(d) the receipt by the general practitioner from the respondent of the authority to communicate the above information to the Medical Council of NSW.
(7) For a period of 18 months from the date hereof, to attend for treatment by a psychologist of her choice. The practitioner must provide the Council with the professional details of the treating practitioner. The frequency of treatment is to be determined by the treating practitioner. The practitioner is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:
(a) failure to attend for treatment;
(b) termination of treatment; or
(c) a significant change in health status (including a significant temporary change).
(d) the receipt by the psychologist from the respondent of the authority to communicate the above information to the Medical Council of NSW.
(8) To bear the costs of compliance with these conditions.
(9) The respondent is to forthwith provide to each of her medical providers engaged by her for the purpose of these orders, a copy of the judgment and protective orders made herein.
(10) If the practitioner's principal place of practice is New South Wales the Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) (the National Law). If the practitioner's principal place of practice is anywhere in Australia other than New South Wales sections 125 to 127 of the National Law shall apply and a review of the conditions can be conducted by the Medical Board of Australia.
(11) The practitioner is to pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed, or failing agreement, as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).
(12) The respondent is to be given 28 days' notice of this decision before the decision is published and thereby available to the public.
Catchwords: PROFESSIONS AND TRADES - health and professionals - medical practitioners - disciplinary proceedings - application for cancellation of registration - costs
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Health Care Complaints Act 1993 (NSW)
Health Practitioner Regulation National Law (NSW) No 86a ("the National Law")
Legal Profession Uniform Law Application Act 2014 (NSW)
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Health Care Complaints Commission v Dr Nikolova-Trask [2014] NSWCATOD 149
Prakash v Health Care Complaints Commission [2006] NSWCA 153
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Dr Biljana Nikolova-Trask (Respondent)
Representation: Counsel:
P Aitken (Applicant)
P Dwyer (Respondent)
[2]
Solicitors:
Health Care Complaints Commission (Applicant)
Meridian Lawyers (Respondent)
File Number(s): 2019/00009844
Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the disclosure and publication of the name of Patient A referred to in these reasons or in any document filed or tendered in the proceeding is prohibited.
[3]
BACKGROUND
The Respondent is a female medical practitioner of 48 years. She obtained qualification in 1997 at the University of Skopje in Macedonia and was granted full registration to practise medicine in Australia on 13 December 2005. In October 2016 the respondent sat for the final exam to obtain admission to the RACGP. In December 2016 she received advice that she had passed the exam and would be admitted as a member of the college.
On 11 December 2014 the respondent was the subject of protective orders made by this Tribunal (Health Care Complaints Commission v Dr Nikolova-Trask [2014] NSWCATOD 149). The orders included a 3 month period of suspension together with mandatory requirements to participate in further specified education and the requirement to be supervised by a mentor. The mandatory requirements referred to above will be specified in detail later in these reasons as one of the complaints considered in this determination is non-compliance with those requirements.
The complaint filed by the applicant and proceeded upon by it, was signed and filed on 10 January 2019. A copy of the Application for Disciplinary Findings and Orders is contained in the bundle of documents relied upon by the applicant and marked as exhibit A1 in the hearing. It specifies three complaints and sets out particulars for each. With leave the applicant withdrew Particular 2.c. to Complaint One.
A copy of the Reply filed by the respondent is contained at Tab 1 in Exhibit R1, being part of the evidence relied upon by the respondent.
The Reply document of the respondent shows where she contests fact and denies or accepts the content of the complaint, made against her.
Complaint One in the Application, alleges the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law "in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience."
The Application sets out, as part of Complaint One, information which bespeaks the background to Complaint One under a heading "Background to Complaint One". The respondent in her Reply document admits those facts. The "Background to Complaint One" facts set out in the Application included a statement that the respondent practised "at all relevant times" as a GP in a country town in NSW. The background facts then included the following:
"Patient A was a patient of the practice from around July 2014. His medical history included Type 2 diabetes, hypercholesterolaemia, hypertension, muscular degeneration, duodenal ulcer, rectal cancer. At the time of the relevant consultations he was 80 years old. Patient A was diagnosed with Melanoma on around 21 September 2016 and passed away on March 2018."
Complaint One is then supported in the Application by particulars of the complaint which are divided into 5 paragraphs. The respondent does not admit the particulars set out in paragraphs numbered 1 to 4. She does admit the particular set out in paragraph 5.
Particular 5 to Complaint One is stated as follows:
"Between around 20 and 21 September 2016 the practitioner failed to provide an adequate handover of Patient A's care to Practitioner B, a locum general practitioner employed by the Practice."
Before specifying the particulars in paragraphs 1 to 4 of Complaint One, it is helpful, to know the details of the complaint, as provided by Patient A, before his death. We will then consider and weigh the respondent's evidence in relation to that complaint and then we will consider the evidence which supports or does not support the versions of fact provided by each. Should it be that the evidence of the respondent is preferred to that of Patient A, then it follows that parts of the Complaint moved on by the applicant will not require further consideration.
The evidence of Patient A is contained in two documents which form part of exhibit A1. The first statement of Patient A is contained behind Tab 3 of exhibit A1. It is a typed letter dated 27 January 2017. The gravamen of the complaint is that the respondent had failed to diagnose a melanoma on his back, notwithstanding that he told her of his concerns in relation to the area of his back where a melanoma was subsequently diagnosed by another practitioner.
The evidence of Patient A about the lesion is as follows:
"In July of 2016 I attended an appointment with my local Dr (respondent). I had concerns regarding a birth mark on my back which has a mole on either side. I have noticed the mole on the left-hand side was itching and sore, also oozing puss. Dr (respondent) had a look and told me it was nothing to worry about and that she was not worried about it.
I went back a month later, the mole was getting bigger, more painful and more oozing was occurring. Dr (respondent) took another look, she told me not to worry it was nothing and sent me home."
Later in the letter Patient A, after setting out further history of seeing another practitioner (Practitioner B), at the medical practice in which the respondent worked and after attending the local hospital for a catscan, stated:
"I had to see Dr (respondent), she was unaware of any results from the hospital, when I told her what had been happening, she just said, well lets just have a look. When she saw my back, she said 'oh my God that's a melanoma', she went towards the door, then back to the window and started talking incessantly fast about getting me to Adelaide as quick as possible, the same day."
Later in the letter Patient A said: "I feel I have been extremely let down by Dr (respondent), I feel that when I was in the surgery with her that she seemed preoccupied and could not get me out of the surgery quick enough on those first two visits."
The only other evidence relied upon by the applicant as emanating from Patient A, is contained in a document, also found at Tab 3 of exhibit A1, which is titled "Statement in matter of 17/00831". We note that number is not the number allocated to this case in NCATOD, however, it is of no moment as the content of the document is clearly referrable to the Application being pursued by the HCCC in this proceeding.
In this statement Patient A says, relevant to the complaint moved on by the applicant:
"5. In approximately mid-2016 I became concerned about a birth mark on my back which has a mole on either side. The mole had been there for as long as I could remember and had never bothered me before, but the mole on the left hand side had become itchy and sore and developed a discharge."
[We note from the Consultation Records for Patient A (TAB 25 exhibit A1) that Patient A had consultations in 2016 (prior to 24 August 2016) at the respondent's practice on 24 February, 17 March, 10 May, 15 June, 22 June, and 27 June. Two of those consultations were with a medical practitioner other than the respondent. Nowhere in the consultation notes is there any record of Patient A complaining about any aspect of a mole on his back or a birthmark on his back.]
"6. I consulted Dr (respondent) about this mole on two separate occasions. I remember I also obtained a prescription for Gastrostop at one of these consultations.
7. These symptoms had been present for about two months before the first appointment. They died down for a while over this period but then came back.
8. I couldn't see the mole myself, but it bothered me.
9. At the first consultation, I said to Dr (respondent) words to the effect of "I'm worried about this mole on my back. It's itchy and sore and it has developed a discharge. Dr (respondent) asked me to lift up my shirt and had a quick look. She didn't use a light or any other equipment. I was seated on the chair for this examination. She said words to the effect of 'I'm not worried at all'. The whole consultation lasted less than ten minutes."
We note the date of the consultation is not stated however it is suggested to be about mid-year 2016 and may have been about July 2016 as best Patient A could recall.
Patient A then said: "Another month went by and the thing was really itching and giving me problems. So I made another appointment with Dr (respondent). The same thing happened. She said 'go home'."
"By the time of the second consultation, the mole had become bigger and raised and more painful, and the discharge had gotten worse."
12. Dr (respondent) got me to lift my shirt up again and had a quick look, just like the last time. The discharge had soaked through my singlet. She again said words to the effect of, "It's nothing to worry about, nothing at all" and told me to go home.
14. I don't recall Dr (respondent) sending me for any tests."
[We know from the evidence presented that the respondent was referred for an ultrasound by the respondent on 24 August 2016 when she discovered the lump in his axilla.]
"15. I had a woman with me for one of these consultations. She works for ANECTO. She helps people in their home and takes them for appointments. I think her first name is Ann but I can't remember her surname."
We note it was not put to the respondent that Patient A was accompanied to any consultation he had with her. We assume therefore that the patient was referring to an occasion when he saw either Practitioner B or another medical practitioner (not the respondent) at the respondent's practice.
"16. After the second consultation, the mole kept getting worse. I rang the (respondents') Surgery to make another appointment with Dr (respondent). They told me she was away for a fortnight. I asked to see another doctor, and was given an appointment with Dr (Practitioner B) for the following day."
Patient A sets out detail relating to his appointment with Practitioner B. The evidence establishes that appointment occurred on 22 September 2016 (see TAB 25 exhibit A1). Patient A then details his next contact with the respondent. The evidence establishes that consultation occurred on 7 October 2016 (TAB 25 exhibit A1).
"21. When I went to make this follow up appointment Practitioner B (sic) had gone back to Melbourne, so I had to see Dr (respondent). At this consultation Dr (respondent) said words to the effect of "What brings you here?" I said "Well that little thing that you said was nothing to worry about, that's what brings me here." She said: "Well let's just have a look."
22. When Dr (respondent) saw my back she said words to the effect of "Oh my God that's a melanoma." She started to panic. She started pacing around the room and talking incessantly fast about getting me to Adelaide as quickly as possible."
[We note the suggestion of Patient A that the respondent did not know of the preliminary diagnosis made by Practitioner B on 22 September 2016. However, the evidence of the respondent is that she did know and further the detail of the diagnosis is contained in the consultation record made by Practitioner B on that occasion. That record was clearly available to the respondent on 7 October 2016 (see TAB 25 of exhibit A1).
Patient A then sets out in his statement detail of attending upon Prof. Brown at Royal Adelaide Hospital oncology unit (paragraph 25). He saw that person a week later. Patient A attributes this to a referral from Dr Jeeves at the hospital in the town where the respondent practises.
That action (referral to Dr Jeeves) however, on the evidence of the respondent, was provided by her. The medical notes at TAB 25 of exhibit A1 show that Practitioner B saw Patient A on 21 September 2016 and 22 September 2016. He notes a conversation with Dr Jeeves by telephone on 22 September 2016 and a referral on 21 September 2016. He had tried to speak with Dr Jeeves on 21 September 2016 without success.
The underlying inference in the evidence of Patient A is that the respondent did not know there had been a preliminary diagnosis by Practitioner B of a melanoma on his back. His description of her actions and reactions in the consultation on 7 October 2016 are consistent with there having been no handover of Patient A to the respondent other than through a view of the notes recorded by Practitioner B on the patient's electronic file.
(We note there is no mention by Patient A of the respondent asking him to allow the examination near the window in her consultation room.)
Practitioner B signed a statement on 18 July 2017. He did not give oral evidence. Although nothing was said during the hearing, the Tribunal has accepted he did not give oral evidence because he was not required by the respondent.
Practitioner B said that on 21 September 2016 he saw Patient A for a consultation. That took place at the respondent's medical practice rooms. The reason for the consultation was "to follow up on an ultrasound of his right axilla" which procedure had been ordered by the respondent.
Practitioner B said he reviewed the ultrasound report and noted that it showed vascularity, meaning a possible metastatic malignancy. He then examined Patient A to try and identify any evidence of a primary malignancy. He said "During this examination, I noted a highly suspicious mole on his right flank/lower back which looked to him like a melanoma". Practitioner B said Patient A told him he had had the mole since birth, but it had changed. Practitioner B could not recall Patient A telling him how recently this change had occurred. He did not recall Patient A having a rash. Nor did Practitioner B say that Patient A had asked the respondent to look at the mole in the middle of the year and having done so she told him there was "nothing to worry about" or any words to that effect.
Practitioner B contacted Dr Jeeves by phone having made an urgent referral to her. She advised him to organise an urgent CT scan and biopsy of Patient A's right axilla lymph node. He did both of those things.
Practitioner B saw Patient A on two occasions after 21 September 2016, namely 22 and 29 September 2016. He attached a copy of his clinical notes. The notes are entirely consistent with his statement. It is noted that the consultation on 21 September 2016 was a "long consult 33 minutes". It is to be noted there is no evidence from Practitioner B of Patient A complaining of a history of discharge from the mole on his back, nor itchiness, nor that he had shown the mole to the respondent in August 2016 or at any earlier time.
The clinical notes made by Practitioner B on 29 September 2016 include a note Patient A "plans to travel to Germany to see his brother". Also notes a heading "Psychiatry: in good mental health".
[4]
EVIDENCE OF THE RESPONDENT
The documentary evidence of the respondent commences with her statement dated 16 June 2019. That statement is set out at TAB 2 of exhibit R1. It deals with all aspects of the complaint made by the HCCC including that part which identifies the complaint made by Patient A. Her statement on that issue creates substantial issues of fact with the evidence of that patient.
The statement of the respondent, in relation to Patient A commences at paragraph 7.1 at TAB 2 of exhibit R1. She provided her medical records in relation to Patient A. She said he had been a patient "of the practice" since 8 July 2014.
The respondent confirmed the content of paragraphs 56 to 71 of her letter to HCCC dated 15 March 2018. Those paragraphs answered specific paragraphs in the statement of Patient A. The answers given can be conveniently set out in dot point form to highlight the issues of fact created by the answers.
Patient A did not have an appointment in July 2016. His appointment was in August 2016. (We note from the records set out at TAB 25 of exhibit A1, that Patient A was seen by the respondent on 15, 22 and 27 June 2016. He was seen by the respondent on 17, 24 and 30 August 2016 and not seen in July at all.)
Patient A was recalled following the ultrasound of the axilla.
The respondent was away for only 2 days, namely 20 and 21 September 2016.
The respondent was aware of Patient A's diagnosis as her practice manager told her about the finding of the melanoma. She said something to the effect of "(Patient A) is coming in today, that lump in the armpit turned up to be a melanoma mets and he is seeing Dr Jeeves." She had also read the patient's notes before seeing the patient.
Patient A did not consult the respondent about any problem with a mole on 17 March, 27 June, or 24 August 2016 nor did he relate the history which he set out in paragraphs 5, 6, 7 or 8 of his statement.
The first time the respondent looked at the mole on the back of Patient A was 7 October 2016. At that appointment she did not use any equipment to assess the mole. The lesion was obvious to the respondent as she described in her letter to Dr Jeeves.
Had Patient A complained to the respondent about the mole on his back she would have examined it as she did on 7 October 2016. Had he brought the mole to her attention she would have carried out a biopsy for testing. Had the mole been discharging she would have had it dressed. "As it was, the melanoma arising in the birthmark was so clinically undisputable, I would have had no hesitation identifying it clinically only. It was one of the most remarkable melanomas I have seen in my life."
The respondent denied she panicked when she saw the melanoma on Patient A.
"I accept it was a difficult time for me personally. I did slow down and I found it took me longer to complete paperwork. But I did not fail to listen, record relevant history or conduct warranted examinations."
The respondent said that in 2016 Patient A had a history which included Type 2 Diabetes Mellitus, macular degeneration, duodenal ulcer, rectal cancer resection, low anterior resection and loop ileostomy, prostatectomy and reversal of ileostomy (November 2015). He was incontinent of both bowel and bladder.
The respondent said that on 16 February 2016 Patient A was seen by the Registered Nurse at the practice for a health assessment. He was seen by another practitioner on 24 February 2016 with the notes referring to a trigger of PTSD in light of recent events. "He was not sleeping at night and having flashbacks to a scene in WW2."
The respondent was away from the practice between 18 April 2016 and 31 May 2016. She said that in the appointment of 27 June 2016 "Patient A complained of loose bowel motions post the reversal of ileostomy." On 24 August 2016 when she consulted with Patient A, he did not have any specific complaints. On that day the respondent discovered a lump in the left axilla of the patient. He was referred for an ultrasound. He was not aware of the lump.
At paragraph 7.21 the respondent said "I should have conducted a more thorough examination and recorded my findings and a management plan. At that stage however, I thought it more prudent to confirm the nature of the lump."
Having seen the ultrasound result, probably on 15 September 2016, the respondent noted the confirmed right axilla lymphadenopathy. She did not arrange follow up on either the 15th or 16th September 2016. She was very busy on those two days. She agrees that is not an acceptable excuse. She booked Patient A to see Practitioner B who had the earliest time available within the practice. She acknowledged her notes were insufficient for a proper handover of Patient A to Practitioner B.
At paragraph 7.31 the respondent set out her evidence in relation to the consultation with Patient A on 7 October 2016. She confirmed that before she saw the patient she had been told of the diagnosis of the melanoma. She was aware he had been referred to Dr Jeeves. She read the notes made by Practitioner B. When Patient A came into her consultation room on that day she asked to see the lesion. She said "I asked him to come closer to the window so I could have a better look. I needn't do that as the melanoma was huge, arising in the birth mark on the right flank. I thought there was a carcinomatosis adjacent to it. The size of the melanoma stunned me." The respondent said "I have a clear recollection of that consultation. I did not shout, I did not panic, I was definitely not rude to the patient. I did however try to speak clearly, plainly and somewhat louder for the sole reason that Patient A has hearing difficulties and we both speak with accents."
The Complaint document upon which the HCCC moves was answered by the respondent in a document titled "Reply to Complaint". The document is dated 6 May 2019.
In answer to Complaint One, the respondent in her Reply does not admit the particulars numbered one to four in the Complaint document. Those particulars can be summarised as:
1. On 24 August 2016 the respondent failed to adequately examine the mole on Patient A's back about which he had complained.
2. On 24 August 2016 the respondent failed to adequately address the unexpected finding of a mobile lump in Patient A's right axilla.
3. On 24 August 2016 the respondent failed to adequately review Patient A's Care Plan.
4. On 24 August 2016 the respondent failed to follow up the ultrasound ordered by the respondent on 24 August 2016 of Patient A's right axilla.
