Health Care Complaints Commission v Schmidt

The dinner party

1. Rex Upton, together with his wife Helen Opie own accommodation which they let out on both short and long-term bases, and frequently to doctors who were visiting Lismore, a regional centre in northern NSW, where they lived. One of those doctors was the respondent, who was staying in the accommodation for about a week while a locum VMO. They invited the respondent to attend a dinner party at their home for Mr Upton's 80th birthday, on 30 October 2013. Mr Upton recalled that there were at least 5 people at the dinner party. Besides himself, his wife, a person named Ruth Tinker and the respondent, he was unable to recollect the names of the other persons attending. He recollected the respondent arriving about the same time as everyone else, between 6:30pm and 7pm. Mr Upton was unable to recall with any precision what food was served, but was certain that this would include nibbles before dinner and a substantial dinner. He could not recall whether he had participated in the preparation of the meal.
2. Mr Upton recalled that the respondent sat opposite him at the table. He was unable to recall any conversation with the respondent but did not regard him as a talkative person or a good conversationalist. He thought that the respondent "looked tired when he sat down for dinner." The respondent said that both red and white wine were served at the dinner. His recollection of the respondent's consumption of alcohol during the course of the evening was expressed in his statement in the following terms: Between arriving for dinner and dozing off at the dinner table I don't recollect whether or not John had one or two glasses of red wine. After dozing or slacking to one side in his seat his head was so low that his eyes could not be seen. He may have been asleep for one or 10 seconds. With his head still low he reached for a bottle of wine and poured it into his glass. It was almost as if he did it in his sleep. I vividly recall this because this is the first time that anybody has done this at our dinner table. Helen and I usually pour or refill people's wine glasses.
3. Mr Upton thought that the respondent left the dinner party at around 9pm with everyone else because "this is the time that Helen goes to bed."
4. Mr Upton was adamant that the glasses that he used at his dinner parties were of a "standard size and into them we pour a standard drink."
5. Finally, in his statement Mr Upton said: John also staggered when he walked but he may have had a limp and my wife told me that she thought he had something wrong with his left (sic). I never saw him stand erect the times I saw him. I did not see John after the dinner party.
6. Helen Opie was more particular in describing her recollection of the dinner party. In addition to the persons described by her husband, she recalled that the aunt and uncle of Ruth Tinker also attended. She was unable to recall at what time the respondent arrived, but the other guests were already present. She had invited him for about 6:30pm. She recalled seeing the respondent consuming "at least two glasses of wine, but I cannot recall whether it was white or red. I can recall that he did not drink any spirits." She was unable to recall what time the respondent left but thought that it would have been between 8:30pm and 9pm because she was usually in bed by 9pm. She recollected the respondent getting into his motor vehicle and driving away in an easterly direction. She said "I had no concerns about John's demeanour but I had also been drinking myself and cannot recall those details." She did recall that he had muscle wastage on one leg and walked with a limp.
7. Naomi Bruce-Corbett attended the dinner party, arriving at about 5:30pm. She had come to know Ms Opie and Mr Upton through her niece, Ruth Tinker and when in Lismore she stayed at one of their units. She arrived with her husband and they were introduced to the respondent. In oral evidence, she was unable to say when the respondent had arrived, but she said that she had met him within half an hour of him arriving. Ms Opie told her that the respondent was an obstetrician and was relieving at the local hospital.
8. In a statutory declaration, Mrs Bruce-Corbett said that champagne was being served by Mr Upton while the guests were sitting around the table and snacks were being laid out. At that time, Mr Upton was cooking food on a barbecue nearby. They were served a full meal including salads.
9. During the course of the meal, the respondent received a telephone call on his mobile phone. She heard him giving "what appeared to be instructions to the person on the phone." Whilst he was making the phone call someone informed her that the respondent was on call at the hospital. This alerted her to the fact that he had been drinking alcohol. In her statutory declaration she said: I recall that during dinner there were numerous bottles of wine placed along the table. At first John waited for his glass to be filled by the hosts however throughout the night I recall he began to refill his own glass. I recall John filling his glass multiple times with what I believed to be red wine.
10. She also said that there had been discussion amongst some of the guests, as a joke, whether they should take the respondent's car keys away from him because they thought that he was "clearly under the influence of alcohol." She was of this view because the respondent "had begun to talk loudly and at one instance he sat back in his chair and closed his eyes. I believe that during this instance he fell asleep for a short moment."
11. Mrs Bruce-Corbett said that she left the dinner party with her husband about 10 pm. She recalls that Ms Opie had not retired to bed at that stage and that she and her husband had said goodbye as they left. She noticed that the respondent's car, which she had recognised because she had seen it in the unit block where she was staying, was parked outside.
12. They were driven by Dr Tinker in her car to the unit where they were staying which was in the same block as where the respondent was staying. When they arrived, she did not see the respondent's car parked near the apartment. Dr Tinker stayed with them in their unit for almost two hours. As Dr Tinker left, she came outside of the unit with her and noticed that the respondent's car was then parked near the unit.
13. Whilst Mrs Bruce-Corbett did not profess to be able to recall every detail concerning what took place at the dinner party, she was obviously alert to and aware of the consumption of alcohol by the respondent in the context of his position at the hospital and the fact that he was on call. There is no suggestion that this witness engaged in any ex post facto rationalisation or any reconstruction of her recollection, when assembling and presenting her evidence. We accept that she believed that the respondent had initially consumed some champagne, and later several glasses of wine, and for reasons which we shall shortly advance we are comfortably satisfied that he did so.
14. Dr Ruth Tinker made a signed statement dated 30 May 2014. She is a friend of Ms Opie and as such was invited to Mr Upton's 80th birthday party. Dr Tinker practices as a general practitioner in Lismore and she recollected attending the party after finishing work in her surgery at some time around 7 pm. At that stage, all of the other guests had arrived, and pre-dinner drinks, dips and snacks were being served. The respondent was introduced to her as a visiting locum obstetrician at the hospital. She had brought a bottle of champagne which she proceeded to pour for the guests, who totalled seven in all.
15. In her statement, Dr Tinker described what happened during the course of the dinner party, her interaction with the respondent, and her observations of him in the following terms: 5. Early in the evening I remember a conversation with John and the group. I recall he was asked how he was enjoying Lismore. He said he was enjoying the job in part because in the mornings he could go to the gym in town for a while and then go down to the beach, which was about half an hour away. He could arrive at the hospital late morning. 6. I took a bottle of Moet champagne to share. I opened it myself and offered it around. I poured a glass of Moet for everyone including John. When more was offered, I remember thinking that John hadn't taken the time to appreciate it. 7. There were several bottles of wine on the table in front of Rex and more in the kitchen. On more than one occasion John refilled his glass with wine from the table. I also saw him get up from the table and go to the kitchen to find more wine. I remember thinking this was not good manners as a guest and that he was drinking a lot. 8. During dinner he took part in the conversation from time to time. I don't remember in detail what John discussed. 9. I drank one glass of champagne, a little bit of red and white wine and several glasses of water that night. I was careful about what I drank because I was driving. 10. I don't recall when, but sometime during dinner I saw that John had dozed off. His eyes were closed and his head down. Having noticed, I continued talking to the others and cannot say how long he appeared to be asleep. 11………………We had cake for dessert and sang Happy Birthday for Rex. Whilst singing happy birthday or just prior to singing, John took a phone call but stayed at the table. It was obvious it was a call from the hospital. I expected that he would get up from the table due to the noise and for confidentiality reasons but he did not. 12. We stayed a little longer and I think we left Helen's home at between 10.30 and 11pm. It was a late night for me. I got home at about midnight. It was also a late night for Helen because she usually goes to bed at 9.30pm. All the guests left at about the same time. 13. As we all walked outside there was a brief discussion about how to get the keys from John and how we would get him home because the view was that he should not be driving. It was my understanding that somebody had his keys. I then drove my aunt and uncle to their accommodation which was around the corner about half a block from Helen's home. 14. We went upstairs where my aunt and uncle were staying. It was near to where John was staying. When I came downstairs to drive home, I noticed that John's car was now in the car park. I knew it was John's car because I had seen it parked outside Helen's home. My aunt and I had a brief conversation about how this meant he had driven when we thought he was not safe to do so. 15. Throughout the dinner party John followed the thread of the conversation. He was not slurring or stumbling his words. It was the large quantity of alcohol he had had, the falling asleep at the table, and that he had taken a call and not left the table, that made me think he had had too much to drink. 16. I was a GP obstetrician at Lismore Base Hospital for about 12 years, and have experience in being on call. I was not happy with John's conduct in that it is not what I believe is expected of an obstetrician who is on call, by both patients and the hospital.
16. In her statement, Dr Tinker said that she had brought her concerns about the respondent's alcohol consumption at the dinner party to the attention of a senior staff specialist at the Lismore Base Hospital at a dinner on 2 November 2013. This may be assumed to have been the catalyst for the resultant investigation conducted by the hospital into the respondent's conduct on 30/31 October 2013.
17. Dr Tinker was cross-examined at some length concerning her recollection of the consumption of alcohol by the respondent at the dinner party. She conceded that she had no clear recollection of who ate what food, but she asserted that she did have a clear recollection of who consumed alcohol. She said that she could not help but notice when people are drinking more than others. She was adamant that the respondent did leave the dinner table to go to the kitchen to get more wine for himself. Because she had herself assisted in undertaking obstetric work at the Lismore Hospital for 12 or 13 years commencing in 1990 or 1991 she said that she was personally experienced in being on call as a general practitioner obstetrician at that hospital. (We should add that she conceded that she had not been specifically directed by the hospital or received any information or instructions concerning the consumption of alcohol whilst on call).
18. Overall, it was clear from her evidence that Dr Tinker was acutely aware of the need for an on-call obstetrician to be unaffected by the consumption of alcohol and this informed her awareness and observations of the respondent's conduct and his consumption of alcohol at the dinner party. She was clearly attuned to and conscious that he had consumed more alcohol than she though was appropriate. She did not present as a person with a fixed and rigid view of zero alcohol tolerance because she was herself prepared to drive after imbibing some alcohol during the course of the evening. And her concern appears to have been genuinely directed to the respondent's ability to perform his duties, as evidenced by her discussion on 2 November, 2013. There is no suggestion of personal malice or any other motive for her expressed concerns or her observations at the dinner party.
19. The respondent provided a statement for the purpose of these proceedings which dealt, inter alia, with his account of what happened at the dinner party. In addition, we have the transcript of his account given to delegates of the Medical Council, and what was recorded by Dr Robert Fisher, a psychiatrist who assessed him by arrangement with the Medical Council. In general terms, the respondent denied that he had consumed an excessive amount of alcohol, and that he was unduly affected by alcohol. He said he was a moderate drinker only, habitually drinking a modest amount on weekends, and rarely during the week, especially if he was working. He could not conceive that he may have drunk 5-6 standard drinks because this was almost equivalent to a bottle of wine.
20. In a report dated 26 March 2014, following an assessment conducted the previous day, Dr Fisher recorded a history from the respondent in the following terms: The dinner occurred on October 30, and he attended around 6.30 - 7.00 pm, and he knew no one there but Mr Upton and Ms Opie. He said that he had taken a bottle of champagne with him to the party, and told me that he had not consumed any alcohol before he went. He recollects having several glasses of champagne, and that he may have consumed some wine with the dinner. He was unable to recollect what he ate, and concedes that he may have fallen asleep at the dinner table, as he was very tired when he attended, and he usually gets up at 4.30 in the morning for a swim, and it is not unusual for him to fall asleep around 8.30 or 9.00 p.m. Nonetheless, he has no clear memory of falling asleep, and has no memory of leaving the dinner or driving back to his accommodation, nor being called to the hospital or driving there. He gives no explanation for the variable recollections of the events of that night.
21. Dr Fisher did record the respondent informing him that he recollected being in the labour ward at the hospital "to see a patient who he believes was in the hospital throughout the day, and who was ten days' post-expected date of delivery." The history concerning the patient as recorded by Dr Fisher is not accurate but, in our opinion, nothing turns on this particular matter because the respondent said that at the time that he was interviewed by Dr Fisher he did not have access to the clinical notes from the hospital. However, nothing contained in the clinical notes would have assisted the respondent in his recollection of what occurred at the dinner party.
22. For completeness, we note that Dr Fisher was unable to assess that the respondent was suffering from any impairment which would unduly affect his ability to practice as a health professional.
23. The complaint against the respondent was referred by the Medical Council to delegates to conduct an enquiry under section 150 of the National Law to determine whether the respondent's registration should be suspended or made the subject of conditions whilst the complaint was being investigated. A hearing was conducted before the delegates on 17 March 2014 and a transcript of the proceedings was made available to us. The respondent denied that he had drunk excessively at the dinner party and he informed the delegates that he had consumed two glasses of champagne and no wine.
24. In the course of dialogue with the delegates the respondent said that his understanding of protocols adopted by his peers was that it was acceptable to consume a limited amount of alcohol whilst on call which he described in terms of his colleagues who were engaged to perform work at the Mater Hospital, North Sydney as "a glass or two of wine."
25. In the course of giving evidence before us, it transpired that the respondent had little recall of what occurred at the dinner party, including who had attended, and what food had been served. He recalled that he had brought a bottle of champagne. He conceded that he had drunk two glasses of champagne, and may have had some wine. He was unable to recall the shape or sizes of the glasses, and how full they were. Such information about what he had drunk as was contained in a statement which he had provided for these proceedings was a reconstruction by him of what he had read in the various statements provided by persons who had attended the dinner party.
26. Accordingly, we rely on the statements and oral evidence of attendees at the party in determining such facts as we can reasonably and appropriately conclude occurred. The clearest and most helpful accounts are those of Dr Tinker and Mrs Bruce-Corbett, which we generally accept. In doing so. we acknowledge that not every recollection of Dr Tinker is entirely accurate. For example, it seems clear that the respondent arrived at the hospital around 8am each day, and not mid-morning as she says she was told by him, and that her recollection of the details of his exercise routine was faulty. Nevertheless, as we have earlier observed, we accept her general observations concerning the respondent's alcohol consumption.
27. We are comfortably satisfied based on this evidence that the respondent arrived at the dinner party around 6.30pm, and that he left around 10pm. During the evening he consumed some snacks initially and later a meal of barbequed meat and salads. There was also evidence of dessert being served. During the evening he consumed initially two glasses of champagne of at least 100mL each, and at least three glasses of wine, which we would assess on the evidence of at least 100mL each. We are unable to determine when these drinks were consumed, but it is likely that the champagne was drunk shortly after the respondent arrived.
28. In determining the concentration of alcohol in these drinks we rely on a publication of the Australian Government found at www.alcohol.gov.au. This indicates that champagne is of the order of 12% alcohol. We are unsure whether the respondent drank red or white wine. White wine is on average 11.5% alcohol, and in fairness to the respondent we shall assume this is the relevant quantum to be taken into account. The alcohol content of white wine of around 11.5% accords with evidence of an expert Dr James Bell, who gave evidence in the proceedings.
29. Accordingly, based on such evidence that we are prepared to accept, we conclude that between 6.30pm and 10pm the respondent consumed at least 2.4 standard drinks (10mg of alcohol) of champagne and 3.45 standard drinks of wine, making a total of 5.85 standard drinks.

