Health Care Complaints Commission v Blackstock - [2020] NSWCATOD 110 - NSWCATOD 2020 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Blackstock

[2020] NSWCATOD 110

NCAT Occupational|2020-09-30|Before: Boland J, Assoc Professor P

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2020-09-30

Before

Boland J, Assoc Professor P

Catchwords

[1998] HCA 11 Rogers v Whitaker (1992) 175 CLR 479

Source

Original judgment source is linked above.

Catchwords

[1998] HCA 11 Rogers v Whitaker (1992) 175 CLR 479

Judgment (124 paragraphs)

[1]

REASONS FOR DECISION Introduction The conduct of this matter Documents relied on in the proceedings The Health Care Complaints Commission The practitioner The relevant law and authorities Complaint One Complaint Two Inadequate pre-operative assessments of Patients C, D, E, F, FF, G and H The practitioner's reply Evidence in support of the particular The expert evidence Consideration Failure to obtain proper informed consent within a reasonable time prior to the surgery for Patients A-I, including Patient FF The practitioner's response Relevant Law - informed consent The patient's statements The expert report - Patient's A - C Patient CC Expert Report - Patient D Expert Report - Patient E Expert Report - Patient F Patient FF The practitioner's response - Patient FF HCCC submissions - Patient FF Expert Report - Patient G Expert Report - Patient H Expert Report - Patient I Consideration - informed consent Particular 3 - sitting patients up during surgery to comment or consent to the size and or shape of their implant The practitioner's evidence The HCCC's submissions The patient's statements The expert evidence Particular 4 The HCCC's submissions The patient's statements The expert opinion Complaint Three Patient A Particulars The practitioner's response The patient's statement Consideration of complaint - Patient A Patient B Particulars The practitioner's response Patient B's statement Consideration Patient C Particulars The practitioner's response The patient's statement The expert report Patient D Particulars The practitioner's response The expert evidence Patient E Particulars 9, 10, 11 and 12 The practitioner's response The HCCC's submissions The patient's statement Expert report Patient F Particulars 13 and 14 The patient's statement The practitioner's response The expert evidence Consideration - Particulars 13 and 14 Patient G Particulars 15 and 16 Patient G's statement The practitioner's evidence The expert evidence Consideration - Particulars 15 and 16 Patient H Particulars The practitioner's response The expert evidence Consideration - Particulars 17, 18, 19 and 20 Patient I Particulars Patient I's statement The practitioner's response The expert evidence Consideration - Particulars 21 and 22 Patient J Complaint One - carrying out surgery in unlicensed premises The criminal conviction and Patient J's surgery in unlicensed premises Complaint Two Particular 1 The asserted failure to conduct appropriate pre-operative assessment on 30 July 2014, 12 May 2017 and 28 June 2017 The patient's statement The practitioner's response to all particulars concerning Patient J The expert evidence The asserted failure to obtain appropriate informed consent Particular 2 The practitioner's response Patient J's evidence Relevant Law - informed consent The expert evidence Consideration - informed consent The asserted inappropriate sitting up of the patient during surgery Particular 3 The patient's statement The expert evidence Consideration - Particular 3 Failure to provide adequate post-operative care immediately after her surgeries Particular 4 Patient J's evidence The expert evidence Consideration - Particular 4 Complaint Three Particular 1 The patient's evidence The expert evidence Consideration - Particular 1 Particular 2 The patient's evidence The expert evidence Particular 3 Patient J's evidence The expert evidence Particular 4 The patient's evidence The expert evidence Particulars 5 and 6 The patient's evidence The expert evidence Professional misconduct Protective orders Costs Orders Annexure A Annexure B Annexure C

[2]

Introduction

Dr Leslie James Blackstock is a registered medical practitioner whose registration is currently suspended. Prior to his suspension, Dr Blackstock, who we will refer to as "the practitioner", carried out cosmetic surgery, principally breast augmentation surgery, in a clinic known as "Enhance Clinic" which was located in Emu Plains, Sydney.
The Health Care Complaints Commission filed two complaints against the practitioner in the Tribunal. By order made on 24 April 2020 the two complaints were joined, with the evidence in one to be the evidence in the other.
The first complaint asserts that the practitioner was convicted of a number of criminal offences for carrying out surgery on nine patients in an unlicensed private health facility in circumstances where he was the director of a company, Energise Pty Ltd, and knowingly authorised and/or permitted the contravention of the Private Health Facilities Act 2007 (NSW). Energise Pty Ltd carried on business under the name Enhance Clinic.
The first complaint also asserts the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the Health Practitioner Regulation National Law (the National Law) in respect of 11 patients. The unsatisfactory conduct alleged includes: 1. a failure to conduct appropriate pre-operative assessments of patients; 2. failure to obtain proper informed consent from patients; 3. inappropriately sitting sedated patients up during surgery to comment on or consent to a breast implant; 4. failing to provide adequate post-operative care for his patients; 5. inviting friends and relatives to come into the operating room to obtain their opinion about a patient's breast implants; 6. a failure to keep appropriate records; and 7. in one instance conducting a labiaplasty at the same time as breast augmentation.
The second complaint asserts the practitioner undertook three breast augmentation surgeries on a patient, Patient J, in circumstances where he, as director of Energise Pty Ltd, knew and/or permitted the surgery to occur in unlicensed premises. Further, it is asserted the practitioner is guilty of unsatisfactory professional conduct and professional misconduct by, on three occasions, failing to conduct appropriate pre-operative assessments of Patient J. It is also asserted the practitioner failed to obtain informed consent from Patient J within a reasonable time before surgery on four occasions, inappropriately woke her up during surgery to discuss the outcome of the surgery, and failed to provide adequate post-operative care for the patient.
It is finally asserted that the practitioner's surgical plans for the patient on two occasions were wholly inadequate. It is asserted that the particulars of the unsatisfactory professional conduct individually and cumulatively constitute professional misconduct.
For the reasons which follow, we are satisfied that the complaints are established. We find that the practitioner is guilty of professional misconduct and that his registration should be cancelled. Given the serious nature of our findings, we conclude the practitioner should be precluded from seeking to review the cancellation of his registration for a period of seven years.