[5]
ORAL EVIDENCE OF THE RESPONDENT
The respondent gave evidence in chief and confirmed that the evidence contained behind Tab 2 in R1 (her statement dated 16 June 2019) was true and correct. She also confirmed the facts set out in the "Reply to Complaint" document, set out behind Tab 1 in exhibit R1, are true and correct.
The respondent is working at a practice where she is one of four practitioners working as general practitioners. The three other practitioners work part time in the practice, as does the respondent. The respondent works four days each week and is limited to seeing 32 patients per day. On the days she works she is at the practice from 9.00 am until 5.30 pm.
Since May 2017 the respondent has been attending upon a psychiatrist. That psychiatrist is a witness in the hearing. She has also engaged the services of a psychologist. She has seen her psychologist since September 2017. The respondent has been attending upon her psychologist at about monthly intervals.
In relation to Patient A the respondent confirmed she had set out her evidence about her attendance upon and treatment of, Patient A in her statement which forms part of exhibit R1. She first saw him in 2014 and last saw him in 2016. She confirmed her evidence that at no time when she saw Patient A in June or August 2016, did he ask her to look at a mole on his back.
The respondent said that prior to 2016 she had been managing Patient A's health and she considered she had a good relationship (professional) with him.
The respondent emphatically denied Patient A had told her, during a June 2016 consultation, that the mole on his back was either itchy and/or oozing puss. She said that had he told her any of that information she would have examined him, looked at the mole. If she observed puss or oozing she would have referred him to wound care with one of the onsite registered nurses. The respondent denied that during a consultation with Patient A in July 2016 she examined the mole on his back and then said to him "It is nothing to worry about." She denied the allegation of Patient A that a similar examination and/or words spoken by the respondent occurred in August 2016.
The respondent was asked to acknowledge that the medical notes on the records of Patient A, made by her, were "not as good as they should be." She did so agree. However, she denied emphatically that any circumstance could have existed between June 2016 and August 2016 when she saw Patient A, when she could have been told of a mole on his back which was itchy and oozing puss and not then examined the site in response to that information. Further had she been told such information she was definite in asserting she would have made a note of same.
The respondent was asked to explain what was involved in the health review for which Patient A presented to her practice in June and August 2016. She said Patient A had seen a nurse in the practice who went through the "Care Plan" with him and the nurse made notes on the computer. The nurse took the blood pressure and observed the heart rate on the blood pressure monitor which is used. After that procedure the respondent attended that part of the practice rooms where the nurse and Patient A were. Specifically on 24 August 2016 the respondent listened to Patient A's heart and because his shirt was undone she had an opportunity to palpate the left axilla. She did so opportunistically as she knew he had a history of cancer. In that process she found a lump. In that examination she looked at those parts of the chest and arms which were exposed. She confirmed she had referred him for an ultrasound.
The respondent was asked about the Health Plan document which had been completed for Patient A on 24 August 2016. She said it was a review of the plan which was created on 16/2/2016. She said the Health Plan is different from the Care Plan which is a document created by her practice. It is a GP Management Plan. In the time before Patient A was seen by the respondent on the relevant dates in June and August 2016, he had seen an enrolled nurse and a registered nurse, where his blood pressure was taken and a check was made to see if he had achieved the goals which had been set in February 2016 when the Care Plan was created and goals set.
The respondent was taken to pages 93 and 94 of Tab 25 in exhibit A1. The respondent said the document (The Care Plan) was completed by the "enrolled" nurse. The Health Assessment document (pages 95 to 102 of TAB 25 exhibit A1) was created by the Registered Nurse employed by the medical practice. The documents were created on 24 August 2016. The respondent's attention was drawn to the heading "General Physical Examination" - "Comment" where the following appeared: "(Patient A) has no specific health concerns other than chronic issues". The respondent said that entry had been made by the registered nurse and had been completed before the respondent saw the patient on 24 August 2016.
The respondent was asked about the difference in the blood pressure readings for Patient A both taken on 24 August 2016 (one for the Health Care assessment and the other for the Care Plan). She was unable to provide a reason, adding that the first reading (the higher one 185/86) was recorded by the enrolled or practice nurse who completed the GP Management Plan (also called the care plan) and the Health Assessment was completed by the Registered Nurse.
The respondent was taken to page 4, of her Reply document, paragraph (b), which addressed an HbA1c reading for Patient A. She said the result had demonstrated better control of sugar by the patient.
The respondent was asked about paragraph (c) on page 4 of the Reply document which addressed the GFR results for Patient A. She was asked if she had other results to look at and she said she did.
The respondent was asked to look at TAB 5.2 (vol 2). She agreed that document shows eGFR reports over a number of different dates. The dates were from 19/9/2014 to 6/11/2015.
The respondent was asked to look at the results of 59 on 27 June 2016 (alongside page 4, paragraph (c) of the Reply). She was asked to state what that reading indicated to her. She said in 2014 Patient A had a bladder obstruction and consequently the reading was lower. The eGRF measures the ability of the kidney to filtrate.
In relation to the considerations the respondent listed on page 4 at paragraph (c) the respondent said that when she looked at the filtration data the patient had some dehydration. He had 7 to 8 bowel movements a day and needed gastrostop. She said "I didn't think it was an acute emergency but rather something to monitor."
The respondent was asked to respond to the suggestion of Dr Mullins (the expert) that the patient would have needed an ultrasound. The respondent said the patient was elderly and it is something for consideration at a later time.
On 7 October 2016 the respondent saw Patient A. She agreed on that occasion she saw his back. She said she was shocked. It was the biggest melanoma she had ever seen. She was shown the photo of the melanoma, which had been tendered, and asked to mark on the photo where the melanoma was. She did so and the document was then marked as exhibit X. She thought the photo had been taken after she had seen it on 7 October 2016. She said it was less developed when she saw it.
The respondent was taken to TAB 2.7 of vol 2 of exhibit R1. There was a copy letter from the respondent to doctors at the Melanoma Clinic. The respondent said she had referred the patient to that clinic because of the necessity for speed and expertise. She said she discussed the referral with Patient A and initially it clashed with an appointment made in Broken Hill for treatment by Dr Jeeves.
The respondent was suspended from practice in March 2017. She returned to work on 11 October 2018. Since her return to work she has met with her mentor Dr Funmi Komolafe. She said they meet between 4 and 6/7 weeks in regularity.
The respondent was asked about the requirement which had been imposed upon her to undertake an ethics course. She said she had enrolled in the course conducted by the University of Sydney. She enrolled in December 2018. The course runs for 1 semester. It involves written subjects and an online component. It requires 4 to 5 hours work per week. The respondent said she had completed the written assessments however she has not undertaken the online component. She said she had "issues with participating in the online component. I found it painful."
The respondent was asked if she had done anything about completing the online component of the Ethics course. She said she had been in touch with the university and asked the relevant person if she could now undertake the online component without having to undertake the balance of the course which is in the nature of assessments. That person had told her the University would "Look into it". There is another course commencing in December this year. She said she would schedule dates with her psychologist to help her complete the course.
In relation to her future work, the respondent said that she would like to practise unrestricted. She would like to work 5 days a week some weeks and 3 days a week other weeks. The current restrictions which require she see no more than 32 patients a day makes it difficult to schedule catch up appointments for patients. If there is a necessity for the Tribunal to impose a limit on the number of patients she can see in a day, then she would ask that the limit be 40.
The Tribunal member Dr Keenan, asked: "In your experience, after the nurse takes the patient's history does the nurse flag issues the patient has raised?" The respondent said: "Yes the nurse sees the patient for 45 minutes and if it is an assessment, it is one hour. The nurse tells me orally of the issues flagged by the patient." The respondent said she could not remember if the Registered Nurse was still with Patient A when she entered the room on the day of the assessment, however, she said that both the registered nurse and the enrolled nurse would have spoken to her after they finished their roles with Patient A.
Dr Keenan asked whether in her experience, her patients are more disclosive of information about their health, including current concerns, when they meet with the practice nurse than they do when they see her as their medical practitioner? The respondent said that because the nurses have been at the practice for 10 years the patients tend to tell them more than they tell their doctors.
Dr Keenan asked when Patient A was last in hospital before the respondent saw him on 7 October 2016. The respondent said that was in 2015 when he underwent a bowel resection. Dr Keenan asked if any other health practitioner, apart from Practitioner B mentioned Patient A's nevus? The respondent said "No, and in hospital he would have been showered."
The respondent said, in answer to a question from Dr Keenan, that she recalled Patient A had been in hospital in November or December 2015.
The chronology of medical treatment administered to Patient A is set out at TAB 46 of exhibit R2. That record shows Patient A saw Dr Sekhobe, Dr Huynh, Practitioner B (2x), the respondent, the practice RN and the practice enrolled Nurse between January 2015 and 21 September 2016 when Practitioner B diagnosed a melanoma. During that time Patient A underwent a colonoscopy at Broken Hill Hospital on 25 February 2015; was seen by practitioners at Royal Adelaide Hospital in March 2015; underwent Rectal Cancer Resection at Broken Hill Hospital on 24 April 2015; was admitted to Wentworth District Hospital on 21 May 2015; had a gastrointestinal investigation at Broken Hill Hospital in June 2015; on 1 August 2015 he underwent a prostatectomy; on 28 August 2015 he was discharged from Wentworth District Hospital. Between 10 September 2015 and 12 September 2015 he was admitted to Mildura Base Hospital and underwent TURP and cystolitholapoxy. On 12 October 2015 he underwent gastroscopy at Mildura Base Hospital. On 16 November 2015 he underwent sigmoidoscopy at Mildura Base Hospital.
No medical practitioner during the period 1 January 2015 to 21 September 2016 recorded any concern about a melanoma Patient A may have had, nor is there any note of an unusual "nevus". There is no record of Patient A complaining about any aspect of a mole on his back.
On 23 February 2015 Patient A was examined by Practitioner B who reported, inter alia, that the patient's lungs were clear. He also reported "no murmurs". Both those reports suggest the patients' chest and back were visible to Practitioner B for the examination. No note of the nevus is recorded.
Dr Keenan asked the respondent why she had ordered only an ultrasound of the lump she had discovered in the axilla on Patient A. She asked, "Why did you not order blood tests?" The respondent replied that she was concerned about Medicare boundaries. She said, "First I have to see if the lump is giving rise to more suspicion. I had on a previous occasion, with a different patient, ordered many tests in relation to a suspicious lump only to discover it was a sebaceous cyst." She said she would have proceeded with other testing if the ultrasound report warranted such testing.
In answer to a question from Dr Keenan the respondent acknowledged that the axilla lymph glands draw from areas of the body which include the back, however, she did not consider that at the time.
Dr Keenan asked the respondent about the extent to which she considered her work as a medical practitioner was compromised by her depression in the second half of 2016. The respondent said there were days when she did not go to work because she felt "very low". At times she said she experienced difficulty remembering what medications patients were taking. She was however, very confident that if she had seen the nevus (with melanoma) on Patient A's back during that time she would have diagnosed it as a possible melanoma. In October 2016 the respondent said she undertook the RACCP exam which was a clinical exam and passed all three parts of that exam.
[6]
CROSS-EXAMINATION OF THE RESPONDENT BY MR AITKEN (HCCC)
The respondent was asked if she felt some resentment about the 2014 proceeding which was brought against her. She denied that was so. She said at the end of the proceeding in the Tribunal she had 3 months suspension and then after that she was required to enrol in an ethics course which she said she did. She enrolled in the course conducted by Monash University. She did not undertake the online portion of that course.
The respondent said she had returned to work in Broken Hill in circumstances where she understood all her colleagues knew of the facts surrounding her suspension from practice. She said her doubt in returning to work was about people who didn't know her and who read in the press that she was the doctor who has sex with her patients after examining their genitals.
The respondent said that when she opened the online portion of the ethics course she saw the cases which were to be looked at and to be discussed in the online forum, she thought her own case would be discussed and all the other participants would know it was about her. She said she had spoken to both her psychiatrist and her psychologist about the necessity for her to undertake the ethics course and the difficulty she had with that.
When she commenced the course she thought she had found a way to avoid the online component of the course. She believed she could score enough marks with her course work (which she did) to pass the course with that component only. She acknowledged that it was an ongoing issue for her. She said she will need help (therapy) to undertake the online component.
The respondent said that in December 2018 she was fairly confident she could have undertaken the ethics course. The respondent accepted that part of her problem was avoidance. She said she was better now however, she still needs to deal with it. She had spoken with her treating clinicians recently.
The respondent was asked "Didn't it become apparent in early 2016 that you were not coping?" She said that it should have however, she had taken time off in April and May 2016. She acknowledged that in 2016 she was conscious that she could not perform as a medical practitioner to the standard she wanted. In June 2016 she agreed she needed assistance and she "looked up" some psychiatrists in Sydney. She did not want to use a Broken Hill practitioner because of the privacy issues. She thought at that time she would get better.
The respondent was asked about the report of her mentor which appears at TAB 36 in R1. The reports deal with the period September 2015 to June 2016. On the 2nd page of the report the mentor has written that the respondent was proposing to seek professional counselling. The respondent said she had intended to do that however, Broken Hill was not an option for her.
In 2017 the respondent moved her residence to Adelaide. She retained a house in Broken Hill.
In October 2018 the respondent commenced seeing a psychologist in Adelaide. Before that she had spoken to a GP in her own practice. She was unable to speak with a GP outside of her practice at that time. She did not think she had a problem then which required long term care. She denied she refrained from seeing a GP outside of her own practice because she feared she would be classified as an impaired practitioner.
The respondent conceded she did not disclose to her fellow practitioners her concerns about her health. She said she did tell her mentor she was not coping.
In response to a question about the respondent's understanding of the role of her mentor, the respondent said: "We are discussing practical issues about practice as I have both a psychiatrist and a psychologist. I don't think it is her role to over-see my mental health."
The respondent was asked if she now has the strength to engage professionals to assist her into the future. She said she definitely did.
When asked what has changed in her practice since 2018 the respondent said there are "big improvements". She said there were big improvements in the handover process and recording of patient records. She said the practice had instigated regular monthly meetings. The practice is ensuring staff are kept "up to date" with medical matters and that staff members are properly trained.
The respondent said she intends to continue attending upon both her psychiatrist and psychologist into the future. She undertook to continue seeing those professionals if the Tribunal considered it was appropriate to impose such condition.
The respondent conceded that following the publication of the NCAT decision she was moodier and that others at the practice could have thought she was "unpleasant to be around". She agreed at times she did cry at work after her father died. She agreed she may have appeared less tolerant at work.
The respondent said that in relation to paragraph 5.22 of her statement at TAB 2 in exhibit R1, she was struggling to manage avoidance of particular types of correspondence.
In 2016 the respondent did handover with Practitioner B verbally. Now handover is done differently. Notes for handover are placed on the patient file. She agreed in 2016 there was reason for there to be a proper handover of Patient A to Practitioner B.
In relation to the respondent's statement at TAB 2 of exhibit R1 the respondent said that where the statement uses the words "would have" it was reference to what was her usual practice rather than an actual recollection. It was put that it was difficult for the respondent to separate out what was her independent recollection and what was her usual practice when she prepared her statement which is at TAB 2 of R1. She responded, "Unless I was 100% sure that I remembered something I expressed a sense of doubt."
She was asked about the consultation with Patient A on 24 August 2016. She was asked if she accepted that the consultation fell within a period when she was depressed. She said, "My mood was lower than usual".
The respondent could not recall whether in August 2016 there were times when she could not go to work. She said she had extended leave in April and May of 2016. Also, in February when her father died. "In August we usually go for our ski holiday." The respondent was unsure whether she had any other time off work in August 2016. She conceded that in 2016 she did experience difficulty coping with her work load. That, she agreed, included August 2016.
The respondent was further asked about the consultation with Patient A on 24 August 2016. She said she remembered going to the treatment room to see the nurse and Patient A. She remembered she found the lump on the axilla of Patient A in the treatment room. She said, "We then went to my consultation room". She did that for the purpose of writing the referral. She accepted she may have been under time pressure on that day.
The respondent was asked to look at the printout of the electronic records for Patient A. The entry on 14 November 2014 she agreed demonstrated that he brought things to her attention. She agreed that wherever her name was on the record she would have entered the notes.
The respondent agreed she had made no record of Patient A having any cognitive impairment.
The respondent was asked about the document contained at TAB 22 of exhibit A1 being a response by the respondent to HCCC dated 15 March 2018.
The respondent was asked about having a consultation with Patient A on 27 June 2016. She was asked if it is possible there was mention of a mole by Patient A on that occasion. She replied, "There is no way I would have looked at a mole and done nothing." "There is no way I would have missed a mole that big and if it was oozing pus I would have sent him for a dressing."
The respondent denied emphatically the possibility she did see the mole on the back of Patient A in August 2016 and thought it was insignificant. The proposition put to her was that the melanoma had grown from 22 September 2016 where it was measured at 5 cm in diameter to 8 cm on 7 October 2016 to 13 cm on 17 November 2016 and therefore could have been smaller than 5 cm in August 2016 when Patient A said he had asked the respondent to look at the mole on his back. In any event the respondent continued to deny there was any request by Patient A that she examine his back or any mole on his back.
The respondent was asked about listening to Patient A's heart in August 2016. She had an independent memory of doing that. She was asked whether she listened to his chest also on that day (i.e. she would do so by placing her stethoscope on his back). She said she did not. She had no cause to do so as there was no complaint by the patient that he had a chest infection or like complaint which warranted that course of action.
Having found a lump in Patient A's axilla on 24 August 2016 the respondent was asked if there was any reason why she did not examine his groin at that time. She said "I agree I should have".
In relation to exhibit A1 TAB 1 the respondent was asked about her response to Particular 2 to Complaint One. She said she did not carry out a general examination. She was asked questions addressed to testing her actual recollection of the consultation/examination of Patient A on 24 August 2016. She said she recalled he was wearing a checked shirt. He had other clothes with him as well. She considered that if the lump she found was resulting from an infection then she considered it would have been firmer, more painful and be warm.
The respondent said she did not do a complete examination as she ought to have done. She did not have the patient remove his shirt because she did not consider it was a possibility he had an infection somewhere. At the time of the consultation she was suspicious of an internal malignancy because of the patient's history.
The respondent did agree she had failed to take a comprehensive history.
The respondent was taken to her response to Complaint 4 in TAB 1 of exhibit R1. In relation to the results from the ultrasound she had ordered for Patient A, she agreed the results were received by her on 14 September 2016 and there was no record of the results being reviewed or any action taken.
It was put that the respondent should have been the practitioner to follow up on the results of the ultrasound tests. She denied that was so and said that Patient A had been previously seen by Practitioner B. She did however concede she should have spoken to Practitioner B about the outcome of the testing and what he had done with Patient A. She said "I should have and I regularly do. I was not there on the day Patient A saw Practitioner B."