The hospital attendance on 30 October 2013

1. Evidence was given by Patient A. Because there is a marked difference of opinion as to what occurred on the evening of 30 October 2013, we shall set out the bulk of a written statement provided by Patient A to the appellant dated 28 May 2014. She said: 3. About a week before 30 October 2013 I had a scan to check the amniotic fluid to ensure the baby's diaphragm was working because I was 2 weeks past the estimated due date. I was informed during the scan that the baby was a little on the big side but that everything was normal. 4. Either that same afternoon or the next day I received a phone call from Dr Rebecca Tallis (Dr Becci) to say that the results of my scan were quite atrocious. I told her that the technician had said things were alright and I told her that I did not know who to believe. Dr Becci suggested an induction and I told her that I would not be having an induction. She told me to think about what it would be like if my baby died because of my refusal to have an induction. I told her that I was aware of the risks and that I did not want to have an induction. The conversation ended as I think she realised that I would not change my mind. I then began to cry because I felt pressured and spoke to my mother about my feelings. My mother calmed me down. 5. At about 20.00 hrs on 30 October 2013 my waters broke and I went to Lismore Base Hospital. I asked who obstetrician on duty was and was informed that it was Dr Becci. I cannot recall which midwife I spoke to. I told the midwife that I did not want Dr Becci to treat me because of our conversation the previous week. The midwife appeared to be concerned about calling the locum because she did not know him but she stated she would contact him. 6. Once in my room the midwife wanted me to stay on continuous monitoring but I told her to take me off the monitor because it was making me anxious to see the baby's heartbeat. I just wanted to get in the shower and relax. 7. A little later I got in the shower and at about 2300hours Dr Schmidt came into my room. As I came out of the bathroom with a towel around me, I first saw Dr Schmidt slumped on the chair with his arms hanging down. Dr Schmidt slowly got up out of the chair and said 'let's take a look at your belly,' as he motioned towards the bed. I got on the bed and Dr Schmidt poked around my belly and stated that 'we were dealing with a big baby.' I told him that I figured that it was a big baby because I was at 42 weeks. Dr Schmidt said that with big babies there was a 25% chance of shoulder dystocia and that the baby's clavicle would have to be broken in order to dislodge it. 8. I said to him that I had read information about other mechanism that could be used to open up the pelvis and prevent dystocia. I said other options included getting on your hand and knees to open up the pelvis and he said that this was "bullshit." My mother told him that the books we had read had been written by world renowned obstetricians and Dr Schmidt said that this was still "crap." 9. I felt that Dr Schmidt was judging my situation. 10. Dr Schmidt then had a tense conversation with my mother because he did not believe what we were saying or the information we had read about shoulder dystocia. This was confronting for me because my mother was having a go at him and he at her. Dr Schmidt told my mother that she was a very confronting woman and my mother responded by saying 'yes I am,' or something like that. 11. The mood changed after my mother and Dr Schmidt had that exchange and he took a step back and said that I would probably had a fine birth and that he would check on me later. 12. As the doctor went to leave the room he went through the bathroom door before the midwife told him 'doctor this is the door' and showed him the correct exit. 13. When he left the room I asked my mother if there was something wrong with Dr Schmidt and my mother said that she believed he was drunk. 14. My mother mentioned to the midwife that she thought the doctor was drunk but the midwife did not agree. 15. I had concerns about Dr Schmidt because he did not seem to be on the ball and there was a stagger to his stance. I consider myself a perceptive person and he seemed to be out of it and he was not making sense when he was talking. He did not have a plan for the birth and I did not have confidence in him because of this. It was my mother who asked him whether he was suggesting a caesarean section and he agreed. 16. Dr Schmidt came back to see me about 2 or 3 hours later whilst I was in full labour. He was accompanied by Dr Becci and another person. He was a totally different person at that time and he was being encouraging, telling me that I was doing a great job. His demeanour was perky and lively, in comparison to earlier, I was quite annoyed that they were there. Dr Schmidt said to my mother that she looked a little tired and my mother was dismissive of him. Dr Schmidt and Becci left soon after. I proceeded to have a normal vaginal birth.
2. In her oral evidence, Patient A confirmed her disagreement with Dr Tallis when informed that the results of her ultrasound had been "atrocious." She thought that Dr Tallis was only interested in inducing her and she was adamant that she did not want any medical intervention inconsistent with the birthing plan which she herself had prepared and which had been made available to the hospital when attending on midwives during her pregnancy. Patient A was also adamant that Dr Tallis and others at Lismore Hospital were incorrect in assessing her as being overdue. She said that this assessment had been made based on incorrect information provided by a Brisbane medical practitioner about the date of her last menstrual cycle and the results of an ultrasound taken earlier. She was concerned that no one at the hospital would listen to her. She was also adamant that she would not allow Dr Tallis to undertake a vaginal examination, although she was prepared to allow fetal monitoring.
3. When she attended at the hospital after her waters had broken Patient A said that she made it clear that she did not want to see Dr Tallis and that Dr Tallis was not to be involved in her birth. Later, she recalled the respondent visiting her in her room. There were four people in the room at the time namely herself, her mother who was her "birthing partner", the respondent and a midwife. She recollected the respondent talking about the risks involved in delivering a baby with large shoulders and that he had mentioned a 25% risk of having to break the clavicle. She said that her mother and she both rejected a consideration of the risks. They were aware of the risks and in discussion backed up their responses to the respondent with references to texts written by two experts one of whom they told the respondent was a world-renowned specialist. She was adamant that he described this in terms of "bullshit" and "crap".
4. Patient A was asked about the circumstances in which she had prepared her statement. Her mother had written a letter to the hospital when contacted by a person there and she had read that letter out to her. When preparing her statement, Patient A said that she had discussed the events with her mother because they lived together and shared their observations. She has read her mother's statement.
5. The mother of Patient A had hand written a letter to the Director, medical services at Lismore Base Hospital at her request which was delivered on 8 November 2013. In that letter, the mother set out the circumstances of her experience with her daughter at the hospital. After her daughter had attended, she said that she had been assisting her in the bathroom when she came out "to discover Dr Schmidt slumped in a chair just outside the bathroom door." She said she went to shake hands with him and there was a delayed reaction from him. When her daughter came out of the bathroom and was settled she said that the respondent began: …haranguing her about his perceived view of her attitude to her baby. He mentioned her lack of cooperation with regard to tests that (her daughter) has chosen not to undertake, which is her right of course, and said why should the hospital cooperate with her if that was her attitude. At this point his eyes were glassy and his speech a little slurred and he seemed to be putting a lot of effort into forming coherent sentences. It occurred to me that he may have been drinking. The mother then referred to a conversation in which the respondent had expressed the opinion that her daughter was irresponsible to have refused to have the baby induced.
6. In her handwritten letter, the mother referred to a number of books to which her daughter had been given access by "a very experienced midwife and advocate of natural birth", and that her daughter was able to respond to the respondent by indicating that there were alternative methods to dealing with shoulder dystocia. It was at that stage that the respondent had used the word "bullshit" and the mother said that she had called him "an ignoramus." The respondent was said to have given her "a long, bleary stare and told me I was a very confronting woman, to which I agreed." She said the respondent continued to recommend a caesarean section and to call her daughter irresponsible.
7. In her handwritten letter, the mother said that when the respondent went to leave the birthing suite he went to exit through the bathroom and the midwife had to show him the correct exit. She thought that he staggered slightly as if losing his balance and this confirmed her suspicions that he had been drinking "or perhaps had some kind of Palsy." She mentioned this to the midwife who denied that he had been drinking.
8. The mother of Patient A provided a statement dated 28 May 2014. It confirmed that when her daughter attended the hospital she would not permit Dr Tallis to attend upon her. In general terms, the statement corroborated the material in the handwritten letter, but not in the same degree of detail. Tellingly, however, when referring to a telephone call on the night of 7 November 2013 from a person who said she was in charge of staff at the hospital, and having referred to her experience with the respondent, she asserted in the statement that this person had "told me that she had run into a friend who had told her that "he would be worried about that locum John Schmidt who had had a lot to drink at the dinner party." Katherine said that the comment from her friend made her heart sink and that as a result she accessed the hospital database to see Dr Schmidt had consulted with (Patient A). This is what prompted Katherine to contact me."
9. In her oral evidence, the mother of Patient A said that she was closely involved in helping her daughter and had undertaken a lot of reading on childbirth because she had six children. She confirmed that she was closely involved in dealing with people at the hospital and had known of the disagreement with Dr Tallis. She had attended consultations with Dr Tallis who she described as being of the strong opinion that her daughter was overdue and should be induced. This was about 10 to 14 days before she gave birth.
10. In the course of her oral evidence, the mother confirmed that she was the principal participant in the conversation which was held with the respondent after he attended the birthing suite. She had disagreed with him that the baby was late, although she acknowledged that all of the health professionals in Lismore had agreed that the baby was overdue. She confirmed that the respondent had informed her and her daughter that he was concerned about the size of the baby and the position of the baby's head but she described his explanation has having been expressed "in a confused way." She was unable to recall any particular discussion about the monitoring of the baby's heart rate.
