perform a "classic colpocleisis procedure". In her opinion, the procedure that Dr B performed achieved the same result as a "classic colpocleisis" in that the patient's vagina was significantly shortened and closed leaving only a shallow concaved area of skin and no depth.
The evidence of Nurse1 was that when cleaning the patient -post operation, the scout nurse observed the patient's vagina and had said words to the effect of, "Check the vagina- it looks closed up." Nurse 1 subsequently looked at the patient's vagina and could not see any vaginal opening. Concerned, Nurse 1 proceeded to ask Dr B or the registrar who assisted Dr B words to the effect of: "Has the vagina been closed?" and they replied: "Yes."
Dr B in evidence understood the patient's vagina had narrowed and considered this procedure to be a classic type of repair which would not have been too tight for function. Dr B appears to consider the fact that "the patient was happy" and had not complained about the procedure undertaken somehow overcomes the lack of written consent. Br B further contends that notwithstanding the lack of precise consent, the procedure undertaken represented the best outcome for the patient at the time.
PD 2005_406 consent and patient information dealing with patient consent and PD 2012_069 records and documentation management concerning patient records and document management are mandatory policies. The LHD's policy regarding patient consent requires "written consent using the attached model consent form is to be sought for major procedures …" There was no controversy that the patient's procedure was not major surgery in the context of the policy. It must follow that the LHD has a legitimate right to ensure compliance with these policy directives at all times. Dr B was required to obtain and set out the procedures subject to the patient's specific consent. Shortly stated, the absence of a patient's valid consent may be determining factor in establishing liability for civil assault or trespass. The consent form constitutes evidence of the patient's consent and gives the surgeon and LHD protection.
In accordance with LHD policy, a valid patient consent must be specific and have been given to the surgeon freely. The consent form makes provision for additional procedures or treatments to be undertaken by the surgeon where a complication occurs or something unexpected is encountered during surgery. Dr B seeks to suggest that the patient required an additional procedure and/or treatment, notwithstanding that the complication was not life threatening according to other clinicians who observed the patient during the course of her surgery..
Dr B's was aware of the LHD's requirements concerning consent and that understanding was canvassed in cross-examination: Q. What do you understand or, more precisely at that point in time, December 2014, what did you understand to be the hospital's strict requirement for adherence to consent? A. That the hospital had an unusual view that the procedure had to be exactly as was consented, that you couldn't deviate and I had been told by colleagues that they do deviate quite often, but if you're wanting to catch someone out, you would have to be careful to stick with the exact requirement. Q. Do you agree that that is an acceptable approach or‑‑ A. I suspect it's not their approach. I suspect that most of the time they ‑ I've been told that they do in the O & G Department deviate, but it ‑ if there ‑ if you were not liking somebody, you would ‑ it would be a way to ‑ you know, it would be a way, forward, wouldn't it? But most hospitals, it wouldn't happen and I don't believe it happens in the O & G Department, generally. … Q. At this point in time, in May 2014, you are conscious of the restrict requirements of the hospital to have written consent thorough written consent‑‑ A. Yes, absolutely. Q. You've discussed with the patient the colpocleisis procedure and you did not get the written consent for the colpocleisis procedure at that point in time did you? A. Yep, that's right, I didn't. Q. Instead you got a specific consent for the other procedures that you crib in there in the second of those two paragraphs, didn't you? A. Yes, yes. Q. Is it your recollection that you had specific consent in May 2014 from the patient for a colpocleisis procedure? A. No, we didn't. No, we consented for the other procedure. Q. Let me make this doubly clear: you obviously didn't have written consent for it? A. No. Q. Did you have, in your recollection, verbal consent in May 2014 for a colpocleisis procedure? A. Yes, she was happy to go either way and she said, "I'd be guided by you, doctor", and I decided go with the mesh Q. … is it correct to say that the closest that you came to consent for the colpocleisis procedure the patient was saying to you, "I'll go with your recommendation"? A. Yeah, I knew that she was favourable to the idea, but I knew that I didn't have the written consent for it, yes.
The relevant consent forms documented the patient's consent for sacrospinous colpopexy and anterior repair, procedures which on the evidence of Dr J, which I accept, do not cause vaginal narrowing. Nor do those forms document a procedure that would render the patient incapable of penetrative sexual intercourse. I accept the Dr J's evidence concerning the responsibility of surgeons to accurately record pending procedures on paper and clearly set out the nature of the procedure contemplated.
It is also clear on the evidence before the Commission that there is overwhelming support for the proposition that on 5 December 2015, Dr B performed a procedure which was not set out on the patient's consent form. In that regard, I have considered the opinions of Dr M who has given a professional opinion partly based Dr B's contentions. Dr M's view of the matter was that the alternate procedure performed by Dr B was a sound compromise. Dr M did not express a view whether Dr B's conduct complied with the LHD's policies. However, Dr T and Nurse 1 both observed the precise nature of the procedure undertaken by Dr B. Dr J, an experienced surgeon, contended that the procedure undertaken was "the opposite" of that proposed on the consent form.
The DibbsBarker correspondence dated 13 February clearly states that Dr B "agrees the situation which presented itself was not of itself life threatening", although, of course, unforseen complications may render a particular procedure life threatening.
It is clear on the material before the Commission having regard to PD 2005_406 consent and patient information dealing with consent to medical treatment that the procedure undertaken by Dr B was neither life-threatening nor urgent and was not documented on the consent form. Dr T and Dr F had both advised Dr B cease the surgery. Clinicians are required to comply with the mandatory policy directives. In this particular case, Dr B failed to do so.

