Health Care Complaints Commission v Mooney

The practitioner

1. The practitioner is a specialist surgeon and has been a member of the Royal Australasian College of Surgeons since 2001. He holds specialist registration as an otolaryngology surgeon.
2. Proceedings were conducted by delegates of the Medical Council of NSW (the Council) under s 150 of the Health Practitioner Regulation National Law (the National Law) in November 2018, and the practitioner's registration was suspended. In May 2019 conditions were imposed on the practitioner's registration (para 17 of the practitioner's statement filed 28 January 2021). On 2 September 2020 the practitioner applied to the Council under s 150A of the National Law to vary the condition that he only operate under Category A supervision. The delegates found there had been a change in the practitioner's circumstances and imposed a condition that he practise under Category B supervision. A number of other conditions remain on the practitioner's registration (limit on hours of work, prescribing and audit conditions as well as health conditions).

NCAT Guidelines - adjournment

1. The Tribunal has a guideline to inform and guide parties seeking to adjourn proceedings. That guideline has application to the Administrative and Equal Opportunity and Occupational Divisions of the Tribunal.
2. The principles relevant to an adjournment are set out in the guideline as follows: 3. The overriding principle is that when a date and time has been set for a hearing it will go ahead on that date and at that time, unless the Tribunal allows an adjournment. 4. In considering whether to allow an adjournment, the Tribunal will: a) take into account the need to manage cases and hearings fairly and efficiently. This includes making sure cases are heard as soon as possible, and b) allow an adjournment only if the party requesting it has a good reason and it is fair in all the circumstances to adjourn.
3. These principles accord with common law principles dealing with late amendments and adjournments (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 and give emphasis to the objects of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

The submissions in support of the application

1. Mr Jackson of counsel made oral submissions in support of the application to vacate the hearing dates. In broad terms, those submissions are threefold with some overlap between the first and third bases for the vacation sought.
2. First, it is submitted, in broad terms, that Professor Harvey expresses different views about the seriousness of one aspect of the surgical procedure conducted by the applicant in his report prepared for the NCAT proceedings and in his report for the civil proceedings. It is submitted this raises an issue of sufficient prejudice to the practitioner and warrants the retaining of a different expert.
3. Secondly, it is submitted that there is no risk to the health and safety of the public if the disciplinary proceedings are adjourned because of the conditions imposed on the practitioner's registration.
4. Thirdly, to ensure procedural fairness, the interests of justice mean that the practitioner should be able to obtain a further report. It is acknowledged by Mr Jackson that this third limb of the submission overlaps substantially with the first limb.

Submissions on behalf of the HCCC

1. Counsel for the HCCC, Mr S Maybury, (Mr Maybury) disputes there is any real inconsistency in the opinions expressed by Professor Harvey in his second report (for the civil proceedings) and his report in these proceedings. He notes that Professor Harvey is bound by NCAT's procedural direction on Expert Evidence, and the fact he has prepared the two reports does not mean he is biased or unreliable.
2. Secondly, Mr Maybury notes that the proceedings were originally listed for hearing in May 2020, but adjourned because of the constraints caused by the Covid 19 pandemic when "in person" hearings were unavailable. Thus, he says the proceedings should not be further delayed.
3. Thirdly, while not disputing that the health and safety of the public can be maintained by the imposition of conditions on the practitioner's registration, Mr Maybury points out that the second complaint asserts a breach of health and practising conditions and the provision of misleading evidence to the Council.
4. Fourthly, he submits that the timing of the application is regrettable and that vacation of the hearing will cause disruption and increased costs.

Could the proceedings be conducted in two tranches?

1. I raised with the parties the possibility of the hearing dates being maintained, with all lay evidence being heard, and then further dates fixed for the hearing of expert evidence after a conclave of experts including any new expert retained for the practitioner.
2. I was advised that the HCCC is not relying on lay evidence and that the only witness required for cross-examination is the practitioner.
3. Mr Maybury submitted that he would be prejudiced in his cross-examination of the practitioner if that occurred before he knew the basis of any new expert evidence on which the practitioner relied.
4. Mr Jackson did not strongly advocate for a split hearing.
5. I accept that while it would be possible for the practitioner to be cross-examined about the allegations relating to breach of conditions and misleading the Council, there would be little practical utility in only hearing that part of the proceedings, and thereafter having to adjourn the proceedings. Of more significance, I accept Mr Maybury's argument that his cross-examination of the practitioner would be prejudiced if he had not first had the opportunity of reading any expert report on which the practitioner may seek to rely.
6. Accordingly, I am satisfied that either the application to vacate the hearing should be dismissed, or the hearing be vacated in its entirety.