The respondent was asked about the eGFR reading of 59 for Patient A as against an earlier reading of 84. She was asked what action she had taken in relation to that reading of 59. She said the earlier result was in relation to samples taken while the patient was in hospital. "He was 80 at that time and in and out of hospital. The 59 result did not require urgent attention. He had diabetes and he was a very unwell man. I did not think he required treatment at that time."
The respondent denied the presentation of Patient A on 24 August 2016 warranted a thorough physical examination.
In response to specific propositions put to her by the HCCC, the respondent denied the patient told her on 27 June 2016 he was worried about a mole on his back. She denied she lifted the back of his shirt and said "don't worry". She denied she had the patient lift his shirt and show her the mole on his back on 24 August 2016. She denied she said on that occasion or ever "don't worry". She denied there was visible discharge from the mole on that occasion.
The respondent denied that on 7 October 2016 she said to the patient "What brings you here? That little thing."
The respondent agreed she did see the melanoma on 7 October 2016 consultation. She said, "I already knew he had a melanoma by that time. I was only stunned by the size. I can't rule out I said something like "Oh my God that is a melanoma." She denied she "paced the room". She did provide him with a referral to Adelaide practitioners.
The respondent was asked questions in re-examination.
The respondent was asked questions by Dr Keenan. She was asked "Were there times when you told a patient 'there is nothing to worry about'?" The respondent said, "Saying that is a very big statement. I would not say that. I would say 'For the time being looks like nothing to worry you but check in a future time and provide education about skin. Sometimes I would do a biopsy."
In 2016 the respondent said she did remove skin lesions.
[7]
ORAL EVIDENCE OF DR CHANTLER, PSYCHOLOGIST
Dr Chantler is the treating psychologist for the respondent. She provided three reports dated 3 April 2018, 26 September 2018 and 13 June 2019.
Dr Chantler first met with the respondent on 5 September 2017. Thereafter she saw the respondent weekly until November 2017. Between November 2017 and February 2018 there were no sessions. After that time Dr Chantler saw the respondent fortnightly "for a while". Dr Chantler said she met regularly with the respondent until May 2019. She has continued to see the respondent since that time. They meet about every 2 to 3 weeks. Dr Chantler said the respondent's depression has largely lifted. We have focused on good health and preparing for this hearing. Dr Chantler said the respondent relishes work as a doctor and managing stress in her life. Since May 2019 Dr Chantler opined that the respondent is doing well. She has remained psychologically well.
In answer to a question about paragraph 4 of her last report, Dr Chantler said "It is difficult for professionals to engage with this but she has been willing to expose this vulnerability". Paragraph 4 of the report addressed the respondent's ability to "show personal vulnerability." She said she was of the opinion the respondent is definitely willing to actively engage in obtaining help for herself.
Dr Chantler was asked about the DASS testing she administered to the respondent. She said the most recent test she conducted showed mild depression. She said the DASS test has usefulness but also has weakness. The test is very reactive to the moment of testing. She thought it was reasonable to conclude that the respondent has suffered from depression for a number of years. She thought the death of the respondent's father had been a significant contributor. She opined the 2014 proceeding in the Tribunal for the respondent was a significant contributor to her depression. She believed the respondent had felt shamed.
Dr Chantler considered the respondent would benefit from continued psychological therapy. Dr Chantler said she was aware that the respondent had not been complying with the conditions set by the Tribunal. That included not completing the ethics online component and also disengaging from her mentor. She understood the respondent had now engaged with Sydney University and was proposing to complete the Ethics course. Dr Chantler said she had put in place therapy to help the respondent undertake that course.
The witness was asked if the failure to engage with the ethics course was avoidant behaviour in the respondent. She said it was a reaction to shame. She thought the respondent was more likely to procrastinate rather than avoid confronting troubling matters.
Dr Chantler was asked if she had reached a conclusion about when the respondent had lapsed into major depression. She said she was hesitant to nominate a particular time as behaviours which might be seen as indicative of major depression may also have been indicative of other conditions such as adjustment to stressors.
The witness was asked if the respondent's inability to deal with the online ethics course meant she was "not stable". She responded: "No. She has engaged in therapy for many months now and her ability to address matters even when her mental health is well, will cause her difficulty in dealing with that one area."
Dr Cowap asked the witness "Would you say a person might have triggers which they will react to but who otherwise has good mental health?" The witness said "Yes, e.g. a PTSD person."
[8]
EVIDENCE OF DR NICK FORD
Dr Ford provided 4 reports which are contained in exhibit R1 at TABs 17, 18, 20 & 21. The reports are dated 5 March 2018, 15 March 2018, 6 April 2018 and 10 December 2018.
Dr Ford gave oral evidence.
He said he first saw the respondent on 30 May 2017. She had been referred for generalised depression.
Dr Ford was asked, "If the respondent was "running late" repeatedly, volatile and moody was that consistent with depression?" He said "Yes". He was also asked, "If the respondent passed her final exams in late 2016 for General Practitioner accreditation, was that showing cognitive failure?" He replied "No".
Dr Ford said that when he first saw the respondent she was shamed, unkempt in appearance and overweight. He said that her avoidant behaviour would include failure to contact her mentor and complete the ethics course. It also included not going to work and not claiming insurance.
Asked to describe the respondent's mental health in December 2018, Dr Ford opined "She had significantly improved with medication and engaged in some tasks she had to engage. This included doing what the HCCC required. Her demeanour had improved. Her mood was better. She had a good grasp of medical matters. She was impressive. I would say she was in remission."
Dr Ford said he was on leave from April 2019 until September 2019. He saw the respondent again on 2 September 2019. He said she was in remission when he saw her. She was a little worse than when she had been seen in April. He thought that was reasonable given she was anxious about this hearing.
Dr Ford said that he intended to work with the respondent into the future. In answer to a question from the HCCC he opined that the respondent is fit to work. Asked if he thought her plan to work five days a week and see 40 patients a day was advisable, he responded that he did not know her usual work load however he considered she would find that "good stress", however, he said she should be careful not to "wear herself out". He considered she should be monitored to ensure she is not taking extra-curricular load such as writing reports or being involved in medical education.
Dr Ford was asked to look at a letter dated 11 December 2017 written by him to Carol Cook HCCC (TAB 32 exhibit A1). In the 2nd last paragraph he had said "I believe that (respondent) has suffered from a significant depression, entirely related to the investigation conducted by AHPRA and HCCC." Dr Ford acknowledged that is what he had written however he said "This was an oversight as earlier I said in the paragraph which dealt with the death of her father and the publicity in Macedonia." He said she had suffered grief following the death of her father in circumstances where he was too embarrassed to attend a hospital because of the publicity about the respondent's interaction with a patient.
Asked about the use of the words "hard to bear" on page 2 of his report dated 15 March 2018 (TAB 18 exhibit R1) he said "She was deeply humiliated by supervision. The ethics course constantly reminded her she had been found seriously at fault. The whole thing was a reminder of shame and guilt."
In relation to her current position, Dr Ford said "Now she is focused much more on boundaries with patients. It is awkward in a country town because you see them in different contexts." "I was forceful about her having her own GP. She is now seeing Dr Andrew Wilson (Practitioner not in the country town she practices in).
Dr Ford agreed that in 2016 and 2017 the respondent would likely have been impaired. He opined she could not have devoted as much care and attention to make a record or carry out a thorough examination. He said there can be issues with laying down short term memory. "There can be an effect of dropping IQ. A difficulty in sequencing events. That is common to the depression."
In relation to the respondent failing to complete the online portion of the ethics course for the second time (December 2018), Dr Ford said he had encouraged her to do the course, however, it did not raise a concern for him about the emergence of depression in the respondent. But it does raise a concern about her dealing with shame and contact with colleagues. It did not, in his opinion, present a concern for further avoidant behaviour by the respondent. He opined that the respondent's depression had resolved.
In relation to the ability of the respondent to deal with the stressors of publicity in the future (this judgment and attendant protective orders) Dr Ford said "We have discussed there will always be some people who will judge her. We discussed where her support will come from". He opined that the risk of the respondent relapsing really involves her relying upon her supports. "She will have Dr Chantler. Dr Chantler could tell me if the respondent stops attending upon her. Further Dr Wilson can alert me. If she was not turning up, or cancelling, then I would follow up to see if I need to speak with her on the phone."
Dr Ford acknowledged there was some risk that the respondent would become noncompliant in the future, however he said he would be speaking with her.
Dr Ford said he would be prepared to liase with the Medical Council of NSW about the respondent if that was a requirement. Further he opined that should a mentor be appointed then that person should be able to contact him if there was a concern. Any requirement to liase with others about the respondent will need to be authorised in writing by the respondent.
Dr Simon Cowap asked Dr Ford "How severe would her depression have been at the time of the diagnosis of Patient A having a melanoma?" Dr Ford said "I believe mild to moderate. I believe her cognitive ability was down. I think it is more likely than not that she would not have recall of it."
Counsel for the HCCC asked Dr Ford if it was possible for people suffering with depression to fluctuate in their ability to function efficiently. Dr Ford said yes. "They can do everyday things such as driving, dealing with children then start to have performance at work and then at other times not be able to deal with or perform any of those tasks."
In re-examination counsel for the respondent asked if Dr Ford agreed the respondent being able to successfully complete the last component of her GP accreditation exam was not consistent with her having major depression. He did agree that was so.
[9]
ORAL EVIDENCE OF DR MICHAEL CLARKE
Dr Clarke provided three reports relied upon by the respondent. The reports are dated 13 December 2018, 9 May 2019 and 13 August 2019. Those reports are contained at TAB 22 and 23 of volume 1 of exhibit R1 and at TAB 3 in the additional documents relied upon by the respondent exhibit R2.
Dr Clarke was engaged as an expert by the HCCC to undertake a psychiatric assessment of the respondent.
In the report of 13 December 2018 Dr Clarke noted the respondent "said that her experiences have reinforced the importance of boundaries in her practice." He also noted the respondent said "she would like to increase her hours and numbers of patients that she can see in a day. She believes she is capable and feels that her mental capacity has now recovered."
Dr Clarke also noted the respondent "understands that she will still need to complete an ethics course and has arranged to attend a course in January 2019."
In relation to the mental state examination carried out by Dr Clarke for his report of December 2018, he concluded "her affect showed a full range of reactivity and she did not present as depressed or anxious. No psychotic features, perceptual abnormalities or cognitive impairment were evident." He further opined "In my opinion (the respondent) has suffered from a Major Depressive Disorder which is now currently in remission….I consider she no longer suffers an impairment…likely to detrimentally affect her ability to practice safely." "In my opinion (the respondent) could safely increase the hours she works and the number of patients she sees in a day."
In his report of 9 May 2019 Dr Clarke opined that at the time he saw her for that assessment "no psychotic features, perceptual abnormalities or cognitive impairment were evident." He reported she "became briefly tearful when discussing further action being taken against her by the HCCC and her need to accept that she remains closely scrutinised and judged."
In his recommendations in the May 2019 report Dr Clarke opined that the respondent's depressive disorder remained in remission. He opined that the "risk of relapse was low". He said "I note that (the respondent) has increased her workload but there continues to be restrictions on her practice. I question the benefits of such restrictions given that her practice is a positive aspect of her life and there would be a natural limit on the amount of work she could undertake due to her commitments in Adelaide….However I support her ongoing contact with a mentor and her completion of the ethics course she is undertaking."
Dr Clarke further recommended in his May report that "As part of her conditions of registration,….she is expected to accept treatment prescribed by her Psychiatrist and maintain regular contact with her treating psychologist and psychiatrist. I support the reporting obligations of her treating practitioners as outlined in the section 150A conditions on her practice."
In his third report dated 13 August 2019 Dr Clarke opined that the respondent remained in remission in relation to her Major Depressive Disorder. He opined she was not suffering an impairment which currently detrimentally affects or is likely to affect her ability to practise medicine safely.
Dr Clarke was required to give oral evidence. He was examined in chief by the respondent's counsel.
Dr Clarke confirmed that in his August 2019 report he had opined the respondent was well enough to increase her work load. He said he thought it would assist her even though it would increase to four days per week. He said he would support her increasing to 5 days in any one week and seeing up to 40 patients per day, conditional upon her continued contact with her mentor and her psychologist.
In cross-examination Dr Clarke said he was aware, when he saw the respondent that the conditions which permitted her to practise included a requirement that she complete an Ethics course and that she commences same within a prescribed time. He was aware she was unable to complete that course. He considered the failure to complete the ethics course as avoidant behaviour. He considered the avoidant behaviour was associated with her depression. He considered that the respondent's continued inability to undertake the online component of the ethics course could be a continuation of the "shame" she had experienced however he said he would need to speak to her about it.
When asked if he was concerned that there may be a re-emergence of depression in the respondent arising from the inability to confront the online ethics course, Dr Clarke said: "There certainly seems to be some underlying sense of shame and thereby avoidance. That does not mean she is overtly depressed." "The issue about the ethics course is a separate matter (from depression) and needs addressing."
Dr Clarke was asked "Does Major Depressive Disorder cause difficulty in laying down memory?" Dr Clarke said: "It can do. In major depression, because of lack of concentration, it creates difficulty in laying down memory so they tend to forget." In relation to the impact upon the respondent, if the decision of the Tribunal in this case is published, Dr Clarke said it would depend upon the context. He said "The big difference now is that she is engaged in treatment whereas she was not before."
Dr Clarke was asked if there should be any other safeguards in place other than ensuring she continues with seeing her psychologist and psychiatrist. He responded that she should continue to consult with Dr Chantler around the time of the publication of the Tribunal's decision. He said the respondent is in a "far better state" now than in 2016 and really not comparable with the way she was. She is now resilient and supported by her treating practitioners.
Dr Cowap asked some questions. He said "One version of what occurred, in a consultation the respondent had with Patient A is that Patient A showed her the lesion and the respondent said 'don't worry'. The respondent says that did not happen and she did not see the lesion." Dr Clarke said "I would have difficulty in saying her depression was so severe her reasoning would be so distorted she would not remember. To have no memory of something so significant is not the likely circumstance."
Ms Dwyer, the respondent's counsel, asked Dr Clarke about that part of his report where he noted he had asked the respondent about the allegation of Patient A. Dr Clarke confirmed the respondent was adamant Patient A did not show her the lesion on his back.
Dr Clarke also said that if the respondent had not undertaken the online portion of the ethics course because she believed she had accumulated sufficient marks with her assessment to pass the course, then that is a different circumstance to one where she was unable to participate because of her condition. He also agreed that a person with good mental health might have difficulty dealing with the ethics course if they thought their own case would be discussed.
Dr Clarke thought it would be beneficial for the respondent to have 14 days' notice of the written decision of the Tribunal before the judgment was published on the web site.
Before turning to consider the evidence of Dr Mullins, the expert engaged by the HCCC to answer specific questions, we will consider the conflict in the two versions of fact proffered by firstly Patient A and then the respondent in relation to what occurred between them in consultation during 2016 relative to the melanoma on his back which was ultimately diagnosed by Practitioner B in September 2016.
[10]
WEIGHT TO BE GIVEN TO THE WRITTEN STATEMENT OF PATIENT A
Complaint One, particular one, requires a determination by the Tribunal of credit between Patient A and the Respondent. The Tribunal has to accept either Patient A or the respondent where there is a conflict in their versions of what occurred during consultations the respondent had with Patient A in 2016. There is no other witness to the consultations, who has given evidence in this hearing.
Patient A is now deceased and was therefore unable to be tested on his version of fact.
The Applicant makes the following submission in relation to the manner in which the Tribunal would approach making a decision about the conflict in the stated versions of fact.
"a. The Applicant further notes that because patient A is now deceased and therefore his statement could not be tested by way of cross-examination, the following matters may be relevant to an assessment of his evidence:
(a) The Tribunal is not bound by the rules of evidence;
(b) The Tribunal exercises inquisitorial powers in that it may inform itself in such manner as it thinks fit;
(c) Whilst the statement could not be tested by way of cross-examination and is an out of court representation and is thus a form of hearsay, there is no reason why logically probative hearsay should not be given credence and appropriate weight;
(d) The Tribunal would consider whether there is evidence capable of supporting (or undermining) patient A's account; and
(e) Where there is a dispute on the facts the onus rests on the Applicant to establish that the Respondent's account should not be accepted and that patient A's account should be accepted, to the standard required.
b. In Re Pochi & Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; 26 ALR 247 at 257; 36 FLR 482, Brennan J discussed the application of the hearsay rule to administrative tribunals:
"As the New South Wales Law Reform Commission has pointed out in its report on the rule against hearsay, hearsay "has a wide scale of reliability", and there is no reason why logically probative hearsay should not be given credence. However, the logical weaknesses of hearsay evidence may make it too insubstantial, in some cases, to persuade the tribunal to the truth of serious allegations"."
The respondent in her submission says the following in relation to the evidence of Patient A:
"Although the rules of evidence do not apply in the Tribunal and hearsay evidence can be admitted, there are at least six reasons why hearsay in the form a statement from Patient A should carry little probative weight in these circumstances, and why it could not be relied on to prove Complaint One.
a) The Applicant bears the onus of proving a complaint on the balance of probabilities, to the Briginshaw standard. The complaint is extremely serious. It cannot be proved in circumstances where Patient A is not available for cross examination.
b) The Applicant concedes that the evidence cannot be tested (Applicant's submissions at [44]). Were Patient A available, he would be cross examined with respect to reliability and credibility. With great respect to Patient A, there are numerous issues that could have been put to him by Counsel for the Respondent, for example, he may have had a motive to bring a civil claim, or have a family connection through his daughter in law that caused him to form a dim view of the Respondent or he may have been confused as to what he reported and when (see the further discussion at paragraph [3.5(vii)]).
c) The Respondent was subjected to cross examination and questioning by the Tribunal and gave evidence that was cogent, consistent and persuasive.
d) The Respondent has made numerous concessions against interest, but is adamant that she was not told about the mole in June and August 2016.
e) The weight of expert evidence is that any depressive condition suffered by the Respondent between June and August 2016 would not account for her "forgetting" that she was told about a mole that was "itchy and sore and oozing pus".
f) The Applicant concedes that there is no independent evidence or opinion as to the size of the mole or its appearance on 24 August 2016 (Applicant's submissions, paragraph [49])."
We note that the statement signed by Patient A on 29 August 2017 commences with the first paragraph stating the following:
"This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give before a Tribunal or Professional Standards Committee as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true."
The statement was admitted to evidence, without objection, as it forms part of exhibit A1. Thus the document does form part of the evidence before the Tribunal. What falls to be determined is the evidentiary weight to be given to the statement where there is conflict with the sworn evidence of the respondent.
We have considered the submission of each party on this issue. We consider the preamble statement which predicates what follows in the statement of Patient A should be seen as underpinning the serious nature of the statement and the clear understanding of Patient A that the document was to be used in a court like proceeding with the potential for serious consequence to the respondent. There is nothing in the evidence to make us think the statement was not made with that understanding by Patient A. The respondent was asked for her explanation of why Patient A might have been deliberately untruthful in his statement and she answered that question with mere speculation. She really did not have any acceptable explanation, nor did she seek to provide one in her evidence in chief. The thrust of her case is that Patient A was mistaken about that evidence.