11. In terms of the discussion concerning the baby's shoulders, the mother denied that the respondent had mentioned that there was a risk and had merely stated that the baby would become stuck. She and her daughter remonstrated based upon the opinions expressed in the books which they had read and it was at this stage that the respondent had used the word "bullshit" twice.
12. The mother also said that the respondent had endorsed Dr Tallis as being a good doctor and that they should continue to consult her. She said her daughter had agreed to see Dr Tallis for the purpose of examining her chart only but not to examine her.
13. Fiona Campbell, the midwife on duty at the time that Patient A attended the hospital made a written statement dated 28 May 2014, which, apart from deleting formal parts and reference to the name of Patient A, is set out below: 3. I am currently working at Lismore Base Hospital (LBH) as a Clinical Midwifery Specialist 1. I have worked at LBH since 2009. 4. I have been asked by the Health Care Complaints Commission to provide a statement in relation to a patient, (patient A), to whom I provided midwifery care on 30 and 31 October 2013. 5. I have not had the opportunity to review the entries that I have made in (Patient A's) medical record. 6. On 30 October 2013 I worked a night shift in the birthing suite at LBH from 2130hrs until 0730hrs on 31 October 2013. 7. (Patient A) telephoned the hospital between 2130hrs and 2200hrs. I spoke with her at this time. (Patient A) said that she was calling because her waters had broken. She sought advice about whether she should attend the hospital at that time as the waters had broken but her contractions hadn't yet commenced. She also said that the liquor was not clear in colour. She then said that she did not wish to come in. I suggested to her that she should come in so that l could review her and then possibly send her back home if all was well. 8. I recall that (Patient A) had three main risk factors. These were her ruptured membranes, thin meconium in the liquor and she was post-dates by 15-25 days. (Patient A's) due date was unclear as she had provided one date and she had been assessed by ultrasound to have a different due date. Her baby was assessed to have been large, by ultrasound, approximately 4.5kg. 9. At approximately 2215 hours, Patient A presented to the birthing suite. Upon presentation, (Patient A) (sic) a birthing plan which stated she did not want any vaginal examinations and she had arranged for a doula to assist her during birth. Although she had these requests, she was not unreasonable and consented to intermittent auscultation, although she declined continuous monitoring overnight. I was able to obtain a good baseline foetal heart rate soon after she presented and had continuous monitoring in place until 2330 hours. 10. Due to Patient A' risk factors, I referred care to Dr Tallis in accordance with the Australian College of Midwives Guidelines for Consultation and Referral. When I informed Patient A that I had to consult with the registrar due to her risk factors and that Dr Tallis was the registrar on duty, Patient A stated that she did not want to be cared for by Dr Tallis. I then informed Dr Tails and the midwife in charge of this. I then called the After Hours Nurse Manager, Murray, to seek guidance about what to do in this situation. Murray then directed me to contact Dr Schmidt, as he was the on-call locum obstetrician. 11. Dr Schmidt arrived at LBH at approximately 2400 hours. I accompanied Dr Schmidt into Patient A' room. When he was palpating Patient A' I was standing close to him. I could smell alcohol on his breath. There was nothing about his movement or speech that indicated that he was intoxicated, 12. I recall Dr Schmidt palpating Patient A' abdomen but she refused assessment. I specifically recall that she did not want a vaginal examination. 13. One of the things that Dr Schmidt talked to Patient A about was allowing Dr Tallis to resume care of her. He emphasised that he had confidence in Dr Tallis' ability to provide care to her. 14. Dr Schmidt also discussed with Patient A the fact that her baby was large and that there were risk factors involved with a large baby, including shoulder dystocia. Dr Schmidt discussed with her the possibility of having a caesarean section. 15. Dr Schmidt and I left the room after I suggested that Patient A and her mother be allowed, in private, to consider what they were going to do. I then had a discussion with Dr Schmidt and Dr Tallis outside of the room at which time I informed him that Patient A would not (sic) going to consent to a caesarean section and that he wouldn't be able to do one unless he scheduled her under the Mental Health Act 2007. 16. I was advocating for Patient A by explaining her birth plan in more detail and the fact that she wasn't likely to agree with any interventions. I was under the impression that Dr Schmidt was unhappy with the way that I advocated for her. A three-way discussion then continued in relation how Patient A' birth would be managed when she went into labour, which at the time, she was not. 17. After this discussion I did not see Dr Schmidt again until approximately 0800 hours. At that time I saw him having discussions with other staff but I did not speak with him again. I cannot recall any obvious differences in his demeanour. 18. Other than smelling alcohol on Dr Schmidt's breath on that one occasion, he did not show any signs of being intoxicated. I also do not recall having any conversations with anyone about concerns over Dr Schmidt's conduct or alleged intoxication.
14. In her oral evidence, Ms Campbell was taken to handwritten clinical notes which she had made after patient A had first presented on the evening of 30 October 2013. From those notes she was able to recall that the respondent was concerned that Patient A had not had a 28 week glucose tolerance test, and a GBS swab to test for infection.
15. She recollected that the respondent argued that Patient A should have a caesarean section and the patient and her mother responding that they had read literature on which they based the refusal to have medical intervention. She confirmed that the mother was strongly in support of her point of view. It was at this stage that she negotiated with the patient and her mother and with Dr Tallis that nothing should be done at that stage. She said that the respondent reluctantly agreed to this plan. In these discussions she said that she was acting as an advocate for the patient, which was within her role as a midwife.
16. In discussing the manner in which the arguments and counterarguments took place between the respondent, Patient A and her mother, Ms Campbell said that in expressing his views and whilst firmly emphasising the risks involved, the respondent used "an extra degree of belligerence."
17. We note that in her statement Ms Campbell makes no reference to the words "bullshit" and "crap" attributed to the respondent by Patient A and her mother. Neither counsel asked Ms Campbell whether these words had been used during the course of the discussion at which she was present. It will be necessary to consider the consequences, if any, of this lack of reference to this important element of the complaint brought against the respondent in the context of the assertion made by both Patient A and her mother and the denial made by the respondent. Ms Campbell was the only other person present during the course of the exchanges between these persons.
18. There is also in evidence a statement of Dr Tallis made on 30 May 2014 who we were told was not available to give oral evidence. In that statement, Dr Tallis said that she was then engaged as a junior registrar in obstetrics and gynaecology at Lismore Base Hospital. She recalled Patient A being at the hospital on the evening of 30 October 2013 and the respondent attending the hospital after she had requested him to do so, because the patient had refused her care. She was not present in the room when the respondent had a conversation with the patient and her mother. She said that after the respondent left the patient's room he told her that she would accept her care. She recalled the respondent having a conflicted conversation with Ms Campbell outside the room. She said that: There was nothing at all about Dr Schmidt's demeanour that alerted me to the fact that he was under the influence of alcohol. He did not appear any different than previous times I interacted with him.

The respondent's conduct - Northern NSW Local Health District

1. The appellant tendered a letter from Dr David Charles Hutton, a medical practitioner who is the Executive - Director of Clinical Governance for the Northern NSW Local Health District, which covers Lismore Base Hospital. Dr Hutton had held that position since 1 January 2005. As part of his duties, Dr Hutton has overall responsibility for managing complaints about clinicians. This includes complaints concerning inappropriate consumption of alcohol. Principally, matters involving the consumption of alcohol by medical practitioners are dealt with in the NSW Health Code of Conduct, to which reference will be made later in these reasons for decision. For present purposes it is sufficient to note that the provisions of that Code were said to apply to the respondent whilst engaged as a locum VMO at Lismore Base Hospital. Relevantly, this required the respondent not to be under the influence of alcohol or drugs and to be in a fit and proper condition to carry out his duties when commencing work and while at work. The respondent was on call throughout the period of his engagement at the hospital, and was accordingly required to comply with these requirements throughout the whole of his engagement.
2. The letter from Dr Hutton refers to some literature which he had researched concerning the effects of alcohol on the brain. In particular, he cited a study conducted in the US which demonstrated that there was an increased risk of serious injuries in motor accidents even where the blood alcohol concentration of the driver was at 0.01. He thought that at this level there might be a significant impact upon alertness, judgement, coordination, fine motor skills, visual tracking, and reasoning. From this, Dr Hutton deduced that medical practitioners engaged at the Health District over which he presided should have zero blood alcohol concentration when commencing work and whilst at work, including whilst on call. Dr Hutton was unable to recall any particular directive, condition or other means by which a stipulation of zero blood alcohol concentration might have been conveyed to any medical practitioner engaged within the District, including the respondent. He thought that there were uniform terms of engagement throughout New South Wales which reflected the provisions of the Code previously referred to.
3. It does not seem to us that Dr Hutton was engaged to provide evidence for the purpose of these proceedings as an expert, and certainly there is no evidence of any particular expertise on his part in the practice of medicine as it applies to drug and alcohol consumption. In all the circumstances, we regard this evidence as being confined to informing us that the conditions of engagement which applied to the respondent were those, relevantly, as set out in the Code. It would be unsafe to rely in any way on the study reproduced by Dr Hutton because its probity has not been explored in any way during the course of the proceedings and it has not been considered by either of the experts who have given evidence.

