Health Care Complaints Commission v Paris-Browne

Whether to Grant Leave to File Amended Complaint

1. The Tribunal invited submissions on whether it should grant leave for the filing of the Amended Complaint and the Amended Reply as matters of great seriousness had given rise to the commencement of the proceedings on the wider basis.

Background

1. The disciplinary application had its origin in a mother's loss of a baby boy stillborn early in the morning of 2 January 2015 at the Shoalhaven District Memorial Hospital, Nowra (SDMH). It was a twin pregnancy. The second baby, a girl, survived, but has an ongoing disability (loss of hearing in the right ear and speech difficulties). (We will refer to the mother as Patient A).
2. On 22 January 2015, a relative of Patient A (who we will call 'R') made a complaint to the Commission, with the permission of Patient A's husband. She asked for the actions of the doctors and nurses at SDMH to be thoroughly investigated. The following summary account is drawn from that complaint and some other material in the bundle that had been placed before us in support of the disciplinary application, and with which the members of the Tribunal had familiarised themselves in preparation for the hearing.
3. Dr Joseph Johnson was Patient A's usual treating obstetrician. He had treated her since June 2011. Late in 2012 she became pregnant, and had an early caesarean section at 37+5 weeks in June 2012, delivering a healthy daughter. She saw Dr Johnson regularly during the present pregnancy. His statement to the Commission is at tab 11 of the Commission's bundle.
4. The practitioner was the on-call obstetrician during the period prior to delivery in the absence of Dr Johnson who was on leave.
5. In the complaint R gave a summary of events covering the week before the delivery, the period from 25 December 2014 to 2 January 2015. Much of the following account is taken from that summary, and it is in line with later evidence.
6. Patient A had presented to the maternity unit of the hospital on the evening of 25 December (Christmas Day) with intense pain, was seen by a midwife and sent home. During her pregnancy she had been closely monitored. Her medical records showed the results of a variety of relevant tests.
7. Patient A's next medical attendance occurred on 30 December 2014. She saw Dr Johnson at his surgery. He prescribed medication for high blood pressure and sent her home. At this point she was at 36 weeks of gestation. She had further pain and dizziness, and other ailments which R described in her complaint as shaking, vomiting and becoming confused.
8. Patient A re-presented at the hospital on the 31 December 2014. Dr Johnson was unavailable on leave. She was seen by the practitioner and admitted. Nurses monitored her condition. There are statements in the Commission's bundle from those nurses, all registered midwives. Patient A continued to experience pain and discomfort.
9. Patient A expressed concern over the state of the twins during the afternoon and evening of 31 December 2014 as she was having difficulty picking up any heartbeats. She continued to express concerns on 1 January 2015. The practitioner saw her in person three times over this period, at 12.30pm on 31 December 2014, at 3.30pm that day, and at 9.15am on 1 January 2015. There were also telephone calls from the nurses to him seeking advice over the period.
10. Dr Johnson received a telephone call from a nurse at 11am on 1 January 2015 advising him of Patient A's condition. He promised to see Patient A as soon as he got back to Nowra, and did so at around 8.30pm that evening.
11. He decided that she should have an emergency caesarean section and the booking was made for 8.30am the next day. He received another call at 11pm, was advised that Patient A was having difficulty sleeping and prescribed a medication. He received a further call at 12.55am, 2 January 2015, and was advised that Patient A could not feel the babies' movements. The foetal heart rate was measured at 70. He decided that an emergency caesarean should be conducted, and made the arrangements for an anaesthetist and a nursing team. He performed the procedure at 1.50am. He said in his statement that '[t]he first baby was delivered in poor condition' (the girl) and '[n]o heartbeat was felt with the second baby [the boy], who was pronounced dead by the paediatric team, after attempts at resuscitation'.
12. The girl was airlifted to the Royal Prince Alfred Hospital in Sydney to the Neonatal Intensive Care Unit.
13. Patient A failed to wake after the procedure, and she was transferred to the Intensive Care Unit in the Shoalhaven Hospital. Later that morning, at 11.30am, Dr Johnson made a clinical diagnosis that Patient A had HELLP Syndrome. He arranged her transfer to the Intensive Care Unit at Royal Prince Alfred Hospital (RPAH). She was airlifted to that Hospital.