We propose to consider what supporting evidence there is to take into account in determining the weight to be given to the evidence of Patient A where there is conflict with the respondent. To that end we will now move to consider the case brought to support Complaint One, Particular One in the Application. We will then consider the evidence of Dr Mullins, the expert retained by the HCCC for this case.
[11]
COMPLAINT ONE PARTICULAR ONE
This complaint alleges the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a). This section requires the HCCC to satisfy the Tribunal that the respondent has engaged in conduct which is "significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training and experience." (The full wording of the sub-section is set out earlier in these reasons.)
The HCCC assert that the particulars set out under Complaint One in the Application document will, if established on the requisite standard, "justify a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is established."
In the Applicant's Submissions, dated 11 October 2019, the HCCC helpfully identifies the standard of proof required to establish each complaint moved on by the applicant. We accept we need to be satisfied "on the balance of probabilities". That test has been defined in Briginshaw v Briginshaw (1938) 60 CLR 336, 360-363.
Moving then to consider the particulars relied upon for Complaint One in the Application, the applicant states as follows:
"On or around 24 August (2016) the practitioner failed to adequately examine and assess the mole on Patient A's back that Patient A complained of during the consultation."
The allegation requires us to be satisfied that Patient A complained to the respondent about some aspect of the mole on his back. This is the mole which was diagnosed by Practitioner B on 21 September 2016 as a melanoma.
We were impressed by the respondent as a witness. She was apparently honest in the giving of her oral evidence before the Tribunal. She gave oral evidence over a number of hours and was examined and cross-examined during that time by counsel. Members of the Tribunal also asked her questions. During her oral evidence she made concessions against her interests. We consider she was careful in the way in which she answered the questions asked of her or the propositions put to her. She did not attempt to be an advocate for her own cause. Where appropriate she was self-deprecating. She readily acknowledged inadequacies in her performance as a practitioner where that was appropriate, however, she was definite in rejecting matters put to her where she was sure she was correct.
The evidence of Patient A is set out earlier in these reasons. He was not available to be tested on his statement. We have nonetheless given the statement full weight unless the countermanding evidence received by the Tribunal requires a conclusion that part or all of the testimony is unsatisfactory.
The chronology of medical treatment administered to Patient A is set out at TAB 46 of exhibit R2. That record shows that Patient A saw Dr Sekhobe, Dr Huynh, Practitioner B (2x), the respondent, the practice RN and the practice enrolled Nurse between January 2015 and 21 September 2016 when Practitioner B diagnosed a melanoma. During that time Patient A underwent a colonoscopy at Broken Hill Hospital on 25 February 2015; was seen by practitioners at Royal Adelaide Hospital in March 2015; underwent Rectal Cancer Resection at Broken Hill Hospital on 24 April 2015; was admitted to Wentworth District Hospital on 21 May 2015; had a gastrointestinal investigation at Broken Hill Hospital in June 2015; on 1 August 2015 he underwent a prostatectomy; on 28 August 2015 he was discharged from Wentworth District Hospital. Between 10 September 2015 and 12 September 2015 he was admitted to Mildura Base Hospital and underwent TURP and cystolitholapoxy. On 12 October 2015 he underwent gastroscopy at Mildura Base Hospital. On 16 November 2015 he underwent sigmoidoscopy at Mildura Base Hospital.
No medical practitioner during the period 1 January 2015 to 21 September 2016 recorded any concern about a melanoma Patient A may have had, nor is there any note of an unusual "nevus". There is no record of Patient A complaining about any aspect of a mole on his back.
On 23 February 2015 Patient A was examined by Practitioner B who reported, inter alia, that the patient's lungs were clear. He also reported "no murmurs". Both those reports suggest the patients' chest and back were visible to Practitioner B for the examination. No note of the nevus is recorded.
As we have set out earlier in these reasons, Patient A was seen by both a registered nurse and an enrolled nurse on 24 August 2016, immediately prior to the respondent seeing him. The GP Management Plan (also called the Care Plan by the respondent) was the subject of review that day and had been created on 16 February 2016 (see pages 86 to 90 of TAB 25 exhibit A1). That plan, together with a Health Assessment had been the subject of review when Patient A was seen on 27 June 2016 and 24 August 2016. On each of those occasions his blood pressure was taken and a check was made to see if he had achieved the goals which had been set in February 2016 when the Care Plan was created and goals set. A consideration of what is required in the assessment and review of both the Care Plan and the Health Assessment make clear it involved some time to complete.
The respondent was taken to pages 94 to 102 of Tab 25 in exhibit A1 (a copy of the Care Plan and the Health Assessment created on 24 August is there set out). The respondent said the Care Plan was completed by the "enrolled" nurse. The Health Assessment document was also completed by a registered nurse. The respondent's attention was drawn to the heading "General Physical Examination" and thereunder "Comment" on page 97 of TAB 25. That heading formed part of the Health Assessment document. Under that heading the following words appeared: "(Patient A) has no specific health concerns other than chronic issues". We accept that a discovery of a melanoma, not previously diagnosed for Patient A does not fall within the description "chronic issues".
In the Care Plan document there is considerable information which was clearly provided by and/or discussed with Patient A during the meeting with the enrolled nurse on 24 August 2016. Patient A in his statement does not suggest in his statement, relied upon by the HCCC, that he told either the enrolled nurse or the registered nurse on 24 August 2016 any of the complaint which he says he voiced to the respondent about his painful and oozing mole. There is no reasonable explanation or hypothesis submitted by the HCCC as to why Patient A would elect to say nothing about that matter to either nurse.
The HCCC relied upon a statement made by Practitioner B, the practitioner who on 21 September 2016 diagnosed possible melanoma (later confirmed) on the back of Patient A. In his statement Practitioner B said the following about his consultation with Patient A on 21 September 2016.
Patient A had been a patient of Practitioner B when the practitioner worked full time at another practice in that location. Consequently Patient A was known to Practitioner B and vice versa.
"The reason for (Patient A's) presentation on 21 September 2016 was to follow up on an ultrasound of his right axilla which had recently been ordered for him by (the respondent)."
"I reviewed the ultrasound report and noted that it showed vascularity, meaning a possible metastatic malignancy. I then examined (Patient A) to try and identify any evidence of a primary malignancy. During this examination I noted a highly suspicious mole on his right flank/lower back which looked to me like a melanoma."
"The mole was a brownish colour and part of it was shiny and ulcerated. Patient A told me he had had the mole since birth, but it had changed. I don't recall him telling me how recently this change had occurred."
Practitioner B also made notes about this consultation. The notes are seen as part of TAB 25 of exhibit A1 (page 2). In the note the following is included "explained possible cancer."
Nowhere in the statement from Practitioner B or in his notes of his consultation with Patient A is there any note of a complaint by Patient A that he had a mole on his back which was or had recently been itchy, sore or discharging fluid/pus. Nor is there any note of Patient A complaining to Practitioner B that he had shown the mole to the respondent at an earlier time. Nor is there any reference to Patient A telling any medical practitioner (including a nurse), either whilst he was in a hospital during 2015 or at any time prior to 21 September 2016 about any concern he had about a mole on his back.
The statement from Patient A, relied upon by the Applicant, is at Tab 2 of exhibit A1. That statement annexed a copy of a letter written for Patient A by "My friend (named) typed this letter for me, as I have macular degeneration." That friend was not called to give evidence about the creation of the letter, which is provided at TAB 3 of exhibit A1. The letter is dated 27 January 2017 and is affixed with a stamp which shows it was received by the HCCC on 22 February 2017 (six months after the consultation on 24 August 2016). The statement signed by Patient A was signed and witnessed on 29 August 2017.
In the letter of 27 January 2017 Patient A said "In July 2016 I attended an appointment with (the respondent)". The records at TAB 25 show that Patient A saw the respondent on 15 June, 27 June, 17 August and 24 August 2016. There was no attendance by Patient A upon the respondent or her practice in July 2016. In our view, nothing turns on that misstatement by Patient A.
In his letter of 27 January 2017 Patient A complains of a mole on the left hand side (we understand he is referring to the left hand side of the nevus on his back) which was itchy and sore and oozing pus. He said he had seen the respondent who "had a look and told me it was nothing to worry about and that she was not worried about it." We note, the mole which was diagnosed by Practitioner B as a melanoma, was stated by him to be on the "right flank/lower back". The words attributed by Patient A to the respondent in his letter differ to those he stated in his Statement in August 2017.
Patient A in his letter said "I went back a month later". We take this to be a reference to 24 August 2016. He said "the mole was getting bigger, more painful and more oozing was occurring". He said the respondent "took another look, she told me not to worry it was nothing and sent me home."
Patient A said in his letter of 27 January 2017 that "About 4 to 5 weeks later I developed a rash, on my right side which was itchy and sore and the mole had grown bigger again." He said he was able to see Practitioner B the next day after he asked for an appointment to see the respondent and had been told she was away. We note that in the statement of Practitioner B made the 18 July 2017 he specifically states "I don't recall (Patient A) having a rash." We note nowhere in his statement of 29 August 2017 does Patient A say he also had a rash when he saw either the respondent or Practitioner B.
[12]
DETERMINATION ON PARTICULAR ONE OF COMPLAINT ONE
We are satisfied that Patient A did not complain to the respondent on either 27 June 2016 or 24 August 2016 about itchiness, pain, discomfort or discharge from a mole on his back. To the extent that particular one is made out or falls upon whether Patient A did specifically make a complaint to the respondent on 24 August 2016 about a mole on his back, we find the fact asserted not established.
[13]
EVIDENCE OF DR MULLINS (EXPERT WITNESS)
HCCC relied upon the expert evidence of Dr Mullins. Her first report is contained at Tab 17. We note that all of the material provided to Dr Mullins and recorded in her report under the heading "Documentation," is contained in exhibit A1.
The first report is dated 18 September 2017. There is no challenge to the qualification of Dr Mullins to provide the experts report. She practises in rural NSW and has done so since 1983.
Dr Mullins was required to provide her report, in answer to some questions, based upon the assumption that the content of Patient A's statement on 29 August 2017 is accurate. We have determined that his statement, on the balance of probabilities is incorrect in the paragraphs Dr Mullins was required to express her expert opinion upon. As a consequence we do not consider further her report addressed in paragraph 5. That paragraph addresses the comments made in answer to a request to assume the content of paragraphs 9 to 13 of Patient A's statement of 29 August 2017 is accurate.
Paragraph 6 of the report has the question posed: "Please provide your opinion about Dr (respondent) failure to actively follow up on the ultrasound she ordered for patient A following the consultation on 24 August 2016?" Dr Mullins is critical of the respondent for failure to access the results of the ultrasound she ordered for Patient A and review same then inform Patient A. She said the records show the results were available on the same day the ultrasound was performed, namely 14 September 2016. The records show the results were actioned on 21 September 2016 by Practitioner B. Dr Mullins says the respondent was not on leave until 20 September 2016. Dr Mullins opined that the circumstance described evidences a standard which is below that which is reasonably expected of a practitioner of an equivalent level of training or experience. We note that the expert does not opine that the care demonstrated by the respondent, as above described, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience as alleged in the Complaint document.
At paragraph 7 on page 5 of her report she was required to provide her opinion to the following question: "Based on patient A's account of his subsequent consultation with Dr (respondent) on 7 October 2016 (as described in paragraphs 21-22 of his statement), please provide your opinion about Dr (respondent's) behaviour during this consultation."
The respondent denies she used the words attributed to her by Patient A in the consultation she had with him on 7 October 2016. We accept her evidence on that disputed conversation. We accept her evidence that she did know of the diagnosis of melanoma which had been made by Practitioner B before the respondent saw Patient A on that occasion. We accept her evidence that any surprise she demonstrated on that day was due to the size of the melanoma. Her evidence was that she had never seen one so large.
We have concluded that we do not accept the description of the respondent's conduct and/or words as described by Patient A in paragraphs 21-22 of his statement. To the extent the respondent conceded, in oral evidence, she was surprised by the size of the melanoma she saw on Patient A's back on 7 October 2016, we conclude her words and actions in the presence of Patient A on that occasion, were not "significantly below" the standard reasonably expected of a practitioner of an equivalent level of training or experience, which is what is alleged in Complaint One. Further we note the specific question does not relate to a particular set out under Complaint One in the Application document filed 10 January 2019. As the report of Dr Mullins was dated 18 September 2017 we have assumed the applicant elected not to proceed on that portion of the complaint.
Paragraph 8 (page 5) of the experts' report, addresses a question about the respondent failing to recognise the mole on Patient A's back at an earlier time than 21 September 2016 when it was found by Practitioner B. This concern is, we accept, encapsulated as part of Particular 1 and 2 of Complaint One. Dr Mullins concludes that as there are no clinical notes the respondent cannot defend or explain her actions. Dr Mullins further concludes: "The records and actions of Dr (respondent) are significantly below what is reasonably expected of a practitioner of an equivalent level of training or experience, but does not invite my strong criticism, partly due to the prognosis not being affected and Dr (respondent) was also dealing with other health problems patient A had at the same consultations."
The finding against the respondent of failure to adequately examine Patient A at times earlier than 21 September 2016 rests on a determination of what is reasonably required of a medical practitioner who is presented with an 80 year old patient with no specific complaints which requires a chest examination or a skin examination of any particular part of his body.
If it is reasonably expected that a medical practitioner would routinely examine the chest of a patient of the age and medical conditioner which Patient A presented on 24 August 2016, then was it also reasonable to conclude she would have seen the evidence on the back of the patient which required investigation for possible melanoma?
We note that Medicare does have a guideline setting out its expectation of the consultation which will take place for the purpose of a "Health Assessment for People aged 75 years and older". There are specific components set out. Blood pressure, pulse and rhythm are referred to and under general comments it specifies taking a history and examination. We consider that it is reasonably expected that the required standard calls for cardiovascular and respiratory examinations. In the absence of any specific complaint or obvious visually observable medical condition, there does not appear to be a requirement for a more extensive exploratory examination of the patient.
We conclude therefore that in the case of Patient A on 24 August 2016 participating in a Health Assessment it was a reasonable expectation that the respondent would have listened to his chest. This would have involved lifting the clothing on his back and may have given the respondent a view of the area of his back in which the melanoma was later diagnosed.
In reaching the above conclusion we do note there was no specific history provided by Patient A on that day which clearly required the respondent to listen to his chest (e.g. chest infection).
Dr Mullins was asked a general question which required her to express an opinion as to the medical record making by the respondent in relation to her treatment of patient A. There is no specific ground of complaint about the record making of the respondent in the Application under consideration. In any event the expert opined that "The standard is below what is reasonably expected but does not invite my strong criticism". Given that the requirement to establish a complaint is the satisfaction by the Tribunal that the practitioner "has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience", we find the expert would not support a finding necessary to establish a complaint based upon s 139B(1)(a).
During the oral evidence given by the respondent she acknowledged her medical record keeping was at times unsatisfactory. This was put in the context of being barely adequate.
In relation to the medical records for Patient A, which were created by the respondent, she has conceded that the records were inadequate to effect an adequate handover of Patient A, to Practitioner B, who took over the care of Patient A for a limited time in September 2016. Further, the respondent has admitted particular 5 to Complaint One. That particular is stated as follows:
"5. Between around 20 and 21 September 2016 the practitioner failed to provide an adequate handover of Patient A's care to Practitioner B, a locum general practitioner employed by the Practice."
Before leaving the first report of Dr Mullins (18 September 2017) we note the following:
The letter of instruction to the expert from the HCCC dated 7 September 2017 is not attached to the report nor is it included in the evidence contained in Exhibit A1. No objection was made to the admission of the report on that basis, however, without knowing what was contained in that letter of instruction, other than that reproduced within the body of Dr Mullins' report, it has the potential to detract from the weight which might be given to the report content.
The report does not state the requirement of an "independent expert report" as was required by the HCCC in the letter of instruction to Dr Mullins. The description has a meaning within the confines of litigation. In some jurisdictions the requirements prescribing the manner in which the "independent experts report" is to be prepared is mandated by applicable legislation or Rules.
At the conclusion of the report Dr Mullins includes two headings which may or may not have been the subject of requirement by the instructing letter. The headings are "Summary" and "Comment". In the latter at paragraph 6.1 Dr Mullins says "I have not been requested to specifically comment on Patient A's letter detailing his complaint…does not happen to anyone else." Those words clearly forecast the writer is about to depart from the instruction received to act in this matter as an Independent Expert. What appears thereafter has the appearance of the expert seeking to influence the outcome of the proceeding although probably undertaken with no considered intent.
The consequence of the material set out in the last dot point is to convey to the reader that the expert may have departed from the accepted role of an independent expert. Such a term conveys an underlying requirement of impartiality. In our view it is not the role of an independent expert to be an advocate for one party or the other unless specifically permitted to do so by the requirement of the appointment. There are clearly circumstances where an expert, originally required to act as an independent expert, may be required to change to an adversarial expert. This commonly occurs where each side to the litigation engages their own expert witness. Here the respondent has not called an expert to address the same aspects of the complaints as Dr Mullins addressed.
We do not seek to be overly critical of Dr Mullins, whose expert evidence has been of great assistance to us in the determination of the disputes in this proceeding. We state the above matters for the assistance of medical practitioners who are called upon from time to time to provide expert evidence to this Tribunal. The requirement to present expert evidence in an independent and impartial form is crucial for the Tribunal to be able to give that evidence the weight which it deserves.
Dr Mullins produced a 2nd report which she dated 2nd April 2018. This report was requested following the provision by the respondent of an answer to the written complaint of Patient A, which had been provided to the respondent by the HCCC under cover of letter dated 15 February 2018 and forms part of the evidence contained in exhibit A1 at Tab 20.
In the report dated 2 April 2018, Dr Mullins answers specific questions posed by the letter of instruction to her. This letter did not initially form part of the evidence provided by the Applicant. Where Dr Mullins opines that the questions posed do not constitute conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the respondent in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, we have not detailed same unless there is some other significance to be drawn from or attributed to that evidence.
At paragraph 3 on page 2 of the report Dr Mullins states the question posed by the HCCC as follows:
"Based on Dr (Respondent's) account of her consultation with Patient A on 24 August 2016, as described in paragraphs 14 & 45-47 of her s40 submission, please provide your opinion about the adequacy of her assessment of Patient A on this occasion."
The submission referred to in the above quotation, is found at Tab 22 of exhibit A1. The responses in paragraphs 14 and 45 to 47 are lengthy and we do not repeat them here as the only criticism of the "conduct" of the respondent goes to her record keeping. Dr Mullins records:
"There is no further record in the consultation notes about Patient A's diabetes review. This was significantly below the standard, but does not invite my strong criticism. I note that the blood sugars had improved from the previous one of 4/12/2015. In addition, the examination findings of axilla lymphadenopathy may have changed the focus of the consultation."