[5]

The practitioner

The practitioner's solicitors filed a consolidated Reply to both complaints. The Reply is signed by Mrs Violet Blackstock as purported Attorney under a Power of Attorney dated 22 May 2020 and filed in the Tribunal on 30 June 2020. The Power of Attorney was not in evidence before us. Nor is it clear how, if the Power of Attorney is an Enduring Power of Attorney, that document provides standing to the donee to conduct litigation on behalf of the practitioner. Mrs Blackstock does not appear to be a Guardian with a legal services function.
The Reply is annexed to these reasons and marked "C". The Reply in respect of what is identified as Complaint One, records that the particulars "are a matter for the Tribunal's consideration."
In respect of Complaint Two (which we infer refers to the Amended Complaint filed 2 April 2020) the practitioner again asserts that the particulars are matters for the Tribunal, and also relies on letters from his legal representatives at Tabs 95 and 97 of the HCCC's documents. A similar response is made in respect of Complaint Three.
In canvassing Complaint Four, the professional misconduct complaint, the practitioner does not admit or deny this complaint. He states: The Respondent respectfully confirms his position that he has no intention of returning to the practise of medicine in the future. In the circumstances, the Respondent respectfully requests the Tribunal set aside the Medical Council's suspension so he may surrender his name from the AHPRA Register of Medical Practitioners.
At para 10 of his submissions, it is submitted that we should treat the practitioner's request to "lift" his suspension by exercising power under s 159C(1) of the National Law. We reject that submission. First, we are not dealing with an appeal under s 150 of the National Law against the delegates' decision to suspend the practitioner. It is only if we were hearing such an appeal that we could exercise power under s 159C of the National Law. Secondly, s 150(2)(a) of the National Law provides that suspension has effect until the complaint is disposed of. In this case, the complaints will be disposed of by the making of our orders under s 149C. In the circumstances where, as we will shortly explain, we have found grossly improper clinical practice by the practitioner, it would be entirely inappropriate for the practitioner to remove himself from the register if this proposal is designed to avoid disciplinary proceedings. We note, even if he was no longer registered, we could make orders under s 149C(4).

[6]

The relevant law and authorities

We commence our recording of the relevant provisions of the National Law by setting out s 3A. Section 3A provides as follows: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
These proceedings are brought under Part 8 of the National Law. Conduct which may constitute unsatisfactory professional conduct includes the conduct set out in s 139B. In this case, the HCCC relies on s 139B(1)(a) and s 139B(1)(l) of that section. The relevant provisions are: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
The HCCC assert that the conduct in which the practitioner engaged is unsatisfactory professional conduct of such a serious nature that it justifies the suspension or cancellation of the practitioner's registration and constitutes professional misconduct. Professional misconduct is defined in the National Law as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The primary purpose of protective orders made at the conclusion of proceedings is to protect the public, not to punish the practitioner (see Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40).
The HCCC bears the onus of proof in these proceedings. The particulars of the complaint must be established to the civil standard (on the balance of probabilities). In professional discipline proceedings, for many years the level of satisfaction required has been held to be as described in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. However, as noted in Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53: In the opening submissions filed on behalf of the HCCC it is submitted that the relevant standard of proof remains on the balance of probabilities and that the principles espoused in Briginshaw apply. The submissions go on to note: However, as the Full Federal Court noted in Sullivan v Civil Federation Authority (2014) 226 FCR 555 there is no principle of law that a Tribunal such as this is bound to apply the so-called Briginshaw standard to fact finding which is material to its reasoning process where those findings are grave or serious. Rather, a Tribunal such as this must appropriately inform itself "by reference to evidence or other materials which properly supports the seriousness of the findings being made and the seriousness of those findings on a party" (at [106]).
Also relevant to the standard of proof is the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] 67 ALJR 70.
Consideration of what constitutes unsatisfactory conduct and professional misconduct for the purposes of the National Law is explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]-[21] as follows: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [footnotes omitted]

[7]

Complaint One

This complaint is brought under s 144(a) of the National Law. That section provides a complaint may be made about a registered health practitioner if the practitioner has been convicted either in NSW or elsewhere or is subject of a criminal finding for an offence.
The complaint asserts, in broad terms, that the practitioner was convicted and fined $255,000 by orders made by the Local Court, Penrith, of offences under ss 33 and 62 of the Private Health Facilities Act 2007 (NSW) in conducting a private health facility without a licence in circumstances where he was the Director of Energise Pty Ltd and knowingly authorised or permitted the contravention.
The HCCC submissions summarise the position adopted by the practitioner in correspondence that the surgery he was conducting was "restorative" not cosmetic and as a consequence the Private Health Facilities Act provisions were inapplicable.
The HCCC rely on certificates of conviction from the Local Court at Penrith, dated 31 July 2019, as well as a number of court attendance sheets which particularise the patient, type of surgery and date of procedure. It is noteworthy that the practitioner pleaded guilty to each of the offences relevant to the patients whose names appear in Annexure A to the complaint.
The HCCC submissions point out that, notwithstanding the NSW Ministry of Health's notification to the practitioner on 9 June 2017 that cosmetic surgery must be carried out in licensed premises, and that he must desist from carrying out such surgery at The Enhance Clinic, he continued to do so. The submissions also refer to patently false evidence given to the delegates at the s 150 hearing on 9 October 2017 when the practitioner asserted that he had stopped breast augmentation surgery "on women who were purely wanting to go larger than a size that wouldn't balance what she had".
We are satisfied that the certificate of conviction from the Local Court, together with the court attendance notices, prove Complaint One in respect of the patients whose names are set out in Annexure A to the complaint.

[15]

Relevant Law - informed consent

The High Court's seminal discussion on this topic is found in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 as follows: 14. The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors ((32) F v. R. (1983) 33 SASR, at p 191). Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended ((33) Chatterton v. Gerson (1981) QB 432, at p 443). But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment ((34) See Fleming, The Law of Torts, 7th ed. (1987), p 110). Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information. [our emphasis] 15. In this context, nothing is to be gained by reiterating the expressions used in American authorities, such as "the patient's right of self-determination" ((35) See, for example, Canterbury v. Spence (1972) 464 F 2d, at p 784) or even the oft-used and somewhat amorphous phrase "informed consent". The right of self-determination is an expression which is, perhaps, suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure. Likewise, the phrase "informed consent" is apt to mislead as it suggests a test of the validity of a patient's consent ((36) Reibl v. Hughes (1980) 114 DLR (3d), at p 11). Moreover, consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed ((37) Chatterton v. Gerson (1981) QB, at p 443). In Reibl v. Hughes the Supreme Court of Canada was cautious in its use of the term "informed consent" ((38) (1980) 114 DLR (3d), at pp 8-11). 16. We agree that the factors referred to in F v. R. by King C.J. ((39) (1983) 33 SASR, at pp 192-193) must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege. [our emphasis]
It is to be remembered that the discussion in Rogers v Whitaker and later cases such as Chappel v Hart (1998) 195 CLR 232 and Rosenberg v Percival [2001] HCA 18 is in the context of actions for negligence, not professional disciplinary proceedings. However, the principles, particularly warning of material risk/s associated with breast augmentation, are relevant to this complaint.

