Health Care Complaints Commission v Reid

Structure of these reasons

1. Prior to the last day of the hearing we received extensive helpful written submissions from both parties. The submissions provided by the HCCC comprise 126 pages in single spacing. The submissions relied on by the practitioner comprise 34 pages with annexed tables comprising a further 75 pages. On 11 May 2018 the practitioner's lawyers provided a table of transcript references. We mention the detail of the submissions, and the volume of documentary material before us, only to explain the necessity for our lengthy reasons. This is because of the issues raised in the submissions as well as the necessity for us to canvass many individual and hybrid particulars addressing similar issues (see DL v The Queen [2018] HCA 26 per Nettle J at [130]-[131]).
2. For convenience only, in these reasons we have adopted a structure based substantially on the structure of the written submissions relied on by the HCCC.
3. We first set out some relevant background about the practitioner and the integral theory. Thereafter, we briefly discuss the statutory provisions and principles relevant to the determination of these proceedings. Thirdly, we identify, in general terms, the issues to be determined in these proceedings and the expert evidence relied on by the HCCC. Fourthly, we address the dispute about Dr Izzo's evidence. Fifthly, we address Complaints One, Three and Four, as far as practicable, on a patient by patient basis, and consider Complaint One, particulars 4, 6, 13, 24 and 26 (which assert a failure by the practitioner to inform certain patients prior to their surgery that he could only operate under the supervision of Dr Petros). Sixthly, we consider the complaint of asserted inappropriate behaviour with a patient. Seventhly, we deal with the assertion the practitioner wrongly held himself out to be an Associate Professor and failed to disclose disciplinary findings against him in the US to the hospital. Eighthly, we address whether any of the complaints of unsatisfactory professional conduct, if established, or a combination of them, constitute professional misconduct. Finally, we consider the appropriate protective orders to be made in the light of our findings.

Background

1. The following factual material, except where noted to be an assertion, is accepted by us as proved to the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34).
2. The practitioner, who was first registered in 1969, is currently aged 76 years. He ceased practising in December 2016 and has surrendered his registration.
3. The practitioner gained his MB BS in 1966. He practised as an intern in 1967.
4. Between 1975 and 1979 the practitioner asserts he worked for a vaginal surgeon, Professor Malcolm Coppleson.
5. In 1979 the practitioner moved to Detroit, Mitchigan, USA. He asserts he undertook an 18 month oncology fellowship at Hutzel and Harper and other Wayne State University Hospitals, after which he remained on faculty at Wayne State University for the following 17 years.
6. On 14 April 1995 disciplinary proceedings were instituted against the practitioner in the State of Michigan. On 14 April 1998 the practitioner entered into consent orders. The consent orders provided that he was suspended for a period of 3 months, and for each violation the practitioner's license was limited by conditions. He was ordered to pay a fine of $US 10,000, with the condition that his license was to remain limited until the fine was paid in full.
7. In November 1996 the practitioner returned to Australia and engaged in private practice in Macquarie Street, Sydney.
8. In 2002 the practitioner relocated his practice to Edgecliff.
9. From 2005 to 2011 the practitioner operated at the Eastern Suburbs Private Hospital. He asserts he regularly performed site specific prolapse repair at that hospital but the surgical program, including his lengthy site specific surgery, was not particularly profitable for the hospital. He asserts these issues were of concern to the management.
10. In 2011 the Eastern Suburbs Private Hospital ceased its role as a surgical facility and changed to a full-time rehabilitation facility. The practitioner was advised his operating rights had ceased. He was advised his lists could be transferred to the hospital. Thereafter, the practitioner operated at the hospital, but asserts he continued to research "quicker and less invasive ways to do site specific prolapse surgery".
11. In 2009 the practitioner was appointed as an Adjunct Associate Professor at the University of New England School of Rural Medicine for a period of three years. The practitioner says in December 2011 he received an email from Professor Ian Symonds (Professor Symonds) advising that his adjunct appointed had expired and would not be renewed. The practitioner asserts he then contacted Professor Rafat Hussain (Professsor Hussain) who he says gave him a verbal assurance he would be re-appointed. On 19 January 2012 Professor Symonds wrote to the practitioner and advised "At this stage the University is not seeking to reappoint you as a Conjoint staff member for a further three year term".
12. On 14 August 2014 Professor Symonds emailed the practitioner and advised that according to the University records the practitioner's appointment had not been renewed after 1 January 2012, and that he should amend his web-site accordingly.
13. In September 2011 conditions were imposed on the practitioner's registration by the Council. The conditions included certain steps to be undertaken by the practitioner to properly obtain a patient's informed consent to surgery. A further condition required that, before performing any colorectal procedure or any procedure on a patient with anorectal symptoms, he obtain a second opinion from a specialist colorectal surgeon which supported the proposed procedure. The conditions were amended from 27 March 2012 to delete the condition relating to requirements about obtaining a patient's informed consent.
14. The practitioner asserts that, while at a conference in Yokohama in October 2012, he provisionally decided to change his former surgical procedures to TFS repair. He asserts he invited Dr Petros to join him as a surgical assistant in February 2013. The practitioner asserts at [66] that he knew Dr Petros was the original inventor of the TFS system, and that he also knew Dr Petros had no financial interest in the product at the time they were operating together in 2013/2014.
15. The practitioner asserts he underwent overseas training in TFS surgery when he visited Professor Bernard Liedl in Munich and Dr Alfonse Gunnerman in Detmold. He states he "scrubbed in and was instructed on the technique of TFS surgeries on three different surgical lists in three different German hospitals over three days".
16. In April 2013 the practitioner operated on Patient N performing a vaginal sacrocolpopexy. Two days after the surgery, when a drain was removed on the practitioner's instructions, the patient suffered heavy bleeding and was transferred urgently to Royal Prince Alfred Hospital. The practitioner says at [19] "as a result of that incident, a Root Cause Analysis (RCA) was conducted and my visiting rights at [the hospital] were temporarily restricted for around 3 weeks in May 2013".
17. At some time in May 2013 the practitioner injured his left hand suffering a stab wound when unloading his dishwasher. On 31 May 2013 an ultrasound was performed on his left wrist.
18. In May 2013 the practitioner underwent training in use of TFS in Melbourne under the supervision of Dr Max Haverfield (Dr Haverfield). TFS was registered on the ARTG on 30 October 2006 and was removed from the register on 5 November 2014.
19. On 18 July 2014, following proceedings under s 150 of the National Law, the practitioner's registration was suspended. The practitioner appealed the decision to suspend his registration to this Tribunal. On 19 December 2014 the Tribunal published reasons noting the practitioner's suspension was lifted from 28 October 2014 (Dr Reid v Medical Council of NSW [2014] NSWCATOD 152). His registration continued to be subject to conditions, including the condition requiring colorectal referral.
20. On 31 December 2016 the practitioner notified the Australian Health Practitioner Regulation Agency (AHPRA) that he had ceased practising. The evidentiary certificate provided by AHPRA notes that the practitioner's registration lapsed on an unspecified date.

The integral theory

1. As noted in our introduction, the major focus of this inquiry is directed to the surgeries conducted by the practitioner on 17 women patients. This requires consideration of when it is appropriate for a practitioner to depart from mainstream practice, and the necessary safeguards, including the fully informed consent of the patient, when such departure occurs.
2. The practitioner in his statement at [54] refers to the fact that for a number of years he had been looking for "a quicker and less invasive way to do site specific prolapse repairs both for the benefit of my patients and to resolve the unprofitability issue for the Hospital Management".
3. In his statement the practitioner sets out the development of surgical techniques employed to treat women suffering prolapse problems. One of the experts relied on by the practitioner, Dr J Lewis Lander (Dr Lander) also sets out a history of surgical developments in his report. The practitioner notes, at [25], by the 1980's that vaginal hysterectomy for uterine descent and plication repair of cystocoele/rectocoele were "well entrenched worldwide". He asserts that these traditional techniques continue to dominate what is taught in training programs in the United Kingdom and Australia. Plication repair, which involves the stitching of the bulging of other organs through the damaged vaginal wall (rectocoele in the posterior wall, cystocoecle in the anterior wall) is asserted by the practitioner to provide symptom relief rather than "correction of the causative pelvic organ dislocations". We pause to note that each of the experts acknowledged that plication repair (colporrhapy) is only successful in approximately 70 per cent of patients undergoing this surgery.
4. At [30] the practitioner states: In summary, colporrhaphy does have the advantage of being quick, technically simple and reasonably good at short-term symptom control. However, without correcting the causative obstetric tears, plication repairs have to have a 44% failure rate within 15 months. Site specific repair, by contrast, does seek to mend the pelvic side wall fascial tears which caused that patient's pelvic organs to collapse in the first place, and thus has greater curative potential. The downside is the much more extensive dissections needed.
5. In the 2000's, with the introduction of mesh systems registered on the ARTG, repairs incorporating these systems were widely adopted in Australia. The practitioner notes that mesh repairs have proved to be less effective than originally contemplated.
6. The practitioner gives a history of his research into various mesh products used in prolapse surgeries, and explains his initial reservations about TFS at a time in its development when the design of the product meant that the solid plastic anchor used to hold the tape element of the device in place could migrate. He also explains his concerns about the mesh tape used in the original product. However, he says, in 2009, that the TFS had been "re-engineered" to "use a non-stretch monofilament tape. The delivery trocar had been re-designed to be smaller and a non-stretch Amid 1 tape had been constructed."
7. At [59] and [60] of his statement, the practitioner set out the factors he considered prior to conducting TFS repairs. At [59] he states: Later in 2012 I became aware that TFS uses much smaller mesh implants, placed at more strategic locations, to create neoligaments at the critical point of weakness. As a result, TFS repairs avoid the wide pelvic dissections involved in the open methods of site specific repair, while avoiding the risk of scaring the Delancey Level II glide planes (as was the case with other POP mesh kits).
8. The practitioner describes, at [114] of his statement, the adoption by some gynaecologists of site specific repairs as "a major paradigm shift, which has created surgical strategies based on an entirely different set of mechanical principles". He goes on to explain at [115]: TFS repairs are based on the tenets of the Integral Theory, the primary objective of which is to create neoligaments to laterally re-suspend the dislocated pelvic organs to the pelvic sidewall (rather than to stiffen the vaginal walls in the by [sic] bunching up the collagen in the midline).
9. The practitioner asserts that the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) guidelines relating to the use of pelvic mesh were not applicable to TFS as that product was licensed by the Therapeutic Goods Administration (TGA) to be used in accordance with the principles of the integral theory. It is not in dispute that the practitioner's evidence disclosed only two or three other doctors operating using the TFS system in Australia prior to the removal of the device from the ARTG on 5 November 2014.

The relevant law

1. The principles relevant to disciplinary proceedings under the National Law are uncontroversial, and well-known.
2. The overarching principles are found in s 3 and s 3A of the National Law. Section 3A, a NSW provision, mandates that in determining proceedings the Tribunal has the protection of the health and safety of the public as its paramount consideration.
3. Unless a provision in the National Law is in conflict with, or repugnant to the practice and procedure provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) those provisions apply (see Medical Council of NSW v Lee [2017] NSWCA 282). The guiding principle of the NCAT Act requires the just, quick and cheap resolution of the real issues in dispute between the parties. Each of the parties to the proceedings is under a duty to co-operate with the Tribunal to give effect to the guiding principle (see s 36 NCAT Act).
4. The primary purpose of protective orders made at the conclusion of proceedings is to protect the public not to punish the practitioner (see Clyne v NSW Bar Association (1960) 104 CLR 186 [1960] HCA 40).
5. The HCCC bears the onus of proof in these proceedings. The particulars of the complaint must be established to the civil standard (on the balance of probabilities to the standard described in Briginshaw).
6. Consideration of what constitutes unsatisfactory conduct and professional misconduct for the purposes of the National Law is explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18]-[21] as follows: The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration. The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation.[14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience,[15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest,[16] overservicing[17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession.[18] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [footnotes omitted]
7. We will later in these reasons set out the relevant provisions of the National Law relied on by the HCCC on when dealing with the particular complaints.

Matters in issue

1. In broad terms the issues raised for determination in these proceedings are identified by us as follows: 1. Does the evidence support a finding or findings that the practitioner's level of judgment or skill exercised in treating the women patients set out in the schedule to the complaint was significantly below the standard reasonably expected of a practitioner of his experience and expertise? 2. In deciding issue (1) is the expert evidence of Dr Foote to be preferred to the evidence of Dr Lander and/or Dr Izzo? 3. Also relevant to deciding issue (1) is whether or not the patients gave their fully informed consent to procedures that were not mainstream, including the use of TFS? 4. Did the practitioner inappropriately fail to tell named patients of the restriction on his ability to conduct surgery at the hospital unless under the supervision of Dr Petros after his suspension in May 2013? 5. Was it necessary that the practitioner be supervised when he conducted surgery on Patient B? If yes, did he breach that requirement? 6. Did the practitioner breach the condition on his registration which required him to refer patients with anorectal symptoms to a colorectal surgeon prior to conducting colorectal or other procedures on those patients? 7. Did the practitioner breach professional boundaries in his examination of, and consultation with, Patient T? 8. Do the practitioner's records in respect of the named patients comply with the Health Practitioner Regulation (New South Wales) Regulation 2010 NSW (repealed) (the regulation)? 9. Did the practitioner fail to honestly complete an application to the hospital for visiting rights by not disclosing the Michigan disciplinary proceedings? 10. Did the practitioner engage in misleading conduct or conduct that was likely to mislead by holding himself out as Professor Reid, Adjunct Associate Professor Reid or Associate Professor between 2009 and 2014? 11. Has the practitioner engaged in unsatisfactory conduct that is so serious that if he was registered it would be open to a Tribunal to suspend or cancel his registration? 12. Should a "disqualification" period under s 149C(4)(b) of the National Law be imposed on the practitioner? 13. Should the practitioner be ordered to pay the whole of the HCCC's costs?

Expert evidence relied on by the HCCC

1. The HCCC relied on two reports of Dr Andrew Foote (Dr Foote). Dr Foote is a urogynaecologist having obtained that subspecialty qualification in 2000. Dr Foote gave oral evidence before us and was cross-examined by counsel for the practitioner, Dr P Dwyer. While a number of propositions were put to Dr Foote in cross-examination, he was not cross-examined on many of the particulars and/or sub-particulars. It was clear to us that the majority of the particulars relating to the practitioner's clinical decision making were drafted based on opinions expressed in Dr Foote's report.
2. There was an emphasis in Dr Foote's reports on the need for urogynaecological referral in many of the patients presenting with complex problems. Dr Foote's evidence, which was not challenged on this point, was that at the relevant time there were 8 urogynaecologists practising in Sydney. As we will later more fully explain, we found the prescriptive formulation of the particulars of the complaints constrained our consideration of whether the practitioner implemented appropriate individualised care plans for his women patients who had complex symptomology . In many instances, we found that the patient's complex needs meant the practitioner should have consulted with other specialists including, but not limited exclusively to, urogynaecological referral.

Weight, if any, to be given to Dr Izzo's evidence

1. The HCCC submits that we should give no weight to Dr Izzo's evidence. This submission is made on two bases: 1. that, contrary to Dr Izzo's evidence, we should find that he was a member of a Root Cause Analysis (RCA) committee at the hospital (and as a consequence as a matter of law cannot be cross-examined about any views he expressed as part of that committee); and 2. Dr Izzo does not fulfil the criteria necessary to give expert evidence in accordance with the Tribunal's procedural direction because:- 1. he did not clearly identify all the facts on which his opinions were based; and 2. he did not expose his reasoning process to demonstrate that his opinions were based on specialized skill.
2. The objection by the HCCC to the admissibility of Dr Izzo's report was first considered by the presiding member of this Tribunal at a separate hearing on 6 June 2017. During the course of the proceedings, the presiding member ruled that Dr Izzo's report was admissible.
3. The documentation relied on by the HCCC is not definitive of the first basis relied on to reject Dr Izzo's evidence. Correspondence from the hospital to the HCCC dated 13 December 2014 refers to an initial RCA meeting held on 2 May 2013, and follow up meeting and MAC (Medical Advisory Committee meeting) being held on 6 May 2013. We note that no document disclosing persons appointed to the RCA has been produced by the hospital. While the redacted document appearing at Exhibit S Tab 12 notes Dr Izzo's attendance, it is not conclusive of him being a member of the RCA Committee, and attending its deliberations into systems failures, or any referral to a MAC. Ms Louise Ryan, who is noted as the RCA Facilitator, did not give any evidence. The Minutes of 6 May 2018 appear to be combined minutes of the RCA and the MAC blurring the roles of these committees. Further, the evidence of Dr Izzo is that he was requested to speak briefly at a meeting to provide an outline of pelvic floor procedures and that he did attend a further meeting at the hospital at which Dr Petros was present. This evidence is not inconsistent with the documents. Dr Izzo gave oral evidence that he left this meeting at the same time as Dr Petros.
4. We further note and accept Dr Izzo's evidence that he has participated in more than 50 RCA Committees in other hospitals at which he holds appointments and is well familiar with such committees, how they operate and their requirements. We do not find that he has failed to recollect his participation in an RCA as such committees are usually constituted and conducted.
5. We have also taken into consideration correspondence in the HCCC documents being an email from Ms Michelle Sloane, Corporate Manager of the hospital dated 12 December 2016 forwarding a chronology of events, including the RCA. She notes "I have recollected and reconstructed the events as best I can".[our emphasis] This email reinforces concern about the RCA process at the hospital and its record keeping.
6. The HCCC criticise Dr Izzo for referring to the records produced by the hospital as being false and inconsistent with his first statement in these proceedings. The use of the words "falsely" and "false entry" convey a deliberate action by the hospital. However, Dr Izzo does not use those words in his statement (Exhibit 12), rather he responded to questions using the words put to him in cross-examination (see transcript 20 December 2017 p 15).
7. The HCCC submit we can infer from the records that Dr Izzo was a member of the RCA. While an inference could be made from the hospital records, in our view, it would be unsafe to do so given our conclusions about the unreliability of some of those records.
8. We did not find it appropriate to reject Dr Izzo's evidence in its entirety. Rather, we deal with the second basis of challenge to Dr Izzo's evidence in our findings on the relevant particulars. In a number of instances we find that Dr Izzo lacked the requisite knowledge, particularly in relation to TFS, on which his opinion was based, nor in some instances did he identify relevant facts on which his opinion was based.

Complaints One, Three and Four as relevant to specified patients

1. Complaint One is brought under s 139B (1) (a) of the National Law. That section provides: (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Patient A

1. Patient A is typical of a number of patients treated by the practitioner. She did not provide a witness statement or give evidence in the proceedings. She was aged 48 at the time of surgery in 2013. Her clinical notes were in evidence before us.
2. The HCCC's submissions summarise Patient A's clinical notes relying on Dr Foote's report. Dr Foote's summary is not challenged by the practitioner's counsel in her written submissions and we adopt it as accurately reflecting the clinical notes.
3. Patient A had a complex urogynaecological history with five previous prolapse operations, of which two were performed by the practitioner. Other complicating factors were mesh related pelvic pain and vaginal discharge that had not responded to conservative measures.

Complaint One, particular 1

1. Particular 1 of the complaint asserts the practitioner's decision to proceed with surgery on 6 May 2014 was inappropriate in circumstances where he failed to obtain a urogynaecologist's report prior to surgery. This surgery was, amongst other matters, to remove mesh inserted by the practitioner in October 2013, and which he had been unsuccessful in removing in November 2013.

The practitioner's response

1. The practitioner in his statement explains why he did not seek a urogynaecologist's opinion for this and other patients particularised in the complaint. His explanation is twofold. First, he asserts that it is necessary to recognise that he was conducting site specific repair strategies. Secondly, he refers to his experience and training. He says that he had over 20 years' experience in urogynaecology.

The expert evidence

1. The HCCC in these proceedings rely on the expert opinion of Dr Foote. Dr Foote provided two reports and was cross examined by counsel for the practitioner.
2. Dr Foote is critical of the practitioner's failure to refer to a urogynaecologist, and finds the practitioner's conduct significantly below the expected standard.
3. Dr Foote relies on three matters to support his opinion: 1. there was an expectation that a general gynaecologist should seek a second opinion for complex prolapse and incontinence cases (particularly in Sydney where there were 8 urogynaecologists practising at the relevant time); 2. that compliance with (1) is consistent with Medical Board of Australia's Code of Conduct; and 3. that a practitioner should be cognizant of the limitations in his or her own expertise.
4. In his report Dr Lander did not accept that the practitioner was below the standard in carrying out the surgery on Patient A without prior referral to a urogynaecologist. He explained, as does the practitioner, that many senior gynaecologists, by reason of their training and many years' experience, are well equipped to deal with such cases. Dr Izzo expressed a similar view.
5. In his oral evidence Dr Lander made a number of most appropriate concessions. While he was careful to draw a distinction between surgery whose purpose was to repair ligaments in accordance with the integral theory, and "mainstream" practice, he agreed that because of the complexity of Patient A's problems that he would have discussed her case with "some of his colleagues before embarking on further surgery" even if the consultation was only a "corridor consultation". He explained the advantage he has working in a hospital where he is able to readily access other specialist opinions and said that benefit is not open to every practitioner in Australia. Accordingly, he said he could not be too critical of a practitioner who might not do exactly what he would have done (transcript 18 December 2017 p 20).
6. Dr Lander later explained that, in his opinion, the practitioner had extensive experience in managing cases so he did not think he "necessarily needed to talk to a urogynaecologist", but it would have been appropriate for him to do so.

Discussion and conclusions

1. The practitioner's evidence about his urogynaecology training was not seriously challenged. We accept that there are practising in Australia a number of senior gynaecologists who gained training and experience in urogynaecology prior to the formalisation of this speciality in about 1990, and who have the necessary skills and expertise to deal with many prolapse surgeries which are also conducted by urogynaecologists.
2. We accept Patient A had a complex gynaecological history. She was one of the many complex patients referred to the practitioner by other practitioners.
3. We were impressed with Dr Lander's evidence, particularly his oral evidence in cross-examination. He gave thoughtful and considered answers and made appropriate concessions. We accept that many gynaecologists would have sought a urogynaecologist's opinion before Patient A's third surgery, or discussed her management with another colleague. Such a course would have been good practice, but was not obligatory. But we are not satisfied to the Briginshaw standard that the practitioner's failure to do so was significantly below the expected standard. In reaching this conclusion we accept the practitioner had very wide urogynaecological training and experience. The practitioner did not adopt mainstream procedures. He was not operating in accordance with the integral theory, but was removing mesh. This particular is not established.

Complaint One, particular 2 and particular 3

1. These particulars assert that the practitioner failed to obtain a urogynaecologist's opinion prior to further "mainstream" surgery, namely a traditional plication type anterior repair (which occurred on 16 July 2014). This was in circumstances where, following the May 2014 surgery, the patient had an ongoing cycocoele, voiding difficulty and pain.

Experts' opinion particulars 2 and 3

1. As with particular 1, Dr Foote finds the practitioner's conduct in failing to refer to a urogynaecologist and proceeding with the further surgery in July 2014 significantly below the required standard. He is critical of the practitioner not obtaining an opinion about whether an abdominal sacral colpopexy was the appropriate surgery without first having ordered urodynamics.
2. In their reports both Dr Lander and Dr Izzo support the practitioner's treatment of Patient A without referral to a urogynaecologist. We refer below to Dr Lander's oral evidence.

Discussion and conclusions

1. We found Dr Lander's oral evidence about this particular convincing. He most appropriately agreed with the proposition that Patient A's situation was very complex, and that there were limited options to manage this patient after her recurring prolapses. He opined that, following either theory (traditional/mainstream or integral), depending on his clinical findings, he would have expected the practitioner to discuss the patient's case with a colleague, but such a course would not be absolutely necessary.
2. Dr Lander went on to explain that, although he personally would have consulted a colleague, and would be hesitant to conduct further surgery without clinical investigation, ultimately the decision was a clinical one based on the practitioner's clinical acumen. In expressing this opinion he referred to the practitioner's very accomplished surgical skills. We pause to note that Dr Lander is well qualified to speak about the practitioner's surgical skills having first-hand experience of being present during surgeries performed by the practitioner.
3. As with particular 1, we accept it may well have been appropriate for the practitioner to seek a urognaecologist's opinion. His failure to do so does not reflect optimal clinical practice to be followed by less experienced gynaecologists. But given his experience and clinical skills, we are not satisfied that his conduct was significantly below the expected standard. This particular is not established.

Complaint One, particular 27a

1. This particular is framed as follows: The practitioner's decision to proceed with the following surgeries was inappropriate in circumstances where he had failed to obtain referrals to, or second opinions of, other specialists: a. the practitioner proceeded with surgery on Patient A on 1 October 2013 without first obtaining a colorectal referral for Patient A after receiving an abnormal proctogram report 7 August 2013.

The practitioner's evidence

1. At [87] and [88] of his statement the practitioner explains his position in relation to referral to a colorectal surgeon. He earlier notes that he had previously made referrals to colorectal surgeons at Royal Prince Alfred Hospital, but after meeting Dr Darren Gold (Dr Gold) in 2008 and forming the view that Dr Gold was a better referral source for his patients, he referred to that specialist.
2. The practitioner says at [87] and [88]: In establishing a protocol for referrals, Dr Gold's expressed preference was that I first stabilise the vaginal prolapse through effective re-suspension of the vaginal vault and posterior vaginal wall, before referring the patient for further colorectal assessment. Dr Gold's advice was largely reflective of the fact that stabilisation of a vaginal prolapse would potentially resolve commonly associated colorectal symptoms (as happened in the case of Patient F). Dr Gold did not believe in ano-rectal physiological studies (ARPS) and said very firmly that the results of such studies would not influence his decision making. As such, Dr Gold counselled against my ordering such studies in women whom I planned to refer to him.

The experts' evidence

1. We have already referred to Dr Foote's criticism of the practitioner's lack of referral to a colorectal surgeon.
2. In the table to the expert reports relied by the practitioner both Dr Lander and Dr Izzo dispute referral was necessary and that failure to do so was significantly below the expected standard.
3. In his initial report dated 6 September 2017, Dr Izzo discusses the practitioner's actions in not obtaining colorectal opinions. He notes: The thrust of this complaint related to not obtaining a colorectal surgeon's opinion prior to carrying out surgery. Vault prolapses and posterior vaginal wall surgery is not considered in Australia and New Zealand as part of the field of colo-rectal surgery in the main. Most prolapses, rectocoele, enterocoele repairs etc. are carried out by gynaecologists, not by colorectal surgeons, so I can see nothing unusual in the fact that these were not referred to a colorectal surgeon.
4. Dr Izzo relies on this statement in the supplementary table to his report.
5. In his oral evidence, when questioned by senior counsel for the HCCC, Dr Lander said: Q. Do you agree that it would have been appropriate to obtain a colorectal referral for this patient after receiving that abnormal proctogram report? A. In my practise absolutely because I would have - she had a descending - the main factor there was the descending perineum syndrome or the descending perineum and that would have immediately sent me to my colorectal surgeon and we would have been probably looking at possibly doing a combined procedure there Q. That surgery is done on her without having an understanding of the colorectal dimensions of her problem, do you think that's an appropriate approach? A. If I was a, a, a devotee or a follower of the integral theory, I would say that that, that that's the approach that I would follow if I was, but I agree with you that in, in my situation and probably most of my colleagues' situations that would be an inappropriate approach to not seek that colorectal opinion.

The parties' submissions

1. In the submissions of counsel for the HCCC it is pointed out that Dr Foote notes Patient A's proctogram showed an anal canal opening with incontinence and intussusception of the distal rectum. Dr Foote is noted to be critical of the practitioner's failure to refer to a colorectal surgeon on the basis that the patient could have procedures conducted by both specialists at the one operation rather than sequential surgeries.
2. The submissions advanced on behalf of the practitioner in respect of this particular are generalised and do not differentiate between this and the preceding particular.