The respondent's conduct - expert opinions of Associate Professor Challis and Dr Mike O'Connor AM

1. Associate Professor Challis is an experienced obstetrician and gynaecologist with undoubted professional qualifications, and a recognised expert in his field. He was retained by the appellant to provide an expert opinion concerning the conduct of the respondent. Dr Challis had available to him a volume of medical records, statements, transcripts and other documents to enable him to furnish his opinion.
2. Dr Challis did not purport to have any expertise in matters relating to the consumption of alcohol. In the course of his report, Dr Challis said in part: In my opinion it would not be acceptable practice to drink to a level that could impair clinical performance whilst on call……. Doing so would be significantly below what I would reasonably expect of a consultant obstetrician and invite my strong criticism. However, Dr Challis added that: It is common practice for senior obstetricians to have one or two drinks when on call for their private practice, especially when there is not a patient in labour. Private practice may involve being on call for weeks without a break. Most private obstetricians would or should refrain from drinking when they have a patient in labour. I am unclear whether it is acceptable to drink small amounts (or how to define this) when on call for a public hospital - where a call can come at any time. It would be a reasonable assertion to suggest that one or two drinks - possibly equating to the safe driving limit - is acceptable, however I am unaware of a specific requirement or guideline in this respect.
3. In oral evidence, Dr Challis was taken by counsel for the respondent to the circumstances of Patient A which confronted the respondent at the time of his consultation with her a little after midnight on 31 October 2013. The circumstances included that the patient was significantly overdue, the baby was large, the patient had refused to see the Registrar, that the patient had previously declined to undertake a glucose tolerance test and a Group B Strep test, as well as the results of fetal heart monitoring undertaken on the evening of 30 October 2013. In these circumstances, Dr Challis was of the opinion that the respondent was justified in assessing the circumstances of the patient as involving a high risk pregnancy. This situation indicated that it was appropriate for the respondent to have strongly advised that the patient undergo a caesarean section or that the baby be induced, although there was no particular urgency.
4. He thought that it was reasonable to assess the risk of shoulder dystocia at 25%.
5. Dr Challis was referred to the ultrasound carried out in Brisbane. On the basis of the results, it was his opinion that the respondent had been correct in assessing that the baby was overdue and, accordingly, Patient A and her mother were incorrect in protesting that the dates indicated by the medical staff at the hospital were wrong.
6. Dr Challis thought that the respondent had an obligation to clearly describe to the patient and to her family the advice that he had given and the reasons therefor. He acknowledged that the giving of such advice can be confronting to a mother with a different birth plan and that this could be "a difficult conversation." In the course of his written report, Dr Challis said, in the context of dealing with a difficult patient, as was the case in the circumstances of these proceedings: All obstetricians find such consultations challenging and difficult, as we fear being involved in a bad clinical outcome, particularly under circumstances where we have no control of the situation. My experience would suggest that the scenarios are particularly challenging for my colleagues of Dr Schmidt's generation, who may be less used to, or skilled at dealing with this conflict situation. This is because it is uncommon for private patients to choose care outside guidelines and against their obstetrician's advice, and until recent years this was also relatively rare in the public sector….. The difficult challenge for obstetricians is to explain the risks of a woman's choices and to document that the patient fully understands each of these risks without losing one's cool - all whilst endeavouring to maintain a therapeutic relationship. It would seem that Dr Schmidt failed to achieve this…… Whilst such interactions are to a degree understandable, and may have been acceptable in previous years, I believe that the general approach by Dr Schmidt was below the standard reasonably expected of a consultant obstetrician in 2013. In amplification in the course of oral evidence, Dr Challis said that obstetricians more recently admitted to practice than the respondent now received particular training directed to acquiring skills to assist in minimising conflict with patients and enhancing the therapeutic relationship.
7. Dr Mike O'Connor AM is also an experienced obstetrician and gynaecologist with undoubted professional qualifications, and is a recognised expert in the field. He was retained on behalf of the respondent to provide an expert opinion and was also provided with a large amount of documentation.
8. In considering the conduct of the respondent in having consumed alcohol at the dinner party whilst on call, Dr O'Connor also rejected any suggestion that the respondent should not have consumed any alcohol at all. In his opinion there was insufficient evidence that the respondent's consumption was significantly below the standard reasonably expected of a practitioner of similar training and experience based predominantly on the assessment of Dr Tallis and Ms Campbell that he did not appear to have been intoxicated when they saw him.
9. Significantly, however, Dr O'Connor made a general comment to the following effect: I would venture to say that an obstetrician on call should not drink alcohol because of the uncertainty of emergency obstetrics and the need at a moment's notice to drive a motor vehicle to the hospital and perform sometimes intricate and difficult obstetric manoeuvres requiring critical judgement. However, I am aware of many obstetricians of good reputation who do drink alcohol moderately whilst on call. He characterised the consumption of alcohol by the respondent on 30 October 2013 as being "somewhat below the expected standard."
10. Dr O'Connor disagreed with Dr Challis in accepting the opinion of Dr Tinker that the respondent had drunk a large quantity of alcohol at the dinner party. For reasons which we have given, we accept the assessment of Dr Tinker and, to this extent, we agree with the conclusion of Dr Challis where it differs to this extent from that of Dr O'Connor
11. Dr O'Connor considered the behaviour of the respondent in dealing with Patient A and her mother. He said that the views espoused by Patient A and her mother concerning alternative methods of dealing with shoulder dystocia were not shared by "most reputable obstetricians." He noted that the respondent would have been frustrated in dealing with the "very confrontational" stance taken by the mother and that Dr Tallis and the nursing staff had also encountered difficulties with her. Accordingly, he was not strongly critical of the respondent in this regard.

Alcohol consumption by the respondent - expert opinions of Drs James Bell and Michael Kennedy.

1. The appellant retained Dr James Bell to provide an expert opinion concerning the likely effect upon him of the consumption of alcohol by the respondent at the dinner party. Dr Bell is a Senior Staff Specialist, Drug Health Services, Royal Prince Alfred Hospital and has expertise in the effects of the consumption of alcohol. He was provided with a number of documents, principally statements made by persons who were present at the dinner party as well as reports of Drs O'Connor and Challis.
2. In furnishing his written opinion, Dr Bell assumed a number of facts. These included that the respondent arrived at the dinner party at approximately 7pm, and remained there for 2 to 2 ½ hours and drove home between 9pm and 10pm. Whilst at the party, he drank two glasses of champagne before dinner which he estimated at 150mL each and then two glasses of table wine. He attended hospital at 15 minutes past midnight the next day and was noted to have alcohol on his breath. Whilst at the party, the respondent had fallen asleep at the dinner table "for a period." He was not observed by anybody to be intoxicated either at the dinner party or at the hospital. Dr Bell noted however that guests questioned the propriety of the respondent taking a call from the hospital while remaining at the dinner table and in driving home after consuming alcohol. Finally, he noted the conflict with the patient.
3. Dr Bell observed that several factors may contribute to impairment when a person is affected by alcohol including blood alcohol concentration, the level of tolerance, concurrent use of medication or illicit drugs, temperament, personality, mental illness, physical illness, age, fatigue, stress, and personal problems. He thought that when the respondent fell asleep at the dinner table, this may have been caused by intoxication, fatigue or boredom: …but was most likely a combination of all 3 factors. Similarly, behaviour which might have suggested disinhibition when speaking to a patient at the hospital in the early hours of the next morning may well have been a consequence of stress in dealing with a difficult patient, in combination with fatigue and interrupted sleep - and possibly the influence of residual alcohol in the bloodstream. In all the circumstances, he said that the most reliable measure of the effect of alcohol would be the blood alcohol concentration.
4. In estimating blood alcohol concentration, Dr Bell noted that there was a constant elimination rate, generally in healthy males of 15mg percent (0.015) per hour. He estimated the respondent's Body Mass Index as being of the order of 27, and having assumed that the respondent commenced drinking at 7pm thought that his blood alcohol content at 9:30pm would have been 0.065, and at midnight 0.0275. Dr Bell conceded that his calculations were subject to three major limitations namely the actual amount of alcohol consumed, the rate of absorption of alcohol and the rate of individual variability in alcohol clearance. Accordingly, the blood alcohol level at midnight could have been "considerably lower or higher."
5. In the course of giving evidence, Dr Bell was informed that the respondent's height was 177cm, he weighed 80kg and that as a result his BMI was 26. On this basis, his assessment of the blood alcohol concentration of the respondent would be slightly higher. However, because of the variable factors to which he had referred, and in the absence of actual test results, Dr Bell was unable to state definitively that the respondent's blood alcohol level would have exceeded 0.05 at any time on the evening of 30 October or during the morning of 31 October, 2013.
6. In providing his expert opinion, Dr Bell used a formula to calculate the blood alcohol concentration at a particular time which took into account the mass of alcohol consumed during the drinking session in grams, the mass of the person in kilograms, the person's "Widmark Factor" expressed in litres per kilogram, the person's elimination rate in milligrams percent per hour, and the duration in hours from the start of the session to the particular time. The Widmark Factor was expressed to be of a numerical strength ascertained by reference to the person's body mass index. We did not receive any detailed explanation as to how the formula operates and, in particular, little explanation concerning the Widmark Factor. As we have previously observed Dr Bell said that there were "major limitations" to the acceptance of the calculations based on the formula.
7. In discussing the effect of a blood alcohol concentration (BAC), Dr Bell said that at 0.03mg%: …alcohol produces a sense of competence and well-being. At slightly higher levels, it produces slight incoordination in fine movements, such as writing. Above a BAC of about 0.9 mg%, people may have slowed reactions, ataxia and incoordination. Because of these effects, but particularly because of the epidemiological evidence linking BAC with accidents, in some safety sensitive occupations only a zero BAC is considered acceptable. NSW has a zero limit on young and inexperienced drivers, a 0.02mg% limit for heavy vehicle drivers (as well as rules around fatigue and the need for rest periods), and a 0.05mg% limit for other drivers. We assume, as did the parties, that the reference to 0.9mg was intended to be to 0.09 mg.
8. Dr Bell was asked to give his opinion about the respondent's blood alcohol concentration at about 9 to 9:30pm assuming he had consumed two glasses of champagne and two glasses of red or white wine. In giving his answer Dr Bell assumed that all of the glasses contained 150mL of liquid, and that the champagne was 12% alcohol by volume and the table wine 13%. Over a period of 2 to 2 ½ hours this would result in an alcohol dose of 59g. In coming to this conclusion, Dr Bell noted that if the drinks were 125mL the alcohol dose was reduced to 49g and if the wine were a low strength of 11%, there would be a reduction to 54g of alcohol. In answering this question Dr Bell thought that the respondent's blood alcohol concentration would be in the range of 0.042 to 0.065mg%, most probably above 0.05mg% which "in the context of fatigue, a blood alcohol level in this range would risk impaired judgement."
9. Dr Bell was then asked to assume the consumption of two glasses of champagne and three glasses of red or white wine and to estimate the impact on the respondent at about 9pm to 9:30pm. Assuming the same quantity of wine in each glass and the same alcohol levels, Dr Bell said that the blood alcohol concentration at 9:30pm would have been around 0.098mg% and at that level "I would expect a degree of uncoordination and disinhibition to be apparent to observers, and I would expect judgement and coordination to be impaired." Dr Bell was asked to make other calculations which, for present purposes, we do not need to examine.
10. Dr Bell also noted that the delay in absorption of alcohol would result in the peak blood alcohol concentration being delayed. He was unable to estimate the time that it would take for the peak to occur. It was sufficient to note that the respondent would continue to absorb alcohol after the last drink was ingested. In his personal opinion, Dr Bell would himself be wary of driving after consuming four standard drinks over three hours and he felt that this would create an unacceptable risk of being over the legal limit because of impaired judgement. Importantly, this observation expressed in general terms and without any detailed calculations is the strongest available expert evidence in support of the appellant's case. We shall return to this matter later in our reasons for decision.
11. Dr Michael Kennedy is a consultant physician and clinical pharmacologist with expertise in matters relating to the consumption of alcohol who was retained to give expert opinion on behalf of the respondent. He was provided with a large amount of documentation, similar to that provided by the appellant to Dr Bell. Having reviewed this material, Dr Kennedy formed the view that the respondent had consumed four standard drinks consisting of 10mg of alcohol each over a period of 3 - 3.5 hours together with several glasses of water during this period. Assuming that the respondent had consumed this quantity of alcoholic drinks during that period, and after allowing for the normal elimination rate of 15 mg/100 ml per hour, he said that at 12:15am, being three hours after ceasing drinking, the respondent would not have had a detectable level of alcohol in his blood. However, in making this estimate, Dr Kennedy did not make any allowance for a decrease in the amount of alcohol absorbed "by up to a maximum 50%" through the absorption of alcohol with food and the metabolisation of alcohol in the liver prior to entering the heart and systemic circulation. Dr Kennedy provided supplementary calculations by way of an additional report in which he attempted to calculate the blood alcohol concentration of the respondent at varying times. However, on his own admission, the calculations which he provided "do not represent the real world situation" because of the need to take into account the metabolism of alcohol in the liver prior to entering the systemic circulation, the fact that food decreases the amount of alcohol absorbed and that "alcoholic beverages vary in the amount of alcohol they deliver to the body."
12. When questioned during the course of giving oral evidence by reference to a number of different scenarios, Dr Kennedy conceded that it was very difficult to measure with any accuracy the blood alcohol content of the respondent at any particular time during the course of the evening.
13. Dr Kennedy disagreed with the basis for the calculations made by Dr Bell and Dr Bell's methodology. In particular, he strongly disagreed with the validity of the use of the Widmark Factor by Dr Bell, although no explanation for this position was undertaken by him voluntarily in the body of his report or whilst giving evidence, and none was elicited by either counsel. In addition, he provided little, if any, basis for his own calculations and, in effect, made little reference to any supporting texts.
14. When qualified to give evidence, Dr Kennedy was asked specifically to provide an opinion as to what he thought would be the respondent's blood alcohol concentration at around 00.15 on 31 October 2013 when he saw Patient A. His calculations were based on four standard drinks consumed over a period of 3 to 3.5 hours with several glasses of water also being consumed over this time. On this basis, he said that at the relevant time the respondent's blood alcohol concentration would be zero. He was also asked to comment about whether or not the respondent would be under the influence of alcohol when he commenced work that day and while at work. He thought that this question related to: …the acute effects of alcohol on the nervous system. In this case it means a situation where a task would not be undertaken with the same precision as it would have been if they had a blood alcohol of zero.
15. He was then asked at what blood alcohol content he considered an employee, being a medical practitioner, would be under the influence of alcohol. He responded by referring to the laws relating to driving motor vehicles where a level of 0.05 was considered …the concentration where impairment of skilled motor performance occurs. The decision was made for lower levels or zero levels for certain categories of driver was largely the result of expert opinion in relation to driving rather than the results of psychopharmacological research. Dr Kennedy had previously commented about lower concentrations of blood alcohol content. He said: While low concentration of 0.03g/100 ml can be associated with such observations as an increased incidence of unintentional injury and minor changes in some psychological tests, garrulousness and aggression occurs at concentrations of 0.1g/ml, and slurring of speech and unsteadiness occur around 0.2g/100ml.
16. In a supplementary report, Dr Kennedy was asked to calculate the blood alcohol concentration of the respondent assuming a number of different scenarios. These extended to four drinks evenly spaced over two hours, and five drinks evenly spaced over two hours. He proffered his opinion about the relevant concentration three hours after the last drink in each scenario. In doing so, he conceded that the figures which he gave "do not represent the real world situation" for the reasons we have previously set out. We do not find any of this evidence of assistance in evaluating whether and to what extent the respondent was adversely affected by his consumption of alcohol at any time during the evening of 30 October 2013 and the early morning of 31 October 2013 while he was on call.
17. We would add that although Dr Kennedy was of the opinion that very low levels of alcohol have been found to have improved the performance of an individual in certain respects, he himself will not perform work or drive if he has consumed any alcohol at all. Adopting such an approach gave him a degree of "comfort" if confronted by the police.
18. We are left with two opinions from two experts which are diametrically opposed as to the appropriate methodology and also as to the application of their preferred methodology to such factual circumstances as can reasonably be ascertained applying to the consumption of alcohol by the respondent at the dinner party. In circumstances where neither expert has been asked to address the disagreement expressed by the other, it is virtually impossible for us to evaluate which approach is correct and which of the expert opinions is to be preferred over the other. We offered the parties an opportunity to adjourn the proceedings to allow each of the experts to confer with each other with a view to endeavouring to clarify the controversy between them, but the parties eschewed this approach. In these circumstances, we will need to consider whether that we are able to dispose of these proceedings on the basis that, even though it may be impossible to determine that at any one time the blood alcohol concentration of the respondent on the evening and early morning concerned exceeded the statutory concentration of alcohol in the blood to permit legal driving, namely 0.05mg, or was at any other relevant level, nevertheless that part of the complaint and particulars have been made out.