[16]

The patient's statements

There is considerable uniformity in the evidence of the cohort of patients on this topic. Patient A does report attending a consultation with the practitioner on a separate occasion prior to her surgery. However, she did not have consent forms given to her at that time, and she only signed the consent form on the day of her surgery after she had taken two Valium tablets.
A similar history to that of Patient A is recorded by Patient B, although she reports signing forms "when I went in for the procedure and I also signed further forms on the day of the procedure".
In her statement, Patient C records that she was sent "forms" which she signed after she had a brief consultation with a Dr Avijioglu at an Enhance Clinic in Melbourne, at which time she did not receive any information about the procedure. She further records that, on the day of her surgery, the practitioner measured her breasts and told her she should have implants inserted above the muscle, but that he did not "at any time, give me any other information about the procedure".
Patient CC had four breast augmentation procedures in 2015 conducted by the practitioner. We did not have the benefit of a statement from Patient CC, and as the HCCC submissions note, the practitioner's records for this patient, except pro forma documents, are largely illegible or incomprehensible. The HCCC's material contains a complaint form completed by this patient. Also included in the patient's medical records is a consent form signed on the day of her first surgery. An email from the patient indicates that she wanted 560xtra high profile implants. In a letter to a specialist dated 28 July 2015 the practitioner wrote that: At the surgery on 4/6/15 she had extensive discussion with regard to having a moderate, full or extra full implant. We went to the trouble of showing her a variety of sizes intra operative (we use only very light sedation). She elected that the moderate gave her the best shape change.
The medical records also disclose a telephone conversation with a nurse on 23 July 2015 when the patient was requested to sign consent forms and to bring them with her on the date of the surgery.
Patient D also records she had an appointment in Melbourne with Dr Avijioglu when she was told the procedure would be conducted under 'twilight' surgery. Approximately a year later she decided to undergo the surgery and received some forms from the practitioner's surgery which she signed and returned. She described being given another "bunch of forms" to sign on the day of her surgery and immediately prior to it, and being rushed. She explains she did not read them properly because she thought they were the same as the earlier forms provided.
Patient E in her statement describes how she located the practitioner as a result of an online search of his website. She was impressed by the site and the fact a payment plan was offered. She explains that in 2016 she decided to have a breast augmentation and labiaplasty. She says that, after she contacted the clinic, she received a call from a nurse and later from the practitioner who discussed the size of the implants she wanted. She explains: .. he repeatedly mentioned something called a snoop dog. He said that the outcome of the breast surgery may not be as I expected, but reassured me he had done 'heaps of surgery' and the snoop dog was only a possibility.
Patient E records that she does not recollect being told anything about the surgery itself or any follow ups or after care that she would need. She records that she has no recollection of signing any consent forms before her surgery. She does however think she signed a consent form about her medical history.
Patient E states that she only remembers two things about the surgery. First, she recalls her body being jerked around when the practitioner was trying to force an implant into her chest. She also recollects the practitioner asking her if she wanted to see what "he had cut off from my vagina". At this point in the surgery, Patient E states that the practitioner was "chuckling and laughing and the other staff laughed too when he said this". Patient E records: He then showed me a silver plate with a white towel on it which had the parts of my labia Dr Blackstock had cut off. He then said "Oh, that's a lot". I felt sick and humiliated.
Patient E records being in extreme pain after the surgery, that she called an ambulance and was admitted to Westmead Hospital where she was put on a Fentanyl pump.
In her statement Patient F explains that she wanted to have breast augmentation surgery and after she called a few finance companies she was told by a company, Sands Financial Services, that they would give her finance if she went to the practitioner. Patient F relates that she was then called by the practitioner who quoted the sum of $6,000 and asked her to send measurements and photographs of her breasts. She reports the practitioner then told her that "my breasts were perfect for the procedure, there would be no problems and "the guys on the beach will all be looking at you". She says the practitioner did not tell her anything about the procedure. He sent forms to her in Queensland and she sent the forms back.
Patient F says, for the first time on the morning of her procedure, the practitioner told her she would need an uplift in five years and gave her a consent form to sign. This was the first time the practitioner met with the patient.
Patient FF records that she was referred to the practitioner by her GP in Tasmania. She also reports this occurred after other plastic surgeons, to whom she had been referred, refused to conduct implant replacement surgery. She says she had a telephone conversation with the practitioner and sent him photographs of her breasts. The following day she reports that the practitioner telephoned her and said he had "good news" and that he could do the surgery. Thereafter, she records Enhance Clinic sent her consent forms but there was no telephone conversation with the practitioner about the forms. On the day of her surgery, she explains that at no time did the practitioner go through any forms with her or get her to sign any forms. She reports that she had a discussion with the practitioner immediately prior to her surgery about the type of implant and whether it would be inserted under or over the muscle.
In her statement Patient G records that, based on advice of friends, she telephoned Enhance Clinic and said she wanted to have implants and asked was there some kind of payment plan. At this time Patient G was aged 19 years. She was advised she would need to pay $2,000 "up front" and the balance could be financed by Sands Financial Services. After sending photographs, she had a telephone conversation with the practitioner during which he told her the cost would be $6,000 because she wanted high profile round implants with a "D" or "E" cup. She reports the practitioner told her he would have to place the implants under the muscle, that she would have twilight sedation and be ready to go home immediately after the operation. She explains she was emailed some consent forms which she signed and sent back.
Patient H had implants approximately 16 years before she consulted the practitioner by telephone after searching "on-line". She states that all pre-procedure interviews were conducted by telephone. As she had suffered a staph infection when she had her original implants, Patient H stressed her concern to the practitioner that this would happen again. She records he told her he would take all necessary precautions to reduce any risk of another staph infection. She says about two weeks prior to her surgery she signed many forms. Immediately prior to the procedure, the practitioner gave her further forms to sign. She did not receive a copy of the forms and said she was not sure what they were.
In her statement, Patient I reports going to see the practitioner after locating him online. She said he was "very charming, he talked a lot and I felt as if I could not ask too many questions". She also records that the practitioner did not give her a great deal of information about the procedure. She also reports being sent "many forms" which she signed and sent back. She records immediately before her surgery she signed more forms because the staff said she had forgotten to sign some they sent to her. She says she does not know what the forms were and she was not given copies.