Discussion and conclusions

1. We note that Dr Foote very fairly conceded in his oral evidence that gynaecologists see patients with anorectal symptoms, in particular prolapse symptoms, which do not require colorectal referral. (transcript 11 December 2017 p 27).
2. Patient A presented with a proctogram which disclosed abnormalities.
3. Although Dr Lander did seek to qualify his opinion that referral may not be essential if a practitioner was following the integral paradigm, his evidence about how the majority of practitioners would approach this matter, including himself, was telling.
4. The practitioner's blanket explanation for not making any colorectal referrals but first operating to correct vaginal prolapse demonstrates to us a lack of independent and careful clinical assessment of each patient, including in this case, Patient A. While, as each expert acknowledges there are patients with certain anorectal symptoms that do not require referral, a blanket approach cannot be accepted as good practice.
5. It was the practitioner who was concerned to order the proctogram for the patient. She presented with the abnormal results. As Dr Foote and Dr Lander explain there were cogent reasons for a referral to a colorectal surgeon, namely that surgical correction could have been achieved in one lot of surgery. The patient would only need to undergo one anaesthetic and would be likely to experience a quicker recovery. In these circumstances we are satisfied the practitioner's conduct was significantly below the standard to be reasonably expected. We are satisfied this particular is established.

Complaint Three particulars 1, 2, 3, 4 and 5

1. This complaint is based on a contravention of the Health Practitioner Regulation (New South Wales) Regulation 2010 (NSW) (repealed) under s 139B (1) (b) of the National Law. That provision is as follows: (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
2. Five particulars are relied by in the Amended Complaint as follows: 1. The practitioner failed to document his discussions with Patient A prior to surgery on 1 October 2013 explaining the alternatives to, risks and benefits of the surgery, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation. 2. In the practitioner's written consent form for surgery on 1 October 2013, he failed to document the use of TFS, contrary to Schedule 2, clause 2(1) of the 2010 regulation. 3. The practitioner failed to document in his discussions with Patient A about the risks and potential complications of the TFS surgery on 1 October 2013 and the potential for repeat TFS procedures, contrary to Schedule 2, clause 1(3) and/or 2(1) of the 2010 regulation. 4. The practitioner failed to obtain Patient A's signature on the consent form dated 1 May 2014 for surgery on 6 May 2014, contrary to Schedule 2, clause 2(1) of the 2010 regulation. 5. The practitioner failed to adequately document his clinical justification for performing surgery on Patient A on 6 May 2014 other than his diagnosis of mesh pain and recurrent prolapse, contrary to Schedule 2, clauses 1(2)(a), 1(2)(b), (2)(1) and/or 2(2) of the 2010 regulation.
3. It is convenient that we deal with these particulars together as they each relate to an aspect of documentation in the practitioner's clinical records in respect of Patient A.

The practitioner's evidence

1. In his statement the practitioner acknowledges that he did not always record in his notes his discussions with patients. The practitioner also conceded in cross-examination that he had not documented the risks of TFS nor the potential for repeat procedures in respect of Patient A.

The expert evidence

1. Dr Foote in his initial and supplementary reports is critical of the practitioner's record keeping, in particular, he finds a lack of recording of any understanding that Patient A had of how TFS was different to other prolapse surgery she had undertaken, nor were the risks and complications of the procedure recorded. He also notes the potential for repeat surgery was not recorded. He says "overall I am critical of the consent process as this was below the expected standard".
2. In questions posed to him in cross-examination, Dr Lander agreed the risks and complications of TFS surgery were not documented in the consent form, nor was the potential for repeat surgeries. In his report Dr Lander acknowledged that for each particular there was a literal failure by the practitioner to document in accordance with the Regulation.
3. Most appropriately, Dr Lander acknowledged he could not proffer an opinion about whether a consent form was signed or not in the absence of the form.
4. In his report Dr Izzo deals with the particulars in a generalised manner, without reference to the regulation and states that "Dr Reid in this patient, as in all the others, gave an extensive documentation of explanation". He goes on to note, in circumstances where what is to be done cannot be accurately planned before surgery, "now-a-days that we make sure that a patient signs a consent form which gives some latitude to the surgeon to carry out what is the appropriate surgery when better visualized under anaesthetic".

The parties' submissions

1. The HCCC submit that these particulars are established because the practitioner's records do not disclose compliance with the mandatory requirements of the regulation including notes about the information and advice given to the patient in respect of any proposed medical treatment.
2. The HCCC further submit that the risks specific to TFS, or the risk of repeat procedures is not documented. It is noted that the consent form for surgery does not mention TFS. It is submitted it was essential to do so because TFS was "so central to the proposed operation". It is also submitted that there is an absence in the notes of the risks and benefits of the surgery. It is noted that the consent form is not signed by the patient.
3. It is also submitted that the notes do not comply with the regulation (Sch 2, cl 1(2) (a) and (b) as well as 2(1)) because the practitioner did not document the clinical justification for the surgery. The submissions note that Dr Lander agrees that there was a "literal" failure to comply with the regulation.
4. The practitioner's counsel, in her submissions, refers to all particulars relating to documentation and refers to the practitioner's statements about his practices, use of brochures and extensive oral discussions with patients.

The regulation (in force from 1 July 2012 to 1 July 2013) 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: (a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient . (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient . (4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to medical treatment (including any medical or surgical procedure) proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient. 2 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. 3 Form of records (1) An abbreviation or shorthand expression may be used in a record only if the abbreviation or expression is generally understood in the medical profession in the context of the patient's case or generally understood in the broader medical community. (2) Each entry in a record must be dated and must identify clearly the person who made the entry. (3) A record may be made and kept in the form of a computer database or other electronic form, but only if it is capable of being printed on paper. 4 Alteration and correction of records A medical practitioner or medical corporation must not alter a record, or cause or permit another person to alter a record, in a way that obliterates, obscures or renders illegible information that is already contained in the record. 5 Delegation If a person is provided with medical treatment or other medical services by a medical practitioner in a hospital, the function of making and keeping a record in respect of the patient may be delegated to a person other than the medical practitioner, but only if: (a) the record is made and kept in accordance with the rules and protocols of the hospital, and (b) the medical practitioner ensures the record is made and kept in accordance with this Schedule.

Discussion and conclusions particulars 1, 2 and 3

1. We commence our discussion noting that the complaint sets out an asserted breach of Schedule 2 clauses 1(3) and/or 2(1) of the 2010 regulations. We were provided with a copy of the Regulation in force 4 July 2014 to 23 November 2014. We note the version of the regulation provided is not the relevant regulation for the surgery set out in the particulars. Cl 7 and 9 of the Regulation required the keeping of medical records. The clauses provide as follows: 7 Records relating to patients (1) A medical practitioner or medical corporation must, in accordance with this Part and Schedule 2, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or medical corporation. (2) A contravention of subsection (1) by a medical practitioner does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken . (3) Subclause (1) does not apply to the following: (a) a public health organisation within the meaning of the Health Services Act 1997, (b) a private health facility within the meaning of the Private Health Facilities Act 2007, (c) a nursing home within the meaning of the Public Health Act 1991. (4) Subclause (3) does not affect the application of subclause (1) to a medical practitioner appointed, employed, contracted or otherwise engaged by a medical corporation referred to in subclause (3). 9 When records are to be made (1) A record must be made contemporaneously with the provision of the medical treatment or other medical service or as soon as practicable afterwards. (2) This clause may be complied with by the making of further entries in a single record that relates to the patient concerned.
2. No point was taken on the practitioner's behalf about the wrong historical version of the regulation provided to us. However, we note that there is no substantial difference between this version and the subsequent version of the regulation which is relevant to many of the particulars.
3. Compliance with the regulation is mandatory. While the practitioner may have explained orally to Patient A the risks and benefits of the surgery he conducted in October 2013, that information is not contained in the patient's notes. We are satisfied particular 1 is established.
4. Particular 2 of Complaint Three relates to a failure to document the use of TFS in the consent form for surgery on 1 October 2013. The surgery carried out on this occasion is noted in the consent form as "mesh removal with enterocoele repair, vault re-suspension and mid urethral sling placement".
5. In his statement the practitioner refers to extensive discussions with Patient A however he does not refer to discussing TFS and its potential complications including further surgery. We do not accept Dr Izzo's evidence that obtaining a general consent in the circumstances of Patient A was sufficient or appropriate. We reject his opinion that the brochure provided sufficient information.
6. Dr Lander agreed that the brochure given to patients was more in the nature of an advertisement for the procedure than a document explaining risks and benefits. We agree with this appropriate concession.
7. TFS was not mainstream procedure. The procedure had been carried out on relatively few patients in Australia in October 2013 with only few proponents of the system. There was likelihood of the need for repeat surgery and possible mesh related pain. In these circumstances a full and careful explanation and documentation of that explanation was required. We are satisfied that Particulars 2 and 3 are established.

Complaint Three, particular 4

1. It is not a matter of dispute that Patient A's signature does not appear on the last page of the consent form. Dr Izzo opines that there must be a consent form because the hospital would not have permitted the surgery to proceed without such a document. A similar position is adopted by the practitioner. The practitioner further says that, on occasions, he did not personally witness a patient's signature on a consent form with the signature being witnessed by his receptionist. Dr Lander does not speculate about whether a consent form was signed or not. Dr Foote is critical of the practitioner's failure to ensure his records included a signed copy of the consent form.
2. At [155] the HCCC submit the only reasonable inference to be drawn from the unsigned last page of the consent form appearing in the patient records is that Patient A did not sign the form. We note that Patient A's records disclose that the request for surgical operation form dated 1 May 2014 bears a signature of Patient A on page 7 but her signature is not witnessed. Patient A's signature appears on a document "Independent Private Hospitals of Australia Consent for use of information", but not on the pages setting out her medications (page 8). While it appears the documentation has not been signed on every page by the patient, we are not satisfied to the Briginshaw standard that this particular is established. This is because Cl 2 (1) of the regulation does not mandate the requirement a signature appear on every page of documents required by the hospital. Rather it requires "the level of detail …must be appropriate to the patient's case". Here it is clear from the records the patient signed the request for surgical operation page on which the details of the proposed surgery are disclosed.

Complaint Three, particular 5

1. Dr Izzo opines that the practitioner's lack of documentation of his clinical justification for the surgery is overcome by the practitioner's brochures and oral explanation to the patient. We do not accept that explanation overcomes the deficiencies in the practitioner's records about the surgery to be performed on Patient A notwithstanding his recording of her symptoms of mesh pain, and his diagnosis of recurrent prolapse. For women who have complex histories together with complex symptomology and in particular those who have undergone multiple previous surgeries, proper recording is particularly important. The particular is established.

Complaint Four, particular 1a

1. This complaint is brought under s 139B (1) (c) of the National Law and asserts that the practitioner has breached a condition on his registration. Particular 1(a) relates to Patient A. The complaint is also asserted to apply to Patients F, G, J, K, M and O.
2. Section 139B (1) (c) of the National Law provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) … (b) (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of - (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board.
3. On 16 September 2011, following a Performance Review Panel hearing, conditions were imposed on the practitioner's registration by the Council. Condition 2 of the conditions was framed as follows: Before performing any colorectal procedure or any other procedure on a Patient with anorectal symptoms, Associate Professor Reid is to obtain a second opinion from an appropriate specialist in the field of colorectal surgery which supports the procedure Associate Professor Reid has in mind to perform. He is to keep a copy on the patient's file of these second opinions.
4. The delegates in imposing this condition explained: We are also concerned he is doing colorectal surgery, ordinarily the work of colorectal surgeons. With regard to all of these matters there is no reason to think that A/Prof Reid's approach has changed since the visit by the assessors. Quite the opposite, at the hearing he made it clear that he rejects these criticisms. … We turn to the issue of clinical judgment we note the observation of the assessors: In practical terms, it was considered that the placement of restrictions on the performance of certain more complex procedures may not be an effective means of ensuring satisfactory performance, as some procedures which are relatively surgically straightforward may be an inappropriate procedure for the patient Conditions 2, 3, 4 and 5 are in our view the appropriate response to the deficiencies in clinical judgment that have been identified. As colorectal surgery is not A/Prof Reid's field of expertise we consider it proper for him, whenever he is contemplating such procedures, or procedures on anyone with anorectal symptoms, to obtain a second opinion from an appropriate specialist that is in agreement with his approach. (Exhibit A tab 15 at p 19 and 20).
5. All the experts agreed Patient A had anorectal symptoms. We have earlier in these reasons recorded that each of the experts agreed that gynaecologists routinely see patients who have certain types of anorectal symptoms, but because of the type of surgery to be performed or treatment given to this class of patients, colorectal referral is not necessary. All the experts however agreed certain anorectal conditions required referral. We have already noted Dr Lander's view that if he had been treating Patient A, given her proctogram results, he would have referred her to a colorectal specialist.
6. The practitioner explains that he did not refer patients with symptoms he believed fell within the normal field of expertise of a gynaecologist because of his arrangement with Dr Gold. In his oral evidence the practitioner attempted to put a "gloss" on the wording of the condition, namely that it was only meant to apply to cases were there were "core" anorectal symptoms.

The parties' submissions

1. At [129 (c)] of the submissions filed on behalf of the HCCC it is asserted that the practitioner was "not entitled to adopt a protocol with Dr Gold that subverted, indeed was entirely contrary to, the mandatory requirements of condition 2".
2. In fairness to the practitioner we think it is necessary to set out each of the arguments advanced by his counsel in support of his interpretation of the condition. Dr P Dwyer (Dr Dwyer) submits: 49. Dr Reid interpreted that to mean that he required a second opinion if there were core colorectal issues such as faecal incontinence or Intussusception. He had initially referred patients to a number of doctors at RPAH, but then formed a view that Dr Darren Gold, who had a strong interest in proctology and pelvic floor disorders, was a more suitable referral resource. 50. Dr Gold and Dr Reid established a protocol for referral based on Dr Gold's expressed preference that Dr Reid first stabilise the vaginal prolapse through effective re-suspension of the vaginal vault and posterior vaginal wall, before referring the patient for further colorectal assessment. Dr Gold's advice was largely reflective of the fact that stabilisation of a vaginal prolapse would potentially resolve commonly associated colorectal symptoms17. 51. Dr Reid gave evidence that in dealing with rectocoeles, he regarded them as a core gynaecological issue, since clinical problems associated with rectocoeles have been almost exclusively managed by gynaecologists. That is because rectocoeles arise because of an obstetric tear in the collagen matrix of the posterior vaginal wall, resulting in a mechanical weakening of posterior vaginal wall support. Over time the anterior wall of a completely normal rectum bulges into the vaginal defect18. Dr Reid was well placed to understand that anatomy19. 52. Dr Reid held the opinion, honestly and reasonably, that for most patients, the symptom of constipation was just as much a gynaecological as a colorectal symptom, and so he did not consider that to be an "anorectal symptom" for which he was required to get a second opinion. He gave evidence, however, that there are significant differences in the types of constipation that form part of gynaecology and those that fall into either colorectal surgery or gastroenterology20. Dr Reid gave oral evidence to the effect that he understood the difference between the two and was conscious of the need to refer for a second opinion if he had a client whose constipation was outside the type routinely dealt with by gynaecologists. 53. It is submitted that mere literal definition of the words "anorectal symptoms" is not sufficient to determine how the practice condition was to be applied. It was reasonable to apply common sense and to have regard to symptoms that were ordinarily considered within the realm of colorectal expertise and practice or within the realm of gynaecological practice. To not apply some degree of judgement of that kind could result in inappropriate or even unethical referral of a patient to another doctor without a proper medical reason. It cannot have been the intention of the Medical Council when imposing the condition that medically unnecessary referrals be made - but that could well be the outcome of adhering to unbending, literal interpretation…. [foot notes omitted]
3. Thereafter Dr Dwyer summarises the differing views expressed by the experts.

Discussion and conclusions Complaint 4 particular 1(a)

1. While we accept that the condition is widely drawn, there can be no doubt that the practitioner flagrantly ignored condition 2 of the conditions. It was open to him, if he had any doubt about the wide requirements of the condition, to have a definition of anorectal symptoms clarified by the Council. Instead, he chose to disregard the condition or to rely on his unauthorised and undocumented arrangement with Dr Gold as justification for by passing the condition.
2. The practitioner provided a letter from Dr Gold to his solicitors which was reproduced in the material tendered by the HCCC (see Exhibit D, tab 81(b) dated 9 July 2014. Dr Gold notes: Richard and I have numerous mutual patients and many of these patients have commented to me on the high level of care and concern they have received from Richard. Many of the patients he has referred to me for an opinion have proceeded to have surgery under the care of Richard with excellent outcomes. … Richard has often referred patients back to me after surgery under his care where posterior compartment symptoms persist for a further opinion [our emphasis]
3. We note that senior counsel for the HCCC objected to the practitioner's counsel tendering correspondence from Dr Gold because he was not available for cross-examination and other correspondence from him addressed to the TGA ( and also contained in the HCCC brief) is critical of the practitioner's surgical techniques. But the material we have referred was relied on by the HCCC in its case. Dr Gold's letter does not support the practitioner's assertion that the "protocol" with Dr Gold always required that the practitioner operate first, and then refer to Dr Gold.
4. As has been frequently noted in decisions of this Tribunal, and the former Medical Tribunal of NSW, the compliance with conditions imposed by a council is critical to the health and safety of the public. Practitioners in many instances are able to retain their registration only because a council is satisfied that conditions imposed ameliorate risk to the public and/or maintain a practitioner's health and well-being.
5. The importance of compliance with conditions is discussed in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at 74 where it is noted: 74 When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed, as observed in Re Dr Than Le (supra).
6. Earlier in the judgment, the Court of Appeal quoted from the findings of the then Medical Tribunal of NSW with apparent approval as follows: 45 The Tribunal adopted the statement made by a Medical Tribunal in Re Dr Than Le (Medical Tribunal decision, 20 September 2001 at 46, para 95): "Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly. Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, 'containing as it does a grave criticism of the standard of the practitioner's conduct'." (Red, 16C-H).
7. We found it telling that when Clinical Professor Nicholl asked the practitioner how his conduct changed after the imposition of Condition 2 that he explained there was not a big change with respect to his threshold for referring patients for a colorectal opinion. (Transcript, 22 December 2017, p 56.)
8. We are satisfied the practitioner chose to ignore or disregard this important condition or his registration and his conduct in so doing was a serious breach of s 139B (1) (c) and constitutes unsatisfactory professional conduct. In making this finding we reject the submissions made on the practitioner's behalf that it was open to him to adopt the approach he did as a matter of common sense. The practitioner did not consider, or it would appear, accept the basis on which the Performance Review Panel required the imposition of the condition.

Patient B

1. This patient is a married woman with four children. She provided a detailed statement dated 27 March 2015. That statement comes before us unchallenged. Patient B explains that about four months after the birth of her first child she felt a bulge in her vagina. She was referred to a gynaecologist who diagnosed her as suffering a cystocoele. She initially had a pessary inserted and underwent physiotherapy. After seeing the practitioner interviewed on TV she first consulted him in October 2012.
2. Patient B records a long history of extreme pain after her surgeries including mesh pain, and of urinary and bowel problems. She explains that when she underwent the first surgery, at which TFS tapes were inserted, she did not give consent to that procedure, rather she understood she was to receive repair involving surgisis (a natural collagen product derived from pigs or cows).
3. As recorded in the Schedule to the complaint, Patient B underwent four surgeries performed by the practitioner: 1. 16 July 2013 Vaginal sacrocolpopexy, anterior and posterior repair, mid urethral sling, cystoscopy, D & C with insertion of a Mirena, and the insertion of 4 TFS tapes. 2. 7 August 2013 Surgery to split the mid-urethral tape. 3. 17 September 2013 Surgery to correct anterior and posterior mesh pain syndrome, four TFS tapes removed, rectocoele bulge freed of tape, rectal defect reinforced with Surgisis band, and mid-urethral sling reinforced with SIS sling. 4. 10 December 2013 Removal of two TFS tapes, vaginally repaired the apical, anterior and posterior vaginal wall incisions and release of scarring of two symptomatic perineal fibrosis bands.

Complaint One, particular 27b

1. This particular is framed as follows: The practitioner proceeded with surgery on Patient B on 10 December 2013 without first obtaining the second opinion of a urogynaecologist concerning Patient B's ongoing complaints of voiding and pain despite multiple surgeries with the practitioner.

The parties' submissions

1. The HCCC refer to the ongoing complications the patient describes in her statement, and submit that Dr Foote's opinion that the failure to refer was substantially below the standard reasonably to be expected.
2. The practitioner relies of the reports of both Dr Lander and Dr Izzo. These experts are not critical of the practitioner's failure to obtain a second opinion of a urogynaecologist before the practitioner undertook the fourth surgery on this patient. As with other patients where it is asserted a urogynaecologist opinion should have been sought, Dr Lander and Dr Izzo rely on the practitioner's experience and expertise, and that he was operating in accordance with the integral theory.

Discussions and conclusions

1. In her detailed statement, Patient B recites a history of severe pain, urinary incontinence, bowel incontinence, and inability to have vaginal intercourse.
2. Patient B had undergone three unsuccessful surgeries by 10 December 2013. She experienced significant urinary problems. In July 2013 she was discharged from hospital with an indwelling catheter and had to self-catheterise. The patient was advised by the practitioner her pain and other symptoms would resolve when one of the tapes were split.
3. The patient's clinical notes, and her statement disclose significant complications after her first surgery when TFS tapes were inserted and her subsequent two surgeries. Her ongoing severe urinary problems and pain, including pain from retained tape, required the practitioner as a matter of good clinical practice, at least before the surgery carried out on 10 December 2013, if not earlier, to refer Patient B to a urogynaecologist. However, the practitioner on this and many other occasions acted in isolation and contrary to his patient's best interests. Accordingly we agree with and accept Dr Foote's opinion such referral should have been made. Particular 27(b) is established.

Complaint Three, particulars 7 and 8

1. As set out above, this Complaint relies on a breach of s 139 (1) (b) (a breach of the regulation requiring the keeping of proper records for a patient). The particulars relied on are as follows: The practitioner failed to document his discussions with Patient B about the risks and complications of TFS surgery on 16 July 2013 and the potential for repeat TFS procedures, contrary to Schedule 2, clauses 1(3) and 2(1) of the 2010 regulation The practitioner failed to document in the clinical record any summary of his text message communications with Patient B while he was overseas in abut August 2013, contrary to Schedule 2 Clause 2(1) of the 2010 regulation.

The parties' submissions

1. The HCCC note in its submissions that the practitioner did not document the risks and complications specific to TFS before the 16 July 2013 surgery. The practitioner relies on his brochures and explanations he asserts were given to patients.

Discussion and conclusions

1. Patient B, in her unchallenged statement, explains that she did not receive the TFS brochure until after her third surgery, and the type of surgery which the practitioner proposed in July 2013 was not TFS surgery.
2. The submissions filed on behalf of the practitioner rely entirely on the practitioner's brochures and oral explanation to patients. Dr Lander notes a literal failure to document relevant information required by the regulation.
3. The clinical records do not accord with the regulation. We accept Patient B's evidence that she did not receive the TFS brochure until after her third surgery. This evidence is consistent with a failure to document the risks and benefits before the July surgery.
4. In considering particular 8, Dr Izzo opines it is sufficient if the practitioner kept his text messages sent to Patient B. We disagree. A copy text messages or a summary of them would not be in the patient's record as required by the regulation. If only maintained on the practitioner's phone the text message could easily be deleted or lost. The recorded texts would not available to another practitioner taking over the care of the patient.
5. We are satisfied these particulars are established. In reaching conclusion we accept Dr Foote's opinion and the evidence of Patient B.

Patient C

1. Patient C provided a statement dated 15 April 2015. She is currently aged approximately 69 years. Patient C has two children. In her mid-fifties she was diagnosed as suffering a prolapse, and conservative treatment was recommended by a gynaecologist in 2013 who discussed the benefits and risks of surgery with the patient.
2. Patient C relates that she experienced a number of urinary tract infections and labial pain. She arranged to see the practitioner after recommendation from a friend.
3. The schedule to the complaint reveals Patient C underwent the following surgeries performed by the practitioner: 1. 30 July 2013 resection of Batholins glans. 2. 8 October 2013 Three TFS tapes inserted in the cardinal ligament, the uterosacral ligament and the sacral hollow and a mid-urethral sling was placed.
4. Patient C says that three or four weeks after the October surgery she started to experience pains in her pelvic bone and "terrible sciatic type pain that was constantly in my left buttock cheek and occasionally extending down the left leg".
5. On 7 November 2013 Patient C consulted the practitioner because of her pain issues. She explains that the practitioner gave her a TFS brochure with four pictures. Patient C says the practitioner ticked three of the pictures to show her what he had done at surgery.
6. In August 2014 Patient C consulted Professor Dietz. She reports that Professor Dietz opined that surgery to remove the TFS tape was likely to cause severe bleeding. The patient was referred to Professor Vancaillie and the Royal Women's Hospital for her ongoing pain issues.
7. Patient C reports she now suffers some very painful nights when she cannot sleep. As her result of her pain, she reports grinding her teeth, and an inability to look after her grandchild as much as she did prior to her surgery. She also reports difficulties with intercourse, and the adverse effect of this on her intimate relationship with her husband.

Complaint One, particular 29a

1. This particular, which relies on s 139B (1) (a) is set out in the Amended Complaint as follows: 29. The practitioner failed to follow the Royal Australian and New Zealand College of Obstetricians and Gynaecology's standard (C-Gyn 20) in relation to the use of mesh in a prolapse repair (the Standard) in the following patients: a. the practitioner inappropriately performed surgery on Patient C on 8 October 2013 in circumstances where: (i) the Standard cautioned the use of mesh in a prolapse repair and for those with chronic pelvic pain which Patient C had suffered and (ii) the practitioner should have offered Patient C non-mesh repair for prolapse in the first instance;

The statement and its application

1. The relevant document is the Royal Australian and New Zealand College of Obstetricians and Gynaecologists College Statement C-Gyn 20 current March 2013, reviewed March 2016 and 1st Endorsed July 2017. It is contained within the HCCC documents (Ex 3 Tab 70 page 151). It is headed "Polypropylene Vaginal Mesh Implants for Vaginal Prolapse". The Disclaimer at the end of the document notes: This College Statement is intended to provide general advice to Practitioners. The statement should never be relied on as a substitute for proper assessment with respect to the particular circumstances of each case and the needs of each patient. The statement has been prepared having regard to general circumstances. It is the responsibility of each Practitioner to have regard to the particular circumstances of each case, and the application of the statement in each case. In particular, clinical management must always be responsive to the needs of the individual patient and the particular circumstances of each case.
2. The statement emphasises the need for a patient to give informed consent to a procedure using mesh. The information to be given includes a caution that "very little robust data is available on the efficacy and safety of many of the transvaginal mesh products available in Australia". Further, it provides that patients should be advised about alternatives to surgical management, alternative surgical treatments and the complications associated with mesh use.
3. Under the heading "Who would benefit from a transvaginal mesh implant" the statement refers to the recent consensus statement published in the International Urogynaecology Journal as being useful. A summary of that journal, included exercising caution in using transvaginal mesh implants in certain patients, including those with primary prolapse, those under 50, lesser grades of prolapse, and patients with chronic pain is set out.
4. Although we note the Amended Complaint and the submissions refer to this document as a "Standard" that is incorrect. As the document clearly discloses it is a statement of the College. Section 41 of the National Law provides as follows: 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered by the Board as evidence of what constitutes appropriate professional conduct or practice for the health profession.
5. So far as we can discern, there was no evidence before us that the statement had been approved by a National Board under 41 of the National Law. Notwithstanding this observation, we note the admissibility of the statement was not challenged. We accept the statement is to be afforded considerable weight, and is designed to uphold best practice by gynaecologists involved in treating patients with prolapse symptoms. As such, it should not be disregarded by clinicians although, as the disclaimer notes, individual clinical assessment of a patient may dictate treatment other than in strict accordance with the standard.

The expert evidence

1. Dr Foote is critical of the practitioner in using TFS on this patient as by the time of her surgery the standard had been published. The patient suffered chronic pelvic pain. In these circumstances Dr Foote opines that non-mesh repair should have been offered to the patient in the first instance. In his oral evidence Dr Lander agreed the statement was applicable to all gynaecologists, including those who follow the integral theory, and if the practitioner had applied the statement, he would not have used mesh in this case (transcript 18 December 2017 p36). However, he went on to opine if a practitioner was not following the statement that fact should be recorded and consent obtained from the patient.
2. Dr Izzo defended the practitioner's stance on two bases. First, that because the practitioner was applying the integral theory he opined the statement was not applicable, and secondly because he said TFS was not mesh.