The standard of proof

1. It is well established that we must be satisfied that the complaints brought against the respondent including the particulars of those complaints have been established to the Briginshaw standard. Because this proposition is uncontroversial, it is enough that we state that we must be comfortably satisfied, on the balance of probabilities, that the complaints by reference to any one of the relevant particulars have been made out.

The importance of the form and content of the complaint and particulars

1. The form and content of the Complaint and the particulars are integral to our determination of these proceedings.
2. In Lucire v Health Care Complaints Commission [2011] NSWCA 99 in the NSW Court of Appeal, Basten JA (McColl JA and Sackville AJA agreeing) said at [43]: This form of pleading has been commented on by the Court on previous occasions: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [27]- [31]. It inevitably gives rise to a degree of uncertainty as to the precise matters relied upon by the complainant and it is impossible to know the parameters of the case to be presented. Furthermore, it is not possible for the Tribunal to deal with such a complaint by finding it proven or otherwise: it can only deal with the case particular by particular. Whether any particular which is upheld constitutes unsatisfactory professional conduct, individually or in combination with other particulars, and whether any such particular constitutes professional misconduct, either individually or in combination with others, must be carefully identified in the findings of the Tribunal. As a result, the findings are likely to be complex, with a further risk that interested parties will not be able to identify readily and with precision what conclusions have been reached by the Tribunal and, where protective orders are made, to which breaches of conduct they relate. (emphasis added)
3. It follows that we must carefully consider the contents of the complaint and the relevant particulars in determining whether the Complaint or, any part of it, has been made out.

Establishing the facts necessary to found the Complaints and particulars

1. Save for limited circumstances, the Evidence Act and the strict rules of evidentiary law do not apply to this Tribunal. Furthermore, the tribunal is required to act with minimal formality, but always observing due process.
2. Relevantly, the following provisions of the Civil and Administrative Tribunal Act, 2013 apply: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note : Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
3. Notwithstanding provisions of this kind, no conclusions may be made unless they are based on an appropriate factual foundation, constructed on facts properly established. If authority be needed for such a fundamental proposition, reference may be made to the judgment of French CJ in the High Court of Australia in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32. At [15] and following his Honour said: 15 The Tribunal may, subject to the CTTT Act, determine its own procedure. It is not bound by the rules of evidence and may inquire into, and inform itself on, any matter in such manner as it thinks fit, subject to the rules of procedural fairness. That freedom is enjoyed by many administrative tribunals. The term "rules of evidence" does not lay out with precision its metes and bounds. Nor does it exclude the discretionary application of such rules. But the authority of the Tribunal to "inform itself on any matter in such manner as it thinks fit" indicates that it is able to act upon information whether or not it is embodied in evidence which would be admissible in a court of law. 16 There are qualifications upon the Tribunal's procedural freedom. One, which is explicit, is the requirement to observe procedural fairness. The Tribunal's modus operandi must also serve its function, which, in this case, was to hear and determine a building claim. That function implies a rational process of decision-making according to law. A decision based on no information at all, or based on findings of fact which are not open on information before the Tribunal, is not compatible with a rational process. 17 The exercise of the Tribunal's freedom from the rules of evidence should be subject to the cautionary observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott that those rules "represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth." It is a method not to be set aside in favour of methods of inquiry which necessarily advantage one party and disadvantage another. On the other hand, that caution is not a mandate for allowing the rules of evidence, excluded by statute, to "creep back through a domestic procedural rule." And at [91], Hayne, Heydon, Crennan and Kiefel JJ said; inter alia; "A tribunal that decides a question of fact when there is "no evidence" in support of the finding makes an error of law."
4. The necessity to find some evidentiary basis for the making of a finding of fact was highlighted by Beazley JA (as her Honour then was) in the NSW Court of Appeal in Strinic v Singh [2009] NSWCA 15 (Ipp and Basten JJA agreeing). At [60] - [65] her Honour said: 60 The fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge) has been emphasised by the courts in a variety of different circumstances. In Saunders v Adderley [1998] UKPC 29; [1999] 1 WLR 884, Sir John Balcombe, in delivering the judgment of the majority of the Privy Council, stated, at 889: "It is, of course, an error of law for a judge to make a finding of fact which there is no evidence to support, unless the matter is one of which the judge is entitled to take judicial notice." See also Holland v Jones [1917] HCA 26; (1917) 23 CLR 149; ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199; Coombes v RTA [2006] NSWCA 229; Ohlstein bht Ohlstein v E & T Lloyd t/as Otford Farm Trail Rides [2006] NSWCA 226. 61 In Ohlstein, Ipp JA observed, at [155], that the risk to a young child in undertaking a guided horse ride and a child's ability to undertake the ride: "... should not be determined by a personal judicial opinion, based on common knowledge and experience, that differs from the opinions expressed by the experts ... ." 62 The trial judge in this case had previously been a judge in the Compensation Court, which was judicially recognised as a court of specialist jurisdiction. At [5], his Honour referred to his thirteen years' judicial experience, during the majority of which he "was involved solely in personal injury litigation". His Honour added: "Since my statutory translation to the District Court some three and a half years ago I have spent approximately one-third of my time still being involved in personal injury litigation." 63 Having regard to his Honour's experience in a specialist court, it is useful to have regard to the principles governing judicial fact-finding, as they affect not only the extent to which the judicial officer can use such knowledge, but also the manner in which litigation is conducted in a particular court or tribunal. Those principles are discussed above. Their application to the present circumstances is the matter in point. 64 Even if a particular judge sitting in a court of general jurisdiction is experienced in adjudicating medical cases, that experience does not replace the requirement to base findings on the evidence. A court cannot assume that its knowledge of any particular matter is correct, even if the individual judge has a great deal of experience dealing with, for example, medical issues, as was the case here. In Saunders v Adderley [1998] UKPC 29; [1999] 1 WLR 884 it was said that such a process involved an error of law. Underlying that error is a fundamental breach of procedural fairness. A party is not afforded procedural fairness where a trial judge makes findings of fact based upon that judge's own purported knowledge or understanding of matters that do not form part of the evidence. 65 I have put that proposition in blunt terms, because it is the underlying fundamental principle upon which courts must act. Procedural fairness does, however, take its colour and hue from the particular circumstances at hand. Thus, a specialist tribunal will have greater leeway in applying its specialist knowledge, either because the constituting statute so provides, or because the parties are taken to understand its practices. Such tribunals are often the sole and final determiners of fact. Likewise, a trial judge would be entitled to advise the parties that he understood certain medical evidence to have a particular meaning, even if that meaning was not stated in the evidence. If all parties agreed that the judge's understanding on that matter was correct, then, the matter being transparent and not in dispute, there would be no breach of procedural fairness in the trial judge's acting on that understanding.
5. There is further reference to the fact finding obligations of a tribunal in the joint judgment of Flick and Perry JJ in the Full Court of the Federal Court of Australia in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93. At [93]-[97] their Honours said: 93 But questions have been repeatedly raised to as whether the reasons standing behind the common law rules of evidence may guide an administrative tribunal in the procedure which best facilitates the discharge of its statutory functions. In many instances, the common law rules of evidence are founded upon principles of common sense, reliability and fairness. 94 So much has long been recognised. Thus, for example, in an oft-quoted passage in R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 256 Evatt J observed: ... Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, "bound by any rules of evidence." Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice." The position of an appellant has been specially protected by the Legislature, and he should not be placed in a position where he is effectually prevented from conducting his appeal. After referring to these observations in Ex parte Bott, supra, the first President of the Administrative Appeals Tribunal - Brennan J (as his Honour then was) - observed in Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 492 to 493: ... That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence... ...... The majority judgments in Bott's case show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not... These observations of both Evatt J in Ex parte Bott, supra, and of Brennan J in Pochi, supra, have been recently approved by French CJ in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 at [17], [2010] HCA 32; (2010) 241 CLR 390 at 396. 95 Instances can thus be found where, for example, the Tribunal has excluded "opinion" evidence proffered by a party: Re Kevin and Minister for Capital Territory (1979) 2 ALD 238 at 242 to 243. In doing so, it was there said that it was "not appropriate ... for an applicant to offer his non-expert opinion as a fact upon which the Tribunal ought to base its conclusion". The opinion was thus not given "any weight". Similarly, it has been said that there "should...be a reluctance to dispense with the rules of evidence where there is a real dispute over a matter which goes to the heart of a case": Soliman v University of Technology, Sydney [2012] FCAFC 146 at [25], [2012] FCAFC 146; (2012) 207 FCR 277 at 285 per Marshall, North and Flick JJ. 96 Even in the absence of a statutory provision such as s 33(1)(c), the common law rules of evidence, it has long been recognised, may for historical reasons exclude material which could assist in an administrative fact-finding task. Thus, for example, in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 487 to 488 Diplock LJ relevantly observed: ...The question of law raised before us is whether the deputy commissioner acted contrary to the rules of natural justice in attaching some weight to opinions as to the general aetiology of the prolapse of intervertebral discs reported to have been given by unnamed medical practitioners in two earlier appeals determined by other commissioners, and upon which the medical experts who gave evidence orally for the claimant and the insurance officer at the actual hearing before the deputy commissioner were invited to comment. Where, as in the present case, a personal bias or mala fides on the part of the deputy commissioner is not in question, the rules of natural justice which he must observe can, in my view, be reduced to two. First, he must base his decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing. In the context of the first rule, "evidence" is not restricted to evidence which would be admissible in a court of law. For historical reasons, based perhaps on the fear that juries who might be illiterate were incapable of differentiating between the probative values of different methods of proof, the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact, and thereby to exclude much material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion...These technical rules of evidence, however, form no part of the rules of natural justice... Diplock LJ thereafter went on to make his oft-repeated remarks that a decision-maker could "not spin a coin or consult an astrologer...". The application in Australia of the "no-evidence" rule as a part of natural justice has received recent attention by Allsop CJ, Middleton and Foster JJ in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83 at [89] to [90]. For present purposes, however, it is sufficient to note the recognition in Ex parte Moore, supra, that an administrative decision-maker may have recourse to "material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion". 97 The procedural flexibility afforded to an administrative tribunal freed from the rules of evidence does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide.
6. We have set out the extracts above in some detail because they provide insight and guidance into the task of this tribunal in evaluating the evidentiary material and the expert evidence in these proceedings. We observe, in conformity with the observations made above that we are dealing with procedures of a disciplinary nature, with a need to balance the protection of the public (and all that that concept conveys as is well established) with the reputation of a medical practitioner, and that our determination needs to be made by means of "a rational process of decision-making according to law." Furthermore, we have an "obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide."