[18]

Patient CC

Patient CC's complaint is not subject of comment by Dr Bezic. In the written submissions, the HCCC notes it does not rely on Patient CC's account of failure to conduct adequate pre-operative assessment and failure to obtain informed consent, but rather reliance is placed on the practitioner's "usual practice" including being "sat up" inter-operatively whilst in a sedated state.
The HCCC note that the practitioner, in respect of this patient, relies on letters from his legal representatives to the HCCC. In his lawyers' letter dated 6 November 2018, the practitioner asserts: 1. the patient was indecisive but completed a psychological assessment, but on reflection the practitioner should have considered the patient's indecisiveness as contradiction for suitability; 2. the clinical notes disclose diagrams explaining the risk of "double-bubble"; that size and shape could not be guaranteed; large implants could have more complications; and a lift may be required at a later time; 3. advice continued on the day of the surgery; 4. the second surgery was performed because the patient was unhappy that the implants were not as big as she had wanted, and she wanted a different profile; 5. the third surgery was performed against advice to allow for a period of healing; 6. after a second opinion, the practitioner removed the implants on 9 September 2015; 7. on 2 December 2015, 560cc implants were inserted. These were the largest that could be inserted given the size of the pocket; 8. after initially indicating she was happy, the patient, on 10 March 2016, said she was disappointed. At this time, the practitioner offered to refer the patient for psychological therapy and for a second opinion.
As earlier noted, the HCCC has not obtained any expert evidence in respect of Patient CC or Patient FF. It is submitted for these patients, the procedures adopted by the practitioner are largely indistinguishable from Patient A to I, and that we should adopt the views expressed by Dr Bezic in respect of their care and treatment, consent process, examination, intra operative conduct and post-operative care. [our emphasis]
It is unclear from the amended complaint whether the HCCC seeks to rely on Patient CC in the cohort of patients described as Patient's A-C. However, on balance we consider it was not intended to include Patient CC and we make no findings about informed consent for this patient.

[19]

Expert Report - Patient D

Dr Bezic deals with the consent process for Patient D in his initial report. He notes that the patient did sign a detailed consent form the day before the procedure. He describes the form as follows: This covered comprehensively aspects of the surgery, complications and anaesthesia. Each point was initialled by the patient and the end of the form was signed by the patient and initialled by her mother.
Dr Bezic also notes that a similar "check list" was discussed by Dr Avijioglu with the patient but "the surgery preference sheet … which outlines her surgical plan was not signed until the day of the surgery".
As a similar process occurred for a number of the patients referred to in this particular, it is relevant that we set out Dr Bezic's criticisms of the consent process adopted by the practitioner. At page 3 of his initial report, Dr Bezic opines: Dr Blackstock's consent process was lacking in the following regards: 1. Lack of face to face consultation and exam a reasonable time before the surgery to discuss patient specific issues. 2. A final surgical plan that was formulated by Dr Blackstock only on the day of the surgery and only then signed by the patient. 3. The patient was not given sufficient time to consider her preferred sizing, nor is there any documented evidence that the patient did in fact have any sizing performed. In fact a wide range of implants were chosen by Dr Blackstock (175-290cc) just prior to the case after consultation with the patient on the day of the surgery. 4. The patient was not given sufficient time to consider the relative merits of implant placement as well. However, Dr Blackstock did adequately cover the general aspects of breast augmentation surgery in a reasonable time before the surgery. On balance, Dr Blackstock's consent process was significantly below the standard of his peers in his lack of obtaining consent for a definitive surgical plan and sizing in a reasonable time before surgery, and not seeing the patient face to face before the day of the surgery. We agree with and accept Dr Bezic's opinion.

[26]

Expert Report - Patient H

In discussing Patient H, Dr Bezic is very critical of the failure of the practitioner to discuss with the patient before her surgery the fact she might need an uplift as this should have been explored with the patient well before the surgical date. We agree with his criticism. He is also critical of the practitioner's second telephone consultation with this patient when infection management was discussed and the practitioner recorded "informed consent given, Cooling off can start".
We find it is important in dealing with this particular that we highlight Dr Bezic's criticisms of the consent process in respect of particular patients. We agree with and accept his criticisms of the lack of proper consent from Patient H in respect of her second revision surgery. Dr Bezic opines at page 32 of his initial report: All these interactions only cover general risks of breast augmentation surgery. There is little there about the patient specific risks. It is also noted that Dr Blackstock did not examine the patient in person prior to the revision surgery.
Later in his report, Dr Bezic records: There are no specific surgical plan documents in the consent process, which would be mandatory for this type of procedure. It is obvious that in not examining this patient in person, prior to the surgery, a comprehensive postoperative [sic] could not be formulated. If the patient was unable or unwilling to return to the clinic prior to the surgery, then Dr Blackstock should have refused to do the surgery until the patient was properly examined. At the very least Dr Blackstock should have insisted on a second opinion from a suitably qualified surgeon. … Dr Blackstock's performance in obtaining informed consent was a significant departure from the standard of his peers and strongly criticised. He should not have proceeded with the surgery until he had examined the patient in person and had formulated a definitive surgical plan, explained the associated risks and most likely results thereof. He failed to deviate significantly from his usual consent procedures, which were already deficient, in what was a complex revision case.

[32]

The patient's statements

We note that in her unchallenged statement Patient A refers not only to being woken up during her surgery, but to her mother and two friends being asked to come into the operating room and to comment about her breasts.
Patient B recalls being conscious throughout her surgery and that the practitioner sat her up and asked her then boyfriend to come into the room during the surgery and comment on her breasts.
Patient C also gives evidence of being woken up during her surgery to consent to the implant size.
Patient CC, in a complaint to the HCCC, reports being sat up during her replacement breast augmentation surgery.
In her statement, Patient D records wearing headphones during the surgery, that the headphones were removed and she was sat up by the practitioner. She records the practitioner said this was to see if her breasts were even. She says that then she must have lost consciousness because the next thing she remembers is being woken up and "told it was done".
Patient E records that she was told by the practitioner she would be woken up during her surgery (breast augmentation and labiaplasty). Although she does not specifically mention being asked to comment on the breast implants, she does recollect the practitioner showing her what he had cut from her vagina (labia).
Patient F relates what she perceived as a slap on her face during her surgery, that the practitioner sat her up and said "they're a bit far apart". She relates that "I did not know what he was asking me or what he was doing".
Patient FF reports the practitioner sitting her up during her surgery and asking her if she "wanted to go bigger" and after saying she wanted to be natural, she was laid back down. She reports waking up later in another room.
Patient G also refers to being sat up during her surgery with the practitioner placing a mirror in front of her and asking if she wanted to "go bigger". The patient reports prior to the surgery being very scared when the staff put sedative into her arm and that she was very cold and shivering.
Patient H reports being told by the practitioner that she would be placed under "light sedation" and that he would sit her up during the procedure "so I could look at the implants and ensure I was happy with their size". She also reports being sat up by the practitioner who showed her the implants with a mirror.
Patient I reports drifting in and out of consciousness, but that she experienced extreme pain when the implant was inserted into her left breast. Thereafter she reports "they sat me up and held a mirror in front of me". She says that the practitioner said "Do you like them, do you like the size". Patient I relates that she could not see anything because the medication had affected her eyesight and everything was blurred. She cannot recollect if she replied to the practitioner.