Consideration

1. I accept that this is not a matter where an issue of health and safety of the public, while a paramount consideration, is substantially engaged. This is particularly so having regard to the relatively recent s 150A review.
2. I am satisfied that the gravamen of this application is whether Professor Harvey expresses a different view in his report for the civil proceedings and the report for these proceedings, such that the practitioner will suffer prejudice if he is unable to obtain a different expert report, or that notwithstanding content of the two reports, the interests of justice require he be permitted to obtain a new expert.
3. The parties are at issue about Professor Harvey's conclusions about the practitioner's clinical skill and judgment in operating on Patient B. According to the complaint, Patient B underwent functional endoscopic surgery (FESS) on 25 March 2010, revision surgery on 28 September 2017, and further revision surgery on 17 November 2017. The patient died on 13 December 2017. However Professor Harvey only briefly refers to the surgery on 28 September 2017 and his report addresses surgery on 24 November 2017. It appears there is either a typographical error or mistake in the complaint or in the expert reports.
4. Mr Jackson drew my attention to particular 2 of Complaint 3 of the Complaint filed on 20 September 2019. It is asserted the practitioner failed to provide appropriate care and treatment of the patient during the revision surgery on 28 September 2017. This complaint has 11 sub-particulars. I discern from the background to this complaint that the date of 28 September 2017 may be an error and what is addressed by the particulars is surgery on 24 November 2017.

The NCAT Report - operative treatment on 28 September 2017

1. In his first report dated 28 April 2019, which I will refer to as "the NCAT expert report", Professor Harvey is asked to comment on the appropriateness or otherwise of the practitioner recommending the revision surgery on 28 September 2017. Professor Harvey does not provide any opinion about CSF leak in respect of this surgery in this report. He does, however, opine in summary that conducting the surgery three days after Patient B's representation to the practitioner was below a standard that is reasonably expected.

The practitioner's response

1. I pause to note that in his Response to this complaint, the practitioner says there was a trial of medical treatment, but admits that the treatment was insufficient. The practitioner denies planning a short procedure, but admits he performed the surgery as alleged. He also admits he performed the procedure without using stereotactic intraoperative guidance. The practitioner denies not having the films of the most recent CT scans available in the operating theatre, or of failing to consult the scans during the procedure.
2. The practitioner admits causing significant intracranial trauma to Patient B by way of a defect in the cribriform plate. He also admits damaging the anterior cerebral artery.
3. Particular (i) asserts "failing to identify that Patient B suffered any intraoperative complication". The practitioner's response is: The respondent admits that he failed to identify the intraoperative complication during the surgery but denies that the failure to identity the complication was, of itself a failure to provide appropriate care and treatment.
4. The practitioner also denies paragraphs (j) and (k).
5. Complaint one particular 3 in respect of Patient B asserts in sub-particular (b) a failure "to diagnose Patient B as having suffered an iatrogenic intracranial injury during the revision bilateral FESS procedure performed by the practitioner".
6. Complaint Three of the complaint under background sets out the surgeries conducted by the practitioner and records surgery on 17 November 2017, following which the patient never regained consciousness and died. However, the particulars asserted in relation to this complaint refer to surgery on 28 September 2017, not 17 November 2017 or 24 November 2017.