[14]
ORAL EVIDENCE OF DR MULLINS SINGLE EXPERT
There was no challenge by the respondent to the credentials/qualifications held by Dr Mullins to provide expert evidence in the hearing.
In evidence in chief Dr Mullins confirmed that for the information contained in paragraphs 10 to 13 of Report 1 she relied upon the statement of Patient A. She had access to the photos of the mole on Patient A's back at the time she prepared Report 1 (photos at Tab 29, pages 34 and 35 in Exhibit A1). She had assumed, for the purpose of Report 1, that the melanoma on Patient A's back would have been visible and apparent at the time of the 2nd consultation Patient A had with the respondent. (Note we think that date is identified as 24 August 2016 in the statement of Patient A.)
Dr Mullins said she has in practice diagnosed 15 to 20 melanomas. She said that was largely at a stage of "early detection". She had not in practice seen a melanoma of the size depicted in the photographs taken of Patient A's back however she had seen suspicious changes in moles and birthmarks.
We do not venture further into the oral evidence of Dr Mullins as we consider, having determined the contest of fact between the respondent and Patient A in relation to the matters set out earlier in these reasons, the balance of the necessary expert opinion of Dr Mullins was not, in our view shaken in cross-examination and in any event much of the case remaining which the respondent was left to meet has been conceded by her in writing and in oral evidence.
[15]
COMPLAINT ONE PARTICULAR TWO
This particular alleges that: "On or around 24 August 2016 the respondent failed to adequately address the unexpected finding of a mobile lump in Patient A's right lower axilla." There are then specific aspects of this particular which are set out.
The respondent has conceded she did not perform a thorough examination of Patient A following her finding the lump in the axilla. This included examining him to identify any clear source of the lymphadenopathy. She agreed that the lymph glands at the place she discovered the lump drain from the back. She also conceded she should have examined his groin.
In her oral evidence the respondent said she did not do a complete examination as she ought to have done. She did not have the patient remove his shirt because she did not consider it was a possibility he had an infection somewhere. At the time of the consultation she was suspicious of an internal malignancy because of the patient's history. She also said, somewhat conflictingly, that the presentation of Patient A on 24 August 2016 had not warranted a thorough physical examination.
Earlier in these reasons we posed a question about the necessity to carry out a thorough physical examination of a 80 year old patient by a GP where there are no expressed complaints raised by the patient. We said: The finding against the respondent of failure to adequately examine Patient A at times earlier than 21 September 2016 rests on a determination of what is reasonably required of a medical practitioner who is presented with an 80 year old patient with no specific complaints which requires a chest examination or a skin examination of any particular part of his body.
If it is reasonably expected that a medical practitioner would routinely examine the chest of a patient of the age and medical condition which Patient A presented with on 24 August 2016, then was it also reasonable to conclude she would have seen the evidence on the back of the patient which required investigation for possible melanoma? The answer does not really assist in determining this particular. We are satisfied that had the respondent carried out the examination which she now agrees was necessary then there is some chance she may have seen the mole on the back of the patient and identified it as possible melanoma.
The evidence of Dr Mullins makes it clear that a more significant examination of Patient A was required than that carried out by the respondent even if no lump in the right axilla had been found opportunistically. However, once the lump had been found then Dr Mullins opined that it was fundamentally a requirement to carry out further examination to ascertain, if possible, what the cause of the lump may have been.
Dr Mullins opines about the examination of Patient A by the respondent on 24 August 2016 was "Dr (Respondent's) conduct is significantly below the standard and invites my strong criticism. So much further information could have been gained with a more targeted history taking and thorough examination. However, in this instance the diagnosis of the cause of the lymphadenopathy was promptly made even without further assessment at this time."
We accept the conclusion of Dr Mullins on this part of Complaint One and consequently we find Complaint One established so far as Particular 2 is concerned.
[16]
COMPLAINT ONE PARTICULAR THREE
This particular addresses the respondent's alleged failure to adequately review Patient A's Care Plan. In particular the Applicant asserts that the respondent did not adequately review Patient A's diabetes or perform a thorough physical examination of Patient A.
In part this particular crosses over the detail in Particular 2. As we have noted the respondent has conceded she should have carried out further physical examination of the groin area of Patient A. She further conceded she should have conducted a thorough examination of the patient having discovered the lump in the right axilla.
As stated in our consideration of Particular 2 above, Dr Mullins opined the Respondent's "conduct is significantly below the standard and invites my strong criticism".
As this portion of Complaint One, Particular 3 has already been found by us to be established, there is no requirement for a further finding based upon the same complaint.
The 2nd limb to this Particular is that the respondent "did not document an adequate review of Patient A's diabetes". On its face, this complaint addresses medical record keeping.
In the submission of the Applicant it is made clear that the complaint is really about the use of the word "Yes" in answer to the question posed in the GP Management Plan REVIEW (725) form: "Have goals been met?"
The evidence of Dr Mullins which addresses this Particular, is critical of the form in that she considered there should have been more detail given which could document the concern which the GP could have had, or perhaps should have had, with the other information which impacted upon the health of Patient A as he presented on that day.
The respondent in her oral evidence described that the form named "GP Management Plan REVIEW (725)", was generated from medical software which was used by her practice. Further, she deposed that the form was not for completion by the GP, rather, it was completed by the enrolled nurse employed by the registry.
Dr Mullins was critical of the answer to the question posed on the form "Have goals been met?" She said the diabetes control was clearly not at optimal level and there was a concern raised by the differing blood pressure readings arising on the day. The respondent said that the particular question was not designed to answer a question of "Is the health of the patient optimal?" She said goals were set in the earlier part of the year and those goals were to improve the control of the patient's diabetes, not necessarily that the control be satisfactory. As the respondent said in her evidence, Patient A was an 80 year old man with many very significant health issues. He had experienced multiple hospital admissions during the 12 month period prior to the date of the GP Management Plan Review on 24 August 2016. She clearly did not expect some miraculous resolution of all his medical issues during the three months (approximately) which had expired since the last review.
To the extent that the Form is deficient, it is perhaps one aspect of the complaint which is part of a common finding by Dr Mullins that the record keeping of the respondent is not at a satisfactory level. The respondent accepts that there are deficiencies in her record keeping and perhaps now, an understanding that the Form needs to be amended so it becomes a record capable of being looked at by another GP who may have to step into the care of a patient who is primarily cared for by the respondent.
In the "Reply to Complaint" document filed by the respondent and set out at TAB 1 of exhibit R1, the respondent provides detail, now supported by the evidence which is before the Tribunal, which demonstrates the improvements which had been achieved in the patient's results since the GP Management Plan was created for the patient. She said in relation to the differing blood pressure (BP) results, that initially when he presented for his day at the practice, his BP result was considered high. That had resolved to an acceptable reading during the time he moved from the Health Assessment to the GP Management Plan assessment. She said, in her experience, such a happening with patients was not uncommon.
Dr Mullins accepted that if there had been a plan/intention to review kidney function in three months' time then it would not be a significant failure not to order a kidney ultrasound at that point. She nonetheless was critical of failure to document such a plan.
In relation to the blood pressure differing results for the day, Dr Mullins said she would have made a plan for the patient to come in over the next week for readings or, alternatively, inserted a note in the record to watch blood pressure and review medication.
We conclude that the evidence for this part of Particular Three, supports a finding that the respondent has engaged in conduct that demonstrates the care exercised by the respondent, in the practice of medicine, is below the standard reasonably expected of a practitioner of an equivalent level of training or experience. We do not find it was significantly below the level.
[17]
COMPLAINT ONE PARTICULAR FOUR
This complaint is that the respondent failed to follow up the results of the ultrasound, ordered on 24 August 2016 on Patient A's right axilla.
The results were sent to the respondent electronically on 14 September 2016.
The respondent gave evidence that she had been aware of the need to review the patient. She was aware of the report on the ultrasound and that the patient needed to be informed as soon as possible about the result. The respondent had no available appointment to give to Patient A and so she arranged for the patient to be seen by Practitioner B who was the practitioner with the earliest available appointment time. There was also the fact that Patient A was already well known to Practitioner B from the time they had been practitioner and patient in another medical practice in the same community. Practitioner B had retired from full time work and was undertaking locum work.
In addition to the above the respondent said she could have telephoned the patient and informed him of the result, however, she considered that was not appropriate given the nature of the preliminary/prospective diagnosis discovered by the ultrasound. She was also not able to provide Patient A with an appointment until Wednesday 21 September 2016 and that appointment was with Practitioner B.
In her oral evidence the respondent voiced her concern about contacting Patient A on either Thursday 15 September 2016 (the day she saw the ultrasound result) or Friday 16 September 2016 to tell him he had been diagnosed with a malignancy, however, he could not be seen until the following Wednesday.
The respondent did not say in her evidence that she could not have made a space for Patient A on the 15th September 2016 even if that had meant she was running late for appointments which had already been missed. She could also have possibly had the practice staff arrange for a patient with less imminent need to see her take the appointment on 21 September 2016 with Practitioner B.
This circumstance raises the question of what is reasonable action for a practitioner to take in a situation such as that presented to the respondent on 14 September 2016, when she read the result of Patient A's ultrasound. We consider that the respondent was obligated to take action. These types of circumstances must and do present themselves in General Practice from time to time. The task of informing a patient of a diagnosis which, by any standard is likely to be confronting for the patient and potentially invoke an emotional response in at least the patient, must fall to the practitioner best placed to conduct that consultation. In most cases it is reasonable to think that will be the practitioner who the patient had seen as their regular practitioner and with whom they would be expected to have some level of rapport. If the circumstance of the practitioner learning of the result at a time when his/her practice patient bookings mean they have no available appointment times, then unless there is some exceptional circumstance, room should be made to allow for the consultation.
We note that Dr Mullins opined that the respondent's conduct in relation to this Particular was significantly below the standard and invited her strong criticism.
In the circumstance we conclude that in relation to this Particular the respondent has engaged in conduct that demonstrates the care exercised by the respondent, in the practice of medicine, is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
[18]
COMPLAINT ONE PARTICULAR FIVE
The respondent admits Particular 5 to Complaint One which Particular is stated as follows:
"Between around 20 and 21 September 2016 the practitioner failed to provide an adequate handover of Patient A's care to Practitioner B, a locum general practitioner employed by the Practice."
[19]
COMPLAINT TWO
This complaint is that the respondent is guilty of unsatisfactory professional conduct under section 139B(1)(c)(i) of the National Law in that the practitioner has contravened a condition to which the practitioner's registration was subjected. The complaint further asserts:
"Each particular (to Complaint Two) in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified."
In her Reply document the respondent has "admitted" each of the complaints specified above.
The facts alleged are that on 11 December 2014 findings were made by the Tribunal (differently constituted) against the respondent. Protective orders were made suspending the registration of the respondent for three months and thereafter stipulating conditions. The conditions included the following (in short form):
Within 12 months of the expiration of the suspension period the respondent is to complete a "Medical Ethics" course conducted by Monash University.
Within 2 months of the expiry of the suspension period the respondent to provide evidence of enrolment in the "Medical Ethics" course.
Upon completion of the Medical Ethics course provide to the Medical Council evidence of successful completion of the course.
Meet with an approved mentor on a monthly basis or more frequently if the mentor requires.
Continue with a mentor for not less than 18 months.
In the particulars to Complaint Two the following detail is given.
Particular 1. The respondent failed to complete distance education course "Medical Ethics" by 1 June 2016. The respondent admits this allegation and further adds that although, at her request the Medical Council extended the expiry date for compliance to October 2016, the respondent still failed to meet that deadline.
Particular 2. The respondent failed to provide the Medical Council with evidence of enrolment in the Medical Ethics course by 1 June 2015. The respondent admits that is so, however, she also states she did secure an agreement with the Medical Council to extend that date.
Particular 3. The respondent failed to provide evidence of completion of the Medical Ethics course by 14 November 2016. The respondent admits this Particular.
Particular 4. The respondent failed to provide a Mentor approved by the Medical Council by 22 April 2015. The respondent admits this Particular.
Particular 5. The respondent only met with the Mentor seven times between 30 June 2015 and 31 December 2016. This is admitted by the respondent.
Particular 6. The respondent failed to meet with the approved Mentor after May 2016. The respondent admits that is so.
The respondent provided a response to the submission written by the Applicant. In her written submission the respondent said:
"Complaint Two- Contravention of conditions
3.29 Complaint Two is admitted. The failure of the Respondent to complete the ethics course and her failure to engage with a mentor effectively over a period of 18 months does not reflect a lack of interest or lack of respect for authority, but rather it is symptomatic of her previous major depressive condition. It is deserving of an empathetic response which recognises the work she has done with her treating teams and her commitment to addressing any remaining vulnerability.
3.30 There can be no doubt that the Respondent was suffering from a major depressive episode at the time she commenced her therapeutic regime with Dr Ford (R1, Tab 18, p 137) and that is likely to have been affecting her actions at the time she contravened the conditions set by the Tribunal. She is no longer suffering from that condition.
3.31 In Dr Ford's report, there is an implicit criticism of Dr. Komolafe for not picking up on the Respondent's deteriorating mood. It is to the credit of the Respondent that she did not think criticism of Dr Komolafe was warranted and took full responsibility for failing to engage with her mentor for the period. She told the Tribunal that Dr. Komolafe was not tasked with overseeing her mental health, and could therefore not be found responsible for not following this up. Contrary to the Applicant's assertion, she did disclose her mental health challenges to Dr. Komolafe and Dr Komolafe mentioned that in her report to the Board (June 2016).
3.32 The Respondent spoke to both Dr Ford (R1, Tab 18, p 136 and oral evidence) and Dr Lisa Chantler (oral evidence) about her feelings of shame and the way in which that impacted on her ability to complete the ethics course.
3.33 With respect to the ethics course, the Respondent was forthright and persuasive in explaining to the Tribunal why completing the course had been so difficult. The Tribunal will recall her obvious distress when giving oral evidence.
3.34 Contrary to the assertion of the Applicant at paragraph [79], the Respondent's explanations for the conduct do operate to reduce the objective seriousness, because they reflect that she has not wilfully ignored the conditions imposed, but has struggled with them because of her ongoing shame and sadness over the exposure of her relationship. That shame is entirely understandable in circumstances where a) she was made to feel responsible for the death of her beloved father in Macedonia, b) the media reporting was sensationalist and distressing, c) the Applicant acknowledges that at some stage she was suffering from a major depressive condition and d) it was a reasonable fear that the ethics course would use her case as an example to be discussed by students, further triggering her shame and distress.
3.35 In order to understand the level of distress caused by the media, the Tribunal would recall the statement of the Respondent (R1, 15 March 2018, Tab 5, par [5]), and the expert opinion of her treating psychiatrist (Dr Ford, R1, Tab 18, p 138).
3.36 It is relevant that the Respondent has fully engaged in therapy with her psychiatrist and psychologist and that she has been open in discussing the factors affecting her completion of the course."
In relation to "Unsatisfactory Professional Conduct", the respondent in her submission accepts the outline of the law set out in the Applicant's submission (as above set out). She says further that the respondent admits unsatisfactory professional conduct on the basis of Complaint Two.
[20]
COMPLAINT THREE
This complaint asserts that the respondent is guilty of professional misconduct under section 139E of the National Law in that she has:
1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration, or
2. Engaged in 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 the suspension or cancellation of the respondent's registration.
In support of Complaint Three the Particulars of Complaints One and Two are relied upon cumulatively and each of Particulars 1, 2 and 4 of Complaint One are relied upon individually.
In their written submission, counsel for the Applicant said about Professional Misconduct, the following:
"Professional Misconduct
69 Given the absence of any comprehensive exploration as to the precise boundary between unsatisfactory professional conduct and professional misconduct, the concept of 'professional misconduct' should be given a purposive interpretation. Some guidance can be obtained from the remarks of Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 (a decision at first instance concerned with inappropriate prescribing), at paragraphs [18]-[20], including that:
"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."
70 As established above, the Tribunal is required to consider both the objective of public protection, but also to recognise the corollary objectives of deterring practitioners, either specifically or generally, from repeating the same misconduct (see HCCC v Saedlounia [2013] NSWMT 13 at [43]-[50]).
71 Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of the Respondent's registration. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the Respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 638).
72 Whilst a finding of professional misconduct equates to a finding that the contravention was sufficiently serious to justify suspension or cancellation, it does not follow that such an order must be made: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [59], per Santow JA; Health Care Complaints Commission v Chowdhury (No 2) [2015] NSWCATOD 127 at [4]. Any disciplinary order must nonetheless be commensurate with the seriousness of the impugned conduct: Health Care Complaints Commission v Townsend [2016] NSWCATOD 118 at [110], citing HCCC v Jamieson [2014] NSWCATOD 56 at [100].
73 The Applicant submits that the particulars of Complaint Two, when considered cumulatively with the particulars that may be found proven in relation to Complaint One, would establish that the Respondent has engaged in sufficiently serious conduct to justify the suspension or cancellation of the Respondent's registration. The Applicant also contends that the particulars of Complaint One particular one, if proved, are capable of amounting to professional misconduct but it does not now assert that the individual particulars 2 or 4 of Complaint One would similarly individually amount to professional misconduct.
74 The Applicant contends that the appropriate protective order in those circumstances, whether particular 1 of Complaint One is established or not, and whether the other disputed particulars of Complaint One are established or not, would still be a period of suspension followed by the imposition of conditions on registration."
The respondent in response to the submission of the Applicant on "Professional Misconduct", in addition to agreeing with the statement of principal set out, added the following:
"5 Professional Misconduct
5.1 The Respondent accepts the outline of the law set out in the Applicant's submissions at pars [69] to [74].
5.2 Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of the Respondent's registration. As set out in the Respondent's submissions, whilst a finding of professional misconduct equates to a finding that the contravention was sufficiently serious to justify suspension or cancellation, it does not follow that such an order must be made: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [59].
5.3 The Respondent submits that only those particulars admitted will be made out to the requisite standard. However, even in particulars 2, 3, 4 and 5 of Complaint One are found proved, and are accumulated with Complaint Two, there would be no proper basis to find that they are sufficiently serious to justify suspension or cancellation of the Respondent's registration.
5.4 The Applicant (at par [64]) cites the oft quoted passage of Kirby P in Pillai v Messiter [No 2] (1989) 16 NSWLR 197, that professional misconduct requires a finding that there was
"A deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.'
In concluding that "these remarks, read in their context, do not justify a conclusion that mere negligence or incompetence amounts to 'misconduct", Kirby P considered the comments of Hutley J, writing extra-judicially, who described professional misconduct as concerning 'moral delinquency'.