14. A simple explanation of HELPP Syndrome (US Pre-eclampsia Foundation) is: HELLP syndrome is a life-threatening pregnancy complication usually considered to be a variant of preeclampsia. Both conditions usually occur during the later stages of pregnancy, or sometimes after childbirth. HELLP syndrome was named by Dr. Louis Weinstein in 1982 after its characteristics: H (hemolysis, which is the breaking down of red blood cells) EL (elevated liver enzymes) LP (low platelet count)
15. The Commission's bundle of evidence includes the NSW Health, South Eastern Sydney Illawarra Guideline then in force on Antenatal Management of Women with Hypertension (tab 26). In the case of pre-eclampsia, it refers to the measures that signal the possibility or presence of this condition referring to renal, haemotological, liver, neurological and pulmonary indications, and fetal growth and placental indications. The evidence also includes the Guidelines on Maternity-Fetal Heart Rate Monitoring then in force (tab 27). The internal policy on clinical escalation in maternity services is at tab 28 dealing with the circumstances in which staff members should voice their concerns about clinical care and decision-making which they perceive may impact on safety. It sets out the procedures to be followed to escalate concerns to senior staff in the hospital, to minimise the risk of adverse outcomes.
16. Patient A provided formal statements of evidence to the Commission on 6 and 26 August 2015. Her husband (who we will call H) supplied formal statements of evidence on the same dates. Both give detailed accounts of their experiences in the week leading up to the delivery. They accord with the outline given in R's complaint.
17. As previously noted the practitioner was the on-call obstetrician at the relevant times. He has lived and worked in the Shoalhaven region since 1995. His responses to the Commission's investigation (given between 13 February 2015 and 1 July 2015) appear in the Commission's bundle of evidence for these proceedings at tabs 18-22. On 27 November 2015 the Commission formally notified him, as required by the relevant law, that it was considering referring the matter to its Director of Proceedings for initiation of a disciplinary application. It invited him to make submissions as to why it should not follow that course. It provided him the material it relied on (which included numerous witness statements) and, most importantly, with an expert report relating to his conduct (from Professor Roger James Pepperell, Emeritus Professor of Obstetrics and Gynaecology, University of Melbourne). That report also referred more generally to the procedures followed in the dealing with Patient A over the period 25 December 2014 to 2 January 2015.
18. The Commission invited the practitioner to make submissions as to why it should not take the action proposed, and put in issue several matters that included: the adequacy of his initial telephone instructions to Registered Midwife ('RN') Hoogesteger at about 12:30pm on 31 December 2014 as to Patient's A care and treatment, in that he did not order a sufficient range of relevant tests; the adequacy of his assessment and management of Patient A when he reviewed her at 3:38pm on 31 December 2014, in particular because he failed to recognise concerning features in her urate levels, as he should have assumed that she was receiving treatment from Dr Johnson for probable preeclampsia; the adequacy of his decision to remove the CTG monitor from Patient A at about 3:00pm on 31 December 2014; his failure when he reviewed her on the morning of 1 January 2015 at 9:15am to recognise that her tests and CTGs were not normal and that a decision needed to be made regarding a LSCS procedure (Lower - Segment Caesarean Section) being performed then or later that day; the adequacy of his clinical management of Patient A in view of her ongoing abnormal CTG results between 12:30pm 31 December and 9:15am 1 January 2015; and the adequacy of his overall obstetric care.
19. He responded to that letter on 12 December 2015. At the conclusion of his letter he said: As indicated in answer to previous points, my thoughts and actions were influenced by a short term but acute personal medical problem that prevented me from acting in accordance with the practice I have usually followed in the previous 35 years of medical practice. I am very sorry for the situation that arose and it is a source of great regret for me for my patient and her family. ... At the time of this incident I had indicated I could not cope physically with on call work, and subsequently stopped it and since wound down my practice accordingly. I propose to fulfil may contract with NSW Health and then retire from practice in 2017.
20. The allegations brought forward in the disciplinary application, as filed in September 2016 related, in line with the concerns identified by the expert report, to the adequacy of his oversight of this case in the period between her admission to the hospital on 31 December 2014 around noon until 8pm on 1 January 2015, in particular in relation to the failure to identify features of her condition that might place at risk the safe delivery of the babies.