[57]

Providing insufficient detail in medical/operating theatre notes with respect to the surgery performed

Clinicians are required to comply with PD 2012_069 records and documentation management. For reasons best known to Dr B, it is clear on the evidence that on this particular occasion, Dr B's medical and operating theatre notes lacked detail, a point conceded in part by the doctor with respect to the hand written patient's post-operative reports. A purpose of medical and post-operative reports is to facilitate the safe care and treatment of a patient.
The show cause letter dated 27 April 2015 stated the following: The typed operation report of 5 December 2014 (which formed part of the medical record during the investigation) was different to the operation report received by the hospital on 24 December 2014, subsequent to your Fact Finding Interview on 16 December 2014; Any retrospective entries in the medical record must be noted as an addendum and dated accordingly. This did not occur. The operation report considered as part of investigation provided insufficient detail with respect to the surgery performed; and There was no evidence from others in the operating theatre or documentation of inadequate haemostasis at that time warranting the further major procedure undertaken.
Dr B's first report addressed to Dr X and dated 5 December 2014 states the prolapse repair "proceeded without any mesh being used" and no reference to the narrowing of the patient's vagina. The second report addressed to Dr Y also date stamped 5 December 2014 described the procedure undertaken as a "tight repair." A further hand-written post - operative report dated 7 December and signed, 5 December 2014 described the procedure as "vaginal repair - no mesh."
The Commission notes that Dr B contended that a contemporaneous report was prepared sometime after the patient's surgery but not logged with the LHD's system that day due to inadvertence. Dr B also contends that the Review Team should have taken steps to inspect the doctor's personal computer to verify the claim that the file was generated on 5 December 2104. Dr M did not identify any issues with Dr B's record keeping.
Dr B's post-operative reports support the proposition that the LHD was entitled to determine that Dr B provided insufficient detail with respect to medical/operating theatre notes concerning the actual surgery performed on the patient.