[36]

The patient's statements

The patient's statements disclose broadly similar evidence about the lack of post-operative care. Patient A records an incorrect attempt by a nurse to take her blood pressure, that she did not see the practitioner and left the premises about half an hour after her surgery with her mother and two friends who had accompanied her. She required hospitalisation at Gosford Hospital. Her follow up appointment was not with the practitioner, but with a nurse some two weeks after her surgery.
A similar report is provided by Patient B who said no observations were taken and she left approximately 20 minutes after her surgery with her partner. She reports having to attend a local doctor because of her pain. The patient has no recollection of seeing the practitioner at a follow up appointment.
Patient C, who travelled from interstate for her surgery, reports being walked into another room where she sat on an old arm chair with a sheet on it and that the practitioner saw her to explain the medication she was given and that he said "you can go now". No observations were taken. She reports attending the clinic the following day but that she did not see the practitioner. When she insisted on some form of follow up, she says she was provided with the practitioner's mobile number.
Patient C reports that approximately one week after her surgery she took her bra off and the wound from the augmentation popped open. She says when she telephoned the practitioner he told her to keep the wound covered and "make sure it was not moist and it would heal itself". Thereafter Patient C attended her local general practitioner who said the wound needed re-stitching. Patient C then contacted the practitioner who she said "was adamant it was fine". However, when Patient C insisted on follow up care, the practitioner said he would replace the left implant.
Patient C then records that when she attended the surgery, she was not given a gown and she remained in her day clothes. The patient says she was taken to a back room and given headphones. She reports she was not given sedation. She reports being in excruciating pain and says "He sewed me up and sent me out into another room. No observations were taken and a staff member gave me Endone. I was told I could leave immediately after the procedure".
Patient C reports being driven to her accommodation by a staff member, and that she was not given any after care instructions. The patient reports three months later she contacted the practitioner when her left breast was hard, swollen and sore. The patient thereafter describes multiple calls to the practitioner who did not return her calls until she told the clinic staff she would commence a law suit if the practitioner did not speak to her. The patient consulted a plastic surgeon and was admitted to hospital with an infection and her left implant was removed.
Patient CC did not provide a statement. She underwent four surgeries. In her complaint to the HCCC, she does not refer to post-operative care. Her clinical notes produced by the practitioner do not record post-operative care. The clinical records contain a note dated 11 February 2016 which states: Dear Dr Blackstock, I would like to start off by thanking you and your staff for supporting me through out [sic] all 4 of my breast surgeries with you. Although at times for me it was quiet [sic] hard and physically and emotionally, your staff were there every step of the way and I would like to express how grateful I am that I had such great support throughout, in and out of surgery.
We note, however, the extract in the notes does not appear complete and all other post-operative notes appear to be those of the clinical staff.
Patient D, also an interstate patient, provides a similar report to other patients of being discharged without observations shortly after her surgery. On her return to the clinic the second day after her surgery, she did not see the practitioner or any clinic staff. A receptionist provided her with a form, which she was asked to sign, which stated "she was ok to fly".
Patient E records being discharged and then calling an ambulance and being admitted to Westmead Hospital. She reports being so traumatised by her treatment at the surgery following her breast augmentation and labiaplasty that she could not go back.
Patient F, another interstate patient, also records that following her surgery no one took observations, and on attendance at the clinic the following day she did not see the practitioner, and that the staff were rude to her.
In her statement Patient FF, who lived in Tasmania, records that following her surgery she was driven by a staff member to her accommodation and that the following day she saw the practitioner who told her she could fly home and provided her with a script for Endone and antibiotics. On her return, she was seen by a local doctor who told her she had an infection. The following day the patient attended the Royal Hobart Hospital. She reports the hospital tried to contact the practitioner, but he did not reply. The patient records that she tried to contact the practitioner by telephone and email but he did not respond.
As with other patients, Patient G, in her statement, records being discharged following her surgery and being unable to recall if anyone took observations. She attended the clinic the following day but was not seen by the practitioner. Rather, a staff member checked her bandages and gave her a bra. The following month, after one breast had dropped, she attended the clinic but did not see the practitioner.
Patient H reports that following her surgery, notwithstanding she had been told a nurse would be looking after her following the procedure, this did not occur and no-one took any observations. She also records she was not given any instructions on how to care for her wound other than the initial paperwork.
Patient H says that she received no follow up care. Following her return to her home state, she says she subsequently developed an infection and was admitted to Royal Hobart Hospital. Approximately two weeks after she was discharged from hospital, she received a telephone call from the practitioner who said he would replace her implant. After her second (revision) surgery, Patient H reports she had no observations taken and was discharged to her accommodation without a covering on her wound. The following day Patient H says, at her request, the practitioner put a cover on her wound which he attached with steri-strips. She reports attending the practitioner the following day when he injected an antibiotic but did not check her wound or do any observations.
Patient I also records that a staff member took her blood pressure and temperature post-surgery a few times and that she was discharged after about 20 minutes. She describes contacting the clinic the following day when she was experiencing pain and was told it was normal. The patient reports about two weeks after her stiches dissolved, a hole appeared at the base of her left breast and that pus came out of the hole. She went to her general practitioner and was prescribed antibiotics and sent for an ultrasound. Pathology results revealed a streptococcus infection.
Patient I returned to see the practitioner and had further surgery approximately 3 months after her first surgery. Patient I reports a staff member took observations and after about 15 minutes, she was asked if she was ready to go home.
The patient contacted the practitioner the following day expressing concern about pain which she was told was normal. Later, at a date the patient cannot remember, she saw the practitioner who gave her gauze and plastic tape which he instructed her to wrap around her breast. The patient subsequently suffered an infection, attended her general practitioner and obtained a second opinion from another surgeon who treated her infection.