Assessment

1. The Commission's counsel advised that the practitioner's retirement from practice was a factual matter that had informed the Commission's approach in reducing the scope of the complaint and the finding sought.
2. The Commission expressed itself satisfied that because of his age, and his health problems, the practitioner was very unlikely ever to seek to return to practice. The Commission therefore considered that protective orders of the kind that it might otherwise have sought were no longer required in order to uphold the public interest in the practice of medicine by competent practitioners of good character and integrity.
3. The Commission now sought a finding of unsatisfactory professional conduct and one order, an order of reprimand (s 149A(1)(a)). Such an order may be made even if a practitioner is no longer registered (s 149A(3)).
4. The Commission submitted (written submissions dated 5 April 2017 filed at hearing) that though a reprimand is the only protective order sought, it in no way diminishes the seriousness of the conduct that is the subject of the complaint. Rather it reflects the fact that, since the practitioner is no longer registered and does not intend to return to practice, further protective orders are not necessary. The submissions continued that: a reprimand will serve as a 'reminder to the profession of the unacceptability of the conduct' (citing HCCC v Amigo [2012] NSWMT 13 at [49]) 'and publicly mark the seriousness of the departure from the standard of practice that the public is entitled to expect from senior specialist practitioners'.
5. Practitioner's counsel stated that because of the stance that the Commission had now agreed to adopt, his client had taken steps in conceding particulars of his alleged conduct that he might not have taken had a finding of professional misconduct been sought. He said that in changing stance the Commission would have taken into account such matters as the fact of the practitioner's retirement from practice, the high likelihood that it is a final decision not to be revisited, his significant health problems, and his obvious regret for what has occurred. He also drew attention to Professor Pepperell's observations in his expert report over, what he saw, as wider deficiencies in the hospital environment that contributed to the events under notice.
6. We advised the parties that if we decided not to give leave, we would allow an adjournment. We adjourned to consider our position.

Decision

1. On resumption, we advised the parties that, with considerable reluctance, we had decided to grant leave to permit the application to proceed on the basis of the Amended Complaint (and therefore also, the Amended Reply).
2. We gave oral reasons, and will not repeat their detail here.
3. We would simply note here the important public function played by disciplinary proceedings, and the risk to public confidence in those proceedings and in the prosecution services that bring the applications that may arise when grave allegations are removed from view after being publicly ventilated through the lodgement of the disciplinary application. The disciplinary proceeding also provides an opportunity for those who made the complaint, and their family and friends, to hear the practitioner's response in a judicial forum to the concerns raised over his or her conduct.
4. There is also the risk that a finding of unsatisfactory professional conduct may be entered against agreed facts when those agreed facts would ordinarily result in a professional misconduct finding. That may send a mixed message to the community, and members of the profession about the seriousness with which certain conduct will be viewed for disciplinary purposes.
5. Nonetheless we accepted that there were reasons of utility that favoured the course proposed by the prosecutor and supported by the practitioner. They were the economy that would be brought to the proceedings, the fact that the practitioner had now surrendered his registration and the value that is served by reduction of the scope of proceedings and their resolution by negotiation, provided those steps do not compromise the public interest in the competent and safe practice of medicine.
6. The objective and guiding principle in the exercise of functions under the National Law is the protection of the health and safety of the public (s3A). The public is not at risk from any deficiencies in the respondent's practice of medicine, as he is no longer practising. Were the practitioner to apply for reregistration, unlikely as we accept that is on the present evidence, these reasons for decision and the underlying files will be available to the registration authority to consider in relation to any decision as to reregistration and in the imposition of conditions.