The parties' submissions

1. At [143] of the HCCC submissions it is noted: The RANZCOG Standard is a recommendation of the College of Obstetricians and Gynaecologists. It is a recommendation to be adhered to as good practice. It cautions against the use of mesh for prolapse. It also advocates for the use of conservative management. Dr Foote stated that it applies to all gynaecologists and obstetricians.
2. The practitioner submits that while he was aware of the statement in 2013 and 2014 it was not applicable as it was designed to help decision making in respect of traditional repairs and not applicable to decision making in respect of TFS repairs.

Discussion and conclusions Complaint One, Particular 29a

1. We find that the information and recommendations in the statement applied to all gynaecologists in Australia. Whilst strict compliance with the statement was not mandatory (in the sense of being a legally enforceable obligation) it represented best practice. A departure from the statement should only have been made after careful evaluation, in limited clinical circumstances, and after provision of all relevant information to a patient and obtaining her informed consent.
2. Dr Izzo sought to distinguish TFS from other mesh products. We reject that opinion. It is against the weight of the evidence before us, including the practitioner's own statements. In reaching this conclusion we note the correspondence to the HCCC from the Therapeutic Goods Administration when TFS was registered recorded the indications for this device were "The placement of synthetic mesh tape to cure female urinary or faecal incontinence and vaginal prolapse" (our emphasis). We also take into account that the practitioner states that in 2009 he learnt that the successor to the infracoccygael sacropexy tape originally used in TFS had been reengineered to use a non-stretch monofilament tape. Regardless in the change in tapes and anchors in 2013, and until its removal from the ARTG, TFS remained a product which used synthetic mesh tape for prolapse repair. We find, given the intended use of these tapes in pelvic organ prolapse, that the statement applied to TFS.
3. While Patient C presented suffering from recurrent urinary tract infections and labial pain, she did not present with chronic pelvic pain until after her surgery in October 2013. However, the practitioner did not offer this patient non mesh repair in the first instance but proceeded to use TFS. Patient C's symptoms were such that treatment without mesh should have been considered in compliance with the recommendations in the statement. We are satisfied this particular is established. In so finding, we agree with Dr Foote's conclusions.

Particular 30a 30. The practitioner inappropriately performed surgery using a sling on the following patients: a. on Patient C on 8 October 2013 in circumstances where, given the lack of leakage on urodynamics on 18 April 2013, a mid urethral sling was not indicated;

The expert evidence

1. Dr Izzo supports the practitioner's clinical decision. He says it was a reasonable one avoiding further surgery. Dr Foote is critical noting there was no clinical indication for the insertion of a mid-urethral sling.
2. Dr Lander conceded in cross-examination that a cure of a stress procedure would not be indicated if urodynamics had not shown any stress urinary incontinence.

The parties' submissions

1. The HCCC note that this patient underwent pre-operative urodynamics. Test results indicated the patient had no leakage and therefore insertion of a mi-urethral sling would not normally be contemplated.
2. On behalf of the practitioner attention is drawn to his evidence that he decided to insert a mid-urethral sling as a result of his findings at operation. The practitioner says his clinical findings were that the patient "had inordinately weak collagen and a poorly suspended urethra, and that re-suspension of the upper vagina had not improved urethra support". (See practitioner's statement at [129]).

Discussion and conclusions

1. Our examination of the patient's operation report and clinical notes reveals a finding of noticeably weak collagen. However, the notes do not disclose that the patient's urethra was poorly suspended. Given the absence of notation, other than the noting of weak collegen, and having regard to Patient C's urodynamics disclosing no stress urinary incontinence, the insertion of the mid-urethral sling was not indicated. The practitioner's actions demonstrated his bias towards anatomical perfection, in pursuance of the integral theory, rather than addressing the patient's symptoms and investigations. In summary, we accept Dr Foote's opinion is soundly based. We are satisfied this particular is established.

Complaint Three, particulars 9 and 10 9. In the practitioner's written consent form for surgery on 8 October 2013, he failed to document the use of TFS, contrary to Schedule 2, clause 2(1) of the 2010 regulation. 10. The practitioner failed to document his discussions with Patient C of the risks and complications of the TFS surgery on 8 October 2013 and the potential for repeat TFS procedures, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation.

1. We have earlier in these reasons set out the regulation and noted that compliance with it is mandatory. There is no dispute that there is no record of the practitioner telling Patient C prior to the TFS surgery that was the procedure he proposed. Rather, Patient C says that the practitioner gave her the TFS brochure after the surgery when he showed her where tapes had been inserted.
2. We have also recorded Dr Lander's appropriate concession that there was not compliance with the regulation, albeit he refers to the non-compliance as "literal". We note however that Dr Lander agreed in cross-examination where a surgeon adopted a non-mainstream approach there could not be fully informed consent unless the patient was told of that approach. We agree with the appropriate concessions made by Dr Lander including the concession that, because TFS was not mainstream, it needed to be recorded as part of the patient's informed consent. We are satisfied these two particulars are established.

Patient D

1. This patient provided a short statement, undated, sent to the HCCC on 16 February 2017. In her statement Patient D records that the practitioner performed surgery on her on 20 May 2014 including the insertion of TFS. It is not a matter of controversy that Patient D was then aged 38 years. She relates she again consulted the practitioner on 26 November 2014 when he told her she may require further TFS surgery. Patient D says the practitioner told her he was suspended, and suggested she have surgery under Dr Gold. She says that the practitioner did not tell her that day or at any time that TFS had been removed from the ARTG. Patient D at some time after November 2014 consulted Professor Dietz who informed her that the TFS device had been removed from the register.
2. As we have already noted TFS was removed from the ARTG on 4 November 2014.

Complaint One, particular 7 7. At a consultation with Patient D on 26 November 2014, the practitioner inappropriately advised Patient D that another TFS tape could be inserted in circumstances where: a. the TFS device had been removed from the Australian Register of Therapeutic Goods (ARTG) on 5 November 2014; b. the practitioner did not inform Patient D about the removal of the TFS device from the ARTG.

The practitioner's evidence

1. In his statement the practitioner says that he cannot recall when TFS was taken off the market. He refers to being overtaken by other events, including his eye-sight problems. Because of those problems he decided that he must cease operating and only engage in consulting.
2. We note that the practitioner was suspended in July 2014 but that suspension was lifted following an appeal to this Tribunal on 28 October 2014 with the Tribunal's decision published in December that year.

The parties' submissions

1. The HCCC submit we should accept Dr Foote's evidence that, if the practitioner knew of the change of status of TFS, then his recommendation for surgery for Patient D was significantly below the standard. The HCCC submit that it was inherently implausible that the practitioner was unaware that TFS, a procedure at the forefront of his surgery, was removed from the ARTG.
2. Understandably, neither Dr Lander nor Dr Izzo have commented on this particular.

Discussion and conclusions

1. While as we will later discuss, we found aspects of the practitioner's oral evidence to be evasive, unreliable or less than truthful, we do not find it appropriate to make an overall adverse credit finding in respect of the totality of his evidence.
2. In this instance, we accept the practitioner evidence he was not aware, some three weeks after the removal of TFS from the ARTG, that this had occurred. He was suffering significant eye-sight problems, had been involved in an appeal in this Tribunal in late October 2014 with submissions filed in early November 2014. We find that he was unaware of the removal of TFS from the ARTG some three weeks after its formal removal, and this is why he referred Patient D to Dr Gold. We are not satisfied that this particular is proven.

Complaint One, particular 29c c. the practitioner inappropriately performed surgery on Patient D on 20 May 2014 in circumstances where: (i) the Standard cautioned the use of mesh as a primary prolapse repair and for those younger than 50 such as Patient D and (ii) the practitioner should have offered Patient D non-mesh repair for the prolapse in the first instance;

Discussion and conclusions

1. We repeat our findings above about the College statement and its standing. Patient D was a young woman. The statement cautioned against the use of mesh products in primary prolapse repair and in women under the age of 50 years.
2. We agree with Dr Foote's opinion that the surgery conducted on Patient D was contra-indicated by the statement. There was no obvious extraordinary clinical circumstance warranting departure from the statement. We are satisfied the practitioner's actions were significantly below the standard reasonably to be expected. We are satisfied this particular is proven.

Complaint Three, particular 11 11. On 3 April 2014, the practitioner failed to summarise the investigations justifying and the plan for surgery when he obtained consent for Patient D's surgery on 20 May 2014, contrary to Schedule 2, clauses 1(2)(a), 1(2)(b) and/or 2(1) of the 2010 regulation.

The practitioner's evidence

1. The practitioner relies on his clinical notes of 3 April 2014 as compliance with the relevant provisions of the regulation. His notes disclose under the heading "Issues": "Stg 11 Green 11 CC with low VLPP - large fascial defect. Will probably need graft and U-sling as well as CL tape. Stg 11 RC with poor PB support - also has large fascial defect. Need for mesh use explained. Explained that TFS = novel system which puts mesh where it is needed/tolerated and avoids DL II [De Lancey Level II] complications. Schedule for 20 May. Not worried by DUB (?) at this time".

The parties' submissions

1. The HCCC rely on Dr Foote's opinion that the practitioner's notes do not comply with the regulation because he could not find any letter summarising the investigation results and plan for the surgery to be done on 20 May 2014.
2. As with other particulars, Dr Lander noted a "literal" failure. Dr Izzo supports the practitioner's contention that the clinical notes of 3 April 2014 are adequate.

Discussion and conclusions

1. This patient's records are found at both Tab 176 (Volume 1 patient records) and Tab 178 (Volume 2 patient records). We are satisfied that it is necessary to have regard to the clinical notes of 28 March 2014 and 3 April 2014 as these are intrinsically linked. They record the practitioner's pre-operative clinical examinations and summarise investigations. The clinical notes are augmented by the practitioner's letters of the same date to Dr Sheila Fraser.
2. The notes of 28 March 2014 document the patient's urodynamic results. The 3 April 2014 notes document the patient's cystocoele and rectocoele which are noted as are two large fascial defects. The planned operation is noted to include probably graft and urethral sling as well as cardinal ligament tapes (recorded as CL tapes). The notes disclose the practitioner planned to use TFS, that he disclosed to the patient it was a novel system of mesh repair and would avoid the problems at the De Lancey Level II of the vagina.
3. We consider these notes adequately record information or advice given to Patient D in accordance with cl 1 (2) (a) and cl 1 (2) (b). We are also satisfied that they sufficiently comply with cl 2(1). Accordingly we are not satisfied this particular is proven.

Complaint Three, particular 12 12. The practitioner failed to document his discussion with Patient D about the risks and complications of the 20 May 2014 TFS surgery and the potential for repeat TFS procedures, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation.

1. We have already set out the practitioner's notes about the information provided to Patient D pre-operatively. We find she consented to the insertion of 5 TFS tapes and that she was told the procedure was novel. We also note this patient received and signed a document headed "Operative Consent: Cystocoele, urinary incontinence and difficult urination surgery". That document did not contain specific TFS advice in the printed material although it did refer to site specific repair. The practitioner hand wrote into the consent form the following under the heading "Particular Hazards". "Risk TFS mesh pain, but avoid most of the wide dissection risks". Although the consent document explains general surgical risks associated with traditional and site specific surgery, it did not refer to the possibility of the need for further surgery if TFS was employed.
2. We find this particular is only established on the limited basis of a failure to record the risk of repeat surgery.

Patient E

1. This patient provided a statement dated 24 April 2015. At that time she was aged 52 years. She is a nurse. Patient E reports that in 1997 she had a bladder repair, and one year later, a hysterectomy. However, by 2005 she says she again suffered incontinence. At this time she underwent urodynamics, but declined further surgery.
2. The patient was referred to the practitioner in 2009. She records at that time she was "still incontinent, having trouble with my bowel and felt a prolapse when I was pushing a motion out and standing up. Sex was also uncomfortable".
3. Patient E discloses that, although the practitioner did not refer her to another specialist for her anorectal symptoms, she did have tests carried out elsewhere in Sydney. The practitioner did refer Patient E for urodynamic investigation which was carried out at his surgery.
4. Patient E says she was advised by the practitioner "that there was a new mesh method, the mesh was better than the old one previously used on me and it would last forever". She says the practitioner also told her other methods of bladder repair would fail again.
5. Patient E says that the practitioner spoke to her using "a lot of complicated terms" and said he would use a sling on her, not TFS. She says she was not provided with any information about TFS although she received the "Pelvic Floor Disorder an Overview" pamphlet.
6. As recorded in the Schedule to the complaint, Patient E underwent the following surgeries: 1. 2 February 2010 Vaginal sacrocolpopexy, paravaginal repair, Obtryx TOT tape, anal sphincter repair, cystoscopy and SPC. 2. 18 May 2010 Lysis of contracted vaginal vault scar with release of an adherent bladder base on the left sacrospinous ligament re-suspension of the vaginal vault and pubofascial bladder neck sling using a rectus sheath autograft. 3. 17 August 2010 Bulkamid and release of the vault scar. 4. 1 November 2010 Advantage retropubic mid-urethral sling placed. 5. 22 November 2010 Splitting of mid-urethral sling and tape.
7. At [19] of her statement Patient E explains that she still has some small problems with dribbling and trouble defecating but says her "symptoms are definitely better than before seeing [the practitioner] and her quality of life is improved.

Complaint One, particular 8 8. Before 2 February 2010, the practitioner failed to seek a colorectal opinion in relation to Patient E following: a. Patient E's complaints to him of obstructed bowel opening, accidental loss of flatus and having to use perineal pressure to complete a bowel movement; b. his examination of Patient E which found a rectocoele and deficient perineum; c. an anal ultrasound which confirmed an anal sphincter defect.

The parties' submissions

1. It is submitted on behalf of the HCCC that we should accept Dr Foote's evidence that the practitioner should have sought a colorectal referral before surgery on 2 February 2010 having regard to the patient's anorectal symptoms and an anal ultrasound which confirmed an anal sphincter defect.
2. We note that in cross-examination that Dr Lander agreed significant anorectal symptoms were present and that he would have sought an opinion from a colorectal surgeon so that the patient could potentially have one operation.
3. The practitioner's position about colorectal referrals has already been documented by us. Although the practitioner responds in his statement about his treatment of a number of patients, he does not individually address Patient E's symptoms or studies.

Discussion and conclusions

1. We accept that at the time of Patient E's surgery, the practitioner's registration was not subject to a condition requiring referral of a patient with anorectal symptoms to a colorectal surgeon.
2. The patient's statement makes it clear that she independently underwent anal investigations. Her surgical procedure conducted by the practitioner included sphincter repair.
3. In this instance the patient's anorectal symptoms were of a type sometimes managed by experienced gynaecologists and regarded as part of gynaecological management when dealing with prolapse involving a rectocoele or cystocoele. The practitioner was not subject to any conditions on his registration which required referral to a colorectal surgeon. The patient's anal sphincter defect was corrected in the surgery performed by the practitioner who was, at this time, using mainstream surgical procedures. For the reasons outlined, we not satisfied that this particular is established. In so finding we consider Dr Lander's oral evidence must be confined to what he would have done, but not as establishing conduct significantly below the standard. We note from this patient's statement that her function was improved. This particular is not established.

Complaint One, particular 9 9. The practitioner inappropriately decided to perform surgery on 18 May 2010 on Patient E: a. without investigating the recurrence of Patient E's post-operative stress incontinence with repeat urodynamics; b. without obtaining a second opinion of a urogynaecologist following the failed prolapse surgery and incontinence surgery on 2 February 2010.

The parties' submissions

1. The thrust of the HCCC's submissions in support of this hybrid particular is that, because of Patient E's complex history and the failure of the previous surgery to alleviate or eliminate her stress incontinence, referral should have been made to a urogynaecologist prior to further surgery.
2. The practitioner relies on the opinions of Dr Lander and Dr Izzo expressed in their table reports. Dr Lander's rationale for supporting the practitioner's actions was that he was subscribing to the integral theory. However in cross-examination Dr Lander conceded that he personally would have conducted post-operative urodynamics when the patient had stress incontinence and that, in most cases, a second opinion would be obtained before further surgery.
3. In his own statement, at [96] the practitioner explains that: My opinion on the value of urodynamics falls in the middle ground between those who oppose ever doing urodynamic testing and advocates of routine preoperative assessment. Specifically, I do agree that urodynamics can provide extra information on bladder function in complex cases. However, my experience also suggests that routine urodynamics adds little (if anything) to the evaluaton of simple cases.
4. Later at [97] the practitioner states he tended to use urodynamics sparingly because the procedure is embarrassing and costly.

Discussion and conclusions

1. This particular is but one of example of the many hybrid particulars set out in the amended complaint. The particular asserts the conduct of the surgery was wrongful if the two bases are established. If only one wrongful basis is established, it is not clear from the authorities whether the whole particular fails.
2. We accept that the drafting of the complaint is not a matter of strict pleading. However, issues of procedural fairness dictate that a practitioner facing disciplinary proceedings know the case that is asserted against him or her and the Tribunal's finding on the matters alleged. The authorities on this topic under the Medical Practice Act 1992 (repealed) are explained by Handley AJA with whom McColl JA agreed in King v Health Care Complaints Commission [2011] NSWCA 353 (see also the comments of Basten JA in Fraser v Health Care Complaints Commission [2015] NSWCA 421.) Their Honours comments appear more prescriptive than the wide interpretation to be afforded to a complaint as explained by Wilson J in Liu v Health Care Complaints Commission [2018] NSWSC 315. In Liu her Honour explained: Whilst the HCCC particularised its complaint, and asserted that unsatisfactory professional conduct (or professional misconduct) could be found only upon proof of certain particulars, the Tribunal was in no way bound by that assertion. It was a matter for the Tribunal to consider all of the information before it, whether that relating to particular 9 or other evidence, and determine whether or not the subject matter of the complaint was proved. Having found in the affirmative, it was a matter for the Tribunal to assess the evidence and determine for itself the seriousness of the conduct.
3. We note in Liu v Health Care Complaints Commission her Honour also explained, as a matter of procedural fairness, it was necessary that the practitioner know that a finding based on the establishment of one particular of unsatisfactory professional conduct may be made against him, rather than, as asserted by the HCCC, on proof of two particulars as set out in the complaint.
4. Doing the best we can, we are satisfied that as a matter of procedural fairness to the practitioner, and to uphold the standards of the profession, it is appropriate that we make findings on each sub-particular and determine if only one sub-particular is established whether that conduct of itself meant that the practitioner's actions were below the appropriate clinical standard (a disjunctive approach). Different considerations apply where sub-particulars are framed conjunctively.
5. We accept that there is a genuine division of opinion amongst gynaecologists and urogynaecologists about the benefits of pre-operative urodynamic testing particularly in non-complex cases. Patient E, however, presented with a complex history and suffered stress incontinence after her first surgery. We accept Dr Foote's opinion that, in these circumstances, it would have been appropriate to obtain urodynamic testing. We are fortified in our view having regard to the practitioner's own acknowledgment of the benefit of urodynamics in complex cases. We also find in this complex case that a referral to a urogynaecologist or a urologist should have been made given the patient's urinary symptoms. We are satisfied the practitioner's failure to conduct urodynamics was significantly below standard. Applying the disjunctive approach, while not limiting referral to a urogynaecologist, we are satisfied the particular is established.

Complaint One, particulars 10 and 11 10. The practitioner failed to investigate by repeat urodynamics the recurrence of Patient E's stress incontinence following surgery on 18 May 2010 in circumstances where he was contemplating major repeat surgery on about 17 August 2010. 11. The practitioner inappropriately decided to perform surgery on 16 August 2010 on Patient E without investigating the recurrence of Patient E's post-operative stress incontinence with repeat urodynamics.

The parties' submissions

1. The parties' submissions in respect of these two particulars are broadly similar to the those advanced in respect of Particular 9. Additionally, Dr Foote opines that the practitioner's conduct arranging 3D and 4D imaging was significantly below what was expected. In his table report in respect of this patient's third surgery, Dr Izzo noted that he would obtain urodynamic testing prior to surgery. Dr Lander also conceded in cross-examination (Transcript, 18 December 2017, p 43-44) that he would have ordered repeat urodynamics after the second surgery notwithstanding he explained that the testing would not necessarily result in a better outcome. It would, however, provide data to assist in better decision making.

Discussion and conclusions

1. In August 2010 Patient E had already undergone two significant surgeries for her complex prolapse problems. She continued after both her February and May surgeries to suffer stress incontinence. We accept Dr Foote's opinion that, by the time the third surgery was contemplated, the pre-operative testing carried out by the practitioner was inadequate. We find the practitioner's failure to carry out urodynamic testing was significantly below the standard. These particulars are proven.

Complaint One, particular 12 12. The practitioner inappropriately proceeded to perform the insertion of a further sling on Patient E on 1 November 2011 in circumstances where the practitioner: a. had not obtained a urogynaecology second opinion; b. was inserting a third sling after paraurethral bulking which carried increased risks; c. did not consider, or alternatively, document consideration of repeat paraurethral bulking.

The patient's evidence

1. Patient E records in her statement that she remained incontinent after the surgery carried out in August 2010.

The expert evidence

1. Dr Foote's expresses criticism of the practitioner embarking on the fourth surgery on this patient in November 2010 without obtaining a second opinion from a urogynaecologist. At this surgery the practitioner inserted a third sling. Dr Foote expresses the opinion that the insertion of a third sling after paraurethral bulking was unusual.
2. In his report Dr Foote opined: Once again a urogynaecology second opinion should have been arranged. The insertion of a third sling after paraurethral bulking is problematic as the tissues are compromised by the bulking agent as well as the possibility of voiding dysfunction. Consideration is not discussed of a repeat paraurethral bulking, which is what I would have recommended. Specific discussion should have been documented about the risk of mesh erosion from the compromised tissues as well as voiding difficulty. These issues are both significantly below what is reasonably expected and I am therefore strongly critical.
3. In his oral evidence, Dr Foote explained he could not think of a circumstance where it might be appropriate to insert a third sling. (transcript 11 December 2017 p 48). Dr Foote conceded in cross examination that he was not aware of any evidence based studies that there is a higher morbidity in a mid-urethral sling inserted after a prior bulking agent. (transcript 11 December 2017 p 49).

The parties' submissions

1. The HCCC refer to Dr Foote's evidence and also note that there is no recording in Patient E's clinical notes of discussion with the patient of repeat paraurethral bulking.
2. Dr Foote did not in his report set out what were the increased risks if a third urethral sling was inserted. In his oral evidence he indicated that to conduct such a procedure was "unusual".
3. The practitioner's submissions do not deal specifically deal with this particular but rather rely on the table summary of the expert evidence of Dr Lander and Dr Izzo. Dr Lander notes that in his experience paraurethal bulking is not considered as an appropriate operation or one that is carried out because of the short term nature of the benefits it may achieve.

Discussion and conclusions

1. We have found it difficult to address this particular with its reliance on three distinct and different aspects of the practitioner's clinical judgment in respect of this patient. We note Dr Foote's opinion that there should have been a referral to a urogynaecologist for a second opinion. In complex cases such as this we find what was necessary was that an independent opinion be obtained, although not necessarily that of a urogynaecologist, to assist in care planning.
2. This is because the practitioner was about to undertake the fourth surgery on Patient E who continued to experience incontinence. A referral would have confirmed his proposed procedure as the appropriate one, or perhaps have resulted in an alternative procedure to be conducted in the patient's best interests. Overall we are not satisfied that sub-particular (a) is established.
3. Dr Foote conceded in cross-examination he could not refer to any study that demonstrated increased risk if a third sling was inserted after para-urethral bulking had occurred. We accept that it would be rare for such surgery to be conducted, but there was no evidence that to do so was significantly below the standard. Rather, we discern Dr Foote would have adopted a more conservative approach and tried further para-urethral bulking. We find that this is a case where clinicians may genuinely adopt different views of treatment. We take into account Dr Lander's view, which was not challenged, that para-urethral bulking may legitimately have been disregarded as appropriate because of its short term benefits. It follows that we are not satisfied that (b) and (c) are established. We also take into account the practitioner's evidence that the patient consented to the insertion of the third sling.
4. While Dr Foote's opinion gives some support for this particular, the thrust of his evidence is that he would have adopted a more conservative approach. For the reasons set out above, we are not satisfied that the particular is established.

Complaint Three, particular 13 13. The practitioner failed to document his discussion with Patient E about the risk of mesh erosion from compromised tissues and voiding difficulty before his planned surgery on 1 November 2011, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation.

The parties' submissions

1. This particular, and the expert's responses to it, are broadly similar to the other record keeping complaints. We have set out above Dr Foote's response to this and the earlier particular (Particular 12).

Discussion and conclusions

1. We refer to and repeat our earlier findings about the practitioner's failure to fully document discussions he had with patients, including Patient E. This patient was about to undertake her fourth surgery in circumstances where she had compromised tissues and was incontinent. The risks of the contemplated surgery, if discussed with the patient, were not documented. We are satisfied this particular is established.

Complaint Three, particular 14 14. The practitioner failed to document the risks and alternative treatments he offered to Patient E prior to each of her surgeries with him, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation.

1. We repeat out findings above. We are satisfied this particular is established.

Complaint Three, particular 15 15. The practitioner's overall clinical notes in Patient E's record lacked sufficient detail for Patient E's case, contrary to Schedule 2, clause 2(1) of the 2010 regulation.

1. We repeat and rely on our earlier findings in respect of the practitioner's clinical notes. We accept Dr Foote's opinion. This particular is established.

Patient F's evidence

1. Patient F, a patient with a number of medical problems, provided a detailed statement dated 1 April 2015. She records that in 1996 she underwent a hysterectomy. In 2001, as a result of incontinence, she had a sling inserted but her urinary incontinence continued. In 2012 she consulted a gynaecologist and was diagnosed as suffering an anterior bowel prolapse. She had decided to undergo surgical repair with mesh when she saw the practitioner on television talking about the complications with mesh. She then arranged to see the practitioner who she first consulted in November 2012.
2. Patient F reports undergoing surgery on 18 March 2013 and suffering post operative cardiac complications. After this surgery Patient F reports being diagnosed as suffering a vaginal prolapse.
3. The schedule to the complaint discloses that Patient F underwent the following further surgeries: 1. (1) 2 July 2013 Vaginal sacrocolpopexy, anterior and posterior repair, mid-urethral sling, cystoscopy and LLETZ shortening of elongated cervix with four TFS devices inserted. 2. (2) 18 February 2014 Perineal body tape removal, posterior vaginal repair and YV flap closure.
4. Following the surgery on 2 July 2013 the patient suffered worsening faecal and urinary incontinence.

Complaint One, particular 14 14. On 28 June 2013, the practitioner inappropriately decided to perform surgery on Patient F on 2 July 2013 in circumstances where: a. Patient F's worsening faecal incontinence required a colorectal referral and anal sphincter diagnostic assessment before surgery; b. Patient F's worsening urinary incontinence required the second opinion of a urogynaecologist and repeat urodynamics; c. the practitioner's planned surgery did not address Patient F's anal sphincter issues or intussusception.

The expert evidence

1. Dr Foote is "strongly critical" of the practitioner's recommendation to Patient F of further surgery in circumstances where the patient had worsening faecal incontinence. He opines there should have been a referral of the patient to a colorectal surgeon and an anal sphincter diagnostic assessment. He also explains that the worsening incontinence required a urogynaecology second opinion and repeat urodynamics. He opines that the procedure chosen (repeat vaginal sacrocolpopexy, mid-urethral sling, cystoscopy, LLETYZ) did not address "the anal sphincter issues or the intussusception". He notes that the correspondence in the practitioner's clinical notes of his planned surgery does not show the involvement of a colorectal surgeon as to whether the colorectal issues should be addressed at surgery.
2. Dr Lander agreed, that if the practitioner was following mainstream practice, referral to a colorectal surgeon would have been appropriate.

The parties' submissions

1. The submissions of both parties rely on the expert reports. The practitioner's explanation of his arrangement with Dr Gold is set out earlier in these reasons and it is unnecessary we repeat that evidence.

Discussion and conclusions

1. The practitioner's clinical notes disclose that Patient F was referred to Dr Gold, but not till August 2013. This referral does appear consistent with the practitioner's approach to referrals to Dr Gold.
2. However, we are unable to accept the practitioner's explanation that, in all cases, it was appropriate for him to act in accordance with his "protocol" with Dr Gold. This patient had significant anorectal symptoms. We accept the surgery contemplated did not address the patient's anal sphincter issues or intussusception. We find that regardless of whether the practitioner was operating in a mainstream paradigm, or following the integral theory, he should have made a colorectal referral. We are satisfied that sub particular (a) and (c) are established.
3. We also accept Dr Foote's opinion that in the circumstance of the patient's worsening urinary incontinence it would have been beneficial to obtain urodynamic studies before the second surgery carried out by the practitioner and a second opinion from a urogynaecologist or another specialist. It is to be remembered that this patient's history prior to presentation to the practitioner and that this was her second surgery by the practitioner. We are satisfied sub particular (b) is established in part.