[37]

The expert opinion

Dr Bezic discusses the post-operative treatment of each patient. It is sufficient that we highlight aspects of his opinion which is substantially identical for the relevant patient cohort.
In discussing Patient A, Dr Bezic opines that the practitioner's post-operative treatment was significantly below the standard expected.
Dr Bezic notes in his second report that Patient B was discharged 20 minutes after she came out of the operating theatre. He opines this was inappropriate because there was insufficient time to recognise any significant complications such as haematoma and that the patient would still have been heavily sedated at the time of discharge. Dr Bezic opines that allowing the patient to be discharged without any type of medical review is significantly below the expected standard.
In commenting on Patient C, Dr Bezic notes this patient had exhibited an unstable episode near the end of her procedure and that it was appropriate for a further series of observations to have been taken after the procedure. Dr Bezic notes that the patient was discharged 44 minutes after the procedure and this period was too short when the patient had significant pain during and after the procedure. He opines it was inappropriate to discharge the patient in such a short time frame, that observations should have been taken prior to discharge, and that the patient should have been seen by the practitioner.
Dr Bezic notes when discussing Patient D: It would be expected that a reasonable cosmetic surgeon would see the patient in the immediate post operative period, provide them and their carer with clear after care instructions, arrange follow up visits and prescribe relevant post-operative medications. It would also be excepted [sic] that the surgeon would keep the patient in for a reasonable amount of time after the surgery …..
Dr Bezic opines that the practitioner's post-operative care was significantly below the standard of his relevant peers.
Dr Bezic is extremely critical of the practitioner's lack of appropriate post-operative care for Patient E. The patient was discharged without a support person in circumstances where she had significant medication administered during and immediately after her surgery. The expert finds the practitioner's conduct significantly below the standard expected.
Dr Bezic makes similar comments about it being inappropriate to discharge Patient F who was experiencing extreme pain. It noted the pain could be a sign of a significant acute complication such as haematoma or pneumothorax.
In his second report, Dr Bezic expresses a similar view about the discharge of Patient G, to those in respect of Patient B.
Dr Bezic refers to Patient H's post-operative treatment in his first report. He records that the patient was discharged 50 minutes after the procedure, and that no staff member was available to drive her back to her accommodation. He notes that no observations were taken prior to discharge nor was the patient seen by the practitioner. In finding the practitioner's conduct significantly below the accepted standard of his peers, Dr Bezic explains: (1) he [the practitioner] should have examined the patient prior to discharge; (2) observations should have been taken at the point of discharge; and (3) the patient shouldn't have been allowed to walk a significant distance across public roads whilst still suffering from the effects of sedation.
Dr Bezic is also critical of the practitioner's discharge of the patient following her second surgery, noting at the time of discharge she was at acute risk of complications such as haematoma.
The expert is also critical of the fact that Patient I was discharged after a period of 44 minutes in recovery and without being seen by the practitioner. He opines the practitioner should have seen the patient before discharge. However, Dr Bezic notes the patient's history of her post-operative care is vague and opines that "in terms of his immediate post operative care Dr Blackstock's performance seems to be of an acceptable standard in relation to his peers". But he goes on to note that although the practitioner's follow ups were adequate in the initial post-operative period, once the patient had developed a re-infection or recurrence of infection, then his follow up was poor. Dr Bezic states: Dr Blackstock didn't want to deal with the patient once her post operative course became problematic. He was in breach of his duty of care to the patient.
We are independently satisfied that Particular 4 is established in respect of all patients, including Patient FF, but not Patient CC. While it may be that Patient CC's experience was similar to other patients, there is no evidence about post-operative care in her complaint to the HCCC and her clinical notes do not support establishment of the particular.
We are satisfied that the practitioner's failure to provide appropriate post-operative care for the named patients, other than Patient CC, was significantly below the standard expected of a practitioner of his expertise and experience, and constitutes unsatisfactory professional conduct.

[42]

Consideration of complaint - Patient A

We commence by noting that Patient A's statement is unchallenged. We accept that Patient A's mother and her two friends were invited into the surgery during the procedure. We also accept that Patient A was anxious and was crying hysterically.
Dr Bezic deals with these particulars concerning Patient A in his second report. His opinion is accurately summarised at para 78 of the HCCC submissions. We accept that summary is an accurate reflection of Dr Bezic's opinion, namely: 1. the patient could not make an informed choice because localised swelling would preclude an accurate assessment of the final surgical outcome; 2. there is a risk of contamination to the surgical field; 3. that inviting family or friends into surgery to comment on the implants is completely outside of accepted norms of practice, as the patient is exposed to risk (such as infection), as well as the visitors (such as a vasovagal episode), and the visitor would be in no position to adjudicate the outcome; 4. a clear surgical plan including implant size should be decided prior to surgery during the consent process. If a range of sizes is chosen prior to surgery by the patient, then the final choice should be delegated to the surgeon via the patient's consent. 5. sitting the patient up and inviting visitors into the surgery was a significant departure from accepted standards and attracts Dr Bezic's strong criticism; and 6. the surgery should not have been commenced when the pre-operative nursing notes disclose the patient was crying hysterically due to anxiety. This is because the patient's condition would have made the surgery difficult to perform at best and at worst could have placed the patient at risk. The surgery should have been cancelled and deferred to a more appropriate venue with the use of general anaesthetic.
We have no hesitation in accepting Dr Bezic's opinion particularly insofar as it relates to sitting up the patient during surgery and inviting family and friends into the surgery. We find not only was this conduct significantly below the standard expected, it was improper. In reaching this finding we note that the words "improper and unethical" are not defined in the National Law. However, giving the word improper its natural and ordinary meaning we are satisfied that the practitioner's conduct, which was in the practise of his profession, could not in any circumstances be considered proper either by his peers or the public. We rely on and repeat this finding in respect of all patients who the practitioner sat up and/or invited a family member or friend to come in to surgery during the implant procedure.

[58]

Expert report

Dr Bezic is extremely critical of the practitioner's failure to physically examine the patient prior to her surgery. He notes that the practitioner relied on photos submitted by the patient and her self-measurements.
Dr Bezic opines that the practitioner's consent process for the labiaplasty was virtually non-existent. He notes: There was no discussion about complications, limited discussion about surgical techniques, options for anaesthesia, after care and follow-ups. His performance is significantly below the standard of his peers and is strongly criticised.
Dr Bezic very fairly notes that at the relevant time, "a large number of the practitioner's peers would have performed a labiaplasty with conscious sedation and local anaesthesia as was the case here".
Dr Bezic responds to the patient's complaint in his report as follows: In addition to the reasons stated previously, exposing the patient to a view of her freshly excised tissue could have precipitated a vasovagal episode. She had already experienced a hypotensive episode during the case. Also, in displaying the excised tissue, in full view of the staff was very unprofessional, lacked respect and was an invasion of the patient's privacy. It also commoditised and belitted something [sic] was a confidential and intimate for the patient. Dr Blackstock's actions were unprofessional and significantly below the standard of his peers.
We observe that the patient's records contain a photograph of excised tissue on a plate with a towel exactly as described by Patient E. We have no reason to doubt her assertions about the practitioner's behaviour. We are satisfied that this behaviour was abhorrent and grossly unprofessional. In the circumstances which occurred, it is hardly surprising that Patient E did not want to engage in follow-up consultations with the practitioner. Adopting Dr Bezic's opinion and our examination of the records, we are satisfied unsatisfactory professional conduct under both s 139B(1)(a) and (l) is established insofar as particulars 11 and 12 are concerned.