[59]

Failure to comply with documentation requirements regarding consent and intraoperative record-keeping

Dr B contended the Review Team paid scant regard to "the consent documents themselves". Br B acknowledged that while the handwritten consent record did refer to "anterior/posterior repair", such details were subsequently included in the post-operative report dated 5 December 2014.
In support of Dr B, Dr M had considered the 5 December post-operative report and concluded there was consent for an anterior repair. However, the consent forms did not record the patient's consent for a tight repair or a colpocleisis which Dr M claimed, "It's not something you would put down".
The LHD maintains Dr B was required to comply with PD 2005_406 consent and patient information and PD 2012_069 records and documentation management. PD 406 states the patient's consent is specific and is valid only in relation to the treatment or procedure for which the patient has been informed of and agreed to. Consent is not required in life threatening situations such as where serious complications arise during surgery.
Consistent with PD2012_069, a surgeon prepares a report documenting the procedure performed, noting any complications, if so, how they were addressed together with a post-operative care plan dealing with hospital and discharge care requirements. As mentioned above, the various reports prepared or overseen by Dr B described the patient's procedure as a vaginal repair as "without any mesh being used", a "tight repair" and "vaginal repair - no mesh". There was no mention of narrowing.
The cross-examination set out in part above shows Dr B was aware of the hospital's patient's consent requirements: Q. What do you understand or, more precisely at that point in time, December 2014, what did you understand to be the hospital's strict requirement for adherence to consent? A. That the hospital had an unusual view that the procedure had to be exactly as was consented, that you couldn't deviate and I had been told by colleagues that they do deviate quite often, but if you're wanting to catch someone out, you would have to be careful to stick with the exact requirement. … Q. Then say, "She was consented for mesh also for anterior and posterior vaginal repair", and so on? A. Yes. Q. At this point in time, in May 2014, you are conscious of the restrict requirements of the hospital to have written consent thorough written consent - A. Yes, absolutely. … Q. Let me make this doubly clear: you obviously didn't have written consent for it? A. No.
Having considered the evidence variously set out above concerning the allegations and the evidence and submissions concerning this particular allegation, it must follow that Dr B did not comply with the relevant mandatory documentation requirements with respect to consent in accordance with PD 2005_406 consent and patient information and intraoperative record keeping required by PD 2012_069 records and documentation management.

[61]

Was the dismissal harsh, unreasonable or unjust?

The LHD's credibility and reputation in the public domain requires all employees to comply with the various lawful directions set out from time to time in policy directives, codes of conduct and the like. It follows that the LHD is entitled to expect compliance with its express workplace policies and procedures, particularly where an employee has been the subject of previous warnings.
There is no obligation on the LHD to adopt the findings of the Medical Council, as pleaded by Dr B.
Moreover, the respondent has a legitimate interest to ensure employees do not act in a manner that might bring it into disrepute: Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd [2009] AIRC 893.
A valid reason is an important consideration in establishing the fairness of a particular dismissal. Having determined that consideration, a finding that the dismissal is harsh will turn on the presence of significant mitigating factors. I have considered the effect that the NSW Health Service Check register has on Dr B's ability to work in the public system, undertake research and teach young doctors. The fact that Dr B may have a successful private practice pales into insignificance when regard is had to the withdrawal of those public hospital clinical and related privileges.
However, when viewing the December 2014 incident and the other performance or conduct issues raised in proceedings, I am regrettably unable to find that the dismissal was harsh in all the circumstances of this case. It was not a disproportionate response to the gravity of the conduct relied upon.
Both Dr B and the LHD share an important statutory obligation to maintain clinical and patient standards and compliance with policy directives and the like. Policy directives are in effect a lawful instruction from the employer to the employee. Mandatory compliance has a high profile within NSW Health and the LHD's that it supports. Establishing and enforcing those obligations are important, a breach of which can lead to serious consequences for patient safety. Reputational damage for both clinicians and the LHD or hospital is at risk. Litigation may follow. Accordingly, I am compelled to find on the evidence that the decision to dismiss Dr B was neither unjust nor unreasonable.
I have considered all the material before the Commission, including Dr B's length of service, service record and the gravity of the particular misconduct in respect of which the LHD has acted. Upon that consideration and review, I am unable to find that dismissal was disproportionate to the gravity of the misconduct or, to be too harsh, unreasonable or unjust as a consequence. I am therefore unable to be satisfied that the dismissal was harsh, unjust or unreasonable. The application is therefore dismissed.

At a glance

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Judgment (62 paragraphs)

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Cases Cited (19)

Cited By (1)