Complaint One, particular 27c c. the practitioner failed to involve a urogynaecologist to review Patient F's ongoing prolapse and tape issues and instead performed a tape removal and posterior vaginal repair on 18 February 2014;

1. By February 2014 Patient F had undergone three surgeries by the practitioner. Her symptoms were not relieved and she suffered a vaginal prolapse.

The expert evidence

1. Neither of the practitioner's experts are critical of the practitioner's failure to refer to a urogynaecologist, but rather refer to the practitioner's expertise in dealing with chronic prolapse cases.

Discussion and conclusions

1. Patient F presented with worsening symptoms after other failed surgeries. We find that the majority of practitioners confronted with this situation would probably have made a referral to obtain a second opinion. However, we are not satisfied that it was mandatory that the second opinion be from a urogynaecologist. This particular is not established.

Complaint Three, particulars 16 and 17 16. The practitioner failed to keep or document Patient F's written consent to surgery he performed on 2 July 2013, contrary to Schedule 2, clauses 1(5) and/or 2(1) of the 2010 regulation. 17. The practitioner failed to keep or document Patient F's written consent to surgery he performed on 18 February 2014, contrary to Schedule 2, clauses 1(5) and/or 2(1) of the 2010 regulation.

1. It is convenient that we deal with these particulars together. It is not in dispute that the patient's clinical notes do not contain Patient F's written consent to the surgery to be performed on 2 July 2013 or 18 February 2014.

The expert reports

1. We have earlier noted the concession by Dr Lander that the clinical notes do not comply with the regulation and there is a "literal" failure. We also note that Dr Izzo opines there must have been a copy of the consent form because the hospital would not have allowed the surgery to proceed without that form. We accept that explanation insofar as the hospital is concerned is plausible but it does not address the particular in issue namely compliance with the regulation.

The parties' submissions

1. The submissions on the topic of the notes and the regulation, and the parties' submissions on them, have already been extensively canvassed by us. We repeat our earlier findings.

Discussion and conclusions

1. It is clear, in the absence of the consent forms from the clinical records, that there has not been compliance with cl 1(5) of the regulation. We are satisfied these two particulars are established.

Complaint Four, particular 1d

1. Complaint Four addresses the asserted failure by the practitioner to comply with the condition on his registration to make a colorectal referral before any procedure on a patient suffering anorectal symptoms. Particular 1d (as amended) is as follows: d. Patient F before surgeries on 19 March 2013, and 2 July 2013 and 18 February 2014;

The expert evidence

1. Dr Foote expresses the view that this patient had anorectal symptoms. Dr Lander agreed that, insofar as this patient was concerned, he would have referred her to a colorectal surgeon and sought studies. We have set out above Dr Foote's general criticisms of the practitioner's treatment of this patient, including his failure to refer to a colorectal surgeon.

The patient's clinical notes

1. Our examination of the patient's clinical notes discloses that a protogram dated 7 February 2013 revealed abnormalities including incontinence, intra-anal intussusception, and small anterior rectocoecle. In his post-operative report dated 28 June 2013 the practitioner noted the patient had worsening faecal incontinence which he suspected was due to intussusception which may have worsened.

The parties' submissions

1. The HCCC assert we should find that the practitioner breached condition 2 of the conditions on his registration, and this was a serious breach.
2. The practitioner relies, as he does with other particulars relating to the breach of condition 2, on his arrangement with Dr Gold.

Discussion and conclusions

1. We rely on and repeat our conclusions in respect of Patient A about this particular. We are satisfied this particular is established.

Patient G

1. No statement was provided by this patient, but we do have her clinical records. This patient appears to have first consulted the practitioner in August 2011. She had three children, two born by caesarean section. She had a hysterectomy and other surgeries including brain surgery. She was aged 69 years at the date of her first consultation. She presented with extreme urinary incontinence, a modest degree of obstructed defecation, increasing anal incontinence, and severe introital dyspareunia.
2. The schedule to the complaint discloses Patient G underwent the following surgeries: 1. 6 June 2012 Modified vaginal paravaginal repair with sacrospinous fixation, vaginal sacrocolpopexy, tight Advantage tape with cystoscopy, SPC and a bilateral island flap perineoplasty. 2. 7 November 2012 Excision of vaginal stenosis with flap reconstruction, relaxing of slight perineal contracture with a second flap reconstruction and injection of bulkamid to bulk up urethra.
3. The practitioner's records disclose that he referred the patient to Dr Tony Eyers for endo-anal physiology studies.

Complaint One, particular 15 15. The practitioner failed to arrange endo anal ultrasound and anal physiology studies for Patient G prior to surgery on 6 June 2012.

Expert evidence

1. In his report Dr Foote says that the practitioner's initial proposed investigations were appropriate. He opines, however, that "The endo anal ultrasound and anal physiology studies do not appear to have been performed". He opines this is significantly below the standard.

The practitioner's evidence.

1. The practitioner says in his statement that he did arrange endo anal ultrasound by writing a referral to Dr Tony Eyers. That statement is corroborated by the clinical notes which dislcose a hand written referral undated from the practitioner to Dr Eyers. The undated note says "needs anal physiology studies prior to seeing her". The practitioner's letter to the patient's general practitioner dated 11 August 2011 also states "and will also consult Tony Eyers for anal physiology studies and his opinion on the anal weakness". That letter is copied to Dr Eyers at the RPAH Medical Centre.

The parties' submissions

1. The HCCC submit we should find this particular established because the practitioner proceeded with surgery without waiting for the test results. The practitioner's submissions simply note that, on this occasion, the practitioner did order endo anal investigations.

Discussion and conclusions

1. The practitioner's notes do not contain any endo anal investigation results, nor does the practitioner mention these results in his post-operative reporting to the patient's general practitioner on 26 July 2012.
2. On a literal reading the particular is not established. The practitioner did arrange for the studies to be carried out. Two inferences are open on the clinical notes. It may be inferred there being no studies in the clinical notes and no reporting of them, that the practitioner did proceed to conduct surgery without the studies, or it may be inferred the patient, having been referred for the tests, that the testing occurred and the results were misplaced or misfiled. Such an inference is not inconsistent with the reporting to the general practitioner when the focus was on the surgery actually performed. Whether on a literal reading or on the inference the HCCC submit we should draw, we are not satisfied the particular is established to the Briginshaw standard having regard to the clinical notes.

Complaint One, particular 16 16. The practitioner inappropriately performed surgery on Patient G on 6 June 2012: a. without first addressing Patient G's urgency symptoms; and b. without having arranged endo anal ultrasound and anal physiology studies.

1. There is a significant degree of overlap between Particular 16 (b) and particular 15. We note that the sub-particulars are to be read conjunctively. We first address Particular 16 (a).

The expert evidence

1. In his supplementary report Dr Foote is critical of the practitioner's failure to first control Patient G's urgency symptoms before her surgery on 6 July 2012 as "surgery often exacerbates urgency due to surgical haemorrhage and inflammation".
2. Dr Izzo in his oral evidence on the topic of urgency symptoms explained that there are good medical treatments available now for urgency and that in most circumstances he would try and treat the urgency symptoms before proceedings to surgery (transcript 20 December 2017 p 72).

The patient's clinical records

1. The practitioner's letter to the patient's general practitioner dated 24 May 2012 makes no mention of steps that may be taken to ameliorate Patient G's incontinence other than surgical intervention. No explanation is proffered by the practitioner about his rationale for proceeding to surgery without first addressing the patient's urgency symptoms.

The parties' submissions

1. The HCCC relied on Dr Foote's opinion expressed in his supplementary report to establish this particular.
2. The practitioner's submissions address this particular limited to submissions on endoanal ultrasound. They do not address sub-particular (a).

Discussion and conclusions

1. We accept that it is generally appropriate clinical practice to investigate and treat symptoms of urgency prior to contemplating surgery. The surgery performed in this instance did not address any matters that may have been found as a result of investigations referred to in subparagraph (b). The surgery was inappropriate rather than inappropriately performed. This particular is not established.

Complaint One, particular 17 17. The practitioner inappropriately performed surgery on Patient G on 7 November 2012 without the second opinion of a urogynaecologist, in circumstances where Patient G suffered: a. ongoing mixed urinary incontinence symptoms after the practitioner's first incontinence surgery on Patient G; b. levator myalgia requiring the medication Lyrica (pregabalin).

The expert evidence

1. There is marked divergence between Dr Foote on the one hand and the practitioner's experts on the other in respect of this particular. Dr Foote is very critical of the practitioner's actions in undertaking the second surgery without reference to a urogynaecologist in the circumstances set out in the particular. By contrast, Dr Lander and Dr Izzo are not critical on the basis that the further surgery without independent referral was within the practitioner's expertise and experience.

The parties' submissions

1. Each party relies on the opinions expressed by the experts. The HCCC submit we should prefer the evidence of Dr Foote to that of the practitioner himself and his experts.

Discussion and conclusions

1. We have earlier noted that many very experienced gynaecologists have the necessary clinical skills and judgment to appropriately carry out prolapse surgery without the need for urogynaecological referral. Many skilled gynaecologists will, notwithstanding their expertise, prudently seek a second opinion from a range of practitioners, including but not limited to urogynaecologists, to assist with their clinical decision making. Accordingly, we find this particular which is limited to urogynaecological referral is not established.

Complaint Three, particular 18 18. The practitioner failed to document the advice he gave to Patient G about the alternatives to, risks and benefits of the proposed surgeries on 6 June 2012, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation.

Complaint Three, particular 19 19. The practitioner failed to document the advice he gave to Patient G about the alternatives to, risks and benefits of the proposed surgeries on 7 November 2012, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation.

Discussion and conclusions

1. It is convenient for us to deal with these two particulars together. We repeat our earlier findings about the failure of the practitioner's records to comply with the regulation, and in particular his failure to document advice given to patients about the risks and benefits of proposed surgeries. We are satisfied these two particulars are established.

Complaint Four, particular 1e

1. This particular asserts that the practitioner breached condition 2 of the conditions on his registration by failing to obtain a colorectal opinion for: e. Patient G before surgery on 6 June 2012
2. We have already set out the patient's symptoms as recorded by the practitioner in his clinical notes, and noted his referral of this patient for endo anal studies.
3. We repeat our earlier findings about the practitioner's interpretation of this condition, and his protocol with Dr Gold. Notwithstanding the practitioner's explanation, and Dr Foote's concession about some anorectal symptoms being routinely considered by a gynaecologist or urogynaecologist as within their expertise to treat, we are satisfied for the reasons earlier enunciated that this particular is established.

Patient H

1. No witness statement was provided by Patient H. However, her clinical notes were before us. The patient re-presented to the practitioner in 2012 (having not been seen by him since 2008). At that time she was aged 51 years. In a letter dated 5 March 2012 to Patient H's general practitioner the practitioner set out his diagnoses as follows: 1. Severe endometriosis with chronic dysmenorrhoea and severe dyspareunia. 2. Stage III rectocoele with severe obstructed defecation syndrome symptoms. 3. Mixed urinary incontinence, but quite good preservation of anterior compartment anatomy.
2. The schedule to the complaint reveals Patient H underwent the following surgeries performed by the practitioner: 1. 3 April 2012 vaginal hysterectomy of non descending bulky uterus, placement of standard tension mid-urethral tape and vaginal sacrocolpopexy. 2. 7 November 2012 intra-urethral injection of bulking agent. 3. 19 February 2013 rectocoele repair, urethroplasty and anterior vaginal repair and cystoscopy. 4. 23 April 2013 insertion of a snug Advantage tape, anterior vaginal repair, cystoscopy and insertion of suprapublic catheter.

Complaint One, particular 18 18. The practitioner inappropriately performed surgery on Patient H on 19 February 2013 in circumstances where: a. Patient H had not seen her urologist who she had been referred to on 23 January 2013; b. the practitioner had not arranged a referral to a urogynaecologist after Patient H's ongoing significant rectocoele.

The expert evidence

1. Dr Foote appears to opine that the practitioner's failure to obtain a urogynaecologist's opinion before this surgery was significantly below the standard because the patient had an ongoing significant rectocoele.
2. By contrast, in each of their reports, Dr Lander and Dr Izzo did not regard the practitioner's conduct in operating on the patient without referral to a urogynaecologist as below standard.
3. In answers to questions posed in cross-examination Dr Lander modified the opinion expressed in his report as follows: Q. You agree that she had an ongoing significant rectocele after the two surgeries? A. It would appear so. Q. Do you agree with me that it would have been appropriate to arrange referral to a urogynaecologist given her ongoing significant rectocele? A. I, I wouldn't have. I'd have, if, if it was a very large one I would have, I probably would have done some further investigations so that I could provide the patient with a, a more, a more complete informed consent and then gone ahead with a, a further rectocele repair without considering referring her on.

The practitioner's evidence

1. The practitioner explained in his oral evidence that he did not refer patients to a urogynaecologist as treating difficult cases was within his expertise. He also explained that the patient was uninsured and he was trying to save her money.

The parties' submissions

1. The HCCC's submission on this topic is well summarised in [260] of the submissions. There it is submitted: The standard reasonably expected of a practitioner where complex symptoms persist is to obtain a second opinion, irrespective of the experience and expertise of the surgeon involved.

Discussion and conclusions

1. The practitioner's letter to the patient's general practitioner explains that the recurrence of the "very large high pressure rectocoele" was "the first genuine rectocoele repair failure I have had in almost eight years."
2. While the practitioner was conscious that the patient was uninsured, it is apparent from his evidence that she was not offered the opportunity, after proper explanation of the practitioner's diagnosis, of obtaining a second opinion before further surgery. Rather, the practitioner no matter how well intentioned, acted in a paternalistic manner in determining not to make a referral to a urogynaecologist or another appropriate specialist. Having referred the patient to Dr Tse, the practitioner's action in operating without obtaining Dr Tse's opinion is unexplained.
3. Notwithstanding we accept the practitioner's cohort of patients, in the main, were woman with complex gynaecological conditions, his position in respect of this and many other patients, demonstrated a complete reluctance to seek the views of a suitable specialist about his contemplated surgical procedure. This was not in his patients' best interests as patients such as this patient did not have the benefit of a second opinion when consenting to significant surgery. We find notwithstanding he maintained telephone contact with Dr Lander in Queensland, the practitioner became isolated in his own practice and belief in his surgical skills. He failed to "step back" and check his proposed surgery was in a patient's best interests and clinically appropriate.
4. We find that in circumstances where he had not encountered failure of a rectocoele repair in eight years, and this patient had recurrence of a significant rectocoele it was below the standard reasonably expected not to seek a second opinion, but not necessarily that of a urogynaecologist, before further surgery and before he received Dr Tse's report. We are satisfied su-particular (a) is established, and that it was inap0propriate to perform the surgery on 19 February 2013.

Complaint One, particular 19 19. The surgery the practitioner performed on Patient H on 19 February 2013 was not in Patient H's best interests compared to a Martius tissue graft without mesh in circumstances where there was erosion of Patient H's previous sling placed on 3 April 2012.

The expert evidence

1. The HCCC rely both on Dr Foote's report and his oral evidence. In his report Dr Foote opines: The surgery performed was difficult with erosion of the previous sling into the urethral wall with insertion of a SIS graft. This was not the best option, and a urologist would more likely have performed a Martius tissue graft without mesh.
2. In answer to questions posed to him in cross examination, Dr Foote explained the advantage of using a Martius tissue graft was that "it uses native tissues and avoids the use of foreign body, foreign material". He did not agree that there was a particular view in gynaecology that use of a Martius graft had not lived up to expectations (transcript 11 December 2017 p 49). Dr Foote also disagreed with Dr Lander's opinion that the use of a Martius tissue graft was controversial. Nor did he accept that it was appropriate to use a sling rather than a Martius tissue graft for this patient.
3. The practitioner denies this particular. He is supported by both his experts. Dr Lander explains that the use of a Martius tissue graft is controversial. He explains that the fibro-fatty graft has been shown by imaging to break down post operatively.

The parties' submissions

1. The HCCC submit at [265] that we should prefer and accept Dr Foote's evidence and rely on his answers given in cross-examination.

Discussion and conclusions

1. Dr Foote's support for this particular is set out above. However, in neither his report nor his oral evidence does he explain why the procedure adopted by the practitioner was not in the patient's best interests. His evidence, at its highest, is that a urologist "more likely" would have used a Martius tissue graft. We pause to note that Dr Foote is a urogynaecologist not a urologist. However, he was not challenged on this particular on the basis that his opinion was outside his area of expertise.
2. The expert evidence before us on this particular is equivocal. Dr Lander's evidence is that the use of the graft is controversial. We are not satisfied that this particular, which relies on this aspect of the practitioner's surgery on Patient H being significantly below the standard reasonably to be expected, is established.

Complaint One, particular 20 20. The practitioner inappropriately proceeded with surgery on Patient H on 23 April 2013 in circumstances where: a. Patient H had not seen her urologist to whom she had been referred on 23 January 2013; b. the practitioner had not arranged a referral to a urogynaecologist; c. there was weak tissue in the operative area following erosion from Patient H's sling placed on 3 April 2012; d. the surgery was not in Patient H's best interests compared to a repeat Bulkamid paraurethral bulking or a native tissue fascial sling.

1. This particular relies on a number of elements to support a conclusion that the practitioner's conduct in operating on Patient H on 23 April 2013 was significantly below the expected standard.

The expert evidence

1. Dr Foote is extremely critical of the practitioner operating before obtaining Dr Tse's (or another urologist's opinion). Dr Lander is also critical of the practitioner in circumstances where the patient's compromised tissue from the earlier surgery had insufficient time to heal.
2. Dr Izzo's opinion is expressed partially on the basis that after the surgery the practitioner made a referral to Dr Tse. That referral being made after the surgery is irrelevant to the particular. We reject Dr Izzo's opinion on this particular as having any probative basis.

The parties' submissions

1. Unsurprisingly, the HCCC submit that we should rely on and accept the opinions of Dr Foote and Dr Lander.

Discussion and conclusions

1. This patient's operative report on 3 April 2013 disclosed erosion. We find that the surgery conducted on 23 April 2013 was inappropriate. We accept Dr Lander's view that the patient's tissue had insufficient time to heal and any further surgery should have been delayed. Again there is some overlap between this particular and particular 18 (a) and (b). We repeat our findings in relation to particular 18 so far as they are relevant to this particular.
2. We are satisfied, even if we do not find sub-particular (b) established, that the practitioner's action in proceeding with the surgery in the circumstances set out in sub-paragraph (c) is itself sufficient to establish the particular.

Complaint Three, particulars 20, 21, 22 and 23 20. The practitioner failed to document the advice he gave to Patient H about the alternatives to, risks and benefits of the proposed surgery on 3 April 2012, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation. 21. The practitioner failed to document the advice he gave to Patient H about the alternatives to, risks and benefits of the proposed surgery on 7 November 2012, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation. 22. The practitioner failed to document the advice he gave to Patient H about the alternatives to, risks and benefits of the proposed surgery on 19 February 2013, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation. 23. The practitioner failed to document the advice he gave to Patient H about the alternatives to, risks and benefits of the proposed surgery on 23 April 2013, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation.

1. It is convenient that we deal with these particulars together. Having examined the patient's records we are satisfied these particulars are established. In reaching this conclusions we rely on and repeat our earlier findings in respect of the lack of documentation to comply with the regulation discussed in respect of Patients A, B, C and D. We are satisfied these particulars are proved.

Patient I

1. This patient did not provide a statement but her clinical notes were in evidence before us. This patient, who was then aged 75 years, first saw the practitioner on 5 April 2012. At that time the practitioner reported to her general practitioner that the patient, a widow, with two children was, other than a tortuous left artery, in good health. Patient I's present complaints were noted as: [Patient I] had a total abdominal hysterectomy for bleeding, together with a MMK urethropexy for purportedly minor mixed urinary incontinence in 1978. She had no further pelvic floor problems for the next 20 years. However, [Patient i] began to experience increasing bulge discomfort in the mid 2000's. Symptoms have progressed to the point of a bothersome posterior prolapse, which led to posterior compartment repair with an Apogee mesh kit implant. Apogee repair appeared to work well for four years, but was eventually followed by descensus of the vaginal vault and bladder base. [A gynaecologist] then performed a transvaginal resuspension of the vaginal vault to the uterosacral ligaments, using #0 Prolene sutures, but this culdoplasty repair failed almost immediately. An attempt was made to hold the USL plication repair in place with a pessary, but this device fell out on the way home.
2. The schedule to the complaint discloses Patient I underwent the following surgeries performed by the practitioner: 1. 7 May 2012 Vaginal parvaginal repair, vaginal sacrospinous fixation and inserted an Advantage tape under cystoscopic control. 2. 8 January 2013 Parial vaginectomy (85%), sacrocolpopexy and colpociesis.

Complaint One, particular 21 21. The practitioner inappropriately proceeded with surgery on Patient I on 7 May 2012 without the second opinion of a urogynaecologist in circumstances where Patient I had had two previous failed prolapse surgeries, difficult bladder neck anatomy and mixed urinary incontinence.

The parties' submissions

1. As with other patients with complex histories, the HCCC submit, based on Dr Foote's opinion, that the practitioner's clinical judgment was significantly below the expected standard in not referring this patient to a urogynaecologist prior to surgery on 7 May 2912.
2. The practitioner maintains that, by reason of his experience and gynaecological expertise, it was not necessary for him to refer patients, even if their symptoms were complex, to a urogynaecologist prior to surgery. He is supported by the opinions expressed by Dr Lander and Dr Izzo. We again note that Dr Lander is well qualified to express an opinion about the practitioner's surgical skills from first hand observation. This is to be contrasted with Dr Izzo whose opinion is based on a generalised knowledge of the experience of older experienced gynaecologists.

Discussions and conclusions

1. The patient's clinical records, including the summary of her previous failed surgeries as summarised by the practitioner in his notes to her general practitioner, disclose a complex surgical history with significant ongoing prolapse and urinary problems.
2. We find that best practice required the practitioner to seek a second opinion prior to surgery on Patient I. As noted above, this would have enabled the practitioner to test his proposed surgery with an appropriate colleague. It is not suggested that the practitioner was lacking the necessary skill to conduct the surgery. Given this patient's history, the failure to refer to a urogynaecologist was significantly below the standard reasonably expected.

Complaint One, particular 22 22. The practitioner inappropriately proceeded with surgery on Patient I on 8 January 2013 without the second opinion of a urogynaecologist in circumstances where Patient I's surgery on 7 May 2012 had not been successful.

1. We repeat our findings set out above. Additionally, we note, as highlighted by the HCCC in its submissions, that the patient had significant problems after her May surgery and the practitioner himself in his operation report described "a very difficult dissection into paravesical spaces".
2. We are satisfied this particular is established.

Complaint Three, particular 24 24. The practitioner failed to keep or document Patient I's written consent to surgery he performed on 8 January 2013, contrary to Schedule 2, clauses 1(5) and/or 2(1) of the 2010 regulation.

1. We repeat and rely on our earlier reasoning in respect of the practitioner's failure to keep a copy of the patient's written consent to the surgery in his records. This particular is established.

Patient J

1. As with a number of other patients, Patient J did not provide a statement for these proceedings, but her clinical notes were in evidence before us. In his letter to her referring general practitioner dated 19 September 2012, the practitioner noted the patient was aged 76, and had six children with her first child having been delivered after a difficult forceps delivery. The patient's presenting complaints included faecal incontinence, exteriorizing cystocoele and mixed urinary incontinence.
2. The schedule to the complaint records the following surgery: 1. 6 November 2012 Colpocleisis with sacrospinous fixation and mid urethral sling.
3. In his letter to the patient's referring practitioner dated 19 September 2012 the practitioner explained the patient had faecal incontinence, flatal weakness, faecal urgency and defacatory difficulty. The letter further disclosed that the patient's reported faecal incontinence was not helped by a sacral nerve stimulator.

Complaint One, particular 23 23. The practitioner inappropriately proceeded with surgery on Patient J on 6 November 2012 in circumstances where: a. the practitioner had not arranged referral to and received the opinion of a colorectal surgeon for Patient J's bowel symptoms and her previous sacral nerve root stimulator for faecal incontinence; b. the practitioner had not arranged investigations of Patient J's bladder and bowel such as urodynamics, anal sphincter studies or anal physiology studies.

Expert evidence

1. Dr Foote opines that the practitioner's decision to operate without the results of investigations, and his failure to address the symptoms of bladder or bowel function prior to the surgery were all significantly below the standard expected. He expresses strong criticism of the practitioner's overall care of this patient which he opines was significantly below standard.
2. Dr Lander very appropriately conceded in cross-examination the procedure he would have followed with this patient included a referral to her existing colorectal surgeon as a matter of courtesy (transcript 18 December 2017 p 65). He also appropriately conceded that, if the patient was not under the care of a colorectal surgeon and had not had the benefit of his (or her) expertise and undergone studies, he would have referred the patient. Dr Lander's overall opinion is best summarised in the answer he gave in cross-examination as follows: Q. But do you agree, given the significant anorectal symptoms that she had, that it would have been appropriate to receive the opinion of the colorectal surgeon as to whether the surgery that Dr Reid proposed was appropriate? A. No, I, I, I disagree. I don't think that reading this that doctors, Dr Reid was expecting to improve her faecal incontinence, and that would have been, is what, that would have been an ongoing problem still under the control of the colorectal surgeons who conceivably would have fully investigated it at that stage. So there'd be no requirement for Dr Reid to refer that patient on, but there, but I, but there could be a place for a courtesy letter to that colorectal surgeon to tell him of his intentions of these vaginal, proposed vaginal surgery.

The parties' submissions

1. As noted, the HCCC submit that we should accept Dr Foote's opinion that both the failure to make a colorectal referral and failure to arrange investigations before surgery were significantly below standard.

Discussion and conclusions

1. We note in the practitioner's Operation Report dated 6 November 2012 he notes "Low urethral pressure leakage (confirmed at prior urodynamics) was clinically evident". But no urodynamic studies are found in the patient's records. It is unclear when urodynamic studies were done and by whom. We also note the absence of any records from the patient's colorectal specialist although it would appear from the notes she had seen such a specialist for the purpose of having treatment with a sacral nerve stimulator.
2. We find that it would have been appropriate for contact to be made with the patient's colorectal specialist to obtain appropriate test results if these had already been undertaken, or if not, to refer the patient for the testing. In so finding we reject Dr Lander's opinion that colorectal referral was not necessary and all that was required was observance of professional courtesy by providing advice to the colorectal surgeon. We are satisfied that a referral would likely have resulted in a collaborative approach to both the patient's gynaecological and colorectal problems.
3. We accept Dr Foote's opinion that, given the patient's symptoms the failure to refer this patient to a colorectal surgeon, or to obtain appropriate studies before surgery, was significantly below the standard reasonably expected. This was particular so in circumstances where the patient already had a colorectal specialist.

Complaint Three, particulars 25 and 26 25. The practitioner failed to keep or document Patient J's written consent to surgery he performed on 6 November 2012, contrary to Schedule 2, clauses 1(5) and/or 2(1) of the 2010 regulation. 26. The practitioner failed to document the advice he gave to Patient J about the risks and benefits of the surgery on 6 November 2012, contrary to Schedule 2, clauses 1(3) and/or 2(2) of the 2010 regulation.

1. We repeat and rely on our findings set out earlier in these reasons. Again there is no evidence in the patient's clinical records to indicate compliance with the regulation. We are satisfied these particulars are established.

Complaint Four, particular 1g

1. This particular relates to the practitioner's failure to refer to a colorectal surgeon for Patient J before surgery on 6 November 2012 in compliance with Condition 2 on his registration.
2. There is significant overlap between this particular and Complaint One, particular 23. We repeat on our findings of the patient's symptoms which we set out in our consideration of the earlier particular.
3. We have earlier in these reasons noted the attitude adopted by the practitioner in his interpretation of condition 2 of the conditions on his registration. We found it telling that in his cross-examination the practitioner sought to exculpate himself by saying because the patient had her own colorectal surgeon "in Tamworth or wherever, ever, who was looking for her. It's not for me to send her to another colorectal surgeon" (transcript 14 December 2017 p 48). We find that the practitioner was required to obtain a colorectal opinion before the patient's surgery. That opinion could properly as Dr Lander noted, have been provided by the patient's colorectal surgeon without reference to another colorectal surgeon.
4. We are satisfied that the practitioner was in breach of this condition which, in this case, he flagrantly ignored.