NCAT Report in respect of surgery on 24 November 2017

1. In the NCAT expert report, Professor Harvey is asked to provide his expert view on surgery carried out on 24 November 2017. Professor Harvey opines this surgery was carried out too quickly.
2. He notes at page 10 of the NCAT expert report: A defect was made in the right lateral lamella (figure). This defect was not present in the preoperative CT (31/10/2017 -figure) Small defects in the skull base (1-2cm) can occur during routine sinus surgery, most commonly when dissecting bone at the roof of the ethmoid. They are usually small, obvious to the orientated surgeon and need to be repaired to prevent CSF leak and the risk of meningitis. That is not what has happened in the surgery of 24 November 2017. The defect here is approximately 6mm and the typical diameter of a frontal recess. The surgical defect is positioned just behind the right front recess (figure 3) … In my opinion, Dr Mooney was dis-orientated and there was surgical mis-navigation. Dr Mooney created an opening in the skull base and assumed it was the right frontal recess. Through this 6mm defect a 4cm x 2cm defect in the right front lobe with disruption of the right anterior cerebral artery occurred (Coroner's report). For this to have occurred, active suctioning and curettage must have been performed. Suctioning and curettage are appropriate if Dr Mooney was indeed in the frontal sinus, but through surgical error, he was in the anterior cranial cavity. If this was the case, it would be common not to see brain and CSF. In my opinion as a skull base surgeon, who regularly removes anatomy in this area, CSF fluid will not "pour out". Arachnoid tissue, and in this case, swollen brain and clot would have likely obscured any view through the 6mm skull base defect. Returning the patient to the operating room to examine the patient would not have been of great assistance, and even in the hands of a skilled skull base surgeon, there is little that could be done proactively through nose to change the outcome of the intracranial trauma that had occurred. Once a major intracrancial event had occurred (and only via a 6mm window) the steps required are to stabilise the patient, organise an urgent CT scan, monitor and manage changes in intracranial pressure and achieve haemostasis if necessary. Unfortunately, although only the right anterior cerebral artery was traumatised, and anteriorly, the entire anterior cerebral circulation was compromised through either subsequent propagation of intravascular thrombus and/or vasospasm.
3. Professor Harvey notes the practitioner's statements and finds his statements are not supported by the evidence in the CT scans (POWH), the coroner's report and neuropathologist's report. He concludes "Summary: strong criticism".
4. Professor Harvey is also asked by the practitioner's lawyer to comment on any other matter he considers relevant to the practitioner's care and conduct of Patient B.
5. Professor Harvey commences his discussion noting that, in his opinion, Patient B died "as a direct result of surgical trauma to the brain and cerebrovascular structures resulting from surgical mis-navigation and error".