The Disciplinary Application

1. The application proceeded on the basis of the Amended Complaint. The following written evidence was relied upon. There was no oral evidence. The parties filed written submissions, and we were addressed by their counsel.
2. Commission: A two-volume bundle of documents was received into the evidence (Ex A1). It includes:
3. The initiating complaint by R; detailed statements (as previously noted) from Patient A and her husband, H, detailed statements from Patient A's mother, statements from each of 6 registered midwives who were involved in the care of Patient A on 31 December and 1 January, and a statement (as previously noted) from Dr Johnson.
4. The expert reports given by Professor Pepperell.
5. The practitioner 's response to the investigation
6. Relevant NSW Health and Area Health Service guidelines and policies
7. Relevant clinical records.
8. The RCA report and related correspondence that formed part of the bundle as filed were not tendered, and this material did not form part of the evidence.
9. Practitioner: A folder of documents (Exs R1 to R5) that included a statement by the practitioner dated 17 February 2017, 15 March 2017 and a supplementary statement 5 April 2017, and a CV.

The Amended Complaint

1. There is now one specific Complaint. It has the following Particulars. The practitioner has admitted them all, without qualification. They are 1. On 31 December 2014 at or around 12:30pm the practitioner failed to order all appropriate blood tests on Patient A including a full blood count, electrolyte level, renal functions and liver function tests in circumstances where: i. Patient A had presented at 36 weeks of gestation with twins complaining of headaches, light sensitivity and bloodshot eyes, ii. had been commenced on Nifedipine for hypertension the previous day, iii. her private obstetrician was not available to be consulted. 2. On 31 December 2014 at around 2:35pm the practitioner failed to appropriately manage Patient A by ordering the Cartiotocograph (CTG) be removed in circumstances where; i. the result of the CTG from 11:30am to 12:30pm was non-reassuring, ii. the result of the CTG from 12:30pm as very non-reassuring. 3. On 31 December 2014 at or around 3:38pm, the practitioner reviewed Patient A. At that time he failed to appropriately assess and manage Patient A in that he: a. failed to obtain and review the results of the tests ordered at 12:30pm and thereby; i. failed to recognise that Patient A's urate level was markedly elevated, ii. failed to diagnose severe preeclampsia, iii. failed to make an independent assessment as to whether an urgent Lower Segment Caesarean Section (LSCS) should be performed. 4. On 1 January 2015 at or around 9:15am the practitioner failed to appropriately assess and manage Patient A in that he: a. failed to review the results of tests ordered on 31 December 2014 and thereby: i. failed to recognise that Patient A's urate level was markedly elevated, ii. failed to diagnose severe preeclampsia, iii. failed to make an independent assessment as to whether an urgent LSCS should be performed. b. failed to appreciate the seriousness of the further non-reassuring CTG trace performed at 8:45 that morning. 5. Between around 3:38pm on 31 December and around 8:00pm on 1 January 2015 when Patient A's private obstetrician resumed care, the practitioner failed to adequately consider the need for an urgent LSCS to be performed.
2. The basis for these allegations is provided by Professor Pepperell's report (tabs 14 and 16, Ex A1).
3. Set out below is a selection of extracts from Professor Pepperell's reports bearing on the matters particularised above. 31 December 2014 Results of the blood test performed on that day clearly indicated high urate levels (and disordered renal function if the electrolytes and renal function tests were done on that day) and these results should have been reported to the ward by phone to the ward by phone, to the Registrar of the unit concerned and to the consultant obstetrician involved, rather than just sending the results to Dr Paris-Browne by email. As it turned out, he did not look at these results on that day, or the next ... The hospital rules indicate liver function tests should also have been performed, but these were apparently not ordered ... and when they were done on the specimen collected at 1250 hours on 31 December 2014, they were clearly very abnormal and would then have hopefully changed the care that was planned for [Patient A]. The elevated serum potassium levels (if the test had been done on that day) should also have been a major concern because of the increased risk of cardiac arrest in the woman concerned and the need to give treatment to lower this level. The other problem was the failure of Dr Paris-Browne to recognize the need for the CTG to be continued for longer than it was, following his review of [Patient A] at 1538 hours..., and for him to consider and decide when urgent delivery on the grounds of possible fetal hypoxia of one or both twins was advisable .... There are many occasions when it is not appropriate to wait the time required for steroid therapy to be effective before delivery is expedited if the CTG assessment is very abnormal. He should also have commenced the steroid therapy on 31 December 2014, rather than just ceasing the hypotensive therapy at that time. 1 January 2015 By 0830 hours the next morning the CTG had been significantly abnormal for almost 20 hours since [Patient A] had been admitted to Hospital. Although Dr Paris-Browne reviewed [Patient A] at about 0915 hours on 1 January 2015, when [Patient A] was noted to be normotensive, and commenced steroid therapy, he did not check the previous test results or consider the need for urgent delivery. ... Dr Paris-Browne did not see [Patient A] again that day ...
4. The report then summarises the events that occurred as from 8:00pm on that evening, to which we have referred in summary earlier in our reasons. 2 January 2016
5. As to Patient A's condition after giving birth, Professor Pepperell said: Blood tests performed at 1100-1140 hours on 2 January 2015 were clearly very abnormal as they demonstrated that the haemoglobin level was only 110g/L, the liver function tests were profoundly abnormal although not as bad as they were when detected on the blood specimen on 31 December 2014, and there was evidence of profound coagulation disorder (with elevated levels of prothrombin, APTT, D-D LIA, APC resistance and low figinogen and platelet levels). All of the problems she had, and the abnormal test results defined, fitted in with a rare form of severe and life-threatening pre-eclampsia called HELLP syndrome (haemolysis, elevated liver enzymes and low platelet count).
6. The medical members agree with Professor Pepperell's assessment as extracted above, and generally. They are adopted by the Panel.