Complaint Four, particular 2a

1. This particular asserts the practitioner breached condition 4 on his registration by not referring a patient who had symptoms of bladder dysfunction for urodynamic testing before Patient J's surgery on 6 November 2012.
2. From 27 March 2012 the Council imposed the following condition on the practitioner's registration: 4. Whenever A/Prof. Reid is contemplating surgery upon a patient with symptoms of bladder dysfunction he is to refer that patient for urodynamic investigations

The expert evidence

1. Each of the experts agreed this patient had bladder dysfunction. Dr Foote opines that the dysfunction was "significant".

The practitioner's evidence

1. The practitioner in his oral evidence sought to explain that there had been a five day window in which he could operate on this patient. He did however ultimately concede that he had breached Condition 4. That concession was appropriately made.
2. We accept this particular is established.

Patient K

1. As with a number of other patients, Patient K did not provide a statement. However, her clinical notes were in evidence before us.
2. Patient K was aged 73 when referred to the practitioner. She had two children. Her symptoms on presentation to the practitioner were noted by the practitioner to be "a discomforting bulge in the lower vagina". The practitioner reported to Patient K's general practitioner that "the real issue is that she has substantial degree of obstructed defecation, with a need to chronically splint". He also noted the patient "had a collagen disorder" and she was "using both Prednisone and Methotrexate".
3. This patient suffered post-operative bleeding and was transferred initially to St George Private Hospital and later to a public hospital where she was stabilised.
4. The schedule to the complaint records this patient's surgery on 11 June 2013 as: 1. Vaginal sacrocolpopexy, enterocoele repair and cystoscopy using Tissue Fixation System (TFS) mesh.

Complaint One, particular 25 25. The practitioner performed surgery on Patient K on 11 June 2013. The practitioner inappropriately used permanent polypropylene rather than a dissolving mesh during surgery to treat Patient K's prolapse in circumstances where: a. Patient K was taking the medication Prednisone; b. the risk of mesh rejection was high in an immunocompromised patient Expert evidence

1. In his supplementary report, Dr Foote notes that the practitioner's pre-operative investigations for this patient were appropriate. He notes the practitioner made "an appropriate and thorough clinical assessment and provisional diagnosis of the patient's presenting problems". He also notes the practitioner's investigations (urodynamics and perineal ultrasound) were appropriate. But Dr Foote is critical of the operative procedure carried out. He notes: [The practitioner] recommended a vaginal sacrocolpopexy with xenform bovine collagen mesh, Advantage suburethral sling, cystoscopy and possible suprapublic catheter. Given the large prolapse these operations were appropriate. The recommendation for a dissolving mesh, rather than a permanent one, was also appropriate given her immunocompromise from the rheumatoid arthritis treatment.
2. Dr Foote expresses the opinion that the practitioner's deviation from his contemplated surgery was not reasonable. This, he says, is because of the risk of mesh rejection was high in an immunocompromised patient. He finds the practitioner's deviation from the planned surgery to be significantly below the standard and it attracts his strong criticism.

The practitioner's response to this particular

1. The practitioner deals with this particular in his Reply at [25]. He states: The respondent denies that it was inappropriate to use permanent polypropylene rather than dissolving mesh. He says he was aware of and took account of Patient K's Prednisone usage and possible collagen weakness issues, that he provided Sustanon injections pre-operatively and that his decision-making reflected an appropriate clinical assessment of risks and benefits.

The parties' submissions

1. The HCCC rely on the opinions expressed by Dr Foote, and Dr Lander's answers given in cross examination.
2. In the table summarising their opinions neither Dr Lander nor Dr Izzo are critical of the practitioner's use of TFS. However, in cross examination Dr Lander agreed he would be very careful about putting mesh into a patient who is immune compromised "probably mainly because I'd be concerned about the development of that infection, the infection basis" (transcript 19 December 2017 p 10).

Discussion and conclusions

1. We accept the evidence of Dr Foote in respect of this particular. His opinion is corroborated by Dr Lander's oral evidence given in response to questions in cross-examination. This patient's medication and diagnosis of rheumatoid arthritis contra-indicated the use of TFS mesh. We find this particular is established.

Complaint Three, particular 27 27. The practitioner saw Patient K on 17 March 2013 and Patient K signed a consent form for surgery on 26 April 2013. The practitioner performed surgery on 11 June 2013. The practitioner failed to keep or document Patient A's written consent to sacrospinous colpopoexy or the use of TFS mesh for surgery on 11 June 2013, contrary to Schedule 2, clauses 1(5) and/or 2(1) of the 2010 regulation.

1. Although the practitioner does not respond to this particular in his Reply, in answers given in cross-examination he ultimately agreed that Patient K had not given written consent to the use of TFS. He also accepted that following the incident with Patient N (which led to the suspension of his operating privileges at the hospital) he was no longer going to do open invasive surgery at the hospital (transcript 13 December 2017 p 41). He also agreed that the surgery undertaken was different to that set out on the consent form.

Discussion and conclusions

1. Having regard to our examination of the patient's records and the practitioner's answers given in cross-examination we are satisfied this particular is established. This particular is based on non compliance with the regulation. It is appropriate we note one of the purposes of the regulation is to document an explanation given to a patient to demonstrate the information relied on by the patient to give an informed consent. The practitioner's insertion of TFS into this patient without her informed consent was significantly below the standard reasonably required. It was, in the circumstances of this case, in flagrant disregard of the patient's rights. In his zeal to promote TFS, both because of his beliefs in the system, and to maintain his visiting privileges because of the hospital requirements for patients to undergo shorter more profitable procedures, the practitioner's needs were put above his patient's rights.

Complaint Three, particular 28 28. The practitioner failed to document his discussion of the alternatives to surgery, the various surgical options, and complications for Patient K's surgery on 11 June 2013, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation.

The parties' submissions

1. The HCCC drew our attention to the patient's clinical notes. It is asserted that there is no evidence of alternatives to surgery or various surgical options revealed by the notes. We accept that is the case.
2. We are satisfied that this particular is established. In so finding we accept Dr Foote's evidence which is corroborated in part by Dr Lander's evidence.

Complaint Four, particular 1h

1. This particular asserts a breach by the practitioner of Condition 2 on his registration which required him to obtain a colorectal opinion before performing surgery on the patient on Patient K on 11 June 2013 on the basis she had anorectal symptoms.

The practitioner's evidence

1. At the hearing the practitioner's counsel advised that the practitioner did not rely on [223] of his statement. We therefore do not discuss this assertion by the practitioner.
2. In his oral evidence the practitioner drew a distinction between anorectal symptoms and rectal symptoms. He asserted this patient did not have symptoms relevant to her anus, but her presenting problem was gynaecological. The following exchange took place between the practitioner and senior counsel for the HCCC: Q. Would you agree with me that patient K had anorectal symptoms? A. They're rectal symptoms, not anorectal symptoms. Q. They're what, sorry? A. I'd say that's more of a rectal symptom not an - anal symptom is like faecal incontinence or stuff like that. Those symptoms are coming because you can't empty your rectum, it doesn't have anything really to do with her anus. Q. Reading those symptoms there, you describe at tab 96 are you suggesting that they are not characterised as anorectal symptoms? A. No, I mean if you want to describe anorectal, have one section that relates to rectal but none of those symptoms is particularly related to anal function noted - it related to the fact that she's lost the splenic of the posterior vaginal wall and thus can't empty the rectum. None of it has to do with the anus. Q. What do you understand the phrase, "Anorectal symptoms", to mean? A. Symptoms to do with the posterior compartment in which there would be some issues relating to faecal control and some symptoms relating to difficulty in evacuation. But the anus controls - keeps the stool in the rectum and if it's failing, then it can't do that. That's there were the, "Ano", comes in. Q. Will you agree with me that this patient had problems with evacuation of the bowel? A. Yes, of course. Q. What I want to suggest to you is that this patient did have anorectal symptoms and that under the condition that you were then under from the Medical Council that you were required to obtain a second opinion from an appropriate specialist in the field of colorectal surgery which supports the surgery that you were proposing to do? A. I completely disagree with your suggestion.
3. Later the practitioner denied he was in breach of the condition. He explained this as follows: Q. You suggest that she did not have anorectal symptoms and therefore, there was no need for you to comply with the second condition on your registration at that time, is that your evidence? A. Yes. There was no need to consult a colorectal surgeon because of difficulty in evacuating her bowel due to a gynaecological problem.

The expert evidence

1. Dr Foote in his supplementary report explains that this patient had anorectal symptoms namely straining of the emptying of the bowel and obstructed defecation with splinting.
2. In cross-examination both Dr Lander and Dr Izzo agreed this patient had anorectal symptoms.

Discussion and conclusions

1. As we have earlier noted, we accept that many gynaecologists do have the expertise to treat gynaecological symptoms such as rectrocoele correction without the need for colorectal referral. That is not the point at issue in respect of this and other similar particulars.
2. As we noted earlier, the practitioner took it upon himself to interpret a condition which was clear on its face in a manner that suited himself. Notwithstanding it was open to the practitioner to approach the Council to seek to have this condition more narrowly expressed or clarified he did not do so. It is to be remembered that the practitioner was in regular contact with the Council's compliance officer in respect of his surgical logs. It is telling that the practitioner was not able to direct us to any patient where, pursuant to the condition imposed in 2011, continued in 2012 until his suspension, and reinstituted on 28 October 2014 until 5 March 2015, he had made a colorectal referral prior to conducting surgery. On each occasion he relied on the "protocol" with Dr Gold. We note that material from Dr Gold referred to in the appeal decision (Dr Reid v Medical Council of NSW [2014] NSWCATOD 152) and now in the HCCC brief is not on "all fours" with the practitioner's explanation of the protocol.
3. We find there was a breach of the condition. Accordingly this particular is established.

Patient L

1. No statement was provided by Patient L, a nurse, who was aged 46 years when she first consulted the practitioner. She had two children, including one delivered by forceps delivery and one following a lower segment caesarean section. In a report to the patient's general practitioner, the practitioner noted the patient had "an extreme prolapse, in which all major pelvic supports are broken at an usually young age".
2. The schedule to the complaint discloses: 1. 17 July 2013 Vaginal sacrocolpopexy, anterior posterior repair, mid-urethral sling and cystoscopy using five TFS tapes.
3. The outcome of the patient's surgery is described by the practitioner in a letter dated 21 November 2013 as "absolutely exceptional". The practitioner recorded in his clinical notes his discussion with the patient the risks with large mesh implants, complications of the surgery, possibility of mesh complications from TFS and recorded "but believe the risk is low based on European, Japanese and Melbourne experience".

Complaint One, particular 29d d. the practitioner inappropriately performed surgery on Patient L on 17 July 2013 in circumstances where: (i) the Guidelines Standard cautioned the use of mesh in a primary prolapse surgery and for patients younger than 50 years of age, which Patient L was and (ii) the practitioner should have offered Patient L non-mesh surgery for the prolapse in the first instance.

1. We have already noted in respect of a similar particular dealing with the RANZCOG statement that it is not a standard compliance with which is mandatory. Rather it is a guideline which informs best practice.

The expert evidence

1. Dr Foote opines that "other non-mesh surgery should have been considered as the primary operation such as Manchester repair, vaginal hysterectomy or sacrospinous colpopexy".

The practitioner's evidence

1. In his statement at [18] the practitioner sets out the discussions he had with the patient who was a midwife. He says "We discussed at length the success rate of graft augmented vaginal paravaginal repair". He goes on to say that he also discussed the complete failure of support the patient had at DeLancey Levels 1, II, and III which he judged "posed a definite obstacle to securing a durable repair using my usual methods". Having determined that the patient was unlikely to have a successful outcome from his usual methods, he then explained what he saw as the benefits of the use of appropriate TFS tapes. He concludes "I believed that she clearly understood my explanation and chose to go with my considered suggestions."

Discussion and conclusions

1. Dr Foote's opinion is based on mainstream practice. All the experts acknowledge that traditional surgeries, such as Manchester repair, for patients with complex prolapse problems have poor outcomes.
2. The practitioner explains that he adopted a non-mainstream approach with this patient and used TFS which was, at the relevant time, licensed on the ARTG.
3. We have earlier found that the guideline did apply to TFS as a mesh product. This particular requires that we are satisfied that departure from the statement was, in the case of this patient, significantly below the standard reasonably to be expected.
4. There is no doubt, as the practitioner ultimately conceded in cross-examination, surgery with TFS in Australia in 2013 was a novel procedure with sparse empirical evidence of its efficacy. In these circumstances, we agree with Dr Foote that the practitioner should have acted conservatively in the first surgery for this patient who was aged under 50 years. The clinical notes are framed in such a fashion as to support the proposed surgical procedure, rather than to explore options with each options' benefits or risks assessed. The particular is established.

Patient M

1. Patient M provided a statement in March 2015. She has two children, including one delivered by forceps delivery and one following a lower segment caesarean section. She suffered urinary incontinence and extreme urgency. The patient relates that the practitioner held himself out to be a Professor or A/Professor and that he was very experienced in TFS repairs. She says she relied on his credentials and statements to her. Post-surgery the patient reports urinary incontinence which was worse than pre-surgery, that she experienced chronic period like pain and extreme pain when engaging in sexual intercourse. At the time of her statement the patient set out the advice she had received from other specialists and details of proposed surgery to split the tapes inserted by the practitioner.
2. After the patient's initial consultation, in a letter to Patient M's general practitioner, the practitioner noted, in addition to the patient's urinary symptoms, she had reduced anal control. He reported "[Patient M] has lost control over flatus had faecal urgency and can have urge faecal incontinence even of a solid stool if she does not immediately respond to her bowel urgency".
3. The schedule to the complaint discloses the patient underwent the following surgery: 1. 29 April 2014 Vaginal sacrocolpoxy, vaginal repair with sacrospinous fixation, perioneoplasty, midurethral sling using four TFS tapes.

Complaint One, Particular 27d d. the practitioner proceeded with surgery on Patient M on 29 April 2014 without first obtaining a second opinion from a colorectal surgeon;

The expert evidence

1. In his report at p 58 points 4 and 5 Dr Foote opines that the practitioner should have had anal function studies conducted before surgery "and hence a second opinion from a colorectal surgeon if required" (our emphasis). At point 4 Dr Foote primarily addresses the patient's urinary symptoms and otherwise just refers to the practitioner's operative plan which was to treat the patient's rectocoele and faecal incontinence.
2. Both Dr Lander and Dr Izzo, as with other patients with similar symptoms to Patient M, agreed in cross-examination that this patient had anorectal symptoms.

The parties' submissions

1. The HCCC submit "that Dr Foote's evidence that [the [practitioner] should have obtained a second opinion from a colorectal surgeon ought to be accepted".
2. The submissions provided by the practitioner's counsel do not specifically address this particular and reliance is placed on the table summarising the expert evidence. Dr Lander explains in his report that he would have referred this patient to a colorectal surgeon, but is not critical of the practitioner because he was following the integral theory.

Discussion and conclusions

1. This particular substantially overlaps with Complaint Four, particular 1i as at the time of Patient M's surgery on 29 April 2014, the practitioner was bound by condition 2 of the conditions imposed by the Council.
2. However, dealing with this particular as pleaded under s 139B (1) (a) in isolation and separately from the issue of breach of a condition under s 139B (1) (c) we are not satisfied the particular is established. Dr Foote's evidence, at its highest, is that he is critical because the practitioner did not arrange for anal function studies to be carried out in order to assess whether a referral to a colorectal surgeon was necessary. This particular does not assert a failure to conduct anal function studies. A referral may or may not have been necessary after those results were received.
3. The evidence to support this particular at its highest is that of Dr Lander. However, although Dr Lander says he would have referred the patient to a colorectal surgeon, he does not opine that failure to do so was significantly below the standard.
4. Having regard to Dr Foote's evidence, and our comments about Dr Lander's evidence, we are not satisfied this particular is established.

Complaint One, particular 28b b. the practitioner proceeded with surgery on Patient M on 29 April 2014 in circumstances where Patient M's urgency symptoms had not been controlled;

The expert evidence

1. By the time of their oral evidence, all experts agreed that, given this patient's urinary symptoms, an attempt should have made to control the symptoms medically preoperatively. Dr Foote explains in his report that the insertion of a sub-urethral sling can make urgency symptoms worse. Dr Foote opines that the decision to operate without first attempting control of the urinary symptoms was significantly below the standard reasonable expected.

The practitioner's evidence

1. At [111] of his statement the practitioner explains that: As described in the Integral Theory, effective stabilisation of the upper portion of the anterior vaginal wall and/or the upper portion of the posterior vaginal wall offered an efficacious way of controlling urgency and treating overactive bladders. The predictions of the Integral Theory have been confirmed in several studies, including a recent 2017 update (B Liedl et al, Update of the Integral Theory and System for Pelvic Floor Dysfunction in Females, Eur Urol Suppl (2017-738)). The joint authors in that impressive review were Bernard Liedl, Hiromi Inoue, Yuki Sekiguchi, Darren Gold, Florian Wagenlehnet, Max Haverfield and Peter Petros.
2. The practitioner in his expert reference material provided us with an "Article in Press" copy of the paper referred to in [111] set out above. The object of the paper is noted as "To update the 1990 IT to the present day (2016)". The article states its "Evidentiary Acquisition" as "published data in peer-reviewed journals concerning IT evolution were evaluated". Under the heading in the Abstract "Evidence synthesis" it is noted "Up to 80 per cent cure/improvements for the above conditions have been achieved by repair of one or more damaged ligaments via precisely positioned tissue fixation system tapes". 'Repair the structure (ligaments) and you will restore the function". We consider the views expressed to be a matter of opinion only. We note that this paper was not necessarily a peer reviewed article. Accordingly we place little weight on it.

Discussion and conclusions

1. As Dr Lander noted: 1. if we accepted that, although the practitioner was not following mainstream practice, this exercise of clinical judgment was sound being supported by reasonable empirical evidence; and 2. that his patients had given a fully informed consent to non-mainstream treatment including a full explanation of risks and benefits of the surgery involving TFS including possible mesh pain and repeat surgery. the failure to first attempt to resolve Patient M's urinary symptoms would not be below the standard reasonable expected.
2. However, this panel can rely on its expertise in evaluating the article, and comparing and contrasting it with other peer reviewed material. Relevant material was raised with the practitioner by Dr Lee during oral evidence.
3. We accept that the article appears to give some support to the practitioner's approach to this and other patients. However, at the time he was operating, on his own admission the clinical evidence to support the efficacy of the Integral theory, and in particular TFS, was sparse. Prudent practice adhered to by the vast majority of the practitioner's peers was to first explore medical solutions to incontinence prior to surgery. That prudent practice was ignored or by-passed by the practitioner in his enthusiasm to advance the Integral theory. We find, for the reasons advanced by Dr Foote and Dr Lander, the practitioner's failure to proceed with surgery prior to seeking to control Patient M's urinary symptoms was significantly below the standard reasonably expected.

Complaint One, particular 29b b. the practitioner inappropriately performed surgery on Patient M on 29 April 2014 in circumstances where: (i) the Guidelines Standard cautioned the use of mesh as a prolapse repair and for those younger than 50 such as Patient M and (ii) the practitioner should have offered Patient M non-mesh repair for the prolapse in the first instance;

1. This particular dealing with the RANZCOG statement has been extensively discussed by us in our discussion of Patient C. We rely on and repeat our earlier findings noting that Patient M was aged 49 at the date of her surgery. We are satisfied this particular is established.

Complaint One, Particular 30b b. on Patient M on 29 April 2014 in circumstances where the planned suburethral sling surgery risked worsening Patient M's urgency;

1. We have addressed the submissions relating to this particular when dealing with Particular 28b. We rely on and repeat our earlier findings in respect of Particular 28b insofar as those findings address, not the practitioner's surgical technique, but his choice of suburethral sling surgery in the light of the patient's symptoms existing pre-operatively. We are satisfied this particular is established.

Complaint One, particular 31b 31b In circumstances where Patient M's urgency and urge incontinence worsened after the 29 April 2014 surgery, at the practitioner's review of Patient M on 10 July 2014 the practitioner failed to arrange a referral to a urogynaecologist.

1. There is no dispute that following her surgery on 29 April 2014 Patient M's incontinence and urgency worsened. This is documented in two letters from the practitioner to the patient's general practitioner.

Expert opinion

1. Dr Foote is critical of the practitioner's failure to make a urogynaecological referral. However, Dr Lander in his report and cross-examination remained firmly of the view that the practitioner was capable of managing this patient himself. Dr Izzo concurred in that view.

Discussion and conclusions

1. We are of the view that Patient M's symptoms required investigation, rather than referral to a urogynaecologist. This particular is not established.

Complaint Three, particular 29 29. In the practitioner's written consent form for surgery on 29 April 2014, he failed to document the use of TFS, contrary to Schedule 2, clause 2(1) of the 2010 regulation.

1. We rely on and repeat our early findings about what the regulation required. An examination of Patient M's consent for surgery did not refer to TFS. We find in these circumstances the particular is established.

Complaint Four, Particular 1i

1. This particular asserts the practitioner failed to comply with condition 2 of the conditions on his registration by failing to refer Patient M to a colorectal specialist before surgery on 29 April 2014;
2. We have in earlier particulars in respect of this patient set out her anorectal symptoms.
3. We have also earlier discussed, at some length, the requirement of this condition where a patient exhibited anorectal symptoms and we now repeat and rely on those findings. Each expert agreed this patient had anorectal symptoms. We agree with the experts' opinions. In these circumstances a referral was mandated. This particular is established.

Patient N

1. No statement was provided by Patient N but we had access to her clinical notes. Patient N was aged 61 years when referred to the practitioner. She had two children delivered by forceps delivery. The referring doctor's notes disclose that the patient undergone a number of surgeries to treat her prolapse. Her surgeon was noted to "have nothing left to offer her and he has advised against further surgeries". The practitioner reported in August 2013 that Patient N had undergone a total hysterectomy and salpingo-oophorectomy in 2001, "and two completely failed prolapse mesh repairs (2011 and 2012) which left her with a disabling pelvic pain syndrome".
2. Patient N had an unfortunate history with heavy bleeding following the removal of a drain two days post operatively. She was transferred from the hospital on an urgent basis to Royal Prince Alfred Hospital where she was stabilised.

Complaint One, particular 27e e. the practitioner proceeded with surgery on Patient N on 23 April 2013 without obtaining a second opinion from a urogynaecologist, in circumstances where another gynaecologist had recently performed two separate prolapse repairs

Expert evidence

1. The thrust of Dr Foote's criticism of the practitioner is his opinion that it was below standard for the practitioner to embark on the complex surgery he planned without obtaining a second opinion in circumstances where another gynaecologist had "recently performed two separate major prolapse repairs". We note that Dr Foote is not critical of the practitioner's post-operative care of the patient.
2. Neither of the practitioner's experts were critical of his failure to seek a urogynaecologist's opinion prior to the surgery.

The practitioner's evidence

1. The practitioner agreed in cross-examination that Patient M's case was a complex one. But he did not agree that a second opinion was necessary.

Discussion and conclusions

1. We accept that the practitioner had many years of experience of dealing with complex patients. Patients were from time to time referred to him when all other options had failed. Thus, this patient was one of the cohort of patients who turned to the practitioner as their last resort. In case of Patient N this occurred in circumstances where her former gynaecologist had advised against further surgery.
2. The practitioner's own notes disclose the difficult and complex surgery required for this patient. While he may not have changed his operative plans for this patient, prudence and good clinical practice would have been observed had he sought a second opinion. We accept and rely on Dr Foote's strong criticism of the practitioner. Although he does not specifically say the practitioner's conduct was significantly below the expected standard, we infer that is his position because of his use of the words "strongly critical". We agree with and accept his opinion. This particular is established.

Patient O

1. Patient O did not provide a statement. Patient O had seen Dr Lander but sought a referral to the practitioner. She was aged 62 years and retired when seen by the practitioner. She had one child delivered after a difficult forceps delivery. Prior surgical repair had occurred in 2012 with Elevate mesh. On presentation to the practitioner the patient was suffering mesh related pain. She had a recurrent cystocoele with urgency, nocturia and bladder pain. She had undergone urodynamic investigations. Patient O was also recorded as having moderate obstructed defecation syndrome.
2. The practitioner initially proposed to remove the Elevate mesh, and repair the resulting defect in vaginal connective tissue with a Xenform collagen graft. The practitioner explained in his letter to the patient's general practitioner "This will hopefully regenerate the removed vaginal connective tissue, and also stabilize the high cystocoele". He also explained that he had discussed with the patient "that her best option in terms of stabilizing the uterus (and thus hopefully resolve any voiding difficulty) lies with a TFS USL sacropexy. Likewise the prospect of stabilizing the perineal body lies with the TFS PB tape".
3. The practitioner first operated on this patient, who resided in Queensland, on the day following her initial consultation with him. The practitioner said this was to minimise the patient's travelling and other expenses in coming to Sydney.
4. The schedule to the complaint discloses this patient underwent the following surgeries: 1. 11 February 2014 Removal of Elevate mesh prosthesis and insertion of two TFS tapes. 2. 18 February 2014 Placement of mid-urethral sling. 3. 26 February 2014 splitting of urethral tape.

Complaint One, particular 27f f. the practitioner proceeded with surgery on Patient O on 11 February 2014 without obtaining an opinion from a urogynaecologist and a colorectal surgeon concerning whether to perform a vaginal hysterectomy rather than insertion of TFS mesh and concerning Patient O's complaints of faecal incontinence.

The expert evidence

1. There is potentially some confusion caused by Dr Foote's supplementary report. Although he correctly identifies Patient O by her given name at page 4 of his report, he uses Patient K's given name in [25] on that page. Given the opinions expressed appear to relate to Patient O, not Patient K, we have treated the error as a typographical or inadvertent error.
2. Dr Foote opines: I am critical of the decision to operate the next day without further seeking a second opinion from a urogynaecologist and colorectal surgeon. Removal of vaginal mesh can result in further prolapse. In addition the uterus has not been removed and consideration needed to be given to vaginal hysterectomy rather than further insertion of polypropylene TFS mesh, particularly given the previous Elevate polypropylene mesh had caused pain. The patient was complaining of faecal incontinence and a colorectal opinon with anorectal studies would have been appropriate. This is below the expected standard.
3. Neither of the practitioner's experts was critical of his decision to operate without the referral to a urogynaecologist and a colorectal surgeon.

The practitioner's evidence

1. The practitioner maintained in his cross examination that his action in proceeding with the surgery was warranted.

Discussion and conclusions

1. We had some difficulty in addressing this particular due to its drafting. The drafting essentially replicates, without dissecting, Dr Foote's "rolled up" opinion.
2. Doing the best we can, although not so expressed, we discern that the criteria the particular seeks to assert these matters: Because the patient complained of faecal incontinence and mesh pain before undertaking surgery the practitioner should have obtained (1) urogynaecological opinion; (2) a colorectal opinion; and (3) the opinion obtained from one or both specialists should have addressed whether the best surgical option for the patient was a vaginal hysterectomy rather than TFS mesh repair.
3. The patient's clinical notes (Vol 4 Tabs 203 and 204) disclose that she wrote to the practitioner requesting an appointment on a Monday followed by surgery on Tuesday. She had been seen by Dr Lander but did not wish him to operate on her. Dr Lander had arranged testing.
4. We have earlier discussed the practitioner's evidence of his reliance on the protocol he established with Dr Gold. We accept that the patient herself, because of her debilitating pain, wished to have surgery promptly and without delay. However, the patient's wish was but one consideration for the practitioner, as was the patient's need to minimise her travelling expenses. Those wishes could and should not have overridden the practitioner's clinical judgment of what was in his patient's best interests.
5. We agree with Dr Foote that the practitioner's failure to refer to other specialists prior to surgery was below the expected standard. But given the the way the particular is drafted we are not satisfied it is established.

Complaint One, particular 28c c. the practitioner returned Patient O to theatre for surgery on 18 February 2014, in circumstances where: i. the practitioner failed to wait six weeks after surgery on 11 February 2014; ii. the practitioner should have waited to ascertain whether Patient O's incontinence post-surgery was short term irritation or infection; iii. the tissues after surgery on 11 February 2014 would have been oedematous and softened which risked injury with operation on 18 February 2014.