Civil proceedings report

1. Professor Harvey's report for the civil proceedings is dated 12 September 2020. I will refer to it as the civil proceedings report.
2. At page 6 of the civil proceedings report, Professor Harvey responds to questions posed by the lawyer about the revision FESS surgery on 24 November 2017. He is asked if the surgery on 28 September 2017 had been performed in a competent manner would there have been a need for revision surgery.
3. When discussing the surgery on 24 November 2017, Professor Harvey again opines that the operating time was too short. At page 10 of his report, Professor Harvey states: A defect was made in the right lateral lamella (Figure 3). This defect was not present in the preoperative CT (31.10.2017 - Figure 2). Small defects in the skull base (1-2mm) can occur during routine sinus surgery, most commonly when dissecting bone at the roof of the ethmoid. They are usually small, obvious to the orientated surgeon and need to be repaired to prevent CSF leak and the risk of meningitis. That is not what has happened in the surgery of 24 November 2017. The defect here is approximately 6mm and typical of diameter of a frontal recess. The surgical defect is positioned just behind the right front recess (Figure 3) In my opinion, Dr Mooney was dis-orientated and there was surgical mis-navigation. Dr Mooney created an opening in the skull base and assumed it was the right frontal recess.
4. Professor Harvey was then asked to comment as to whether the iatrogenic bone defect or perforation, and the extent of damage within the brain cavity, reflects surgical treatment that was not performed in a prudent and competent professional manner
5. Professor Harvey opines the defect is "almost certainly from the surgery on 24 November 2017". He notes the usual small defects which are obvious to an orientated surgeon and need to be repaired to prevent CSF leak and risk of meningitis. However, he explains that is not what happened on 24 November 2017 and that the defect here was approximately 6mm. He goes on to explain that small defects can be missed and patients re-present with CSF leak and/or meningitis in the postoperative period. He then says "A 6mm defect should have been identified/recognised by a competent surgeon". Professor Harvey summarises his opinion and states that the treatment was "below a standard that is reasonably expected".
6. Later in his report at p 12, when addressing the question of whether the practitioner was aware that he caused the defect, Professor Harvey opines that speed would have been a major factor for the surgeon not to have noticed some CSF fluid coming from the surgical site or to have proceeded without confirming landmarks. He concludes that for a 6mm defect to occur and not to be acknowledged, significant front lobe injury and complete disruption of the right anterior cerebral artery, is not an acceptable complication. He finds the practitioner's conduct to be significantly below the standard reasonably expected.
7. Except for the confusion about the date of Patient B's surgery and whether or not the particulars in Complaint Three relate to surgery on 24 November 2017 rather than 28 September 2017, I find there is marginal difference in the opinion expressed by Professor Harvey in the NCAT expert report and the civil proceedings report. Professor Harvey is addressing different questions in each report although it is clear that overall he is critical of the practitioner failing to identify the surgical error resulting in the 6mm defect and distinguishes this error from a small defect of 1-2cm when a leak of CSF can be rectified. The only divergence in his report is his summary of "Strong criticism" in the NCAT expert report, and "below standard" in the civil proceedings report and overall to be significantly below the standard reasonably expected, also expressed in that report.
8. On a superficial or broad overview of the practitioner's complaint of prejudice to him there appears merit in the application. It is unusual to have an expert retained in disciplinary proceedings on behalf of a practitioner to have the same expert providing a report in civil proceedings in which the practitioner is the defendant.
9. On a more considered reading of the two reports, I find merit in Mr Maybury's submission that there is no substantial difference in the opinions expressed by Professor Harvey, if what is at issue is surgery on 24 November 2017 not 28 September 2017. Professor Harvey clearly distinguishes between the small surgical error which may be made by a disorientated surgeon which permits the escape of CSF which can be remedied, and the surgical error of the practitioner which resulted in a 6mm defect which was undetected.
10. Therefore, the reports only apparent maintainable basis for the orders now sought, is the concern expressed that the practitioner believes he is prejudiced because Professor Harvey has provided a report in the civil proceedings and that he now wishes to obtain another expert opinion. I do, however, take into account that Professor Harvey has not participated in a joint conclave with the HCCC's expert, whose report I have not seen, nor can I, or the practitioner, anticipate what he may opine in his oral evidence. I also accept that it is highly likely that the HCCC will seek to rely on both the NCAT report and the civil proceedings report in their case in these disciplinary proceedings.
11. Although it is regrettable that this application was not brought more promptly, I have disregarded that factor in determining this application.
12. I am conscious that the practitioner's professional career as a surgeon is at stake in these proceedings. I also take into account that although the first hearing date had to be vacated, that vacation was not caused by either party.
13. I also take into account that any prejudice to the HCCC can be ameliorated to a significant degree by an order for costs thrown away by the adjournment.
14. I am satisfied that on the evidence presently before me that an adjournment will not result in a risk to the health and safety of the public.
15. I find factors favouring the practitioner's adjournment application are finely balanced against the objects of the NCAT Act. But having regard to the issues at stake for the practitioner, the lack of risk to the health and safety of the public, and costs remedies that the interests of justice just fall in favour of the applicant's application. It is also apparent to me that either the dates set out in the complaint require amendment, or corrections need to be made to the expert reports to clarify which surgery is the subject of expert opinion.

Addendum

1. After I delivered these reasons orally, I was advised by Mr F Shah, solicitor for the HCCC that an amended complaint had been served on the practitioner but had not been filed at NCAT. Thus my reasons reflect the complaint as found in the file not the complaint on which the HCCC now rely. I further note that the Reply on which the practitioner relies, which is dated 1 July 2020 was filed on his behalf on 28 January 2021. This Reply will require amendment in response to any Amended Complaint.

ORDERS 1. The hearing fixed for 22-26 February 2021 is vacated. 2. The costs of the vacation of the hearing thrown away are reserved to the substantive proceedings. 3. The proceedings are listed for directions to fix new hearing dates on 26 February 2021 at 11.30am.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2021