Common knowledge/judicial knowledge

1. Senior counsel for the appellant submitted that we did not need expert evidence to determine whether the respondent was impaired. She said that we did not need expert evidence: …to know that alcohol is a depressant drug, which affects a person's mental and motor function. Alcohol can affect problem-solving skills, judgement, concentration, reaction times and coordination….. In any case, as an expert Tribunal this information is within the expertise of the medical members.
2. In its broadest sense, this submission relies on "common knowledge." In a narrower sense, the submission relies on the so-called expertise of two of the members of the Tribunal. This submission mis-states the role of the professional medical members of the Tribunal. Their expertise is used to assist the Tribunal in understanding and dealing with the expert and technical evidence given in the proceedings within the area of their respective expertise. It is not the role of a professional medical member of the Tribunal to act as an expert and, in any event, any expert opinion proffered by a medical member could not be used by the Tribunal without having first been raised with the parties and the parties having being given an opportunity to deal with it. No such opinion as to the process of and the varying factors for assessing the impact on the respondent or of persons generally of the consumption of alcohol was expressed by either of the medical members of the Tribunal during the course of these proceedings. Indeed, one of us is a specialist obstetrician and gynaecologist and another of us is a specialist geriatrician. Neither has or has professed to have expertise of the kind referred to by senior counsel for the appellant.
3. The broader submission involves a consideration of the concept of common knowledge, and also judicial knowledge applied to the court system. For completeness we note the provisions of section 144 of the Evidence Act, 1995 have in general terms replaced the concept of judicial notice in NSW. Section 144 is in the following terms: 144 Matters of common knowledge (1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
4. In Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9, McHugh J in the High Court of Australia, although in dissent, set out a brief reference to the general principles applying to the doctrine of judicial notice which we adopt for the purpose of considering this particular aspect of these proceedings. His Honour said (omitting citations): (a) The doctrine of judicial notice: general 64 As a general rule, facts in issue or relevant to a fact in issue must be proved by admissible evidence. The doctrine of judicial notice is an exception to this rule. A court may judicially notice a fact whenever it "is so generally known that every ordinary person may be reasonably presumed to be aware of it". The information which the court acquires by taking judicial notice of facts is not "evidence strictly so called". Facts that may be judicially noticed fall into two categories: facts that can be judicially noticed without inquiry and facts that can be judicially noticed after inquiry. Facts that can be judicially noticed also fall into two other categories: (1) adjudicative facts and (2) legislative facts. 65 An adjudicative fact is a fact in issue or a fact relevant to a fact in issue. A legislative fact is "a fact which helps the court determine the content of law and policy and to exercise its discretion or judgment in determining what course of action to take". In contrast with adjudicative facts, which always relate to the issues between the parties, legislative facts generally relate to the law-making function of the judicial process…………... (b) Notorious facts judicially noticed without inquiry 66 Facts that have been judicially noticed without inquiry include: that cancer is a major health problem in the community and, despite research, little progress has been made in controlling it; that HIV is a life-endangering disease; that a child victim of sexual assault may be reluctant to resist, protest or complain about the sexual assault, due to fear of punishment or rejection; and that many lawyers now charge hundreds of dollars an hour for their services, that legal aid is often unavailable to litigants in tort cases and that the cost of those services is substantially increased when lawyers cannot give advice to their clients because the law is unpredictable. (c) Notorious facts judicially noticed after inquiry 67 On countless occasions, Justices of this Court have used material, extraneous to the record, in determining the validity and scope of legal rules and principles. They have frequently relied on reports, studies, articles and books resulting from their own research after the case has been reserved and parties have made their submissions. In Australian Communist Party v The Commonwealth[25], Dixon J said: "Just as courts may use the general facts of history as ascertained or ascertainable from the accepted writings of serious historians ... and employ the common knowledge of educated men upon many matters and for verification refer to standard works of literature and the like ... so we may rely upon a knowledge of the general nature and development of the accepted tenets or doctrines of communism as a political philosophy ascertained or verified, not from the polemics of the subject, but from serious studies and inquiries and historical narratives. We may take into account the course of open and notorious international events of a public nature. And, with respect to our own country, matters of common knowledge and experience are open to us ..." 68 In Timbury v Coffee[26], Dixon J, in the absence of any medical evidence, consulted a medical text on the extent to which acute alcoholism could affect the mental processes of the testator. In Alexander v The Queen, Stephen J relied on published works of psychology in reaching conclusions as to the reliability of identification evidence. In Jaensch v Coffey, Deane J referred to legal articles and medical journals, reports, bulletins and textbooks in explaining the causes of psychiatric injury. In Jones v The Queen, Kirby J referred to extraneous material to explain why children may delay in complaining about sexual assault. Similarly, in Ryan v The Queen, I referred to psychiatry journals and reports in discussing sentencing approaches for paedophiles. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, Callinan J referred extensively to newspapers, books, lectures, academic papers, the journalists' Codes of Ethics and a Senate Committee Report to show "the realities of the modern publishing, entertainment and media industries, as well as the activities of members of the Executive branch of government in this country". (d) Use of statistics in judgments 69 Courts have also used published statistics to resolve issues vital to the resolution of litigation and to inform themselves on policy issues. In Aqua Max Pty Ltd v M T Associates Pty Ltd, Gillard J found that one party was entitled to recover a bonus by taking judicial notice of movements in the Consumer Price Index for Melbourne. In R v Henry, the New South Wales Court of Criminal Appeal used sentencing statistics to give a guideline sentencing judgment. In Wong v The Queen, this Court has recently queried the utility of statistics in sentencing. But Wong has nothing to say concerning the right of a court to take judicial notice of statistics in an appropriate case. (e) Judicial notice and legislation 70 In three Australian States, legislative provisions enable the court to refer to certain published works considered to be of authority in matters of public history, literature, science or art. Section 72 of the Evidence Act 1906 (WA), for example, provides: "All courts and persons acting judicially may, in matters of public history, literature, science, or art, refer, for the purposes of evidence, to such published books, maps, or charts as such courts or persons consider to be of authority on the subjects to which they respectively relate."
5. However, in the same case Callinan J who was in the majority said: 165 Contrary to the suggestion of the learned current author of Cross on Evidence, judges are not free to apply their own views and to make their own inquiries of social ethics, psychology, politics and history without requiring evidence or other proof. Two reasons why this is so are immediately apparent. The first is that the parties must be given an opportunity to deal with all matters which the court regards as material. The second reason is that rarely is there any universal acceptance of what are true history, politics and social ethics. Anyone with any knowledge of these will be aware that there is a huge, indeed probably immeasurable, range of differences as to what they legitimately are, and the ways in which they are to be identified, understood and applied. For example, resort by me to the very recent and very short history of postmodernism would, if I were uncritically to accept its tenets, lead me to hold that there is no such thing as true history: history itself is no more than a series of subjective interpretations by different historians. It is in the light of such wide divergences of modern opinion as to what is historical fact that the statement of Dixon J in Australian Communist Party v The Commonwealth has to be understood today. There his Honour said that courts may use the general facts of history ascertainable from the accepted writings of serious historians. It would only be if a very large measure of agreement could be obtained and, I would suggest, from the parties themselves, as to what are accepted writings and who are serious historians that the court would be entitled to resort to them.
6. Aytugrul v The Queen [2012] HCA 15 is a decision of the High Court of Australia dealing with the admissibility and effect of expert evidence given in criminal proceedings concerning DNA analysis. An expert gave statistical evidence in the form of both a frequency ratio and exclusionary percentage. The High Court held that the evidence had properly been admitted at the trial. In the course of his reasons for judgment, Heydon J had cause to consider whether the expert evidence could be treated as a matter of "common knowledge" and admissible on this basis. In dismissing such use, his Honour made the following observations, which in our opinion, are relevant to the approach which we feel should be adopted in considering whether we should accede to the submissions of the appellant and proceed to consider whether the respondent was impaired without the benefit of conclusive expert evidence. His Honour said at [74]: Another possibility is to treat the expert material as a matter of "common knowledge". The courts have relied on legislative facts as being within matters of "common knowledge" in a sense much wider than that used in s 144. That is, they have resorted to legislative facts even though they could not be said to be "not reasonably open to question" because minds differ about them. However, the level of technical sophistication involved in the material on which the appellant relied is so great that it would not be satisfactory for this Court to take it into account without the assistance of expert witnesses who had been cross-examined. It would be very difficult for this Court, without that aid, to resolve any controversies which may arise. To borrow the words of Judge Frank speaking about psychiatry, it would be dangerous for the Court "to embark - without a pilot, rudder, compass or radar - on an amateur's voyage on [this] fog-enshrouded sea." The appellant submitted that the respondent had not made "any significant challenge to the research" relied on. Even if this is so - and the respondent disagreed - if the expert material were to be taken into account, it was highly preferable that it be presented through expert witnesses, preferably during a pre-trial hearing to determine admissibility. The admissibility and weight of the expert material could then be considered publicly and critically.
7. It is against the background of the principles discussed in the above authorities that we come to consider the submissions made on behalf of the appellant. We agree that as a matter of common knowledge we may regard alcohol as a depressant drug, which may affect a person's mental state and motor function. We agree that as a matter of common knowledge that alcohol can affect problem-solving skills, judgement, concentration, reaction times and coordination. We also accept that the effect of alcohol may manifest in a loss of inhibition, impairment of coordination, judgement, intellectual capacity and ability to act quickly and may also produce slurred speech, all as contended for by the appellant. But the appellant's submissions also stated that "the effects vary depending on individual tolerance." It is this latter qualification which leads us to conclude that we are unable to determine, as a matter of common knowledge, the nature and extent of the effect of the alcohol consumed by the respondent during the period that he was on call on 30 and 31 October 2013. We have already referred to the opinion of Dr Bell that there are a number of factors which will impact upon the degree of impairment produced by alcohol. These include not only the blood alcohol concentration but the level of tolerance of the drinker, temperament, personality, mental illness, physical illness, age, fatigue, stress, personal problems the rate at which the alcohol is metabolised, the rate at which the alcohol is eliminated, whether alcohol was consumed with or without food and the like. In the absence of actual blood alcohol concentration readings, any estimate of the degree of impairment of the respondent will require careful evaluation by someone with the requisite knowledge and expertise in this area. Indeed, in his evidence Dr Bell was careful to avoid expressing any concluded view that the respondent was adversely affected by alcohol because of these variable factors.
8. Accordingly, we reject the appellant's primary submission that we are entitled of our own initiative and in some way relying on our own expertise to determine the nature and extent of any impairment suffered by the respondent by reason of the consumption of alcohol during the relevant period. We must rely on such expert and other evidence as is reasonably and appropriately available to us.