5.5 The actions of the Respondent set out in Complaints One and Two (both with respect to her examination of Patient on 24 August 2016 and her breach of conditions) cannot be characterised in the way Kirby P states is necessary for a finding of professional misconduct. Rather, as at August 2016 she was suffering from a depressive condition but was still committed to patient care, and doing her best to provide for the health needs of Patient A. There is no suggestion by the Applicant that her actions contributed to Patient A's poor outcome.
5.6 The Respondent's failure to comply with her conditions as set out in Complaint Two relate to her major depressive condition, one that she has embraced treatment for and is now in remission."
The Applicant submits the breach of conditions carries with it special consideration by the Tribunal. The submission is:
"The further misconduct
75 In HCCC v Gayed [2009] NSWMT 4, the practitioner had consistently breached a condition of registration not to administer S8 drugs and had breached a condition requiring him to provide a copy of his registration conditions to his principal. Having found the breaches established and having rejected the practitioner's explanation for the breaches (that he had not appreciated he was prohibited from administering as well as prescribing), Murrell SC DCJ observed at par [24] that: "the history of disciplinary proceedings provides a context in which the respondent's conduct must be seen as objectively more serious than would have been the case if the respondent had not previously come before the Tribunal on a similar complaint".
76 Whilst the Respondent in this case does not come before the Tribunal on a similar complaint (the 2014 proceedings having involved breaches of professional boundaries), the rationale remains apposite. That is, the particulars of Complaint One (particularly particular 1) if found proved may be regarded as objectively more serious where they occur in the context of previous disciplinary proceedings.
The contravention of conditions
77 The breaches of the conditions, objectively viewed, are serious. They were imposed following a finding by the Tribunal in 2014 that the Respondent's evidence "caused us considerable reservations about her insight into issues raised by these proceedings" (Ex A1 tab 11 page 35 par [96]). The Tribunal took into account the Respondent's expressed willingness to engage with a mentor (at [202]). The breaches now particularised in Complaint Two of the Complaint reveal a repeated failure to complete the ethics course spanning over 4 years, and a failure to engage with a mentor effectively and regularly spanning over 18 months. The issues with engaging with the mentor up until April 2017 are set out in the s. 150 decision of the Medical Council of NSW (Ex A1 tab 10, at page 6).
78 Mentoring conditions were again set as a condition of the return to practice in December 2018 (Ex R1 tab 14) and amended in March 2019 (Ex R1 tab 15). The Respondent gave evidence before the Tribunal in September 2019 that she had regarded the mentoring role as one to assist with professional boundaries and issues with returning to practice, and didn't consider that there was a requirement to disclose her depression/coping issues. Whilst the mentoring role may not have required health disclosures, as Dr Ford said in his oral evidence a line of communication between the mentor and the psychiatrist would be useful in case anything of concern was noted by the mentor. To that extent, any future required engagement with a mentor should encourage disclosure of issues which may affect capacity to practice.
79 An act amounting to a contravention of a condition to which a practitioner's registration is subject is unsatisfactory professional conduct within the meaning of s. 139B(1)(c) of the National Law: Health Care Complaints Commission v Townsend [2016] NSWCATOD 118 at [74]. Conditions for practice must be "scrupulously observed", are not lightly imposed and ought not be treated lightly: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [45] and [74] per Santow JA. The Applicant submits that the breaches of these conditions in the circumstances described and over the periods described, combined with the proven particular(s) of Complaint One, are sufficiently serious to justify suspension or cancellation, and thus amount to professional misconduct. Whether the misconduct would then require suspension or cancellation, as opposed to the imposition of further conditions with a reprimand, then necessitates consideration of the Respondent's explanations for the failures to comply, in that any relevant mitigating circumstances are to be addressed in the context of appropriate orders: Liaw, Kim Hock Stage 1 [2015] NSWMPSC 4 at [67]. That is, the explanations for the conduct, even if accepted, do not operate to reduce the objective seriousness of the conduct but rather operate to inform the nature of the orders that would be the minimum requirement to be imposed by the Tribunal in order to protect the public."
The Applicant in its submission recites jurisprudence for the assistance of the Tribunal. At paragraph 108 of the written submission the Applicant states as follows:
"108 The Applicant submits that only an order for a further period of suspension, with consequent conditions on registration, protects the public through general deterrence of other practitioners; by reinforcing high professional standards and denouncing transgressions and maintaining public confidence in the profession.
109 In the circumstances, and in the context of a continuing breach of the condition to complete the ethics course and consequent evidence of continuing avoidant behaviour, the only appropriate conditions are those set out in Annexure 'A', together with a reprimand, which serves the purpose of denouncing the conduct. The Applicant notes with some concern that the strategy of not completing the online course does not appear to have been raised with the mentor (see most recent report at Ex R3 tab 4), and relies on Dr Clarke's opinion at Ex R3 tab 3 page 25 to the effect that: "I remain of the opinion that Dr Nikolova-Trask requires ongoing treatment as she is receiving to ensure that her mental state remains stable", together with his endorsement of the ongoing conditions of her registration.
110 So far as the proposed conditions are concerned, the Applicant notes that a condition requiring completion of the ethics course is not included. This is based on the Applicant's view that this Tribunal has no power to alter, or remove, the conditions imposed by the previous Tribunal. The only review mechanism available to the respondent is by application pursuant to s. 163 of the National Law, to the Medical Council of NSW. It is the Medical Council which presently administers the implementation of condition, not the Tribunal, pursuant to order 9 of the Tribunal in the decision of Health Care Complaints Commission v Dr Nikolova-Trask [2014] NSWCATOD 149 at page 39. This is in no way intended to suggest that the Applicant is of the view that the ethics course no longer requires completion.
111 A condition directed towards further education in relation to skin cancers is justified, even if the Tribunal were not to be satisfied that Complaint One particular one is established, on the basis of Dr Mullins' evidence concerning the examinations that should have been conducted following the detection of the lump in the axilla*, having regard to patient A's previous diagnosis of cancer, and the evidence of the Respondent including in relation to her handover to (Practitioner 2) in the context of the ultrasound report."
(*In oral evidence Dr Mullins was asked why she would look for a skin lesion in the context of axillary lymphadenopathy. She said that, while it was not first line, it was one of the causes and you would have a plan to work through the diagnoses. The Respondent admitted that she should have conducted a more thorough examination following detection of the lump in the axilla.)
In Annexure A to the written submission the Applicant sets out the protective orders which are sought. Those orders are as follows:
"Annexure 'A'
HEALTH CARE COMPLAINTS COMMISSION
and
DR BILJANA NIKOLOVA-TRASK
Proposed Orders/Conditions - prepared by the HCCC
1. Suspension for a period of ……. months.
2. The practitioner is reprimanded.
3. To obtain Medical Council of NSW approval prior to changing the nature or place of her practice.
4. Not to engage in solo medical practice.
5. To see no more than 36 patients per day.
6. To practice no more than 5 days per week.
7. To complete a GP Certificate - Skin Cancer, through the Australasian College of Dermatologists, within 12 months of the date of this condition being imposed; and
a. to obtain Council approval for the specific course in which she wishes to enrol within 28 days of this condition being enrolled;
b. to provide documentary evidence to the Council within 7 days of enrolment in the course; and
c. to provide documentary evidence to the Council within 7 days of completing the course
d. In the event that the approved course becomes unavailable, she must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months from date of this condition being imposed.
8. To submit to an audit of her medical practice, by a random selection of her medical records by a person or persons nominated by the Medical Council of NSW and:
a. the audit is to be held within 3 months of the date of this order and subsequently as required by the Council.
b. the auditor(s) is to assess her compliance with good medical record keeping standards and legislative requirements and compliance with conditions. The auditor(s) should pay particular attention to;
• medical consultation notes, particularly details of physical examinations and findings, history and treatment plans;
• adequate recording of patient test results;
• adequacy of any handover notes where care of patients is shared between multiple practitioners.
c. to authorise the auditor(s) to provide the Council with a report on their findings.
9. To attend for treatment by a psychiatrist of her choice. The practitioner must provide the Council with the professional details of the treating practitioner. The frequency of treatment is to be determined by the treating practitioner. The practitioner is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:
a. failure to attend for treatment;
b. termination of treatment; or
c. a significant change in health status (including a significant temporary change).
10. To attend for treatment by a general practitioner of her choice. The practitioner must provide the Council with the professional details of the treating practitioner. The frequency of treatment is to be determined by the treating practitioner. The practitioner is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:
a. failure to attend for treatment;
b. termination of treatment; or
c. a significant change in health status (including a significant temporary change).
11. To attend for treatment by psychologist of her choice. The practitioner must provide the Council with the professional details of the treating practitioner. The frequency of treatment is to be determined by the treating practitioner. The practitioner is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:
a. failure to attend for treatment;
b. termination of treatment; or
c. a significant change in health status (including a significant temporary change).
12. To attend for review by a Council-appointed psychiatrist within 3 months and as subsequently directed by the Medical Council of NSW.
13. To authorise the Council to forward copies of any reports, interviews or other information relevant to her health and professional disciplinary matters to her treating practitioners and to the Council-appointed psychiatrist.
14. To bear the costs of compliance with these conditions.
15. If the practitioner's principal place of practice is New South Wales the Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) (the National Law). If the practitioner's principal place of practice is anywhere in Australia other than New South Wales sections 125 to s127 of the National Law shall apply and a review of the conditions can be conducted by the Medical Board of Australia.
16. The practitioner is to pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW)."
In relation to the imposition of Protective Orders the respondent in her written submissions set out the following:
"6. Protective Orders
6.1 The Respondent accepts the Applicant's submission that the nature of the protective orders imposed depend on the Tribunal's findings as to the nature of the conduct found established.
6.2 When considering the protective objection, the Tribunal would take into consideration the following matters:
a. The Respondent has shown significant insight as demonstrated by the admissions made and in her written and oral evidence.
b. Broken Hill is a regional area which the Respondent has been serving for many years, and she is well respected by her colleagues.
c. The Respondent demonstrated an impressive medical knowledge (oral evidence, see further the comments of Dr Ford, R 1, Tab 18, p 137).
d. The Respondent has been subject to mentoring for a lengthy period of time and has had consistently satisfactory reports.
e. The Respondent has been the subject of regular review by the Medical Council of NSW and there has been no breach of the conditions on her registration since the suspension was lifted.
f. The Respondent intends to continue with her effective treatment regime in seeing her psychologist and psychiatrist as frequently as she is now (Statement, R1. Tab 5 [83]).
g. The Respondent's good character and resilience.
h. The Respondent is in remission from her condition of major depressive disorder and is committed to her treatment regime. She has been deemed fit to practice by Dr Ford (R1, Tabs 18, 20 and 21); Dr Lisa Chantler (R1, Tabs 25, 27 and 33) and the psychiatrist appointed by the Medical Council of NSW, Dr Michael Clarke (Tabs 22 and 23). All support alterations to her existing conditions to allow her to work with greater flexibility.
Insight
6.3 In determining appropriate protective orders, the Tribunal will have regard to demonstrated remorse and insight:
a. The Respondent's written Reply in which relevant admissions are made (R 1, Tab 1).
b. The Respondent's statement in which she makes admissions against her interests and apologises for past failings (R1, Tab 5 [85]-[86]).
c. The Respondent's oral evidence in which she makes admissions against interests in an authentic and compelling manner.
d. The Tribunal will recall the Respondent's genuine distress in expressing regret for any past failings when she gave oral evidence.
e. Changes to the practice of recording notes as outlined in the Respondent's oral evidence.
f. The Respondent's commitment to therapy through her GP, psychologist and psychiatrist and the observations those practitioners make about the Respondent's insight.
g. The Respondent's adherence to mentoring conditions, which are onerous on top of her travel schedule, family responsibilities and therapeutic regime.
Engagement in therapy
6.1 The Tribunal would be satisfied that the Respondent has fully engaged with therapy with her treating team, which involves her General Practitioner, Psychiatrist and Psychologist. Each of them has provided written reports and oral evidence that are supportive of the Respondent.
6.2 The Council Appointed Psychiatrist, Dr Clarke, when questioned by Counsel for the Applicant, stated that there was no risk of non-compliance by the Respondent. He stated "You can't really compare the current condition with what was occurring in 2016. She is now far more resilient. Her engagement is very positive. The future is far better".
6.3 The Applicant submits (at par [102]) that "in circumstances where the respondent has otherwise continued to engage in psychiatric and psychological therapy the Tribunal may consider that a more complex explanation for the conduct [in failing to complete the ethics course] is likely. The applicant contends that it illustrates that the respondent's psychological progress is far from complete and it demonstrates a real need for continuing engagement with clinicians being required for the foreseeable future". The fact that the Respondent has not tried to dispute that assertion speaks volumes about her insight and her excellent prospects of a full recovery once the proceedings are completed. The Respondent accepts that she has an ongoing vulnerability to depression and the effects of shame and has demonstrated a great willingness to continue to engage in effective therapy with her GP, Psychiatrist and Psychologist. In those circumstances, any concerns as to protection of the public have been met and a period of suspension could not be warranted.
Suspension
6.4 The Respondent has had the benefit of reading Annexure A to the Applicant's submissions and is disappointed to see that a period of suspension is urged.
6.5 Regardless of the Tribunal's findings, a period of suspension could not be warranted, given the stated objective of the orders as being protective rather than punitive.
6.6 The relevant events concerning Patient A occurred over 3 years ago. The Respondent has conceded shortcomings with management of the patient, and has also given evidence (written and oral) about the steps taken to improve her mental health and practice since that time. This has included:
a. Family life stability: The family (the Respondent, her partner and 2 children) moved to Adelaide in 2017. The Respondent's mother has moved from Macedonia to live with the Respondent in Adelaide. This assists in caring for the children when the Respondent is in Broken Hill for 4 days a week.
b. A treatment team based in Adelaide: the Respondent gave evidence about the difficulty of having treatment providers in her place of work, Broken Hill. Her GP (Dr Wilson, Ex R1, Tab 35), psychiatrist (Dr Ford, Ex R1, Tabs 17, 18, 20 and 21) and psychologist (Dr Lisa Chantler, Ex R1, Tabs 25, 27, 29, 31 and 33) are all based in Adelaide and there is evidence that this tight knit team communication with each other about the Respondent. This treating team is supplemented by the role of the psychiatrist appointed by the NSW Medical Council, Dr Clarke (Ex R1, Tabs 22 and 23 and Ex R2, Tab 3).
c. Practice improvements: the practice at Broken Hill is AGPAL accredited and has long standing staff members (practice manager, RN and GPs). The Respondent acknowledged that she had relied too heavily on verbal communication about patients and had now placed more emphasis on written communication in the patient record and by the use of "Tasks" in the practice software. A "task" can be sent to GP and key personnel copied in such as the Practice Manager and RN if required. The Respondent gave evidence that the practice has regular meetings to discuss patient issues.
d. Education improvements: the Respondent is a Fellow of the RACGP and has completed relevant educational courses (Ex R1, tab 2 pars 9.1 to 9.3) including a course on Health Records.
6.7 It is submitted that nothing would be gained from suspension. Indeed, a period of suspension has the potential to unravel all the good work the Respondent has done over the past 3 years and in doing so, disadvantage the public from accessing good quality health care in a remote part of Australia.
Practice Conditions
6.8 The Applicant seeks:
a. Not to engage in solo medical practice.
b. To see no more than 36 patients per day.
c. To practice no more than 5 days per week.
6.9 The Respondent says that such orders are not necessary to meet the objectives of the Health Practitioner Regulation National Law.
6.10 The Respondent owns her medical practice at Broken Hill and does not engage in solo practice. However, she practices in rural Australia and it is possible she may be called upon to engage in solo practice from time to time in order to deliver health care services to patients who are characterised as disadvantaged in our health care system. It is submitted that there is no proper basis to restrict her practice in such a way. The Respondent has established, through her evidence including questioning from the Tribunal, that she is a valuable member of the profession and such a limitation is not in the public interest.
6.11 The Respondent currently works 4 days a week in Broken Hill. She stays in a house she owns in Broken Hill when working. She flies back to her family home in Adelaide when not working. The Respondent gave evidence that Broken Hill relies heavily on a 'fly in fly out' health workforce. The Respondent gave evidence that the current restrictions on her practice (to work no more than 4 days per week and to treat no more than 32 patients in any one day) create 2 problems. Firstly, it is difficult for her to arrange the timely follow up of patients and this is a matter acknowledged by Dr Ford and Dr Clarke. Secondly, it does not allow her the flexibility she would like to arrange her work/home balance.
6.12 Drs Ford, Clarke and Chantler all support the lifting of such a practice restriction to enable the Respondent to practice better.
6.13 The Respondent submits that no practice conditions are required.
Education
6.14 The applicant seeks an order that the Respondent complete a "GP Certificate - Skin Cancer, through the Australasian College of Dermatologists". A review of the relevant website shows there to be different types of certificate courses with some requiring a face to face component in Sydney. The courses cost around $1,000.
6.15 The Respondent completed a skin cancer course through the University of Queensland in 2006 and gave evidence to the Tribunal that she keeps up to date with her knowledge and routinely performs skin excisions (as does her colleague at the practice). The Respondent gave evidence about her good working relationship with visiting specialists: she said it was not uncommon to send photos to Dr Jeeves (plastic surgeon) to seek her opinion and to escalate specialist care. The Respondent also gave evidence (written and oral) about her knowledge and communication with the Melanoma Unit in Adelaide. It is submitted that the Tribunal would be satisfied that the Respondent practices to the requisite standard and strives to update her knowledge and skill.
6.16 It is submitted that it is not necessary to order the Respondent to complete a course in order to protect the public. The Tribunal can take comfort from the Respondent's insight and commitment to education.
6.17 If the Tribunal is to make an order that the Respondent complete a course, it is submitted that the order must be flexible enough to allow the Respondent to complete a course that does not require extensive travel, especially to Sydney.
Audit
6.18 The Applicant seeks an order that the Respondent submit to an audit of her medical practice.
6.19 Complaints in this jurisdiction often include a specific complaint that the Respondent has not met the regulation concerning record keeping. No such complaint has been prosecuted against the Respondent.
6.20 The Respondent has given evidence about the changes she has made to her practice including the improvement to her health records. She completed a course concerning Health Records in August 2018 (Ex R1, Tab 2, paragraph 9.1).
6.21 It should also be noted that the Respondent has been the subject of constant review by the Medical Council of NSW for the last year since her suspension was lifted in October 2018. The Council imposed conditions to protect the public and at no stage considered it necessary to order an audit.
6.22 An audit of the Respondent's records is not necessary to protect the public.
Health Conditions
6.23 The Respondent has been the subject of Health Conditions through the Medical Council since her suspension was lifted in October 2018. The Tribunal has reports from all the treating team in Adelaide (Dr Wilson, Dr Chantler and Dr Ford) and the Council Appointed Psychiatrist, Dr Clarke, also located in Adelaide.