Unsatisfactory Professional Conduct

1. The meaning of unsatisfactory professional conduct as it applies in the health professions is the subject of s 139B of the National Law. The primary meaning (s 139B(1)(a)): Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
2. The charge in this instance refers to this meaning.
3. We have no doubt that the admissions made by the practitioner must result in such a finding, as he has acknowledged in his statement for these proceedings dated 17 February 2017. He expressed deep remorse for his conduct. He accepted unreservedly his failure to observe the high urate level of 0.6 on 31 December, and that it should have led him to a diagnosis of pre-eclampsia. He also accepted that his responsibility for his patients required him to be more aware of his workload and the way his health affected the care he could provide. But he acknowledged that those factors could not excuse his failure in this case.
4. He reported that in 2011 he had part of his liver affected by cancer surgically removed (he described it in medical terms, 'hemihepatectomy for metastatic neuroendicrine cancer). In April, 2014 he had a gastrectomy. His state of ill health contributed, he felt, to the failure of performance under notice in this case.
5. At the beginning of his statement he said: 1. I would like to say first how sorry I am about the loss of [the couple's] son [named]. I am sorry that I failed to recognise how ill [Patient A] was when she was admitted to hospital under my care, and I am sorry I failed to recognise the risk to the twins, [named]. 2. I am sorry about the ongoing consequences for [Patient A] and [the girl, named], and the grief it has caused her family.
6. Later in the statement he provided responses which accepted without reservation much of the case brought against him, and questioned some aspects of the allegations. As a result of the concessions made between the parties prior to the commencement of the hearing, he has, in effect, withdrawn his questioning of those aspects of the allegations.
7. We accept the parties' submissions that in all the circumstances a public finding of unsatisfactory professional conduct and imposition of a reprimand adequately disposes of the proceedings.