The Complaint as it concerns the consumption of alcohol

1. The Complaint made by the appellant in essence asserts that the respondent consumed alcohol "to a degree that impaired or could have impaired his skills and judgement while on call and/or while at work." In these circumstances, it is said that there was a breach of the NSW Health Code of Conduct which applied at the time and in particular clauses 4.3.1 "and/or" 4.3.2.
2. By reason of the manner in which the particulars are framed, the essence of the Complaint as it concerns the consumption of alcohol is directed to the provisions of the Code. The Code was said to have been breached "in the circumstances outlined in particular 1" that is the combination of fatigue and alcohol consumption "to a degree" that impaired or could have impaired his skills and judgement. Our consideration of this part of Complaint 1 therefore requires us to consider the allegations made in particulars 1 and 2.
3. Particular 1 of Complaint 1 alleges that the respondent was fatigued and that the quantity of alcohol consumed was "to a degree that impaired or could have impaired" his skills and judgement while on call. There are two concepts contained within this cryptic description, which are expressed in the alternative. That is that the respondent was so impaired, or in the alternative his skills and judgement could have been impaired.
4. We approach the question of impairment by reference to the ordinary meaning of this word in everyday language applied to the work of the respondent. He was impaired if he was unable to function adequately either in transporting himself to the hospital, or in performing any of the duties and tasks that he might reasonably have been called upon to undertake whilst on call, including surgical and other treatment requiring fine motor skills and the exercise of precise judgement.
5. There can be no doubt that the respondent had been fatigued at the time that he attended the dinner party. He has readily conceded so much, and he was observed to fall asleep whilst there. But whilst the respondent has no particular recollection of the events at the dinner party, he says that a few moments rest are ordinarily sufficient to refresh him and to remove any sense of fatigue. The respondent was observed by Patient A to have been slumped in a chair when she first saw him in her room at the hospital. The respondent, although having no particular recollection, said that he never sits down in a hospital room and always remains standing. There is no indication from either Dr Tallis or Ms Campbell that the respondent appeared to have been fatigued.
6. It is convenient at this stage to refer to particular 2 of Complaint 1 which alleges a breach of clauses 4.3.1 "and/or" 4.3.2 of the NSW Health Code of Conduct. There can be no doubt that the provisions of this Code applied to the engagement by the Hospital of the respondent. The relevant provisions of the Code as then applying were as follows: 4.3. Acting professionally and ethically Staff must: 4.3.1 not be under the influence of alcohol or drugs when commencing work and while at work; 4.3.2 be in a fit and proper condition to carry out their duties when commencing work and while at work
7. It is not in dispute that at all times whilst he was on call at Lismore Base Hospital, the respondent was "at work" for the purpose of the Code.
8. The discussion which follows is relevant to considerations of impairment as well as whether the respondent was under the influence of alcohol or not in a fit and proper condition at all relevant times.
9. We were referred by senior counsel for the appellant to the Judgment of Rares J in the Federal Court of Australia in Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 4) [2010] FCA 482. His Honour was called upon to consider the application of an exclusion clause in a motor vehicle insurance policy which applied where the driver was under the influence of intoxicating liquor. His Honour considered the meaning of the expression "under the influence of intoxicating liquor" and its application to factual circumstances. His Honour's observations have direct application when we come to consider the provisions of the Code of Conduct which applied to the respondent's engagement to work at the hospital. However, they are also relevant to a determination as to whether the respondent was impaired, because, as will be seen, the same considered approach applies in both cases. His Honour said at [112]-[119]: 112 …. the exclusion requires the driving ability of the driver to be impaired at the time of the accident by the affect of intoxicating liquor: Ford [2000] SASC 206 at [24]. In Forbes v Australian Associated Motor Insurers Ltd (1990) 12 MVR 165 at 170, Cox J said: "A person is "under the influence of intoxicating liquor" if he has consumed such a quantity of intoxicating liquor as disturbs the balance of his mind for the quiet, calm, intelligent exercise of his faculties: Mair v Railway Passengers Assurance Co Ltd (1877) 37 LT 356. Louden v British Merchants Insurance Co [1961] 1 WLR 798. Cassidy v State Government Insurance Office [1965] WAR 81. Cory v Club Motor Insurance [1969] VicRp 22; [1969] VR 189." 113 Curiously, the leading authority on the policy wording "under the influence of intoxicating liquor" is still the judgment of Lord Coleridge CJ in Mair v Railway Passengers Assurance Co (Ltd) (1877) 37 LT 356 at 358 with whom, on this point, Denman J agreed at 359. The Lord Chief Justice elaborated on the distillation of his reasons made by Cox J in the passage I have quoted. He said that there was a point at which liquor impedes or disturbs the exercise of the intellect. He said that it is very difficult to ascertain precisely in the English language where that point is, and continued (Mair 36 LT at 358): "- to ascertain with precision where that ... but it is enough to say that there is a point, and it seems to me these words would be satisfied when the influence of intoxicating liquor is found in point of fact to be such as to disturb the quiet and equable exercise of the intellectual faculties of the man who has taken the liquor." 114 Lord Coleridge CJ said that if the intoxication had been enough to contribute to the accident it would follow "a fortiori that it had arrived at the disturbing point", that would satisfy the exclusion in the policy of assurance there. In short, as Denman J summarised the liquor must exercise a disturbing influence on the quiet, calm, intelligent exercise of the faculties: Mair 37 LT at 359. 115 As Lord Coleridge CJ recognised, and as experience teaches, it is very difficult to lay down a more precise explanation of when a person has arrived at the point or crossed the line between not being and being under the influence of intoxicating liquor. This was also the view of Stanley J with whom Townley J agreed in Noonan v Elson [1950] Qd R 215 at 219-220. There, Stanley J referred to a stage at which a person's power of effective control of the vehicle may become impaired through intoxicating liquor so that the person's behaviour is "sufficiently abnormal to warrant a finding that he was then under the influence of liquor". 116 Like "drunkenness", the precise definition of the expression "under the influence of intoxicating liquor" is difficult to express and apply: cp CAL No 14 Pty Ltd v Motor Accidents Board (2009) [2009] HCA 47; 239 CLR 390 at 413 [53] per Gummow, Heydon and Crennan JJ. Persons other than the individual whose condition is under scrutiny can only observe his or her behaviour. But, as Gummow, Heydon and Crennan JJ said there, it is difficult for an observer to assess whether a person has reached the point denoted by the relevant expression. 117 And, different people react to the consumption of alcohol in different ways. Their reactions may depend upon their physique, how much they had to eat, how much and how quickly or slowly over a period they had consumed alcohol and the situation in which they are when the observation is made. Behaviour suggestive of a person being "under the influence" may be more readily perceived if the person is in a serious situation, such as a business meeting or even a courtroom as compared to the same person being at a party or a pub. And, it is the observer's perception of the other person's behaviour that often influences the conclusion that the observer reaches, which may or may not be an accurate assessment. Nonetheless, in reality persons are affected by alcohol in ways that cannot be ignored merely because it is difficult for a judge or jury to arrive at an accurate assessment of whether he or she had consumed alcohol, and the degree to which that consumption affected the person at the time of an event. 118 Difficulties of evaluating and assessing the effect of alcohol on an individual in particular circumstances may weigh more heavily in the evidentiary scales in criminal proceedings so as to prevent the tribunal of fact being satisfied beyond reasonable doubt more readily than in civil proceedings. And here there is also a need for caution in uncritical acceptance of the observations of witnesses about Mrs O'Shanassy's behaviour because the alcohol she had ingested was progressively being absorbed into her blood stream over the period between the accident and when Dr Chan took the sample of her blood for analysis. There is no "norm" by which the effect on an individual of the ingestion of alcohol can be assessed: cp Acama Pty Ltd v Ellis [2010] HCA 5; (2010) 263 ALR 576 at 590 [62] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ applying State Government Insurance Commission v Laube (1984) 37 SASR 31 at 32-33 per King CJ. 119 The determination is one of fact and degree based on the evidence, including, particularly, the observations of those who saw the person at or close to the critical time. In evaluating those observations, it will be important to bear in mind that the effect of the intoxicating liquor on the behaviour of the person will vary depending on when he or she last drank alcohol and how much he or she had consumed. If the alcohol was only consumed just before the accident, there may not have been sufficient time for it then to have had any or any disturbing affect on the person, even though its affect would be evident a short time later. However, I have no doubt that Mrs O'Shanassy had been drinking during at least the preceding two hours, and had consumed a considerable quantity of alcohol and gambled. She had ample time and cash to obtain more drinks as she collected her winnings during her sojourn at the club.
10. Of the persons who attended the dinner party, Mr Upton noticed nothing untoward concerning the respondent, except perhaps his limp. Mrs Bruce-Corbett was concerned about the number of glasses of wine that the respondent had consumed and said "he was clearly under the influence of alcohol" but apart from a reference to him falling asleep for a short moment and talking loudly proffered no further description by way of explanation. The observations of Dr Tinker were that during the dinner party: John followed the thread of the conversation. He was not slurring or stumbling his words. It was the large quantity of alcohol he had had, the falling asleep at the table, and that he had taken a call and not left the table, that made me think he had had too much to drink.
11. Ms Campbell who was closely involved with the respondent when he attended on Patient A said that while standing close to him she could smell alcohol on his breath, but then said "There was nothing about his movement or speech that indicated that he was intoxicated." Dr Tallis who interacted with the respondent when he attended the hospital in the early hours of 31 October said: "There was nothing at all about Dr Schmidt's demeanour that alerted me to the fact that he was under the influence of alcohol. He did not appear any different than previous times I interacted with him."
12. We adopt the same approach to the consideration of whether the respondent was impaired to whether he was under the influence of alcohol or not in a fit and proper condition to carry out his duties. Accordingly, we must consider whether we are comfortably satisfied on the balance of probabilities that at any time whilst on call: 1. Dr Schmidt's skills or judgement were impaired; or 2. Dr Schmidt's skills or judgement could have been impaired; or 3. He was under the influence of alcohol; or 4. He was not in a fit and proper condition to carry out his duties.