The expert evidence

1. Dr Foote is critical of the practitioner returning this patient to theatre so soon (one week) after his first surgery in circumstances where she complained of incontinence. Dr Foote notes the incontinence could have arisen for a number of reasons, some of which could have been short term irritation or infection. He opines that the practitioner should have waited six weeks to allow for the healing process to settle, and to then have conducted urodynamics. This is because the patient's tissues would have been oedematous and softened after the first surgery.
2. Dr Foote's opinions are supported by Dr Lander's written and oral evidence, and also by Dr Izzo although the latter did not express criticism of the practitioner.

The practitioner's evidence

1. The practitioner does not directly deal with this particular in his statement, but makes a general reference to the integral theory.

Discussion and conclusions

1. We had no hesitation in adopting the evidence of Dr Foote in respect of this particular. The second surgery should not have been carried out one week after the first surgery. In so finding we accept time should have been allowed to see if the patient's urinary symptoms settled. Further, we accept further surgery could be compromised by the patient's oedematous tissues. We find the practitioner's conduct in this instance was significantly below the standard reasonably expected.

Complaint One, particular 31d d. after Patient O's surgery on 26 February 2014, the practitioner failed to arrange a second opinion from an independent urogynaecologist to explore complete excision of the retropubic sling and instead recommended self-catheterisation.

1. Patient O underwent her third surgery on 26 February 2014. The practitioner's handwritten clinical notes record: EUA investigate small haematoma. Advantage Fit sling did not appear too tight, but was split anyway.

The expert evidence

1. Dr Foote notes that he was unable to find any direct correspondence regarding the management of this patient after her third surgery. He notes, that in correspondence with the HCCC, the practitioner said he recommended self-catheterisation. Dr Foote explains in his supplementary report: In my opinion a urogynaecological second opinion should have been sought and consideration given to complete excision of the retropubic sling.
2. Dr Lander and Dr Izzo are not critical of the practitioner in their table reports. In his cross-examination Dr Izzo said in his view "once you have had the third operation and the self-catheterisation doesn't work, then I think you really need to call in a urologist, yes (transcript 21 December 2017 p 5). He then clarified his answer saying a referral could be made to a urologist or urogynaecologist.
3. Dr Lander explained in an answer given in cross-examination that intermittent self-catheterisation would be appropriate for a patient who was not fully emptying her bladder, but "it's not, its not forever" (transcript 19 December 2017 p 32). He did not concede that a referral should have been made to a urologynaecologist in circumstances where the practitioner was practising the integral theory.

Discussion and conclusions

1. Patient O was referred to in these proceedings as the type of patient who was a "salvage case". In other words, she presented to the practitioner with a history of failed surgeries and chronic pelvic issues. In these circumstances the practitioner was attempting to "salvage" an outcome in a severely compromised patient.
2. The practitioner does not address the specifics of this particular in his statement. Rather, he gives a general explanation of his normal post-operative care. He says, because he had done more chronic pain mesh removals than his peers, he felt he had considerable experience in the area. He also records that if a clinical solution to a patient's pain shifted from "trying to cure the pain to that of accepting the pain" he made referrals to pain clinics in Sydney and Newcastle.
3. We accept and adopt Dr Foote's opinion in respect of this patient. Patient O after three surgeries in a very short space of time had gone from being incontinent to being unable to void. Good practice, in accordance with the AMA Code, should have resulted in a referral to a urogynaecologist to consider whether complete removal of the sling was appropriate. Notwithstanding we accept the practitioner had considerable experience in mesh removal and treating very difficult cases, in this and other cases he continued working in isolation in private practice. He failed to afford his vulnerable and desperate women patients, including Patient O, the benefit of a colleague's experience and expertise to either confirm or enhance his own expertise. In failing to do so, he failed these women patients including Patient O. We are satisfied this particular is established.

Complaint Three, particular 30 30. The practitioner failed to document his discussion of the alternatives to surgery and the risks from surgery for Patient O's surgery on 11 February 2014, including the risk of prolapse recurrence or stress incontinence, and the potential for mesh insertion, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation.

1. We repeat and rely on our earlier findings in respect to the failure of the practitioner to document fully his discussion with Patient O prior to her surgery on 11 February 2014. The clinical notes for this patient do not comply with the regulation. We are satisfied this particular is established.

Complaint Three, particulars 31 and 32 31. The practitioner failed to keep or document Patient O's written consent to surgery he performed on 18 February 2014, contrary to Schedule 2, clauses 1(5) and/or 2(1) of the 2010 regulation. 32. The practitioner failed to keep or document Patient O's written consent to surgery he performed on 26 February 2014, contrary to Schedule 2, clauses 1(5) and/or 2(1) of the 2010 regulation.

1. In this patient's case we are satisfied that while the clinical records contain a copy of the patient's consent to surgery on 11 February, 2014 they do not contain a copy of the patient's written consent to either of the surgeries particularised. These particulars are established.

Complaint Three, Particular 33 33. The practitioner failed to keep or document correspondence to Patient O's general practitioner after surgery on 26 February 2014 about her progress, contrary to Schedule 2, clause 2(1) of the 2010 regulation .

Expert evidence

1. Dr Foote notes that the practitioner's records do not include any letter to Patient O's general practitioner after her third surgery on 26 February 2014.
2. Dr Lander notes a "literal" failure to comply with the regulation.

Discussion and conclusions

1. Our examination of the clinical notes accords with Dr Foote's examination of the records and resultant conclusions. We accept his opinion which is corroborated by our own researches. This particular is established.

Complaint Four, particular 1j

1. This particular alleges a breach by the practitioner of condition 2 on his registration which required a referral to a colorectal surgeon before conducting any procedure on a patient with anorectal symptoms. In the case of Patient O, this was before surgery on 11 February 2014.
2. We refer to and repeat on findings in relation to this particular in respect of Patients A, F, G, J, K, and M. We are satisfied this particular is established.

Patient P

1. Patient P provided a statement dated 19 March 2015. At the time she made her statement Patient P was aged 64, married and the mother of three children.
2. Patient P states that in October 2012 she started to experience prolapse symptoms and frequent urination during the day and also at night. She consulted a gynaecologist who diagnosed a cystocoele which could be repaired with surgery. However, she was advised not to undergo surgery unless her symptoms worsened.
3. The patient says between October 2012 and April 2013 her symptoms worsened and she contact the gynaecologist who advised deferring surgery as Patient P was going overseas and there was insufficient recovery time before her planned departure. A pessary was inserted, but proved uncomfortable and the patient removed it.
4. The patient's prolapse worsened and she obtained a referral to the practitioner after having conducted research on the internet. As a result of her research she understood the practitioner did not use mesh and that he had a reputation as "a world leading specialist in this area".
5. The patient consulted the practitioner in May 2013. In July 2013 the patient underwent pelvic ultrasound and urodynamics as ordered by the practitioner.
6. On 31 July 2013 the patient saw the practitioner who told her she had a urinary infection and bladder problems which required her to self-catheterise.
7. Patient P underwent surgery on 25 September 2013. Post operatively she was visited by Dr Petros who explained he had assisted at her surgery. He also explained that during the surgery the patient's bladder wall had been lacerated because it was so thin.
8. On 1 October 2013 after the patient's catheter was removed she explains that she "could not urinate at all". The practitioner advised her to continue self-catheterisation. On the same day the patient underwent cystography examination.
9. On 29 October 2013 the patient was again admitted to the hospital for surgery to split the tape earlier inserted. Following this surgery she reports that she was able to urinate on her own during the day "but was self-catheterising every morning and night".
10. The patient again consulted the practitioner in May 2014 when she says she "still had a feeling of fullness in her vagina". On 30 June 2014, the practitioner informed her she should have further surgery to repair the prolapse. However the practitioner was not available as he was travelling to Bali.
11. On 1 September 2014 the patient wrote to the practitioner and requested that her clinical notes be sent to another practitioner. She says "that copy of the notes differs from the version that [the practitioner] provided to my solicitors, Maurice Blackburn on 16 December 2014".
12. In a letter dated 27 November 2013 to the patient's referring doctor, the practitioner said: I will return [patient's name] to your care, but emphasize that it is absolutely mandatory that [patient's name] continues with self-catheterisaton for the rest of her life on a twice daily regime.
13. The schedule to the complaint discloses that Patient P underwent the following surgeries performed by the practitioner: 1. 25 September 2013 Vaginal sacrocolpopexy, anterior; and posterior vaginal repair, repair of small bladder wall defect and mid-urethral sling with cystoscopy. Use of surgisis remodelling graft and two or three TFS tapes in surgery. 2. 29 October 2013 Splitting of mid-urethral sling.

Complaint One, particular 30c

1. It is asserted that the practitioner inappropriately performed surgery using a sling: c. on Patient P on 25 September 2013 in circumstances where a suburethral sling was inappropriate because: i. there were no pre-operative signs and symptoms of stress urinary incontinence; ii. the practitioner failed to perform urodynamic evaluation beforehand to confirm occult stress incontinence.

Expert evidence

1. Dr Foote expresses criticism of the practitioner's insertion of a suburethral sling at operation on 25 September 2013 because he could find no evidence of pre-operative symptoms or signs of urinary stress incontinence.
2. Dr Lander and Dr Izzo were not critical of the practitioner in their table reports. However in cross-examination Dr Lander agreed, if the procedure was for stress incontinence (which was absent), the procedure was inappropriate (transcript 19 December 2017 p 35). But he explained that if the procedure was adopted to repair a ligament as part of the integral theory he would not be critical.

The practitioner's evidence

1. In his Reply the practitioner denies that insertion of the sling was inappropriate. He relies on [136] of his statement where he says: As documented in my handwritten clinical notes of 1 May 2013, Patient P presented with symptoms of exteriorising cystocoele and long term voiding difficulty, suggesting a degree of function obstruction at the bladder neck. At surgery on 28 September 2013 patient P's chronically overdistended bladder seemed very thin secondary to overstretching. On filling the bladder to perform cystoscopy, passive water leakage occurred through the urethra suggestive of poor urethral outlet resistance. Accordingly, a loosely tensioned mid urethral sling was placed to reduce the risk of unmasked post-operative stress incontinence.
2. In re-examination the practitioner gave a much more detailed explanation about why he inserted the mid-urethral sling. He said: A. Yes, if I can be slightly discursive. This case is a text book example of why vaginal hysterectomy is not really a good operation for prolapse repair. If it fails it leaves behind a more complex defect in the pelvic fascia. Now bladder over distension and obstructed voiding are very common in men because the prostate, when it obstructs the urine outflow, it really obstructs it firmly. When women get obstructed voiding from prolapse it's not - usually not such a strong obstruction and usually the bladder will pressure release, but in this case there was a very firm preservation of the lower half of the anterior vaginal wall fascia and the bladder base above that had fallen down and was tightly wedged in that defect and I remembered at the time of examination, with two fingers in the vagina, I tried to elevate to see if that produce incontinence and it was uncomfortable and it couldn't be elevated. So I desisted and at the time, at the time of surgery, when we did elevate it and I put 300cc's of saline in the bladder for cystoscopy, there was spontaneous leakage. Just as we so commonly see in people who are going to have a sling, it seemed apparent to me that this lady did have stress incontinence. She is probably the last person in the world that I ever TVT sling in because she had a hypertonic bladder. So in terms of looking at the options, of doing nothing and waking her up or putting in a conventionally tightened sling, which I think would have been a terrible idea, I decided to put a sling in and made it extra loose.
3. We agree with and accept Dr Foote's opinion, which is corroborated in part by Dr Lander, that absent urinary stress incontinence, the insertion of a sling was not warranted. We note that the practitioner does not in his statement refer to the fact that the patient's bladder was lacerated or perforated at this surgery. We do not accept his justification of the procedure because of a "risk of unmasked post-operative stress incontinence" is soundly based. Nor do we find his explanation given in re-examination to be cogent because examination under anaesthesia is non-physiological. We are satisfied this particular is established.
4. While we are satisfied that Particular 30 (c) (i) is established, we are not satisfied that sub-particular c(ii) is established. This is because the clinical records disclose that the patient underwent urodynamic testing in July 2013.

Complaint One, particular 31c c. at or after the practitioner's review of Patient P on 27 November 2013, the practitioner: i. failed to arrange a second opinion from a urogynaecologist concerning Patient P's voiding difficulty; ii. the practitioner did not consider or arrange urodynamics; iii. the practitioner did not consider or arrange further take down of the bladder neck or neuromodulation;

1. This hybrid particular is advanced on the basis of the practitioner's "absolute" statement about the patient needing to catheterise for life.

Expert evidence

1. Dr Foote is critical of the practitioner's management plan of self catheterisation. He opines that the practitioner, in the first instance should have obtained a second opinion from a urogynaecologist and ordered urodynamics. He opines that consideration should have been given to further take down of the bladder neck or sacral neuromodulation of a neurogenic component identified.
2. Dr Lander made very appropriate concessions in answering questions in cross examination on this particular. He explained that he would have expected the patient to be referred to a urologist and urodynamics performed (transcript 19 December 2017 p 37). He did not agree that referral to a urogynaecologist would be appropriate. He also said that on the clinical information available to him that he could not express an opinion on whether a further take down of the bladder neck or neuromodulation would be appropriate.
3. Dr Izzo was also critical of the management plan of self-catheterisation for life and said he would have referred to a urologist or urogynaecologist.

The practitioner's evidence

1. The practitioner does not address this particular in his Reply or his statement. In re-examination he explained: Q. What do you say? You've had your memory refreshed in relation to this letter. What do you say about the appropriateness of that last paragraph? A. Well, unless she was lucky enough to get an improvement, which I didn't really think she was going to be, she at least had a situation where her bladder was working well enough that it worked during the day. I felt that she might discontinue and I was trying to drive that home and I've been a bit over focused on that and not relayed probably the broader aspect of how I manage this. (transcript 22 December 2017 p 43)

Discussion and conclusions

1. The practitioner's correspondence to the patient's general practitioner and his oral evidence leads us to a finding that the practitioner simply abandoned the care of this patient after her surgery in November resulted in the need for her to self-catheterise morning and night on a daily basis.
2. We accept and agree with Dr Foote's criticisms of the practitioner's failure to take active steps by way of referral. That opinion is supported by both Dr Lander and Dr Izzo, although they would have referred to a urologist rather than a urogynaecologist. We are satisfied that particular (c) (ii) is established. We also find a referral should have been made to another specialist such as a urologist or a urogynaecologist, but not as the sub-particular is drafted, limited to referral to a urogynaecologist.
3. While we draw an inference from the practitioner's evidence that he did not consider a further take down of the bladder neck or neuromodulation, or attempt to make arrangements to do so. Rather, his letter to the patient's general practitioner made it clear that he took no further responsibility for the patient's care. Sub-particular (c) (iii) is established.

Complaint Three, particulars 34,35, 36 and 37

1. These particulars are self-explanatory. It is convenient we deal with them together. 34. The practitioner failed to document his discussions with Patient P prior to surgery on 25 September 2013 explaining the alternatives to, risks and benefits of the surgery, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation. 35. The practitioner failed to document his discussion with Patient P about the risks and complications of the 25 September 2013 TFS surgery, and the potential for repeat TFS procedures, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation. 36. The practitioner failed to document his discussions with Patient P prior to surgery on 29 October 2013 explaining the alternatives to, risks and benefits of the surgery, contrary to Schedule 2, clauses 1(3) and/or 2(1) of the 2010 regulation. 37. The practitioner failed to document his rationale for performing Patient P's surgery on 29 October 2013, contrary to Schedule 2, clauses 1(2)(b) and/or 2(1) of the 2010 regulation.

The expert evidence

1. Dr Foote is extremely critical of the practitioner's failure to document the alternatives, risks and benefits of the patient's first surgery. He is particularly critical of the failure to document the risks associated with TFS and the risk of the potential necessity of repeat surgery. Dr Foote also expresses his criticism of the practitioner's failure to document any "comprehensive consent for surgery on 29 October 2013 with discussion of alternatives, risks and benefits".
2. Dr Lander, most appropriately, concedes that the notes do not "literally" comply with the regulation.
3. Dr Izzo advances the argument that the practitioner's brochure and oral explanations were sufficient.

The practitioner's evidence

1. In his statement at [186]-[189] the practitioner refers to his clinical notes of 1 May 2013 and says that he documented "point by point" the discussions he had with Patient P.
2. The practitioner was extensively cross-examined on the two sets of notes by Ms Richardson. The questions posed to the practitioner and his answers are accurately summarised at [426]- [427] of the HCCC's submissions as follows: 426. Dr Reid agreed in cross-examination that the first set of notes were created contemporaneously. He also agreed that he created the second set of notes after receiving the request from Patient P's lawyers (that is, after becoming aware that there were potential legal issues with Patient P). He claimed initially in cross-examination that the second set of notes was created because he lost "the chart", but then conceded that he took the first set of notes, added further information and then sent the second set of notes to Patient P's lawyers. 427. Dr Reid admitted that he did not disclose to Patient P's lawyers that the second set of notes were not contemporaneous but rather had been created in response to their request. Dr Reid ultimately agreed that he should have sent the first set of notes to Patient P's lawyers; that it was misleading to send the second set of notes to her lawyers; and that he had a strong incentive to embellish the second set of notes.

The parties' submissions

1. The HCCC properly note that the complaints against the practitioner do not include an assertion that he created false medical records. Rather, the gist of the submissions is that we should not find the "comprehensive" or second version of the clinical notes appearing at page 35 and 36 of Tab 58 of Exhibit C are accurate, and that the discussion with Patient P recorded in those notes did not happen. The basis for this submission is that the notes use the word "novel". It is submitted that the practitioner's evidence on this topic and "fabrication" of the second set of notes "supports an inference that the claimed disclosure never occurred in the first place".
2. The HCCC also submit that the evidence on this topic is relevant to the practitioner's credibility more generally "both as a witness and more broadly in terms of his patient management and clinical judgment." The HCCC submit that we should not accept any evidence of the practitioner without independent corroboration.
3. Dr Dwyer's written submissions advanced on behalf of the practitioner on this topic are set out at [36] as follows: 36. It is to his credit that Dr Reid admitted that he created notes after the consultation with Patient P, following a request from lawyers engaged in civil proceedings. He freely admitted that is was wrong to do so. His conduct in re-creating the notes is disappointing and unacceptable, but it is a human reaction of panic under pressure. It is not the subject of a complaint. It would be improper to extrapolate from that conduct to find that Dr Reid is not a witness of truth generally.

The documentary evidence

1. We had before us two sets of what purported to be the practitioner's clinical notes for Patient P. It will be remembered that in her statement Patient P explained that the notes provided at her request to Professor Korda differed from the notes subsequently provided to her solicitors.

Discussion and conclusions

1. We first consider the particulars as pleaded. If we disregard the second set of notes it is clear that particular 34 and 35 are established. We are unable to accept the practitioner's evidence in his statement that he did fully discuss and document the risks of TFS to this patient prior to her surgery on 25 October 2013. It is clear from the practitioner's letter to Patient P's referring doctor dated 1 May 2013 that no mention is made of TFS or any discussion with the patient about that procedure. No discussion is mentioned in his further letter to the referring doctor dated 2 August 2013.
2. While the practitioner may have given Patient P a copy of his brochure we do not accept that he fully explained the risks to the patient including the risk of the need for further surgery, and the risk of mesh pain, nor did he document any conversation with the patient. On his own evidence the practitioner did not use the word "novel" to indicate that the procedure was not a procedure adopted by the majority of practitioners in Australia. Further, we note that in her submissions, Dr Dwyer, having referred to the practitioner's discussions with patients about TFS submits that "[the practitioner] knowing what he does now about TFS, the brochure he prepared was too enthusiastic" although it is asserted it was based on his genuine understanding at the time. We agree the brochure was "too enthusiastic". It extolled the benefits of TFS without proper information explaining the procedure was not "mainstream" in Australia or the risks associated with it.
3. The evidence before us, including the practitioner's own statements, is that by 2013, he had a strong motive for advancing the benefits of TFS to patients. This was because he had become a devotee of the integral theory, but realised that his former lengthy site specific repair operations could not be carried out at the hospital, and that the operations were not profitable for the hospital. Thus, perhaps without fully appreciating his position, his personal beliefs and financial interests put him in a position of conflict with his patients' best interests. In these circumstances it is apparent that the potential risks associated with TFS surgery were not fully explained to patients, nor were second opinions sought or obtained before surgery was undertaken on vulnerable patients with complex pelvic problems.
4. We were unable to agree with and adopt Dr Dwyer's submission on behalf of the practitioner about him "freely admitting" his wrong doing. It was only after considerable cross-examination on this topic that the practitioner acknowledged he had created a second set of notes. That evidence was completely at odds with his evidence in his statement. This matter did not reflect well on the practitioner's candour and honesty.
5. We are also satisfied that particulars 36 and 37 are established. Our examination of the clinical records accords with Dr Foote's opinion that there is no evidence of any comprehensive consent for this surgery with discussion of alternatives, risks and benefits.

Complaint Four, particular 2b 2. The practitioner breached condition 4 of this registration by not referring the following patients, who had symptoms of bladder dysfunction, for urodynamic investigations prior to performing surgery; b) Patient P before surgery on 25 September 2013

Patient P before surgery on 25 September 2013

1. This complaint is agitated on two bases. First, the HCCC rely on Dr Foote's opinion that, because of this patient's urinary symptoms, she should have been referred for urodynamic investigations prior to surgery on 25 September 2013. The HCCC also rely on a breach by the practitioner of condition 4 on his registration. That condition is framed as follows: Whenever Associate Professor Reid is contemplating surgery upon a patient with symptoms of bladder dysfunction he is to refer that patient for urodynamic investigation.

The expert evidence

1. Dr Foote is critical of the practitioner's failure to refer this patient for urodynamic investigation.
2. Dr Izzo in his table report addresses this particular in respect of Patient J as well as Patient P. He opines that simple prolapse does not require urodynamics, although he opines "significant bladder dysfunction will generally require urodynamics". Dr Lander did not address this particular in his table report. However in answer to a question posed in cross-examination he agreed that Patient P had symptoms of bladder dysfunction prior to her surgery.

Discussion and conclusions

1. We have earlier in these reasons on several occasions noted the differing views held by gynaecologists about the value of urodynamic studies, and when and whether such studies should be ordered. In this case, regardless of those opinions, the practitioner was bound by condition 4 of the conditions on his registration. It is not suggested by the practitioner that this patient did not have symptoms of bladder dysfunction. Patient P states that on 31 July 2013 when she saw the practitioner he told her she would need to self-catheterise and made an appointment for her with a nurse to teach the procedure. We are satisfied this particular is established.

Failure to inform patients that surgery was to be supervised by Dr Petros

Complaint One, particulars 4, 6, 13, 24 and 26 (failure to inform patients that surgery was to be supervised by Dr Petros)

1. The particulars in 4, 6, 13 and 26 each assert that the practitioner failed to inform respective patients (Patient B, Patient C, Patient F, and Patient L) that he was subject to a restriction imposed by the hospital on his visiting rights at the hospital that he only carry out surgical procedures under the supervision of Dr Petros.
2. Patient B underwent surgery at the hospital on 16 July 2013 and 7 August 2013. Patient C underwent surgery at the hospital on 30 July 2013, Patient F's surgery was on 2 July 2013, and Patient L's surgery occurred on 17 July 2013.
3. Particular 24 contains four sub-particulars. It is more detailed than the other particulars relating to disclosure of the restriction set out in particulars 4, 6, 13 and 26. It is drafted as follows: 24. On 11 June 2013, Patient K underwent surgery using the TFS device. Prior to performing the surgery, the practitioner failed to disclose to Patient K that: a. the reason her original surgery, scheduled for 7 May 2013, had been cancelled was because the practitioner's visiting rights at the hospital had been suspended on about 2 May 2013; b. as at the time of the re-scheduled surgery on 11 June 2013, he was then the subject of a restriction imposed by the hospital on his visiting rights that he only carry out surgical procedures under the supervision of Dr Petros; c. Dr Petros was the inventor and patent holder of the TFS device; d. the surgery on 11 June 2013 would be among his first surgeries using the TFS device as lead surgeon, independently of his TFS training program.
4. In the HCCC's written submissions it is noted that particular 24 (c) is not pressed. Accordingly, we have disregarded this sub-particular.
5. We will deal with Complaint One, particular 24 (b) together with the similar particulars referred to above. We will then separately deal with sub-particulars (a), and (d) of Complaint 24.

Background to these particulars

1. A summary of the background to these particulars as asserted by the HCCC is set out in its submissions at [434]-[437]. The HCCC's assertions are not accepted by the practitioner as accurately reflecting his situation at the time at the hospital.
2. As we have noted when discussing Patient N, following her surgery on 25 April 2013, it was necessary, because of her blood loss, that she was transferred her on an urgent basis to Royal Prince Alfred Hospital. That event led to the RCA and the matter of practitioner's surgeries coming before the MAC.
3. The starting point to our discussion is a document, signed by the practitioner entitled "Application for visiting rights" page 5 at point 37. The document notes "Submitted to Medical Advisory Committee Supervision for 3 months under Dr P Petros".
4. The HCCC assert that the hospital suspended the practitioner's visiting rights on or about 2 May 2013. The evidence to support this assertion is noted as Exhibit E tab 145 p 13 and Tab 154. Tab 145 page 13. Item 6.7 is the RCA result which has been redacted in the material before us in accordance with the legislation. Tab 154 refers to the material forwarded by Ms Sloane from the hospital, which as we have earlier noted refers to her "recollection and reconstruction of events". The chronology provided by Ms Sloane notes: "6/5/13 At the routine MAC meeting - it was noted that Dr Reid had been suspended [material redacted] Although not present in the MAC Minutes of 6/5/13 (Exact date unknown but estimated at week of 20/5/13.) A further follow up meeting was held and the RCA committee members plus Dr Chang and Dr Swinburn requested Dr Reid's attendance
5. The Minutes of the MAC dated 29 July 2013 (Ex E Tab 145) page 6 note: 4.14 RCA Investigation Prof Richard Reid continues to operate under the supervision of Prof Peter Petros. Noted 1 Incident in May 2013 where the patient was required to be transferred to St George Hospital due to a haemorrhage.
6. The HCCC also rely on the chronology provided by Ms Sloane as evidence that the three months suspension went from 28 May 2013 until 28 August 2013.
7. The entry on page 2 of Ms Sloane's chronology set out above at [501] appears to continue on the following page where it states: Following this meeting it was agreed his suspension be lifted with the following recommendations that were endorsed by the MAC.
8. The conditions which it is noted were approved by the MAC included that the practitioner was "to adopt a surgical technique that was less invasive called the Tissue Fixation System (TFS) for his pelvic floor surgical cases. He would work under the supervision of Prof P Petros who was the Inventor of the TFS system for a 3 months supervised period from 28/5/13-28/8/13. Cases not to be performed by the practitioner at the hospital included 'Advanced mesh, Cancer, Advanced Laparoscopic surgery and Sling Surgery'." The entry of 28 October 2013 in the chronology notes "Following a successful supervision period report presented by Professor Peter Petros at the MAC Committee Meeting, [the practitioner's] full privileges were fully reinstated".
9. We note Ms Sloane's chronology does not annex Minutes of the MAC Committee, but as she explained in her covering email to the HCCC, the chronology prepared in December 2016 is her reconstruction and recollection of events prepared "as best I can" over two years after the relevant events. The chronology does not annex all relevant corroborating documents.
10. The HCCC submit that: 1. The practitioner's statement that about 2 May 2013 his visiting rights were "temporarily restricted" is incorrect rather his visiting rights were suspended. 2. The suspension was not co-operative in nature. 3. That a meeting of the RCA committee was held in week of 20 May 2013 (likely to be 27 May 2013).