[84]

The practitioner's response to all particulars concerning Patient J

As noted above, the practitioner did not file a separate Reply in respect of this complaint. He asserts that many of his records concerning this patient are lost due to "IT issues". The practitioner's lawyers in their correspondence to the HCCC, dated 6 November 2018, record a history of the practitioner's treatment of this patient.
The practitioner's letter states that: 1. In July 2014, Patient J underwent breast surgery performed by the practitioner. She had 500Hp silicone implants from Mentor inserted above the muscle. 2. After the surgery in 2014, Patient J reported pain in her left breast which was attributed to infection. 3. On 25 November 2015, Patient J consulted the practitioner who advised a different antibiotic may be of assistance and proposed taking the implant out for four months and then re-insert it. 4. On 8 February 2015 Patient J again consulted the practitioner and reported her problems continued. The patient was advised to stop smoking. The practitioner suggested Patient J see an infection control specialist. 5. On 25 January 2017 Patient J advised the practitioner an ultrasound showed capsular contraction. The patient advised she had consulted three surgeons regarding her options. The practitioner requested Patient J provide written advice from a surgeon, relevant hospital discharge paperwork, pathology and ultrasound results and to cease smoking. 6. On 22 February 2017 the practitioner requested Patient J see an infectious disease specialist prior to surgery. 7. On 10 March 2017 the practitioner conducted a consultation with the patient by telephone. 8. On 29 March 2017 the practitioner had a face to face consultation with Patient J. He noted hardening of the left breast which was identified as capsular contraction. A treatment plan was agreed including IV antibiotics before, during and after surgery. Patient J agreed to attend her GP for administration of her antibiotics. 9. On 12 April 2017 Patient J underwent surgery to replace her implants and treat the capsular contraction. During the surgery the practitioner discovered both implants had suffered massive breakdown and that silicone was extruding from the implants. He notes an adverse reaction to the silicon and minimal capsular contraction that had excised and broken down. No infection was noted. 10. On 27 April 2017 the practice notes record Patient J was recovering well. 11. On 10 May 2017 the practitioner spoke to Patient J and told her to attend her general practitioner if she had any concerns about infection. That evening Patient J called the practitioner and advised her wound had opened. She was advised to attend her local Accident and Emergency Department for IV antibiotics and dressing of the wound. Patient J was requested to telephone the practitioner the following morning. 12. On 11 May 2017 the practitioner called Patient J and discussed options including removing the implant and allowing time for healing. The practitioner says he explained the risk of repair after implant removal and washout including subsequent wound breakdown. 13. On 12 May 2017 the practitioner performed an extensive wound repair with scar revision to establish better healing including removal and replacement of the breast implants with extensive washout using gentamicin. No infection or foreign collections were observed. 14. Between 15 May 2017 and 30 May 2017 contact was maintained between the practitioner's clinic and Patient J. 15. On 30 May 2017 the practitioner provided extra wound dressings sent via express post to Patient J. 16. On 8 June 2017 the patient reported high temperatures and pain around the wound area. A prescription for antibiotics was provided. 17. On 28 June 2017 Patient J saw the practitioner. At that time her wound was open and the implant was visible. The practitioner and the patient discussed the risks and options available. The patient did not consent to removal of the implant and wanted to explore the option of a further repair. A further procedure was undertaken to make the wound more likely to heal. 18. On 12 July 2017 additional pain medication and antibiotics prescriptions were provided by fax. 19. On 7 August 2017 Patient J's wound re-opened and she sought advice from the plastic surgeon. 20. On 9 August 2017 the practitioner discussed options with Patient J. The practitioner asserts the clinical advice was to engage her local general practitioner for wound swabs and treatment as she had signs of infection and to get a second opinion with a plastic surgeon regarding the preferred treatment. 21. On 28 August 2017 the practitioner and Patient J discussed removal of the implants and washout with antibiotics. The practitioner recommended replacement of the current implants with smaller implants to decrease pressure on the wound. 22. On 1 September 2017 the planned procedure was postponed because Patient J had an active infection. 23. The practitioner asserts that at all times he felt he informed Patient J in relation to options and the risks. He asserts he took steps to reduce and address the risk of infection.

[85]

The expert evidence

Dr Bezic notes the absence of appropriate records including consent forms, that there is no evidence of pre-surgical consultations, or photographs of the patient prior to her first surgery in 2014.
This complaint is not framed as a failure to keep adequate records and we note the onus to prove the particular rests with the HCCC. However, we note that the practitioner did not assert to the HCCC that he had personally undertaken pre-surgery assessments of Patient J. Patient J says she initially contacted the practitioner in 2014. However, she gives no evidence about pre-surgery assessment. We are not satisfied this particular, insofar as it relates to the surgery in 2014, is established to the requisite standard.
We note that no complaint is agitated by the HCCC in respect of the practitioner's pre-surgery consultations or assessments in respect of the second surgery on 12 April 2017.
In respect of the third surgery, again Dr Bezic notes that the practitioner only saw the patient for review on the day he performed the surgery, and that the patient says she had, at that time, an ongoing problem for a few weeks.
Dr Bezic is not critical of the practitioner's pre-surgery consultation because of the short timeline, with the marked open wound occurring on 10 May 2017 and the patient seeing the practitioner on 12 May 2017 for surgical intervention. However, the expert is strongly critical of the practitioner's pre-surgery assessment. He explains that a reasonable surgeon, when presented with an exposed implant, would not contemplate a procedure of removing, washing and reinserting the original implant as such a procedure was doomed to fail. He notes that washing the implant would not remove the infection from it. Dr Bezic opines that the practitioner's conduct was significantly below that of his peers and is to be strongly criticised. We agree with and accept his opinion.
We are satisfied that Particular 1 (b) and (c) of Complaint Two are established.