6.24 It is submitted that it is not necessary for the Tribunal to impose Health Conditions for three reasons:
a. The Council will monitor the existing Health Conditions;
b. The imposition of further Health Conditions may cause confusion;
c. The Respondent has proven herself to be a reliable patient who is engaged in valuable therapeutic relationships with her treating team and will continue those relationships.
6.25 Dr Nick Ford has been seeing the Respondent on a regular basis since May 2017 and there is a good therapeutic relationship. He had seen her most recently on 2 September 2019 and confirmed that her depression was in remission. He considered her anxiety about the Tribunal hearing legitimate. Both Dr Ford and the Respondent agree ongoing therapy will be of benefit.
6.26 Dr Lisa Chantler has been seeing the Respondent on a regular basis since September 2017. She gave evidence that she was currently seeing the Respondent every 2 to 3 weeks. Recent sessions had focussed on maintaining the good health of the Respondent in preparation for the Tribunal hearing. Dr Chantler said that the Respondent was "always willing to engage in rigorous therapy without question". Both Dr Chantler and the Respondent agree ongoing therapy will be of benefit and the immediate focus will be on completing the "online forum" component of the Ethics course being completed via Sydney University.
6.27 Dr Clarke has seen the Respondent (at the request of the Council) on three occasions since November 2018."
[21]
TRIBUNAL'S DETERMINATION
In the written submission of the HCCC the following concluding paragraphs are set out. We here repeat those paragraphs verbatim:
"In all the circumstances, whilst the Respondent's explanation for her breaches of the conditions may be explicable in the context of her depression (and may be contrasted with wilful breaches), it does not detract from the need to ensure the safety of the public in the future and to ensure public confidence in the profession. Were the breaches of the conditions found to be wilful and in direct defiance of and disregard for the Tribunal's orders, then there of course would be no other option for the Tribunal but to cancel registration.
The Respondent's conduct was a serious breach of the standards that the public have a right to expect of a practitioner, including compliance with conditions which themselves were set with a view to ensuring the safety of the public in the future and to promote reform and insight on the part of the Respondent.
While it is likely that the Respondent underwent a salutary and stressful experience in having to address these present complaints, and any further restrictions or cancellation will be burdensome for the Respondent, the Tribunal is primarily concerned with the paramount consideration of the protection of the public. Any incidental inconvenience to the practitioner, or possible perception of a burdensome or punitive effect of necessary protective orders, is a secondary consideration, and in any event may be necessary to achieve the protective purposes.
In the present circumstances, the Applicant submits that given the gravamen of the allegations against the Respondent; the need to protect the public through general deterrence (of other practitioners); the need to protect the public by reinforcing high professional standards and denouncing transgressions and the maintenance of public confidence in the profession there is need for a significant action by way of orders under the National Law.
The Applicant submits that only an order for a further period of suspension, with consequent conditions on registration, protects the public through general deterrence of other practitioners; by reinforcing high professional standards and denouncing transgressions and maintaining public confidence in the profession.
In the circumstances, and in the context of a continuing breach of the condition to complete the ethics course and consequent evidence of continuing avoidant behaviour, the only appropriate conditions are those set out in Annexure 'A', together with a reprimand, which serves the purpose of denouncing the conduct. The Applicant notes with some concern that the strategy of not completing the online course does not appear to have been raised with the mentor (see most recent report at Ex R3 tab 4), and relies on Dr Clarke's opinion at Ex R3 tab 3 page 25 to the effect that: "I remain of the opinion that Dr Nikolova-Trask requires ongoing treatment as she is receiving to ensure that her mental state remains stable", together with his endorsement of the ongoing conditions of her registration.
So far as the proposed conditions are concerned, the Applicant notes that a condition requiring completion of the ethics course is not included. This is based on the Applicant's view that this Tribunal has no power to alter, or remove, the conditions imposed by the previous Tribunal. The only review mechanism available to the respondent is by application pursuant to s. 163 of the National Law, to the Medical Council of NSW. It is the Medical Council which presently administers the implementation of condition, not the Tribunal, pursuant to order 9 of the Tribunal in the decision of Health Care Complaints Commission v Dr Nikolova-Trask [2014] NSWCATOD 149 at page 39. This is in no way intended to suggest that the Applicant is of the view that the ethics course no longer requires completion.
A condition directed towards further education in relation to skin cancers is justified, even if the Tribunal were not to be satisfied that Complaint One particular one is established, on the basis of Dr Mullins' evidence concerning the examinations that should have been conducted following the detection of the lump in the axilla*, having regard to patient A's previous diagnosis of cancer, and the evidence of the Respondent including in relation to her handover to Dr Yapa in the context of the ultrasound report."
(*In oral evidence Dr Mullins was asked why she would look for a skin lesion in the context of axillary lymphadenopathy. She said that, while it was not first line, it was one of the causes and you would have a plan to work through the diagnoses. The Respondent admitted that she should have conducted a more thorough examination following detection of the lump in the axilla.)
Although we have not been satisfied the Applicant made out their case for Complaint One, Particular One, we have been satisfied the complaints particularised as Particulars 2, 3 and 4 have either been completely or significantly established. Particular 5 is conceded by the respondent. Complaint Two is conceded. Complaint Three seeks to have the Tribunal consider, as a whole, the outcome of Complaints One and Two and then find sufficiently serious unsatisfactory professional conduct to warrant suspension or cancellation of the respondent's registration.
The conduct of the respondent, where we have been satisfied the HCCC has established its complaint, is both singularly and cumulatively serious misconduct. We must conclude that, at least having regard to the cumulative effect of findings we have made and the concessions made by the respondent, that the respondent has engaged in "professional misconduct".
We do conclude however, that much of the conduct was occasioned without conscious determination by the respondent, rather it occurred because the respondent suffered a major depressive illness. Some of the conduct, which we have accepted as established, we are satisfied occurred as a result of the respondent having a very busy practice thereby occasioning her to have a high and time restricted, throughput of patients. We find that was probably the reason the respondent failed to make appropriate medical notes for Patient A. Time restraints also may have impacted upon the time the respondent spent with Patient A on 24 August 2016 and why she did not carry out aspects of the physical examination of Patient A which she conceded she should have done.
We are satisfied that the respondent is now in remission for the depressive illness she suffered. We also acknowledge that the respondent cannot rule out that at some future date she might again fall victim to a depressive illness with significant impact upon her ability to function efficiently and at an acceptable level of competence.
A determination that a practitioner has engaged in professional misconduct would normally be expected to be followed by the imposition of protective orders which include a suspension or cancellation of the practitioner's registration. However, it does not follow, as a mandatory requirement, that suspension or cancellation of registration is the only available outcome. (Prakash v Health Care Complaints Commission [2006] NSWCA 153.) The disciplinary order is required however, to be "commensurate with the seriousness of the impugned conduct".
The Tribunal is required to have regard to the "Objectives and guiding principles" when determining what orders to make in the determination of a Complaint brought before it pursuant to the National Law (see s 3). Those objectives include "the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered."
Again, the National Law specifies in section 3A, under the heading "Objectives and guiding principles [NSW]", "In the exercise of function under a NSW provision, the protection of the health and safety of the public must be the paramount consideration."
None of the sections of the National Law or the authorities cited to us, require that the welfare of the practitioner, the subject of the complaint, is to be ignored. The thrust of those provisions is that such a matter must rank in priority behind the paramount consideration of public safety and protection of health. Other considerations which need to hold significant priority in the matters taken into account by the Tribunal, when considering the imposition of protective orders, must include, the ability of the public to have confidence in the provision of medical services in Australia, the deterrent impact of the Tribunal's power to impose protective orders upon medical practitioners, and the need to ensure the particular medical practitioner before the Tribunal does not again practise in a manner which is below the acceptable standard. All those considerations must rank in priority to the welfare of the particular medical practitioner before the Tribunal. However, provided those particular considerations are given the proper weight, in the determination of the appropriate protective order to impose, then we consider we can and should, have regard to the welfare and wellbeing of the practitioner.
We state the matters in the previous paragraph because of the evidence in this hearing which has gone to the medical condition suffered by the respondent.
Whilst we do not accept that the respondent suffering a depressive illness can excuse all of the conduct which we have found against her, we do accept, however, that in relation to her failure to comply with the conditions set by the Tribunal when she was last before it, such failure arises significantly as a result of that illness.
We accept that the failure of a practitioner to comply with protective orders imposed by the Tribunal is a very serious matter. Failure to comply with such orders, then followed by the Tribunal effectively failing to impose any sanction or consequential further protective order, including cancellation of registration, creates the potential of undermining, respect for the Tribunal from the public and authority with practitioners. If the Tribunal fails to make an order which cancels or suspends the registration of a practitioner in such a circumstance, then the reason needs to be plain and clearly discernible from a reading of the judgment. The ordinary members of the public, and medical practitioners, need to clearly see why no cancellation or suspension was imposed and accept that was an appropriate outcome.
We consider this is not a case where it is appropriate to impose a period of suspension or to cancel the registration of the respondent as a medical practitioner. We determine that the Tribunal should and will, impose protective orders which will prioritise the safety of the public and support the respondent in being able to practise medicine in a manner which complies with the requirements of the National Law and the Medical Council of NSW. In order to achieve that end we conclude it is necessary and appropriate to impose the following protective orders.
Turning then to consider each of the protective orders urged by the HCCC, we note that the HCCC no longer seeks an order for cancellation of the respondent's registration as a medical practitioner. The HCCC does seek the imposition of a period of suspension. Section 149C of the National Law sets out the circumstances in which the Tribunal may suspend the registration of a registered health practitioner. There are four stated reasons upon which that may occur (sub-section (1)(a), (b), (c) and (d)). The HCCC relies on sub-section (1)(b) "the practitioner is guilty of professional misconduct." In our view the respondent's conduct does give rise to the application of the provisions of the balance of the sub-sections.
We have had regard to the submissions of the HCCC and the submissions of the respondent on this aspect of the protective orders sought. We are more attracted to the argument in the submissions of the respondent than those of the HCCC in relation to whether a period of suspension should be imposed. We accept there is good reason not to impose that type of order as is amply pointed out in the submissions of the respondent.
Whilst acknowledging that a period of suspension would serve to give notice that the Tribunal will not tolerate failure to comply with its orders, we are satisfied that in this case it would work considerable hardship against the respondent and not be effective in protecting the safety of the public, apart from the obvious result that no member of the public could avail themselves of her services.
We are satisfied that the respondent is, when she is in good health herself, an effective medical practitioner. She practises in a city which is clearly in need of her services. So much is evident from the press of patients who avail themselves of her services. She has continued to practise since 24 August 2016, the date which gave rise to the first complaint which is the subject of this determination. Apart from the complaint that she has failed to comply with the conditions which had been sat against her registration in 2014 by the Tribunal, we have not been informed of any other complaint made by a member of the public about her medical services. Three years have now passed since the consultation which gave rise to the complaint from Patient A. The respondent has continued to practise, albeit at a reduced level, since that time.
Given what we have said above, we consider the time for the effective imposition of a period of suspension has passed. The imposition of a period of suspension now would only serve to be punitive to the respondent. It would not be in the interest of public safety or in the interests of the members of the public seeking medical services in Broken Hill where the respondent now practises. We also have concerns about the stated necessity (urged by the applicant) of a suspension when the root cause of the unsatisfactory professional conduct was a period of ill health, namely a major depressive illness. We are satisfied that the respondent is otherwise, on the evidence before us, a competent and committed medical practitioner.
We are satisfied that the respondent was impaired for some of the relevant period, however, we accept her evidence, supported by some of the expert evidence, which we have accepted, that so far as Patient A is concerned, her memory of her consultations with him has not been distorted, by that illness, to a point where it could be said to be unreliable.
In our view a period of suspension would have no impact upon moulding the respondent to be a practitioner who would not conduct herself in a manner which would bring her to the attention of relevant authorities or the Tribunal again. We conclude that assistance in developing good work practices, GP practice management skills, psychological support and regular contact with her now engaged GP, psychiatrist and psychologist is what is required in this case.
Should the respondent be reprimanded as submitted by HCCC? The Tribunal has the power to impose a reprimand pursuant to s 149A of the National Law. A reprimand, when given by the Tribunal, is noted on the registration details of the practitioner and is thereby published to those who are entitled to access the registration records of a practitioner. We consider that in this case the imposition of a reprimand would not act to deter the respondent in her future practice, would not be effective in protecting the safety of the public, would be punitive in nature and potentially unhelpful in the management of the respondent's depression.
The Tribunal has the power to impose a "Caution". A caution does not attach to the registration details of a practitioner in the same way as a reprimand does. In this case the imposing of a caution on the respondent would be an appropriate action to take. It could act as a reminder to the respondent that she must ensure she remains well and ensures she continues to consult with her own psychiatrist, psychologist and GP. The imposition of the caution could also serve to alert other practitioners of the impact upon their practice of medicine if they do not attend to their own mental health. We will therefore impose a caution on the respondent.
The HCCC seeks the following two protective orders:
"To obtain Medical Council of NSW approval prior to changing the nature or place of her practice. Not to engage in solo medical practice."
The respondent states in her written submissions that the orders are not necessary. It is submitted the respondent does own her practice however, she does not engage in "solo practice". The respondent concedes it may be necessary for her to practise as a solo practitioner at times in the future. She conducts her practice in Broken Hill and depends upon other practitioners being able to work in her practice with her. The respondent says that she lives in Adelaide and currently works four days per week. She says that Broken Hill "relies heavily on a 'fly in fly out' health workforce". Such can be seen in the service provided by Practitioner B in this case.
It is in our view appropriate to impose a condition, in the nature of that sought by the HCCC, however, limited in time. The protective order which is required is that the respondent not change the nature or place of her practice for a period of two years from the date hereof without first giving the Medical Council of NSW two months' notice in writing, where that change relates to the town/city in which she proposes to conduct a medical practice and/or where she proposes to operate as a sole practitioner.
The HCCC seeks the following further conditions:
"To see no more than 36 patients per day.
To practice no more than 5 days per week."
In response to the submission, in relation to the above two conditions, the respondent submits she is currently working four days per week in her practice. She travels to Broken Hill weekly. She maintains a residence in that city. She is currently restricted to consult with up to 32 patients in any one day. The respondent in her evidence and in her submission complains that being restricted to 32 patients per day makes it difficult for her to practise four days per week and return to Adelaide so she spends three days per week with her family.
The applicant seeks a restriction of 36 patients per day for the respondent. The respondent, in submission, seeks no restriction. Dr Clarke in his evidence said he would support the respondents request to see up to 40 patients in any one day.
There is, we conclude, good purpose in restricting the number of patients the respondent can see in any one day for a period. That period is twelve months. The reason we consider the restriction appropriate is that we are not convinced the respondent would restrict herself to sensible numbers of patients per day in the short term. She is still in need of continuing the consultations she has been undertaking with her psychologist and her psychiatrist. She may well be in remission as Dr Clarke opines, however we are not satisfied that means she could not place herself under too much work pressure and thereby place her mental health at risk of relapse. Another twelve months of being restricted in the numbers of patients she can see would operate to ensure the safety of the public is best attained. We will accept the opinion of Dr Clarke that the respondent can cope with a work load of 40 patients per day. If, during the period of restriction the respondent can build her work practices with that workload then, in our view it augers well for the future good health of the respondent. For the same reasons we conclude that restricting the respondent to practising no more than five days per week (Monday to Sunday inclusive) as her usual form of practice (an exception for emergency situations) for a period of 12 months will have the same effect.
The HCCC seeks a condition of registration for the respondent as follows:
"To complete a GP Certificate - Skin Cancer, through the Australasian College of Dermatologists, within 12 months of the date of this condition being imposed".
There are other aspects to this condition which are set out in the order sought.
The respondent submits no such order is necessary. Given the findings we have made about the contest between the respondent and Patient A as to what occurred in the consultations the respondent had with Patient A in August 2016 and again in October 2016, we are satisfied there was nothing arising therefrom which alerts us to a need for the respondent to undertake further education in relation to the detection of skin cancers.
The respondent said in her written submission that:
"The Respondent completed a skin cancer course through the University of Queensland in 2006 and gave evidence to the Tribunal that she keeps up to date with her knowledge and routinely performs skin excisions (as does her colleague at the practice). The Respondent gave evidence about her good working relationship with visiting specialists: she said it was not uncommon to send photos to Dr Jeeves (plastic surgeon) to seek her opinion and to escalate specialist care. The Respondent also gave evidence (written and oral) about her knowledge and communication with the Melanoma Unit in Adelaide. It is submitted that the Tribunal would be satisfied that the Respondent practices to the requisite standard and strives to update her knowledge and skill.
It is submitted that it is not necessary to order the Respondent to complete a course in order to protect the public. The Tribunal can take comfort from the Respondent's insight and commitment to education."
In relation to the submission set out above we do accept same from the respondent and we do not consider it is necessary to impose the condition sought by the HCCC.
The HCCC seeks the following further order: "To submit to an audit of her medical practice, by a random selection of her medical records by a person or persons nominated by the Medical Council of NSW". There are additional provisions to the order which we have set out earlier.
The order for random audit is clearly a measure sought by the HCCC to attend to the ongoing safety of the public. Such an order will allow the Medical Council of NSW to see that the respondent has been able to change her work practices as she has asserted in the hearing before us. There were a number of aspects of her practice which she said had changed since the end of 2016. Those matters included better record keeping and better hand over of patients to another practitioner in the practice e when that was required.
The respondent in submission submits the audit, as framed, is unnecessary to protect the public safety.
The order sought ought not be any more onerous on the respondent than the safety of the public requires. We consider the order wording is appropriate and not unduly onerous upon the respondent. Accordingly, we conclude it is necessary and appropriate to make that order.
The HCCC seeks three consecutive conditions aimed at ensuring the Medical Council of NSW knows the respondent continues to remain well and not suffering again from the depression illness which beset her in 2016 and following. Each condition is addressed to a different type of medical practitioner/health practitioner. The conditions require the respondent to continue to attend upon a psychiatrist, psychologist and General Practitioner of her choice and instruct and authorise each to communicate with the Medical Council of NSW about her health.
On any view of the conditions sought, the condition is a significant invasion of privacy for the respondent. It must objectively be seen as oppressively onerous to the respondent. The condition should only be required by the Tribunal if it is necessary to protect the safety of the public.
During the hearing the respondent was questioned about her intention to continue to engage the services of her psychiatrist, psychologist and her GP. She asserted she intended to continue to avail herself of the services and treatments which those three practitioners were providing to her. Listening to her evidence we have concluded the respondent is genuine in her desire to remain well and not revert to depression. We accept that the respondent will be willing to engage in an ongoing regime of subjecting herself to the supervision of the psychiatrist, psychologist and GP who she has chosen to attend to her own medical condition and provided the condition has a finite conclusion, will accept same without being unduly anxious for her privacy.
If required, what period of time should the condition requiring the respondent's stated medical service providers to report to the Medical Council of NSW?