Orders

1. As noted above the orders sought by the Commission were a reprimand and costs. The Tribunal inquired of the Commission whether orders were sought imposing conditions on the respondent in the unlikely event that he sought to return to medical practice (such as, for example, a condition that he not practice as an obstetrician). The Commission's response to this was that such an order would be difficult to monitor. The respondent's view was that the Tribunal should not stray from what was necessary to resolve the dispute over the amended complaint.
2. As the Commission did not seek the imposition of conditions and in these circumstances these matters were not discussed openly in the proceedings, we do not ourselves impose conditions to have effect if the respondent subsequently becomes registered (s 149A(3)9b)). However, if the respondent sought registration in the future our view (formed on the basis of the material before us) is that the regulatory body should give consideration to limiting the type of work he can do (for example, no obstetrics).

Wider Issues

1. Finally, we wish to observe that there are issues raised by this case of a wider, systemic kind.
2. The first set of issues relate to appropriate management of practitioners with health impairments. The practitioner stated that he sought from hospital management during 2014 a change in duties that would have taken him out of on-call obstetric duties, because of the increasing difficulty he was experiencing in coping with the physical demands involved following treatment for cancer, and was rebuffed. He said he felt that he was compelled to continue as directed, as the only other choice provided was resignation from all work.
3. Later in his statement, he said that after 'the full force of the calamity which befell [Patient A] and my part in the outcome hit me' he had a meeting with management which led quickly to a decision he agreed with standing him down from all on call duties and allowing him to continue performing elective gynaecology.
4. We are not making any finding in regard to the accuracy or otherwise of this account. These matters lie outside the scope of our task in these proceedings.
5. There are other observations by Professor Pepperell in his report that relate to broader aspects of clinical management and practice at the time of the events the subject of these proceedings. Again, they are not germane (in an immediate sense) to the task we are called on to perform in these proceedings. However, they deal with contextual factors that, on their face, contributed to the failures of performance of the practitioner. The NSW Department of Health should, we think, consider again the broader health care and managerial concerns raised by this case.

Costs

1. The Commission applied for its costs of the proceedings. The practitioner opposed the application on the basis that he had admitted the Particulars in their entirety, and the difference between the parties related to the appropriate finding (unsatisfactory professional conduct versus professional misconduct). The practitioner submitted that proceedings had dragged on unnecessarily because of the Commission's intransigence. There was an application, in the alternative, for a reduction of the usual costs order.
2. On the other hand the Commission noted that there had been a long period of inactivity in this case on the part of the practitioner, and the practitioner's statements in reply for the proceedings had only been filed in the last few weeks.
3. The Tribunal's power in relation to costs is found in Sch 5 cl 13 of the National Law, and provides relevantly: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. … (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
4. The Tribunal's discretion is a broad one. The rule is expressed in a form similar to the rule that applies in the ordinary Courts. It does not adopt the position that applies in most areas of this Tribunal, that there is no order as to costs unless one of the parties demonstrates special circumstances related to the way the proceedings were conducted or their weakness justifying an order. Therefore, the costs power given by cl 13 will usually be exercised in favour of the successful party in the way seen in the ordinary Courts. It would be unusual and exceptional for it not to be exercised in favour of the successful party.
5. In our view, no factors of special significance were raised by the practitioner, as we explained at hearing. We were satisfied that there was a good basis for the case as originally pursued by the Commission, and we accepted equally that there were factors particular to this case which justified the approach ultimately taken by the Commission. Orders The Tribunal finds the practitioner guilty of unsatisfactory professional conduct. The Tribunal orders: That the practitioner be reprimanded. That the practitioner pay the costs of the applicant, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2017