[96]

The expert evidence

In commenting on the patient's first surgery, Dr Bezic notes that with tumescent anaesthesia and conscious sedation: It is inherently possible that a patient may wake up and contaminate the sterile field. It would have been hard for Dr Blackstock to avoid this scenario with this type of anaesthesia. He goes on to explain that performing surgery in this type of setting is now illegal. He notes that while many of the practitioner's peers would have performed surgery in this type of setting, it would not have been considered best clinical practice at the time.
In commenting on Patient J's second surgery, and after noting the various anaesthesia medications used, Dr Bezic, at page 9 of his report, explains: The patient was heavily sedated. Communicating to the patient about the operative findings is inappropriate, as it would offer no benefit to the patient's surgical outcome. It could also cause stress and unnecessary anxiety for the patient. Furthermore, it would be highly inappropriate to expect the patient to make an informed choice under these conditions, about her surgical outcome during the procedure. In addition the fact that there is localized swelling from the tumescent anesthesia [sic] which would make it difficult to determine the final results. There is also the issue of sitting the patient up while awake could violate the sterile field.
Dr Bezic also comments on Patient J's report of being woken up for what turned out to be a chat during her third surgery, and says her experience of feeling pushing and pulling are consistent with the type of anaesthesia used. He does not, given the nature of the patient's evidence, address the allegations set out in Particular 3 in respect of this surgery.
Dr Bezic is extremely critical of the practitioner's fourth surgery which involved washout and replacement of the implant so soon after the earlier surgery. He describes the practitioner's action as a "gross dereliction of Dr Blackstock's duty of care to agree to reinsert an implant in this patient, even if the patient was insistent on trying [sic] 'keep her implant'". Significantly, he opines that "[f]ailing to remove the implant would also put the patient's life at risk".
Dr Bezic does not, however, address Particular 3 in respect of the fourth surgery. This is explicable because the patient does not record being sat up during this surgery.

[120]

Professional misconduct

Complaint Four of both complaints asserts that the practitioner is guilty of professional misconduct.
The particulars in respect of Complaint Four in the first complaint assert that: 1. Complaint Two, Particular 3 is repeated and relied on individually; 2. Complaint Three, Particulars 1,4,11,12,19,20 and 22 are repeated and relied on individually; and 3. Complaints Two and Three and the particulars thereof are repeated and relied on both individually and cumulatively.
The Particulars of Complaint Four in respect of Patient J are that: 1. Complaint One is repeated and relied on individually; 2. Complaint Two, Particular 3 is repeated and relied on individually; 3. Complaint Three, Particulars 3,4 5 and 6 are repeated and relied upon individually; and 4. Complaints One, Two and Three and the particulars thereof are repeated and relied upon both individually and cumulatively.
We have, at the commencement of these reasons, set out the definition of professional misconduct in s 139E of the National Law.
In the submissions of the HCCC it is noted that the practitioner does not admit or deny the complaint of professional misconduct. However, he states that he has no intention of returning to the practice of medicine in the future.
In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, the Court of Appeal explained: The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal.
We have earlier in these reasons set out the comments of Basten JA in Chen, which are relevant to the question of professional misconduct.
Our findings are that, with very minor exceptions, all particulars of all the complaints asserted against the practitioner are proved. In these circumstances we find it is only necessary to highlight the most egregious elements of the practitioner's conduct, aspects of which we are satisfied individually constitute professional misconduct, and when considered cumulatively, demonstrate conduct of such a serious departure from accepted standards or are otherwise improper, that it justifies cancellation of the practitioner's registration.
We agree with the submission of counsel for the HCCC that the impact the surgery had on the women the subject of the complaint cannot be overstated. This is self-evident from the patient's statements, particularly those of Patient A, E and Patient J.
We find the practitioner had no regard for legislative requirements and flagrantly, when he was clearly on notice of those requirements, operated in unlicensed premises.
We find that the practitioner's practice of sitting patients up during surgery exposed them to unacceptable risks, including infection. The women could not have given any rational consent to the inserted implants being appropriate in circumstances where they were heavily sedated.
We consider the practitioner's practice of permitting friends or relatives to come into the room in which the surgery was being conducted, was not only highly unorthodox, it was dangerous compromising the patient and the friends' health and safety. We are also satisfied that in the case of Patient H, contacting her husband during surgery by Facetime for an opinion about whether or not to remove her implant was highly improper.
We find the practitioner's consent process did not afford the patients a proper opportunity to understand the risks of the surgery, notwithstanding they were required to sign and initial long and detailed consent forms. It is to be remembered that in many instances the patient only signed final consent to the surgery on the day of the procedure after sedation, and there had been no prior face to face consultation with the practitioner who delegated much of the consent process to his staff including an Assistant in Nursing.
The repeat surgeries carried out on patients, including Patients I and J, in circumstances where they had infections from their first (and in the case of Patient J subsequent) surgery was indefensible. We can only repeat Dr Bezic's opinion that the practitioner engaged in a gross dereliction of his duty of care to Patient J, when he washed out an infected implant on two occasions and re-inserted the implant. As Dr Bezic opined, the fourth surgery on Patient J was doomed to fail.
The practitioner did not provide appropriate post-surgery care for his patients, who were discharged without proper assessment or oversight by him. His failure to respond in a timely manner to Patient J's infection and wound re-opening was grossly derelict. Like Dr Bezic, it attracts our strong criticism.
Overall, we have no hesitation in finding this practitioner's conduct constitutes serious unprofessional conduct in breach of s 139B(1)(a) and (l) of the National Law. Considered cumulatively, the established conduct is of such a serious nature that it justifies the cancellation of the practitioner's registration.

[121]

Protective orders

The HCCC submit that the practitioner's registration should be cancelled, and that a period of 7 years imposed under s 149C(7), before the practitioner may again apply for registration.
We have no hesitation, in the circumstances of this case, in concluding the only appropriate orders are cancellation of the practitioner's registration, and an order precluding him from seeking a re-instatement order for a period of seven years.
In so finding we have regard to the comments of Meagher JA, with whom Basten and Emmett JJA agreed, in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. His Honour explained: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In reaching our determination under s 149C(7), we have regard to the comments of Payne JA in Chen at [88]. There his Honour explained as follows: The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. Doing so indicated the seriousness, from the Tribunal's perspective, of the conduct. A practitioner wishing to challenge that period may do so by way of appeal. Contrary to the appellant's submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order.
It matters not that the practitioner says he does not intend to practise again. What is relevant in our view is that the Tribunal's orders reflect the seriousness with which we regard this practitioner's conduct, and ensure that the public is protected from him or other practitioners engaging in similar conduct. Our orders are also intended to have a general deterrent effect.

Health Care Complaints Commission v Blackstock

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (124 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (17)

Cited By (1)