The practitioner's evidence

1. The practitioner at [101] of his statement refers to his operating rights being temporary restricted but also refers, in the same paragraph, to his position as "suspension". He explains that he was not aware, at the time, he was obliged to tell patients of his situation of short term suspension pending the RCA investigation. He says the suspension was never discussed with him in terms of being a personal disciplinary action against him. He concedes in hindsight he erred in judgment in not informing the Medical Council "about this". He asserts that on returning to surgery, that Professor Petros was to be his supervisor for the hospital's purposes but he goes on to state "this arrangement also simply had the effect of enlivening a pre-existing arrangement to have Professor Peter Petros attend my surgeries in an assistant role".
2. The practitioner addresses particular 24d at [125]-[128] of his statement. There he explains that at the relevant time he was a very experienced surgeon, that he had undergone appropriate training and mentoring in TFS, he had a posterior demonstration of the predecessor of TFS in 2005 and had read articles and presentations on it since 2009.
3. In a letter to the hospital dated 10 July 2018 Dr Petros explained that he would be overseas from 19 July 2018 to 18 September 2018. He noted: [the practitioner] and I will have done at least 10 OR lists by then. The standard time for training for experienced surgeons is only 3 consecutive lists. [The practitioner] is now definitely technically competent to operate unassisted by me. For [the practitioner] to cease surgery entirely and wait for my return is unnecessary and punitive. It would have a negative impact financially on the anesthetist [sic] OR staff [the hospital] and of course [the practitioner] himself. Suggestion [the practitioner] operates only on standard gynaecology cases, simple incontinence and simple prolapse, only on patients without previous pelvic floor surgery. In any case [the practitioner] will be away for 3 weeks in August. At his own expense, he will visit German colleagues who are highly experienced in this type of surgery.
4. The practitioner says that although he is not aware of any written response to Dr Petros' letter that "it was clear to me his view was accepted" because the hospital continued to arrange theatres, staff and other resources for his surgery and allowed him to continue his surgical practice. Accordingly, he says, he understood supervision was no longer regarded as necessary. The practitioner does not specify what type of surgery he conducted after 19 July 2013 and whether it was only "standard gynaecology cases, simple incontinence and simple prolapse, only on patients without previous pelvic floor surgery".

Expert evidence

1. In his supplementary report, Dr Foote is critical of the practitioner's failure to inform a person (who is not a patient named in the complaint) of the supervision condition. He opines the omission is significantly below the standard and he is strongly critical of the practitioner.
2. In cross examination Dr Lander was asked whether he believed the practitioner had an obligation to disclose to patients prior to surgery that he could only carry out that surgery on them under the supervision restriction. Dr Lander said that the practitioner had an ethical requirement to tell the patients he was in the training part of his program and that Professor Peter Petros, the inventor of the device, is required by the hospital to be in attendance (transcript 19 December 2017 p 17).
3. Dr Izzo provided his opinion on the disclosure question in answer to a question posed in cross-examination as follows: Q. That plain language that would be required in this context was to say that, for Dr Reid to disclose that he could only carry out the surgery on the patient under the supervision of Dr Petros? A. That's a more difficult one. I would say that that would be advisable but not mandatory. I think it's important to make the patient aware that you would not be able to operate unless Dr Petros was there, absolutely. It probably would be wise to say a little more, but the problem there is I think that you have the confidence of the patient, you are potentially at risk of losing the confidence of the patient if you basically say - in effect you're almost saying I'm not competent and someone else has to be there to watch me. Q. Isn't that the very nub of informed consent, that you are revealing accurately what the situation is, even if that means you might lose the patient? Isn't that the nub of informed consent? A. I think that the nub of the informed consent is for the patient to be aware of what risks they are subjecting themselves to. Are they subjecting themselves to a greater risk where he is doing it by himself, if he was okay and didn't need supervision, or he's doing it under supervision? (Transcript 20 December 2017 page 61.)

The parties' submissions

1. In his cross-examination Dr Izzo conceded that some patients, if told a practitioner was under a supervision condition, might cancel surgery with that practitioner (transcript 20 December 2017 page 63).
2. It is unnecessary we repeat the whole of the submissions advanced by the HCCC in respect of these particulars. The HCCC submit that the practitioner's evidence should not be accepted because, among other matters, that there is no evidence to corroborate the practitioner's statement that having Dr Petros present during the surgeries "enlivened a pre-existing arrangement" for that practitioner to act in an assistant role, that he was not an assistant notwithstanding he was noted as such on operation reports, and the supervision restriction was not limited to prolapse cases.
3. The HCCC submit that the practitioner conceded in cross-examination that he was suspended on 2 May 2013 and was informed of that fact on that date. He also conceded he was informed of the supervision restriction on or about 27 May 2013.

The patient's evidence clinical records and other records

1. The patients' statements and/or clinical notes disclose: 1. That Dr Petros was described as the practitioner's surgical assistant at Patient B's surgery in July 2013 not his supervisor; 2. Patient F reports she was never told of Dr Petros' involvement in her surgery; and 3. The practitioner wrote to Patient L about proposed surgery on 8 July 2013 but did not mention the supervision requirement
2. In his interview with the HCCC (Exhibit E tab 158 p 76) Dr Petros said that he assisted the practitioner in surgeries, including but not limited to TFS surgeries, for an eighteen month period from January/February 2013.
3. Dr Petros agreed that he acted as the practitioner's supervisor for a period of three months but described the role more as a monitoring role. He explained that the nursing supervisor also monitored the practitioner to ensure he did not carry out lengthy surgery requiring blood transfusions.

Discussion and conclusions particulars 4, 6, 13 and 26

1. We find the practitioner was under an ethical obligation to tell patients that he was subject to a condition that he only operate under the supervision of Dr Petros at least until Dr Petros travelled overseas. Without such disclosure, none of the patients could have given a properly informed consent to their surgery. It is telling that although Dr Izzo resisted agreeing the practitioner was obliged to tell patients of the supervision requirement, he acknowledged that some patients, if so informed, would not have proceeded with surgery with the practitioner.
2. We are satisfied that the practitioner's failure to make a full and complete disclosure to Patient K, who placed trust in him, was significantly below the standard required. We agree with Dr Foote the practitioner's failure to disclose his supervision condition is significantly below standard and strong criticism is justified.
3. We find the question of the status of the supervision condition is ambiguous from about mid July 2013 when Dr Petros wrote to the hospital, and the hospital thereafter permitted the practitioner to admit patients and conduct surgeries, notwithstanding the minutes of the MAC Committee of 29 July 2013 Item 4.14.
4. It is to be remembered patients received brochures from the practitioner in which he described TFS as a "dramatic advance in pelvic reconstruction" and that TFS "revolutionised" repairs. The relevant patients had no inkling the practitioner's surgical techniques were at the core of the MAC recommendations leading to his suspension at the time arrangements were being made for their surgeries.
5. We accept Patient K was never told of Dr Petros' involvement in her surgery prior to that surgery occurring. We find the practitioner should have disclosed to Patient K her surgery would be his first TFS surgery as lead surgeon.
6. The practitioner in re-writing the clinical notes for patient P, referred to the surgery as "novel". This patient could not have given a properly informed consent unless she knew the procedure was novel, that it was amongst the practitioner's first as the lead surgeon and that he would perform her surgery under a supervision condition.
7. While we are satisfied that particular 4 insofar as it relates to Patient B's surgery on 16 July 2013 is established, given the state of the evidence set out above, we are not satisfied to the Briginshaw standard that the particular is established in relation to Patient B's second surgery, Patient C' surgery or that of Patient L.
8. In reaching these findings we consider the evidence on this topic is ambiguous. The HCCC posed a number of questions to the hospital in its letter dated 22 July 2015. Question 3 was: Over what period was Professor Reid under the direction, supervision and training of Professor Petros?
9. The hospital responded: Professor Petros only acted as surgical assistant and supervisor, not trainer as a condition of his registration for Dr Reid, he did not carry out training
10. We note that this answer is consistent with answers given by Dr Petros when he was examined by the HCCC. Dr Petros explained that he acted as a surgical assistant before the practitioner's suspension, and that his precise role as a supervisor was never spelt out by the hospital. Dr Petros said that Dr Haverfield was the practitioner's trainer.
11. Question 4 posed by the HCCC to the hospital was: On what basis was Professor Reid's full privileges reinstated by the Medical Advisory Committee? a. Please provide the Commission with the documentation supporting this decision
12. The hospital responded: Dr Reid was reinstated as a decision of the MAC meeting on the basis of his performance and the written report of Professor Petros (see attachment A)
13. Attachment A is Dr Petros' letter to the hospital dated 10 July 2013 in which he advises that he will be away from 19 July to 18 September and says "RR is now definitely competent to operate unassisted by me". The hospital's letter provides some corroboration for the practitioner's statement that the hospital permitted him to operate without a supervisor while Dr Petros was overseas.
14. However, Dr Petros in his interview with officers of the HCCC, acknowledged that he could not provide supervision if he was overseas. Given the conflicting evidence, we cannot be satisfied the Particular 4 is satisfied insofar as it relates to surgery after to 16 July 2013. Nor do we find particulars 6, and 26 are established.

Discussion and conclusions Particular 24 (a) and (d)

1. We do not accept the practitioner's explanation to the Medical Council that he was unable to operate in early May due to back strain. We find the real reason the patient's surgery was cancelled was because the practitioner's visiting rights were suspended.
2. For the reasons enunciated above, we find the practitioner was obliged to inform Patient K that her surgery would be among his first surgery using the TFS device as lead surgeon independently of his TFS training program. This surgery was as the practitioner himself recorded "novel". It was non mainstream and a new procedure for him. Patient K could not have given a fully informed consent without being aware of these matters. We are satisfied that particulars 24 (a) (b) and (d) are established.

Complaint Two - asserted failure to maintain proper boundaries with a patient

1. This complaint is agitated under s 139B (1) (l) namely that the practitioner engaged in unethical or improper conduct.
2. Section 139B (1) (b) is framed as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
3. The words "improper" and "unethical" are not defined in the National Law.
4. The words have been considered in a number of cases in the Tribunal (see HCCC v Little [2016] NSWCATOD 146; HCCC v Liu [2016] NSWCATOD 133; HCCC v Perera [2018] NSWCATOD 112.) Reliance has been placed on the dictionary definition of "improper". That is, not in accordance with propriety of behaviour, manners etc or abnormal or irregular behaviour."
5. Unethical is discussed in Perera by reference to the dictionary definition as follows: " Unethical " is defined in the Macquarie Dictionary as follows: contrary to moral precept; immoral. in contravention of some code of professional conduct.
6. The gravamen of Complaint Two is that the practitioner behaved in an inappropriate manner with Patient T during consultations with her. It is asserted on 15 July 2013 that practitioner behaved inappropriately because he did not inform Patient T about the use of a modesty sheet or other covering before he asked her to undress, and that following a pelvic examination he patted her buttocks.
7. At a consultation, which occurred on 28 October 2013, it is asserted the practitioner failed to maintain professional boundaries because he did not inform the patient about the use of a modesty sheet, informed the patient she could leave the door open between the consultation room and the examination room, and while undressing that the patient could see the practitioner and the practitioner could see her (in the mirror in the consulting room).
8. At a consultation on 27 November 2013 it is also asserted that the practitioner did not inform the patient about the use of a modesty sheet. Finally it is asserted that the practitioner failed to maintain proper professional boundaries when he told the practitioner that as she got older she would "want to keep her slim figure", commented that she had a lovely figure, that he ran his hands along the sides of her body from just below the bust line, along her hips, around behind her buttock and cross the front of her stomach. It is finally asserted the practitioner said to Patient T "see you do not even have a tummy … Every woman is entitled to have a tummy".
9. Patient T provided a statement dated 19 May 2015. She gave oral evidence and was extensively cross-examined by Dr Dwyer. Patient T's former treating psychologist also gave evidence and was cross examined.
10. We also had tendered on behalf of the practitioner a photograph of the consulting room showing the left hinged door to the examination room.
11. It is convenient that we deal with the particulars of inappropriate conduct together.

Patient T's statement and oral evidence

1. Patient T provided a very detailed statement. Much of the material in Patient T's statement is irrelevant to the particulars as set out in the Amended Complaint. In summary, the flavour of her evidence is that, although she had no complaint about her first consultation with the practitioner or his recommendation that she undergo surgery for her vaginal conditions including painful intercourse, thereafter there was a sexualised aspect to his conduct.
2. Patient T makes no complaint about the outcome of her surgery performed by the practitioner.

The practitioner's evidence

1. The practitioner denies any inappropriate conduct with Patient T in his Reply. In his statement he explains why he spoke about the patient's figure and touched her was to demonstrate the difference between subcutaneous and intraperitoneal fat accumulations in circumstances of her family history of diabetes.

The parties' submissions

1. The HCCC submit that the onus was on the practitioner, not the patient, to ensure a modesty sheet was provided to this patient and to expressly draw her attention to it.
2. The HCCC also submit we should accept Patient T's evidence that she was able to see the practitioner in the mirror (and he could see her) when she went into the examination room and was undressing.
3. It is also submitted that as a gynaecologist, who was required to intimately examine the patient, it was inappropriate to comment on her slim figure. It is noted that the practitioner admits he may have made this statement, but says it was taken out of context. It is also noted that the practitioner admitted that he ran his hands from Patient T's bust, along the sides of her body and along her stomach but denied touching her buttocks. It is asserted there was no need for the practitioner to have touched the patient at all in the context of his explanation. It is also noted that the practitioner conceded in cross-examination that he may have said "See …you do not even have a tummy. Every woman is entitled to have a tummy".
4. The HCCC submit at [502] that the practitioner's actions represented "gratuitous, unwelcome and inappropriate touching of a young female patient".
5. The practitioner's counsel provided extensive submissions on this complaint. She noted that the practitioner had over forty years' experience working as a gynaecologist and had never been subject of a complaint about inappropriate sexual behaviour.
6. It is also submitted that the physical layout of the surgery meant it was impossible for the practitioner to have viewed Patient T while she was dressing or undressing.
7. The submissions also address the practitioner's evidence about a modesty sheet being available and the practitioner's usual practice in demonstrating to patients the difference between subcutaneous and intraperitonael fat. Finally, it is noted that this patient continued to consult the practitioner on multiple occasions after she was "allegedly subject to sexualised behaviour".

Discussion and conclusions

1. Patient T recorded a number of matters in her statement of inappropriate behaviour of a sexualised nature by the practitioner. However, these assertions did not form part of the particulars pleaded in the Amended Complaint.
2. We did not find Patient T to be untruthful. Rather, she presented as woman who displayed very sensitive personality traits, and as such, may have genuinely, but mistakenly reconstructed some aspects of her consultations. She was upset because the practitioner told her to leave her boots on when being examined. This direction, in her mind, had a sexual innuendo. We found it telling that when Patient T reported to her female practitioner her concern that the practitioner may have engaged in inappropriate behaviour she was told that she was being too sensitive.
3. The practitioner gave a general explanation about his staff providing a blue modesty sheet for patient use. However he conceded in cross-examination that if a patient was wearing a skirt he may proceed to examine the patient without using a modesty sheet.
4. A practitioner engaged in the conduct of intimate examinations of a female patient must behave with exemplary propriety. This is because female patients place their absolute trust in the integrity of their treating doctor. During such examinations most women will feel vulnerable. Some will be apprehensive and/or nervous. Some will be embarrassed. Unless a woman can place utmost trust in a practitioner she may, to her detriment, avoid intimate examinations such as for pap smears. Adherence to proper protocols for intimate examination of a female patient is good medical practice.
5. Notwithstanding our reservations about the accuracy of some of Patient T's evidence, we are satisfied that on each occasion she says that the practitioner failed to inform her about the use of a modesty sheet, or to provide a sheet, that was the situation. It may be that the practitioner took for granted because Patient T had undergone multiple gynaecological examinations such an explanation was not required. However, good practice requires adherence to a protocol. In this respect the Medical Board of Australia Guideline "Sexual Boundaries for doctors" (the guideline) provides excellent practical standards with which doctors should comply.
6. The practitioner was required to ensure his staff provided a modesty sheet, and he was required to inform a patient that the sheet was there to cover them during his examination. We are fortified in our findings on these particulars having regard to the guidelines. They explain: In managing sexual boundaries a doctor should be aware that: Inappropriate disrobing or inadequate draping for physical examination and conducting intimate examinations without adequate prior explanation (and thus without informed consent) may be considered a breach of sexual boundaries.
7. We find as accurate Patient T's evidence that the practitioner patted her on the buttocks after of his examination of her. We do not find this was deliberate sexualised conduct by the practitioner, although interpreted by the patient in that way. But it was not appropriate professional conduct.
8. Patient T was firm in her evidence that she had seen the practitioner's image in the mirror in the examination room while he was in the consulting room. She says that he told her she could leave the door open, but she was concerned he would see her getting undressed. Patient T says at [19] because she did not want to offend the practitioner she pulled the door partially closed but when she glanced up at the mirror she could see the practitioner.
9. The practitioner, in disputing Patient T's version of events, provided photographic evidence of his room which discloses the door between the consulting room and the examination room was left hinged. Thus, when it was partially closed it would block any view of the mirror in the examination room. The HCCC submit we should not rely on this photograph because the furniture previously in the rooms is not present.
10. We note that Dr Foote is critical of the practitioner for failing to provide private undressing facilities in accordance with the Australian Health Practitioner Agency guidelines "Sexual Boundaries for Doctors" (the AHPRA guidelines).
11. It may be that, if the door was fully open when the patient walked into the examination room, she could see the practitioner's reflection the mirror. We note her evidence however that she saw the practitioner when the door was partially closed. We cannot be satisfied that this occurred. Notwithstanding the limitations of the photographs we find, given the left hand hinging of the door, that it was highly unlikely Patient T could see the practitioner when the door was partially closed. It is likely she observed the practitioner in the mirror when she first entered the room. It is understandable, with the elapse of time since the consultation, she now firmly believes this occurred when the door was partially closed.
12. The patient and the practitioner's statements about what happened at the consultation on 5 February 2014 are in conflict. At this consultation Patient T was not examined in the examination room. She was menstruating. She says she attended for review of her treatment for candida.
13. The practitioner says that he has no recollection of the patient, or his examination of her on 5 February 2014, or at all.
14. In his cross-examination the practitioner accepted that he touched the patient in the abdominal region. He also agreed that discussing a patient's "tummy" was a frequent observation and something he might comment on. However, he strongly disagreed that in circumstances where the patient presented for recurrent candida there was no clinical reason for him to be touching her on the abdominal wall and waist in the manner he did (transcript 14 December 2017 p 19). We also note that the Code notes sexual harassment includes making suggestive comments about a patient's appearance or body.

The HCCC submissions

1. As earlier noted, at [502] of the written submissions the HCCC submit: None of this conduct was reasonably within the ambit of the consultation on 5 February 2014. The Commission submits it was simply gratuitous, unwelcome and inappropriate touching of a young female patient.

Discussion and conclusions

1. We accept the patient was not untruthful, but we find, because of her particular sensitivity, she has magnified or put a gloss on the comments made by the practitioner and that her memory about seeing the practitioner while she was undressing is unreliable.
2. Patient T had a number of gynaecological problems including recurrent vulvovaginal candidiasis. Her clinical notes record a familial history of diabetes. She was provided with dietary advice. That was proper professional practice. However, it is not surprising that the patient felt uncomfortable with the practitioner's examination of her. He did not conduct his touching of her on 5 February 2014 in the examination room as part of a proper clinical examination. We find he "blurred the lines" by touching this young woman at the end of a consultation in his consulting room. His comments about her figure led her to believe the practitioner's conduct was sexually inappropriate. We note that the guideline specifies sexual harassment includes making suggestive comments about a patient's appearance or body.
3. We do not find on the evidence before us that all of the practitioner's actions in his consultation with Patient T, including his advice, were unethical. They were, however unwelcome, and demonstrated poor communication by the practitioner at an inappropriate time and place in the consultation process. We find [7] of the Code of particular relevance. We note it stresses "Good, clear communication is the most effective way to avoid misunderstandings".
4. While we do not find 2 (c) established, we are satisfied that the other particulars, as set out in the complaint, are established. We find the practitioner's conduct was improper.

Complaint Five asserted provision of misleading or deceptive information to the Medical Council of NSW and the HCCC

1. Complaint Five is also brought under s 139B (1) (l) (improper or unethical conduct). The nub of the complaint is that the practitioner sought to conceal from the HCCC and Council the fact that his operating privileges at the hospital had been suspended, or later, that he could only operate under supervision. The HCCC assert that, had the Council been aware of the practitioner's suspension, given his prior history with the Council, it is likely that he would have had his registration suspended.
2. It is relevant to note that the time setting for this complaint is the period 2 May 2013 to 24 May 2014. It was during this time period that the practitioner provided written statements to the Council as required under Condition 3 imposed on his registration. That condition required the practitioner to keep a log book of surgeries he conducted and to send the log book to the Council at three monthly intervals. He also responded in writing to the HCCC in respect of a complaint by Patient K in an undated letter sent about December 2013.

The practitioner's evidence

1. On 4 November 2013 the practitioner wrote to the Council and said his list of surgery for July to November was "atypical" because he was overseas. The practitioner at [227]-[231] of his statement explains that he would have notified the Council if the action taken by the hospital was disciplinary. However, he says, he did not believe he was required to do so in circumstances where he was suspended pending the outcome of the RCA.
2. The practitioner also says "at the same time" he suffered a debilitating and serious hand injury which would not have allowed him to operate if his privileges had remained unrestricted. He says it was for this reason he raised his hand injury with the Council. He says he consulted Dr Mark Russo (Dr Russo) a pain specialist for advice.
3. We had the benefit of a letter from Dr Russo dated 22 September 2017. Dr Russo says he has no recollection of speaking with the practitioner, but he may have done so and the advice the practitioner says he received is consistent with what he would have advised by way of treatment. In these circumstances, Dr Russo explained that he had not kept a record of any advice.

The HCCC submission

1. The HCCC submit at [508] of the written submissions that the practitioner deliberately concealed the suspension and supervision restriction from the Council and the HCCC. It is submitted in doing so he provided a number of false excuses to explain the gaps in his log book.
2. The HCCC submit that the practitioner was unable to carry out Patient K's surgery on its original planned dated of 7 May 2013 because his visiting rights were suspended on 2 May 2013. The surgery was cancelled for a second time sometime after 7 May and before 11 June either because of the suspension or because Dr Petros was not available to supervise the surgery. It is submitted that the practitioner's statement made in a letter to the HCCC dated 1 December 2013 that the 7 May 2013 surgery was cancelled because of acute back strain is incorrect.
3. At [517] it is submitted that the practitioner's evidence about his hand injury is not entirely false, but the HCCC say the injury would not have prevented him operating (as he in fact did in Melbourne). We note that the practitioner in his oral evidence confirmed he had inserted a TFS sling in Melbourne himself while operating with Dr Haverfield during his training in May 2013.
4. It is submitted that the practitioner's explanation that his hand injury interrupted his surgery for most of May 2013 is unsustainable given that he operated in Melbourne in May on Patient S and another patient on 4 June 2013 and Patient K on 11 June 2013.

The practitioner's submissions

1. The practitioner's submissions acknowledge that the practitioner accepts "with the benefit of hindsight" he should have informed the Council of the suspension and subsequent supervision conditions.
2. The thrust of the submissions is directed towards evidence which proves, or tends to prove, the practitioner's hand injury and the fact he consulted, albeit a "corridor consultation" with Dr Russo and had contact with Mrs Tara McKenzie, a physiotherapist.

The practitioner's evidence

1. The practitioner in his statement explains that he "did not know" he was obliged to inform the Council of his suspension. He says that he understood the suspension was temporary pending the completion of the RCA. He also says that had he been suspended as a "disciplinary matter" he would have viewed the requirement differently.
2. The practitioner also says his recovery from his hand injury was complicated by a "threatened complex regional pain syndrome". He says as a result of symptoms he telephoned a colleague Dr Matt Crawford, but that practitioner was not available to assist him, "but I was told a team member Dr Jordan Strong would call". He says he simultaneously called Dr Mark Russo who provided advice about medication to take and that he should rest his hand.

Complaint Five, Particular 1 1. By letter dated 1 December 2013 (the 1 December 2013 letter), the practitioner wrote to the Health Care Complaints Commission (the Commission) and stated that "the real reasons" for Patient K's surgeries twice being cancelled at the hospital before 11 June 2013 were because the practitioner suffered a back strain on 4 and 5 May 2013 (before Patient K's surgery on 7 May 2013) and because he injured his left hand with a steak knife in May 2013. In doing so, the practitioner concealed the fact that: a. his surgical privileges at the hospital had been suspended on or about 2 May 2013 (until about 27 May 2013) because of an incident involving surgery on Patient N at the hospital on 23 April 2013; b. the hospital had imposed the Restriction on him.

The practitioner's oral evidence

1. In cross-examination, the practitioner conceded that in the relevant period the Council was watching him carefully, and if it had known that the practitioner had been suspended it may have been disadvantageous to him. He also accepted that if the Council had known about the suspension at the hospital there was a likelihood it could have resulted in some sort of action against him. (transcript 13 December p 20).
2. The practitioner maintained he had not disclosed the suspension to the Council on the basis that he had a right to maintain privacy. When questioned about an email sent to the Council on 6 June, 2013 in which he stated he had not undertaken surgery since the end of April, the practitioner conceded he had operated on Patient S that morning. He disputed he was misleading the Council by not revealing he had participated in surgery as part of his training in TFS in Melbourne because he was not the lead surgeon on those occasions.
3. The practitioner conceded he had written to the Council explaining that his surgery had been disrupted in July/September when he had time off work to try and save his marriage and that in early May he had suffered a severe injury for most of May and much of June. He acknowledged that he had not told the Council about his suspension.

Discussion and conclusions

1. We are satisfied that having regard to his history with the Council, that the practitioner well knew it was likely action would be taken against him if he revealed the reason his surgeries were reduced was because he had initially been suspended and then was subject to the supervision condition.
2. However, we do not accept the HCCC's submission at [508] that the "excuses" provided to the Council were "false". That submission is modified in [517] of the submissions where it is noted that the HCCC does not submit the hand injury is entirely false. We accept there is evidence before us that the practitioner did suffer a hand injury, and in Patient B's statement she refers to the practitioner discussing his marriage breakdown with her during a consultation. We accept it is probable that the practitioner did contact Dr Mark Russo, notwithstanding that doctor has no recollection of the telephone call. However, he does not dispute it may have occurred. We also accept the practitioner had an ultrasound performed on his left wrist on 31 May 2013. The ultrasound report notes "HISTORY: Stab wound near FPL". It also notes "The FPL tendon appears intact". Further, we accept that at some time around the time he had the ultrasound performed that Mrs Tara McKenzie saw the practitioner's injury and that she purchased a thumboform split for him to wear.
3. In considering Patient K's cancelled surgeries on 7 May 2013 and a subsequent proposed surgery before 11 June 2013 we accept the submissions of the HCCC that the only reason that the first surgery was cancelled was not because the practitioner had suffered acute back strain. Further, we find that the reason given for the second cancellation (the practitioner's hand injury) did not provide a full and complete disclosure to the Council. The practitioner's operating rights were suspended as at 7 May 2013 and although he suffered the hand injury that injury did not impede him operating with Dr Haverfield, including on 10 May when he did the whole TFS insertion himself. He also conducted two surgeries on 4 June 2013. We note that it was not until 31 May 2013 that the practitioner had an ultrasound performed on his hand some weeks after the cancelled surgeries.
4. We are satisfied that the practitioner's letter to the HCCC dated 1 December 2013 did conceal the significant fact of his suspension and supervision conditions. That omission was significant. We find it is part of a pattern of behaviour exhibited by the practitioner, a highly intelligent man. He deliberately chose to provide selective true information to the Council, but to mislead by his silence on the crucial issue of his suspension and supervision requirements imposed by the hospital. We find particular 1 of Complaint Five is established.

Complaint Five, particular 2 2. By the 1 December 2013 letter, the practitioner wrote to the Commission and stated that he consulted two pain specialists, Dr Marc Russo and Dr Jordan Wood for complex regional pain syndrome concerning an injury to his hand when that statement was false or misleading.