The respondent submits the "health conditions" sought by the Applicant are unnecessary. The submission is that the respondent has shown herself to be responsible in attending to her own health and the Tribunal can be satisfied that she will continue to do so into the future.
We have considered the submissions of both parties on the health conditions sought by the Applicant. On balance we consider it is a necessary condition. It is necessary as part of the protection of the public. It is necessary to demonstrate to the medical profession that the Tribunal regards the complaints which have been established as serious and not trivial matters. It is necessary as part of the requirement to maintain the public's confidence in the providers of medical services in NSW. It is necessary for the wellbeing of the respondent. We propose to make the order sought as a health condition.
The health condition will be limited in time. We consider, given the commitment the respondent has already demonstrated to restoration and maintenance of her good mental health, that a period of 18 months is appropriate. We conclude such a period would not be onerous and thereby self-defeating for the respondent to undertake the requirements of the supervision of her mental health occasioned by the condition.
Lest there be some misunderstanding by the respondent of who will pay the cost of the respondent attending upon her medical providers, the HCCC seeks an order which makes clear that it is the respondent who will need to be responsible for those payments. We doubt the respondent would think otherwise however, to ensure clarity and avoid further dispute we will make the order which stipulates the respondent is to pay the cost of same.
The Applicant seeks an order requiring the respondent to attend upon a Council-appointed psychiatrist within 3 months. The respondent submits that no such requirement is necessary.
We do not see the necessity for this condition. The respondent will be required to attend upon her own psychiatrist for a period of 18 months. That psychiatrist will be required to make certain reports to the Medical Council as required by the conditions we set.
It is, in our view, counter-productive for the conditions imposed to be so onerous and anxiety provoking for the respondent as to test her health and potentially lead to a circumstance where the respondent becomes again so unwell that she is unable to function as a medical practitioner in a safe and competent manner.
In our view subjecting oneself to psychiatric evaluation has the potential to be a stressful and anxiety provoking undertaking. This is so even for a medical practitioner. When you add to that stress the prospect that the outcome of the assessment could be action by the Medical Council pursuant to s150 of the National Law, we consider the cost to the respondent is too high. We consider the public are sufficiently protected in this case by the imposition of the health conditions which we have detailed above. In each of the scenarios detailed in the conditions, the Medical Council will be notified and can take their own action at any such occurrence.
By way of further safeguard for the public, we propose to add to the health conditions sought by the Applicant a requirement for the respondent to include an authority for her treating medical providers to notify the Medical Council that they have received the authority stipulated by the protective orders made herein.
In order to further protect the public we propose to require the respondent to provide to each of her medical providers described in the protective orders made by us, a copy of this judgment. This judgment will be published in the usual manner and would therefore be available to the respondent's medical providers should they seek it out, however, in order to avoid any doubt they may have about the respondent's understanding that they will see this judgment, we propose to ensure all concerned know what has been determined by us in these reasons and the protective orders we make.
During the hearing the respondent asked Dr Clarke if it would be for the benefit of the respondent that there be a period of time between the time when the respondent receives the judgment of the Tribunal and the time when the decision is published on the website of the Tribunal in the usual fashion. Dr Clarke agreed it would be helpful as it would provide time for the respondent to meet with her medical providers to strengthen her for the possible adverse reaction which she may suffer in the same manner she suffered after the publication of the 2014 decision of the Tribunal. Whilst we consider, based upon the evidence we have accepted, that it is unlikely the respondent will have the same reaction to the publication of this judgment, we do consider it is reasonable to permit a period of time as referred to.
In the submission of the respondent a period of 28 days is sought rather than the 14 day period for the holding back of the publication on the Tribunal web site of this decision. No explanation is provided for that difference however, in the circumstances and weighing the competing interests which we are required to consider, we conclude a hiatus of 28 days is reasonable having regard to the time of the year in which the publication will take place.
The HCCC submits that this Tribunal has no power to alter the conditions imposed by the earlier Tribunal determination. This submission is directed at the controversy canvassed in these reasons about the respondent's failure to complete the online portion of the Ethics course she has been required to complete.
We accept that submission by the HCCC. However, we make the following observation. The condition imposed does not specify that the respondent has to complete an online component of the Ethics course. That requirement emanates from the University conducting the course. Accordingly, we see no departure from the requirement of the Tribunal orders if the respondent is able to make arrangements with the University conducting the course, to complete a part of the course by a different method. Anecdotally, progressive and caring Universities currently do make special arrangements for students who suffer from different conditions which make completing a particular requirement of a course by a particular mainstream method overtly onerous, injurious to their health or impossible because of a particular disability. Thus, it may be that a University where there are enrolled students suffering from dyslexia to be provided with different methods of undertaking examinations which allow them to demonstrate knowledge in a manner which is capable of being assessed by the University staff.
Whilst clearly we have no warrant to dictate how any university, which may permit the respondent to undertake her required Ethics course, might conduct that course, it is our desire that in this age of recognising individual differences and needs of students, a university can structure a course which will meet its requirements without subjected a particular student to unnecessary trauma and possibly adversely affecting the students mental health. We say nothing more on that topic.
The Applicant seeks an order which will cater for the possibility that the respondent may change her place of practice to a different State during the currency of the protective orders which we will make. We consider that is an appropriate order to make. No submission to the contrary is made by the respondent.
[22]
COSTS
The HCCC seeks an order for the respondent to pay the costs of the HCCC of the proceeding. The respondent's submission is concise and we set that out here.
"7.1 The Respondent accepts the outline of the law set out in the Applicant's submissions.
7.2 It is commonly held that costs will generally, but not always, follow the event and are compensatory in nature. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. The Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful.
7.3 In these proceedings, if the HCCC is only partially successful, a portion of costs may be awarded.
7.4 The following matters need to be taken into consideration:
a. The Respondent's admissions came early.
b. The Respondent admitted particular 5 of Complaint One and in oral evidence conceded particular 2a and parts of 2b of Complaint One.
c. The Applicant withdrew particular 2c of Compliant One on the first day of the hearing.
d. The Respondent admitted the whole of Complaint Two.
e. The Medical Council of NSW imposed conditions on the registration of the Respondent in 2018. The current Complaint is a matter that could have been dealt with at the level of a Professional Standards Committee (PSC) hearing at the Medical Council. In this regard the Council has been managing the matter since the suspension was lifted in October 2018 with regular Council Review Interviews. It would have been an efficient way to deal with the imposition of orders on existing conditions managed by the Council. No costs are awarded at PSC hearings.
7.5 If the Applicant does not establish professional misconduct, then it is submitted that the Respondent should pay no more than 50% of the Applicant's costs.
7.6 If the Applicant establishes professional misconduct, then the Respondent submits she should be ordered to pay no more than 75% of the Commission's costs."
The HCCC in its submission, after setting out for the assistance of the Tribunal details of the manner in which a costs application should be considered stated as follows:
1. The HCCC submits that it is entitled to an order that the Respondent pay its costs in these proceedings.
2. The Applicant's entitlement to an order that the Respondent pay 100% of its costs may be affected to some limited degree by any failure to establish some of the particulars of the Complaint, as noted above. In this respect however it is important to recognise that a significant part of the Respondent's evidence, together with the evidence of each of the other witnesses on the Respondent's case (which in total occupied the majority of the hearing time) went to what might be called Stage 2 matters and not in proof of the complaint.
We have considered the submissions made by each of the parties. We find that the respondent has been successful in part of the case brought against her. That was in relation to the determination that the Tribunal accepted her evidence in relation to the contested version of fact pressed in relation to Patient A.
Although the respondent was partially successful, as above outlined, it was, in our view entirely appropriate for the HCCC to have brought that part of the action for determination. In the circumstances we conclude the HCCC had no other course reasonably available to it.
Overall the HCCC has been successful in obtaining most of the orders it sought. It did not convince us that an order for the suspension of the respondent was necessary or appropriate in the circumstances of this case. Nonetheless we are not critical of the HCCC for seeking such an order given what we have said about the failure of the respondent to have complied with conditions previously set by the Tribunal.
Applying the authorities referred to us by the parties we consider that an order requiring the respondent to pay 90% of the costs of the Applicant is the appropriate order to pay. This recognises the partial success of the respondent in the determination made by us, as above outlined.
The protective orders that we propose to make therefore are as follows:
1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the disclosure and publication of the name of Patient A referred to in these reasons or in any document filed or tendered in the proceeding is prohibited.
2. Pursuant to s 149A(1)(a) of the National Law Dr Biljana Nikolova-Trask is cautioned in relation to her handover of patients to another medical practitioner and to ensuring she only practises medicine when she is in good health.
3. For a period of 12 months from the date hereof it is a condition of her registration as a medical practitioner that the respondent does not undertake consultation with greater than 40 patients per day and that she does not practise for more than 5 days in any one week with the exception only of consulting with patients whose health requires emergency treatment.
4. To submit to an audit of her medical practice, by a random selection of her medical records by a person or persons nominated by the Medical Council of NSW and:
1. the audit is to be held within 3 months of the date of this order and subsequently as required by the Council.
2. the auditor(s) is to assess her compliance with good medical record keeping standards and legislative requirements and compliance with conditions. The auditor(s) should pay particular attention to;
* medical consultation notes, particularly details of physical examinations and findings, history and treatment plans
* adequate recording of patient test results;
* adequacy of any handover notes where care of patients is shared between multiple practitioners.
1. to authorise the auditor(s) to provide the Council with a report on their findings.
1. For a period of 18 months from the date hereof, to attend for treatment by a psychiatrist of her choice. The practitioner must provide the Council with the professional details of the treating practitioner. The frequency of treatment is to be determined by the treating practitioner. The practitioner is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:
1. failure to attend for treatment;
2. termination of treatment; or
3. a significant change in health status (including a significant temporary change).
4. the receipt by the psychiatrist from the respondent of the authority to communicate the above information to the Medical Council of NSW.
1. For a period of 18 months from the date hereof, to attend for treatment by a general practitioner of her choice. The practitioner must provide the Council with the professional details of the treating practitioner. The frequency of treatment is to be determined by the treating practitioner. The practitioner is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:
1. failure to attend for treatment;
2. termination of treatment; or
3. a significant change in health status (including a significant temporary change).
4. the receipt by the general practitioner from the respondent of the authority to communicate the above information to the Medical Council of NSW.
1. For a period of 18 months from the date hereof, to attend for treatment by a psychologist of her choice. The practitioner must provide the Council with the professional details of the treating practitioner. The frequency of treatment is to be determined by the treating practitioner. The practitioner is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:
1. failure to attend for treatment;
2. termination of treatment; or
3. a significant change in health status (including a significant temporary change).
4. the receipt by the psychologist from the respondent of the authority to communicate the above information to the Medical Council of NSW.
1. To bear the costs of compliance with these conditions.
2. The respondent is to forthwith provide to each of her medical providers engaged by her for the purpose of these orders, a copy of the judgment and protective orders made herein.
3. If the practitioner's principal place of practice is New South Wales the Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) (the National Law). If the practitioner's principal place of practice is anywhere in Australia other than New South Wales sections 125 to 127 of the National Law shall apply and a review of the conditions can be conducted by the Medical Board of Australia.
4. The practitioner is to pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed, or failing agreement, as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).
5. The respondent is to be given 28 days' notice of this decision before the decision is published and thereby available to the public.
[23]
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: 21 January 2020
Parties
Applicant/Plaintiff:
Health Care Complaints Commission
Respondent/Defendant:
Nikolova-Trask
Legislation Cited (4)
National Law") Legal Profession Uniform Law Application Act 2014(NSW)
Particular 5 of Complaint One is: "Between around 20 and 21 September 2016 the Practitioner failed to provide an adequate handover of Patient A's care to Practitioner B, a locum general practitioner employed by the Practice." In relation to that claim the respondent in her Reply concedes "admitted".
The balance of the Complaints numbered Two and Three we will address specifically further in these reasons.
At paragraph 15 of his statement of 29 August 2017 Patient A states that he was accompanied to by "a women who works for ANECTO" "for one of these consultations". He recalled her name as Ann. The inference in the statement is that she was present in the consultation which Patient A had with the respondent in which he complained about the mole on his back and which the respondent looked at. That person is not a witness in this hearing.
In the letter of 27 January 2017 Patient A speaks of his attendance upon the respondent after he had seen Practitioner B on 21 September 2016. He said in the letter "I attended the appointment with my local GP but (Practitioner B) had already returned to Melbourne. I had to see (the respondent), she was unaware of any results from the hospital, when I told her what had been happening, she just said, well let's just have a look". In his statement of 29 August 2017 at paragraph 21 Patient A sets out the conversation he had with the respondent on this same occasion. There he attributes to her the following words: "What brings you here?". The patient then said he told her "Well that little thing that you said was nothing to worry about, that's what brings me here."
The above differences between the precise words attributed to both the respondent and Patient A in the two versions provided by Patient A are not determinative of credit as between Patient A and the respondent. However it may be indicative of altered memory over time in an 80 year old man.
In her written and oral evidence the respondent denied she had been informed by Patient A that he was concerned about "a mole on his back which was itchy, painful and oozing pus" or any similar words. She was insistent that she would have examined the patient's back and mole had he so requested or not. She was very confident she would have been able to diagnose a melanoma if the patient had one.
Part of the case of the Applicant is that the respondent may have been so affected by the major depression, she was suffering at the time of relevant consultations between the respondent and Patient A, that she had either not been able to diagnose what she saw on the patients back as a melanoma or, alternatively, she has lost memory of what actually occurred. In that respect however, the respondent is adamant that was not the case. The respondent is supported in her case on this point by the evidence of Dr Clarke. He had answered a question from the HCCC as follows: "Does Major Depressive Disorder cause difficulty in laying down memory?" Dr Clarke said: "It can do. In major depression, because of lack of concentration, it creates difficulty in laying down memory so they tend to forget." In further questioning Dr Clarke said: "I would have difficulty in saying her depression was so severe her reasoning would be so distorted she would not remember. To have no memory of something so significant is not the likely circumstance."
In further submission the respondent has relied upon the fact that she undertook examination in October 2016 to obtain her accreditation as a GP. She passed that exam. In relation to that fact Dr Ford agreed the respondent being able to successfully complete the last component of her GP accreditation exam was not consistent with her having major depression.
The respondent in her oral evidence conceded that in 2016 she did experience difficulty coping with her work load. That, she agreed, included August 2016.
The respondent was asked questions by Dr Keenan. She was asked "Were there times when you told a patient 'there is nothing to worry about'?" The respondent said: "Saying that is a very big statement. I would not say that. I would say 'For the time being looks like nothing to worry you but check in a future time and provide education about skin. Sometimes I would do a biopsy." We accept that evidence from the respondent.
Dr Ford agreed in his oral evidence that in 2016 and 2017 the respondent would likely to have been impaired. He opined she could have not devoted as much care and attention to make a record or carry out a thorough examination. He said there can be issues with laying down short term memory. "There can be an effect of dropping IQ. A difficulty in sequencing events. That is common to the depression."
Dr Simon Cowap asked Dr Ford "How severe would her depression have been at the time of the diagnosis of Patient A having a melanoma?" Dr Ford said "I believe mild to moderate. I believe her cognitive ability was down. I think it is more likely than not that she would not have recall of it."
We note the differing opinion of Dr Ford and Dr Clarke about the state of the respondent's depression in June and August 2016 and the possible impact upon the laying down of memory. The respondent did satisfy us that she had a reasonable recollection of the consultation with Patient A on 24 August 2016 and the circumstance in which she found the lump in the left axilla of the patient. The way she described what she remembered of that event sounded authentic and not fabricated or reconstructed by the respondent. The other evidence available from the health assessment carried out on that day and also the Care report further supports the presentation of the patient on that day to the extent, at least, that he was not raising any concern about a mole on his back with either of the nursing staff. We also note the opinion of the respondent, based upon her personal experience, that patients are more likely to inform the nurses of any concerns they have rather than the medical practitioners.
At paragraph 4 on page 2 of the report Dr Mullins records the request for expert evidence as follows:
"4 Based on Dr (respondent's) account of her consultation with Patient A on 24 August 2016, as described in paragraphs 14 & 45-47 of her s40 submission, please provide your opinion about the adequacy of her examination of Patient A on this occasion."
Dr Mullins answers the request and concludes:
"Dr (Respondent's) conduct is significantly below the standard and invites my strong criticism. So much further information could have been gained with a more targeted history taking and thorough examination. However, in this instance the diagnosis of the cause of the lymphadenopathy was promptly made even without further assessment at this time."
To reach that conclusion Dr Mullins said "The health assessment I consider is an opportunity to give a patient an overall check-up, different to the routine regular appointments dealing with the known chronic diseases". In so stating Dr Mullins did not refer to any guideline document which sets out what is expected to be included in the nature of examination of a patient or other actions to be initiated as a result of a "Health Assessment". The statement that Dr Mullins' practice and/or expectations she would "give a patient an overall check-up" at a health assessment, as opposed to what is actually required by Medicare when "billed for a 'Health Assessment'" has not been stated by Dr Mullins. Dr Mullins does say, earlier in her report that "Patient A was billed for a Health Assessment, which involved him being seen by a registered nurse." No criticism of that occurrence is made and the inference created by the language used is that the Medicare item for a "Health Assessment" required only that to occur. In relation to the expected examination of a patient as part of a Medicare "Health Assessment" we refer to our earlier discussion on that matter.
Dr Mullins opined that at the time the respondent discovered the lump in the axilla of Patient A "a targeted history as well as more thorough examination should have taken place to see if there was any obvious source of the lymphadenopathy". "There could have been masses or lymphadenopathy detected clinically in other sites." "The chest was not examined." The respondent in her evidence has conceded her physical examination of Patient A on 24 August 2016 should have been more extensive. We agree with Dr Mullins as to what the respondent ought to have done once she discovered the lump in the axilla. We also note that the respondent concedes she should have done more.
Paragraph 6 of the report (page 3) provides the following request: "Please provide your opinion about the adequacy of Dr (Respondent's) follow up of the ultrasound she ordered for Patient A following the consultation on 24 August 2016, taking into account the information set out in paragraphs 16-20 & 48-49 of her s40 submission." Dr Mullins provides her opinion which concludes: "This conduct is significantly below the standard, and invites my strong criticism."
Dr Mullins noted that the ultrasound ordered by the respondent of the lump found in the right lower axilla of Patient A was performed on 14 September 2016 and the results sent electronically to the respondent the same day. The explanation given by the respondent for failure to see Patient A about the results of the ultrasound on that day was that she had an extremely heavy patient and procedure load for that day and the following one. The respondent did say in paragraph 18 of her s 40 document that she believed she would have looked at the ultrasound result on the day it was sent to her. She then set out why she did not call Patient A in straight away.
Further Dr Mullins reports there is no documentation of any handover of the patient's care to Practitioner B, or notation in the file of action planned.