1. We are not however satisfied that particular 2 as framed is established in full for the following reasons. We accept that on 1 December 2013 the practitioner advised the HCCC the reasons for Patient K's cancelled surgeries were (a) back strain and (b) his hand injury. He also told the HCCC: Recovery was further complicated by a threatened complex regional pain syndrome (for which I consulted two pain specialists: Dr Marc Russo and Dr Jordan Wood) and (ii) an inflammatory tendinitis (for which I had a 1 month course of physiotherapy with Mrs Tara McKenzie).
2. The evidence we have accepted is that the practitioner probably did ring Dr Russo and follow advice given by that practitioner. We do not accept the practitioner consulted Dr Jordan Wood. That evidence is completely at odds with the practitioner's statement that he attempted to consult Dr Matt Crawford and telephoned Dr Jordan Strong (who did not return his call). The evidence, at its highest in respect of Dr Jordan Strong (not Dr Wood as advised to Council) is that the practitioner telephoned this doctor but was unable to speak to him. He did not "consult" with Dr Woods. He did not undergo a month's course of physiotherapy. The evidence, at its highest, is that Mrs McKenzie saw the injury and provided a thumb sling. But no complaint about the practitioner's statement about the course of physiotherapy is pleaded in particular 2

Complaint Five, particular 3 3. By email dated 4 June 2013 at 1606 hours, the practitioner stated that due to an injury to his hand, he has "not done surgery since [the] end of April". By that email, the practitioner: a. concealed the fact that: i. his surgical privileges at the hospital were suspended on or about 2 May 2013 (until about 27 May 2013) because of an incident involving surgery on Patient N at the hospital on 23 April 2013; ii. the hospital had imposed the Restriction on him; b. provided information that was false or misleading given the fact that: i. he had performed or assisted in surgeries in May 2013 including at The Royal Northern Hospital in Melbourne; ii. he had performed surgery on Patient S at the hospital on 4 June 2013.

1. The establishment of this particular is based on an email sent by the practitioner to the Council on 4 June 2016 at 4.06 pm. The email was a request by the practitioner to have an extension of time to complete his logs as required under condition 3 of the conditions on his registration.
2. In the email the practitioner, after referring to the injury to his hand said "Have not done surgery since end of April and my physio has me in wrist splint till after the long weekend. Tried to do the log but it is very difficult to type with one hand".

The HCCC's submissions

1. The HCCC submit that the contents of the email were false noting the practitioner had carried out surgery the very day of the email and had operated in Melbourne with Dr Haverfield.

Discussion and conclusions

1. Particular 3 contains two assertions. First, that the practitioner concealed from the Council the fact that his operating privileges at the hospital had been suspended, and subsequently the supervision condition imposed, and secondly that he provided false or misleading information that he had not conducted surgeries.
2. We repeat and rely on our conclusions about the practitioner's concealment of the suspension and supervision conditions. We are satisfied that aspect of the particular is established.
3. We find the practitioner's statement to the Council that he had not operated was made knowingly and it was false. We note that the practitioner's statement he could not complete his records because he could not type lacks credibility. The practitioner's evidence before us is that he dictated all his reports which were signed electronically. That evidence is consistent with large amounts of the documentation before us. We are satisfied Particular 3 is established.

Complaint Five, particular 4 4. By letter dated 4 November 2013, the practitioner indicated to the Medical Council that his list of surgical cases for July to November 2013 were "atypical" because of overseas travel from August to September. In doing so, the practitioner concealed the fact that: a. on or about 27 May 2013, the hospital had imposed the Restriction on him; and b. his supervisor, Dr Petros had been overseas between 19 July 2013 and 19 September 2013.

1. The practitioner wrote to the Council on 4 November 2013 (signed electronically) and explained that his logs for the period July to September 2013 were atypical because he had received funding to travel to Europe in August-September to scrub with German surgeons.

The practitioner's evidence

1. The practitioner does not address this particular in his statement.

The HCCC's submissions

1. The HCCC rely on their submissions in respect of the earlier particulars and assert at [535] the real reason these months were atypical was due to the fact that Dr Petros was overseas between 19 July 2013 and 19 September 2013. Because of Dr Petros' absence it is submitted that the practitioner could not operate at the hospital as he was not available to supervise. Reliance is placed on the hospital's business records.

Discussion and conclusions

1. We commence our discussion of this particular noting that Annexure A to the complaint discloses that the practitioner undertook surgeries in respect of patients named in the complaint at the hospital on the following dates between 19 July 2013 and 19 September 2013: 1. 7 August 2013 (Patient B). 2. 17 September 2013 (Patient B). 3. 30 July 2013 (Patient C).
2. We have already accepted that these surgeries occurred after Dr Petros left Australia. We infer that the hospital, by admitting these patients for surgery without supervision, accepted Dr Petros' advice that supervision was no longer required after 19 July 2018. Further, we have earlier noted the hospital records are not complete original business records but the supervision date appears in a document reconstructed by Ms Sloane. That information appears in conflict, or at least inconsistent with, the information in the hospital letter to the HCCC dated 4 August 2015.
3. It is not suggested that the practitioner did not travel overseas for some period in August/September 2013. In light of the surgeries set out in the complaint, we draw the inference that the supervision restriction did not continue after 19 July 2013 at least in respect of less complex surgeries as recommended by Dr Petros. Further, the practitioner's evidence that he travelled overseas in August/September 2013 was not challenged. We are not satisfied that this particular is established.

Complaint Five, particular 6 6. By letter dated 28 May 2014 to the Medical Council, the practitioner (in a comment in relation to his surgical load between July to September 2013) stated that between July to September 2013 he took time off work to try to save his marriage. By that letter, the practitioner concealed the fact that: a. for most of the July to September 2013 period, he was subject to the Restriction imposed by the hospital; and b. his supervisor, Dr Petros, was overseas between 19 July 2013 and 19 September 2013.

1. This particular is based on a letter written by the practitioner to the Council on 28 May 2014. In this letter the practitioner states "In early May 2013 I suffered a severe hand injury which interrupted my surgery for most of May and much of June".

Discussion and conclusions

1. We repeat and rely on our findings in respect of particular 1 of Complaint Five. We are satisfied this particular is established.

Complaint Five, particular 7 7. By letters dated 5 January 2016 and 10 February 2016, the practitioner informed the Commission that his first TFS surgery was on Patient K. That information was false or misleading given that he performed TFS surgery on Patient S at the hospital on 4 June 2013.

1. This particular is directed to the information the practitioner provided to the HCCC about his first TFS surgery. In a letter dated 5 January 2016 the practitioner states his first TFS surgery was performed on Patient K in the presence of Dr Haverfield and Dr Petros. That surgery occurred on 11 June 2013.
2. In a letter dated 11 February 2016 the hospital advised the HCCC that the first TFS surgery conducted as the hospital was on Patient S on 4 June 2013.

Discussion and conclusions

1. We find the hospital's information that Patient S was the first patient to undergo TFS surgery which took place on 4 June 2013 is correct. The operation report does not mention TFS, however it describes techniques associated with a such procedure. The accompanying detailed prosthetic / implant / single use items detail sheet completed by the nursing staff documents the use of TFS surgical tape. We are satisfied this particular is established.

Complaint Five, particular 8 8. By letter dated 28 May 2014 to the Medical Council, the practitioner informed the Council that his tendinitis settled earlier than anticipated, "so [he] was able to return to work in mid-June" 2013. That information was false or misleading given that he in fact returned to work on at least 4 June 2013 to perform surgery.

1. The practitioner wrote to the Council on 28 May 2014. His explanation that he was unable to operate for the whole of June because his left hand was placed in a sling, but that his injury resolved earlier enabling him to resume surgery in mid June was misleading. We rely on and repeat our earlier findings about the surgeries carried out by the practitioner in May in Melbourne as part of his TFS training, and the surgeries conducted at the hospital in early June 2013. We are satisfied this particular is established.

Complaint Six - asserting improper holding out as Associate Professor, failure to disclose US disciplinary proceedings

1. Complaint Six alleged unsatisfactory conduct under s 139B(1) (l) (improper and or unethical conduct) and unsatisfactory conduct under s 139B (1) (b) namely the contravention of a law or regulation. The law contravened is asserted to be s 133 (1) of the National Law.
2. Section 133 (1) of the National Law provides as follows: (1) A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that - (a) is false, misleading or deceptive or is likely to be misleading or deceptive; …
3. Particular 1 of Complaint Six asserts that the practitioner gave a false answer to the hospital when applying for visiting rights in failing to disclose he had been subject of disciplinary proceedings in Michigan in 1995, and that he failed to provide details of those disciplinary proceedings on the form.

The evidence

1. There is no dispute that when he applied for operating privileges at the hospital the practitioner answered the question "Have you ever been the subject of disciplinary action in the course of your work as a medical practitioner" by circling "No". He left blank the following question "If yes, please describe".
2. We have noted under the heading "Background" the Michigan proceedings. We find the Michigan orders were entered on 14 April 1998.

The practitioner's evidence

1. The practitioner addresses this particular at [247] of his statement. The practitioner says about the transfer of his operating rights from the Eastern Suburbs Hospital to the hospital: As part of the process I was required, in what I thought was a formality, to complete the disclosure form in question. It was done urgently for the move and I did not turn my mind to the US issue. In retrospect I fully accept that I should have disclosed the orders and I should have provided an explanation of the unusual history

The expert evidence

1. Both Dr Foote and Dr Lander agree that disclosure of the US disciplinary proceedings should have been made to the hospital. Dr Izzo gave evidence that disclosure of the US proceedings was not necessary. We find Dr Izzo's evidence to be partisan, and lacking in the independence to be expected of an expert under the Procedural Direction. We do not accept his opinion on this topic.

The HCCC submissions.

1. The HCCC's submissions on this topic are extensive. In summary the HCCC submit that the practitioner conceded in cross-examination his statement about not knowing about whether his suspension in the US was ever going to be entered was incorrect. He also conceded that he had legal advice and he knew, at the time, that the suspension was immediate on and from 14 April 1998.
2. The submissions are critical of the practitioner addressing this particular by asserting for the first time in his oral evidence that he thought the question was only directed to disciplinary proceedings in Australia and his answer would have made no difference to him being granted operating rights.

Discussion and conclusions

1. We have no hesitation in agreeing with and adopting the opinions of Dr Foote and Dr Lander. The question on the form was plain. It did not limit answers to practice in Australia or a particular State. The practitioner's failure to disclose this overseas conviction is at odds with his disclosure of overseas hospitals at which he held appointments on the same form. The disclosure on the form was either deliberately untruthful, or the practitioner was recklessly indifferent to the truth in completing the form.
2. We find disclosure of the Michigan proceedings was a very relevant matter to be made to any hospital or institution in which the practitioner sought to work. The practitioner's attitude about his failure to disclose this important and relevant information demonstrated a complete lack of insight or remorse for his untruthful behaviour. It does not reflect well on the practitioner. In this instance it was not, as it has been in respect of other complaints, misleading conduct by silence or omission. It was a deliberate inexcusable act. The particular is established.

Complaint Six particulars 1A and 2

1. It is convenient we address these particulars at the same time as the evidence relevant to each substantially overlaps. Complaint Six is also brought under s 139B (1) (b) (improper or unethical conduct).

Complaint Six, Particular 1a

1. It is asserted that the practitioner used the title Associate Professor or Professor in written material provided to patients and other medical practitioners between 2009 and 2014 including on his stationary, his web-site, in his email signature block and in literature describing medical procedures (the materials).
2. It is further asserted that the materials were prepared for private commercial benefit and the practitioner was not entitled to use the titles in that manner. It is also alleged that in using the titles in the manner he did the practitioner engaged in false and misleading conduct.
3. The particulars relied on in support of Complaint Seven are the Honorary Appointments Terms and Conditions dated 22 January 2009 signed by the practitioner and the University of New England Honorary Appointments Policy date approved 23 April 2009, clauses 810.11 and 8.10.13.

Complaint Six, Particular 2 2. During 2012, 2013 and 2014 (the relevant period), the practitioner used the title "Professor" or "Associate Professor" and described himself in the literature he provided to his patients as an Adjunct Associate Professor at the School of Rural Medicine, Armidale at the University of New England and Conjoint Associate Professor at the University of Newcastle. During the relevant period, the practitioner's appointments with the University of New England and the University of Newcastle had ended and he was accordingly not entitled to use any honorary title associated with those appointments. Notwithstanding that entitlement had ended, the practitioner: a. used the title "Professor" or "Associate Professor" in correspondence with patients and other medical practitioners; and b. described himself in the literature he provided to his patients as an "Adjunct Associate Professor at the School of Rural Medicine, Armidale and Conjoint Associate Professor at the University of Newcastle", when to do so was inappropriate and misleading.

The evidence

1. The practitioner was notified of his appointment as Adjunct Associate Professor at the University of New England by the Deputy Vice-Chancellor on 19 January 2009. The Terms and Conditions of his appointment noted the end date of the appointment was three years from the date of signed terms and conditions. The practitioner's electronic signature appears on a copy of the terms and conditions which are dated 22 January 2009. The purpose of the appointment was noted to be to enable the practitioner to contribute to the Joint Medical Program through small group teaching and tutoring, preparing and presenting FRS/lectures providing HDR supervision where appropriate; and contributing to the School's research profile.
2. The practitioner says he received an email from Professor Ian Symonds in December 2011 advising that his Adjunct appointment had expired and would not be renewed. The practitioner then says he spoke to Professor Rafat Hussain (Professor Hussain) (now Associate Professor Hussain at the Australian National University). He asserts she told him that the letter was a form letter, that he should not worry and that he would be re-appointed for a further term. He says in these circumstances he continued to use the title. He says in early 2012 he received an invitation from Professor Hussain to give two lectures at the Armidale campus in 2012. Due to events in his practice the lectures were re-scheduled to 1 May 2012.
3. On 16 November 2011 Professor Hussain wrote to the practitioner and said "Thank you [sic] including your UNE Adjunct affiliation as conference co-organizer and presenter".
4. On 6 March 2012 Professor Hussain wrote to staff at the university. She said "I am following up on behalf of Dr Richard Reid, an Adjunct A/P in the School" and referred to the practitioner's forthcoming teaching commitment.
5. The practitioner says when he gave the lectures on 1 May 2012 he was introduced to the students by the Academic Manager as Associate Professor Reid. He says he also had lunch with Professor Hussain and visited the Library and Anatomy Departments. He says at each venue Professor Hussain introduced him Associate Professor Reid. He says as a result of these events he believed his appointment and academic title remained in place. He says he was "amazed" when he received correspondence from Professor Symmonds in 2014 advising his appointment had not in fact continued and he should cease using the title.
6. Associate Professor Hussain provided a statement dated 8 December 2017. She gave oral evidence before us and was cross-examined. In her statement she explained she did not recall any conversations with the practitioner in about November 2011 about a "form letter" or that she assured him that he would be re-appointed.
7. Associate Professor Hussain acknowledged an email was sent to the practitioner from an administrative officer on 26 April, 2012 and from the practitioner to the officer on 27 April 2012 about his re-appointment, but she points out a blue post note in the university file which states "do not re-appoint".
8. Associate Professor Hussain also disputes that he introduced the practitioner as Associate Professor when they had lunch in May 2012 when he was at the University to give lectures. At [16] Associate Professor Hussain says that the information in an email from Trish Battin, School Office Manager, School of Rural Medicine dated 25 October 2013 and which was copied to her, is not correct insofar as it discusses the practitioner's re-appointment. The email states "the School was looking to extend his appointment as he had agreed to provide two lectures into year 3 of JMP. Two lectures were given in May 2012 and this is when the School became aware of his restrictions on his medical practice …so did not follow up on re-appointing him".

Business records of the university.

1. We have already referred to a number of emails relevant to the practitioner's appointment. There were clear and lengthy delays before formal notice was provided to the practitioner that he should desist in using the title Associate Professor. Notice to this effect was given by letter signed by the Pro Vice-Chancellor Academic (Acting) at the University of Newcastle, on 12 August 2014 and in an email from Dr Symonds on 14 August 2014.
2. Associate Professor Hussain annexed to her statement a copy of the terms and conditions applicable to Adjunct Appointment. Cl 8.10.12 of the document is as follows: Honorary titleholders must not use the honorary title for private commercial benefit. Any work carried out by an honorary titleholder for any other employer or organisation must not involve the University in any way. Use of stationery, website or email signature carrying the University title or logo must not be used in connection with such work.
3. On accepting his appointment on 22 January 2009 the practitioner acknowledged he had read the terms and conditions applicable to an Adjunct Appointment.

The HCCC's submissions

1. The HCCC note that the practitioner agreed in cross-examination that he was not at any time entitled to refer to himself as Professor, notwithstanding this title appeared on his web-site and he used both the title Associate Professor and Professor in his TFS brochure. The web-site describing the practitioner as Professor remained accessible until August 2014.
2. The HCCC submit that the practitioner's explanation that he used his title on his letterhead in 2009-2011 because it was in the conduct of his medical practice should be rejected. The practitioner says he was not engaged in commercial practice as he was not a company selling a product. That HCCC submit this explanation should be rejected because he was charging fees to patients.
3. It is submitted that at the very least we should find that the holding out of his credentials misled Patient B.

Discussion and conclusions

1. We found Associate Professor Hussain's evidence given in cross-examination was defensive and lacked impartiality. She was not prepared to make any concessions, particularly about the holding out to the practitioner in emails from the university and copied to her that, at least until at least May 2012, the practitioner's re-appointment was being considered. Whatever Professor Hussain's understanding may have been about the practitioner not being re-appointed in 2012, we are satisfied that neither she or anyone from the university conveyed that information to the practitioner in the first half of 2012.
2. The university correspondence discloses that, through what appears to be an administrative error, the practitioner only formally received notice in August 2014 that he should desist from using the title Associate Professor.
3. We find that it was reasonable for the practitioner, at least until May 2012, to consider that his re-appointment was likely to occur. However, after that date there is no evidence that he completed the necessary paperwork for re-appointment or took any steps to have his status confirmed. He did not thereafter perform any role at the university. In these circumstances he had no basis to continue to refer to himself as an Adjunct Associate Professor.
4. We note that the practitioner agreed in cross-examination that he had no entitlement, at any time, to refer to himself as "Professor". He also conceded that he used the term Associate Professor between 2009 and 2011 on his private letterhead, in emails and in written materials provided to patients and on his web-site.
5. We find there was no reasonable basis on which the practitioner could rely at the latest after May 2012 that he was or would be re-appointed as an Adjunct Professor. We accept and adopt the extensive submissions of the HCCC that document instances of the practitioner using the title of Associate Professor or Professor during 2012, 2013, and 2014 as accurate.
6. In holding himself out on his web-site and brochures as Professor or Associate Professor, the practitioner was making a positive statement about his credentials. It is unsurprising, given his brochure, that Patient B perceived the practitioner had superior credentials to other specialist practitioners.
7. We also find that the practitioner's holding out was in conflict with 3.2 of the Guidelines for advertising of regulated Health Services published by the Medical Board of Australia.
8. The HCCC assert that use of the title on the practitioner's letterhead and his brochure is commercial use in particular during 2009-2011.
9. We find that the terms and conditions which the practitioner signed included a requirement that he not the title for private commercial benefit. The condition also precludes the use of "the University Title or logo" in any work carried out for any other employer or organisation. We agree with the submission that the title was being used by the practitioner in commercial use. He used it in paphlets which he conceded were more in the nature of an advertisement.
10. In summary we are satisfied that particular 1(a) (c) and particular 2 are established.

Complaint Seven - professional misconduct

1. The National Law defines what is encompassed by the term "professional misconduct". Unlike the definition in the Legal Profession Act 2004 (NSW) (repealed) and the Legal Profession Uniform Law 2014(NSW) it is an exclusive definition. Section 139E states: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
2. We have earlier in these reasons set out Basten JA's explanation of how professional conduct may be established.
3. As we noted at the commencement of these reasons, the plethora of particulars asserted against the practitioner are wide ranging and diverse. We have not found all particulars proved to the Briginshaw standard.
4. Our individual findings on the particulars are set out, in some instances at length, earlier in these reasons.
5. The HCCC submit: 594. The Commission submits that each of the following circumstances justifies a finding of professional misconduct: (a) Two or more of particulars 1 - 6, 9 - 12 and 14 - 26 of Complaint One, when taken together, justify a finding of professional misconduct. (b) When the particulars of Complaint One are considered cumulatively, they justify a finding of professional misconduct. (c) Particular 4 of Complaint Two of itself is capable of justifying a finding of professional misconduct. (d) When the particulars of Complaint Two are considered cumulatively, they justify a finding of professional misconduct. (e) The particulars of Complaint Four individually and cumulatively justify a finding of professional misconduct. (f) The particulars of Complaint Five individually and cumulatively justify a finding of professional misconduct. (g) The particulars of Complaint Six individually and cumulatively justify a finding of professional misconduct. (h) Two or more of the particulars of Complaints One, Two, Three, Four, Five and Six taken together justify a finding of professional misconduct.
6. We have found numerous instances where the practitioner's clinical judgment and/or skill fell conduct fell significantly below the conduct reasonably expected of a practitioner of his level of training and experience.
7. We find the most serious instances of poor clinical judgment and or skill is found in the practitioner's treatment of Patients K, O and P. We find when the practitioner operated on Patient C using TFS in October 2013 by failing to offer non mesh repair his conduct was significantly below the standard.
8. We find the established particulars about the surgeries carried out where the patient did not consent, or give a properly informed consent to the use of TFS or the practitioner inserted TFS in patients under the age of 50 contrary to the statement are serious clinical breaches. This was particularly so in the case of Patient K. In each instance we have no hesitation in finding the practitioner guilty of unsatisfactory professional conduct as defined in s 139B (1) (a).
9. We also find the practitioner's conduct in carrying out repeat surgery on Patient O without waiting for six weeks for her tissue to heal was totally inappropriate. We make similar findings about how the practitioner effectively abandoned Patient P to self-catheterise twice daily "for the rest of her life". We find, as set out in the HCCC's submission, that the established clinical complaints of unsatisfactory professional conduct under s 139B(1) considered cumulatively, leads to a conclusion that the conduct was so serious it would justify the suspension or cancellation of the practitioner's registration if he was still registered.
10. As set out in our detailed findings, we are satisfied that Complaint Three which is brought under s 139B (1) (c) and deals with non-compliance with the regulation is established.
11. The practitioner flagrantly ignored Condition 2 and Condition 4 of the conditions imposed on his registration. In so doing he regarded himself as being somehow "special" or "different" to other practitioners who are only permitted to practice because of conditions imposed. His failure to make appropriate referrals, as he was bound to do, deprived his patients of the benefit of a second opinion, or the opportunity to have a properly qualified specialist carry out colorectal surgery at the same time as their gynaecological surgery, or at a minimum confirm, his proposed procedure was appropriate. He ignored the concerns that led to the imposition of the conditions that are clearly spelt out in the reasons of the Professional Standards Committee.
12. As we have noted, our findings in relation to the particulars established under Complaint One, considered collectively, are so serious that they of themselves warrant a finding of professional misconduct. But we have additionally found multiple breaches of the regulation under s 139B (1) (b), multiple breaches of Condition 2 and Condition 4 on the practitioner's registration, which when taken together also are so serious as to justify a finding of professional misconduct.
13. The practitioner's conduct including his lack of honesty with the hospital, the Council and the HCCC are most serious matters. These matters, coupled with the practitioner's failure to change his letterhead and other material to delete references to his honorary adjunct title after mid 2012 speaks eloquently of his lack of diligence or care. Rather he was happy to continue to hold himself out as having credentials he did not have, instead of appropriately removing the information in a timely way. His conduct was improper and in breach of s 139B (1) (l).
14. It is hard to distinguish those parts of the practitioner's conduct which may regarded as the most serious. On the one hand, the clinical errors of judgment, caused significantly by reason of the practitioner's isolation, coupled his zeal for a non-mainstream procedure without appropriate warnings and information to patients looms large in our findings that the conduct is so serious it satisfies the definition of professional misconduct.
15. The practitioner's "defence", or explanation to justify his clinical decision making, focussed on the proposition that his conduct was appropriate because he was acting in accordance with the integral theory, or one version of that theory. In so doing the practitioner adopted what may be described as an approach focussed almost exclusively to achieving anatomical outcomes for his patients. He became isolated and focussed on that approach. He did not, as he should have done, provide individualised care plans including, when appropriate, seeking other specialist opinion, as part of the plan. His failure to implement individualised care plans was to the detriment of this cohort of women with complex symptomology and needs.
16. The practitioner's attitude displayed in dealing with these complaints demonstrated a lack of insight, or perhaps more correctly, an inability or unwillingness to acknowledge that he acted as though the rules governing other professionals did not apply to him. This manifested itself in his stubborn maintenance that he did not have to comply with Condition 2 because of his protocol with Dr Gold. It also manifested itself in his lack of candour with the hospital in failing to disclose the US disciplinary proceedings, his half-truths or untruths provided in correspondence with the Council and the HCCC and his continuation of the use of the title A/Professor or Professor when he had no entitlement to do so. We also found it reflected in how the practitioner reacted to Patient T's complaint of inappropriate behaviour.
17. In summary, we are satisfied for the reasons enunciated above and in our findings in respect of the established particulars, that a finding of professional misconduct is justified.

Protective Orders

1. The conduct we have found established is of such a serious nature that we are satisfied if the practitioner was still registered, we would have cancelled his registration. We are satisfied that it is appropriate in these circumstances to make an order under s 149C (4) of the National Law.
2. We turn then to consider whether an order should be made under s 149C (4) (b) as urged by the HCCC.
3. We note that s149C 4 (b) provides a discretion which must be exercised judicially. On the one hand we are cognizant that the practitioner's age, and his eyesight problems, together with his lack of practise since 2016 means that it is highly improbable that he will ever seek re-registration.
4. Recent authorities have emphasised that an order under s 149C (7) (made when a practitioner is still registered) has at least three aspects. First, such an order provides for the safety of the public ensuring only those practitioners fit to practice do so. Secondly, s 149C (7) sets a period of time during which a Tribunal predicts, or attempts to predict, the time in which a practitioner may reasonably take steps to rehabilitate himself or herself. This reason has particular force when a tribunal is considering a practitioner who has drug dependency or other medical issues. Thirdly, the authorities stress the deterrent aspect of the order. That is, such an order sends a clear message of denouncement of the practitioner's conduct to other professionals (see Chen per Payne JA at [88]).
5. Given the evidence of the practitioner's age and state of health the first two reasons for the order sought have no application. We turn then to the deterrence aspect of the order. The cancellation of a practitioner's registration sends a strong message that like behaviour by other practitioners will not be tolerated and upholds the standard of the profession. That strong message is reinforced by an appropriate disqualification period. In this case we find the practitioner's behaviour was at the most serious end of the spectrum. The conduct justifies that we impose a period of five years under s 147C (4) (b).

Costs

1. At the conclusion of its submissions the HCCC seeks an order that the practitioner pay its costs of the proceedings. However, the HCCC reserves the right to make further submissions on costs after publication of these reasons.
2. There is no dispute that we have the power to make a costs order. (see Cl 13 of Schedule 5D). The power is a discretionary one to be exercised judicially. If the quantum of costs cannot be agreed, costs can be assessed under the Legal Profession Uniform Law (Application) Act 2014 (NSW) (see Cl 13 (5)).
3. The principles to be applied under the National Law in respect of costs are subject of clear authority (see HCCC v Philipiah [2013] NSWCA 342).
4. Our preliminary view is that the practitioner should pay 85 per cent of the costs of the HCCC as agreed and failing agreement as assessed. We find that the HCCC, whilst not succeeding on all particulars, have established many instances of unsatisfactory professional conduct and we have found professional misconduct.
5. In reaching this preliminary view we note that the practitioner made few admissions in his Reply and statements and many of his significant admissions were only made after lengthy cross-examination. However, there are matters that need to be taken into account when considering an award of costs. The proceedings were lengthened, in part, because of the stance taken by the HCCC in opposing the admissibility of Dr Izzo's report, on which it was unsuccessful, and in respect of those particulars we were not satisfied were established.
6. We propose that, if the parties agree with our preliminary view, they may lodge a consent order dealing with costs. In the event there is no agreement on costs, we will set out a time-table for the provision of short written submissions not exceeding 4 pages and will unless otherwise ordered, deal with the costs application "on the papers" so that this matter may be brought to a timely end without incurring any substantial significant further costs or delay.

ORDERS 1. If Richard Ian Reid (the practitioner) had been registered as at the date of these orders the Tribunal would have made an order cancelling his registration pursuant to s 149C (4) (a) of the Health Practitioner Regulation National Law. 2. Pursuant to s 149C (4) (b) of the National Law the Tribunal orders that the practitioner is disqualified from being registered for five years from the date of these orders. 3. The Registrar is requested to notify the Medical Board of Australia that it should pursuant to s 149C (4) (c) of the National Law record on the register the fact the Tribunal would have cancelled the practitioner's registration if he had been registered. 4. Either party may lodge with the Registrar within 21 days of these orders submission in writing not exceeding four pages in respect of any application for costs. 5. In the alternate to order (4) the parties may lodge with the Registrar within 21 days of the date of this decision any consent order about costs.

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: 24 September 2018