13. Before we embark upon a consideration of these matters, we make comment about so much of the particulars that allege that the respondent "could have" been impaired. We raised with the parties our concern that the use of the words "could have" injected uncertainty, and that such uncertainty might arguably have resulted in a finding that this particular could not validly form the basis for a complaint. The basis of our concern was that the use of this phrase arguably imports the consideration of something as a possibility. This, in turn, raises the question whether such a possibility might be remote or should be so strong that it borders on the probability or might arguably lie somewhere in between these extremes. The respondent supported this approach and referred to an additional consideration created by the use of the word "significantly" in the definition of unsatisfactory professional conduct. It was submitted that in determining whether conduct was "significantly" below the standard reasonably expected of an equivalent practitioner, the: …degree of culpability alleged and proved must be known with precision. If the allegation were merely an unknown possibility of impairment somewhere in the range between a remote possibility and a near certainty, then a decision-maker could not know whether the conduct was significantly below the required standard. In dealing with this matter, the appellant submitted that in all the circumstances the risk of impairment was "not fanciful, and indeed is a probability in light of the low tolerance level of the respondent and the tasks he might have been called in to perform." It was in this sense that the appellant asserted that the respondent could have been impaired as alleged. We understand that the appellant has approached this matter on the basis that the possibility and the resultant risk equates with a probability, and this was confirmed in the course of submissions by senior counsel. The respondent was content to deal with the matter on this basis, and in the circumstances we do not need to determine whether the particular was framed in such a manner that it could not appropriately form the basis of the complaint.
14. Leaving aside Patient A and her mother, neither Dr Tallis nor Ms Campbell described any physical characteristics which would suggest any of these. Being argumentative might have been his normal state. There is some suggestion by some of the persons at the dinner party that his speech may have been slurred, but Dr Tinker does not describe him in these terms
15. In her hand written statement made by the mother of Patient A in response to a request from the hospital, she said that at the time that the respondent came to her daughter's room that "his eyes were glassy and his speech a little slurred and he seemed to be putting a lot of effort into forming coherent sentences. It occurred to me that he may have been drinking." We note that when first contacted by the hospital, the person making contact told her that, as she stated in her statement, "she had run into a friend who had told her that he would be worried about that locum John Schmidt who had had a lot to drink at the dinner party." The mother of Patient A was told that the comment made to this person had prompted her to make contact. In these circumstances, it may be concluded that the mother of Patient A was being asked to direct her mind to whether the respondent was or appeared to be intoxicated. In her statement, Patient A referred to the fact that the respondent was slumped on the chair with his arms hanging down when she first saw him. She also noticed him attempting to leave the room through the bathroom door before Ms Campbell showed him the correct door to exit. We note that the evidence of the mother of Patient A was that she and her daughter had both discussed their statements at the time that may made them.
16. In all the circumstances, we prefer to rely on the evidence of the health professionals in determining whether there was any apparent impairment or intoxication suffered by the respondent at any particular time. None could be detected by Dr Tinker at the dinner party and none was detected by Dr Tallis and Ms Campbell at the hospital. In particular, we prefer their objective evidence to that of the mother of Patient A who is obviously disposed to criticism of the respondent.
17. On the basis of this evidence which is directed to the observations of others, we are unable to conclude to the requisite standard that the respondent, at any relevant time, was observed to have behaved in a manner which would indicate that he was impaired, under the influence of alcohol or was not in a fit and proper condition as alleged.
18. This leaves for consideration such other evidence that may pertain to the respondent's condition, namely the expert opinion. We have previously observed that the strongest evidence in favour of the appellant is the observation of Dr Bell that in his personal opinion Dr Bell would himself be wary of driving after consuming four standard drinks over three hours and he felt that this would create an unacceptable risk of being over the legal limit because of impaired judgement. This evidence was given in response to a question from a member of the Tribunal asking Dr Bell to comment on the respondent's condition on the assumption he had consumed four standard drinks over three hours and then driven his vehicle. The answer which we have summarised was directed to Dr Bell's own personal circumstances as he saw them applied to that hypothetical situation.
19. This leads to a consideration of whether we can apply that personal observation as so expressed to the circumstances of these proceedings as they apply to this respondent on 30/31 October 2013. Clearly that observation could not be applied to the actual circumstances of the respondent. That is, they could not be used to enable us to conclude that the respondent was actually impaired, under the influence of alcohol or not in a fit and proper condition as alleged. Such evidence could only be applied to determine whether the respondent could have been impaired. That is, may we appropriately extrapolate from that personal answer given to that question that the respondent had consumed such an amount of alcohol that he could have been impaired on that occasion?
20. On the one hand, it is common knowledge that consuming more than five standard drinks over a 3.5 hours' period, as we have found, creates a risk of exceeding the statutory prescribed limit of concentration of alcohol for safe driving. On the other hand, the expert evidence given in the proceedings is to the effect that in the absence of recorded readings it is very difficult to assess the concentration of alcohol in the blood because of the variety of factors which can affect the effect of consumption of alcohol on a person over a period of time. This is also the thrust of the authorities discussed by Rares J in Sagacious Legal set out above.
21. We suspect that if an expert, whether Dr Bell or Dr Kennedy, were asked to express an expert opinion whether the consumption of 5.85 standard drinks by the respondent over a 3.5 hour period given that he was fatigued, and had probably consumed the two glasses of champagne relatively quickly after the start of the evening accompanied by nibbles, with the remainder consumed during the rest of the evening accompanied by substantial food, against the background of the respondent's age, height, weight and fitness, that it may have been concluded that he could have been impaired at some stage during the time he was on call. However, despite our request that such evidence be obtained, both parties, and especially the appellant, declined our request.
22. In these circumstances, we cannot be comfortably satisfied on the basis of the state of the expert evidence led in the proceedings that the respondent could have been impaired as alleged. To rely on our own assessment of his possible or probable condition would be "to embark - without a pilot, rudder, compass or radar - on an amateur's voyage on [this] fog-enshrouded sea."
23. For all these reasons we find that Complaint 1 has not been made out as is alleged in particulars 1 and 2.
24. We would add that, in our opinion, members of the public would be justifiably concerned, as would the vast body of medical practitioners in New South Wales to learn that any medical practitioner whilst on call had consumed 5.85 standard drinks in a period of 3.5 hours. Indeed, on the basis of the expert opinions of doctors Challis and O'Connor, such conduct could be described as being significantly below the standard reasonably expected of any medical practitioner whatever his or her level of training or experience and would thereby constitute unsatisfactory professional conduct under section 139B of the National Law. We would regard this conduct as being characterised as improper conduct relating to the practice of medicine. However, the Complaint and particulars were not formulated in terms that the consumption of that level of alcohol over that period of time ipso facto constituted unsatisfactory professional conduct, and as this was not a matter which was canvassed during the course of the proceedings, it is inappropriate for us to found any complaint on this basis. Of course, no one would have been aware of these findings until we had actually made them. This was another reason why we had asked the parties to refer the matter back for further expert opinion.

The conduct of the respondent at the hospital

1. Particulars 3 and 4 of Complaint 1 are directed to the events which occurred at the hospital on 30/31 October 2013. The allegations specifically refer to the respondent becoming argumentative, and failing to create an environment for discussion with Patient A and her mother. This failure is alleged to have been characterised by the direction of personal criticism, the dismissal and derision of the patient's proposals for her care as well as the making of a personal comment that the mother was a very confronting woman.
2. All of those circumstances were said to have constituted a breach by the respondent of clause 4.1.1 of the Code of Conduct and clauses 3.2.1 and 3.3.2 of a Code of Conduct established by the Medical Board of Australia.
3. Clause 4.1.1 requires staff to "treat patients and members of the public with courtesy and respect and with due sensitivity to the needs of people with different backgrounds and cultures." Clause 3.2.1 requires a medical practitioner to be "courteous, respectful, compassionate and honest." Clause 3.3.2 concerns "effective communication" between a doctor and a patient by "Encouraging patients to tell you about their condition and how they are currently managing it, including any alternative or complementary therapies they are using."
4. There can be no doubt that there was a marked and heated disagreement between Patient A and her mother on the one hand, and the respondent on the other concerning the appropriate medical care to be given in all the circumstances. Ms Campbell described the respondent's attitude as belligerent in the way in which he spoke to the patient's mother and to her. She said that he was "firmly emphasising the risks but with an extra degree of belligerence." There is no doubt, either, that the mother of Patient A was confrontational because she herself conceded as much when the respondent accused her.
5. The respondent denied using the words alleged by Patient A and her mother because he said that those words were not part of the language which he normally uses. It is significant that Ms Campbell does not give any evidence about the use of the words "bullshit" or "crap" by the respondent during the course of his interaction with Patient A and her mother. We repeat that during the course of her evidence, Ms Campbell was not asked whether she heard those words being used by the respondent. We infer that if Ms Campbell intended to give evidence of that kind, it would have been elicited by senior counsel for the appellant. In the circumstances, we are not comfortably satisfied that the respondent used the words alleged by Patient A and her mother, although we are comfortably satisfied that he reacted strongly and belligerently when discussing the matter predominantly with the mother of Patient A.
6. However, what occurred on that occasion needs to be seen in context. Both Dr Challis and Dr O'Connor agreed that there was a potentially dangerous situation created by the conduct of the patient. She had declined to undertake tests as part of her prenatal care, she was incorrectly adamant about the projected date of birth, and she firmly rejected professional care from Dr Tallis. Furthermore, her mind appears to have been influenced by opinions which she had read in a text which were described by Drs Challis and O'Connor as being unorthodox and opinions which would not be shared by most reputable obstetricians. This overall situation was exacerbated by the fact that the respondent was also dealing with the mother of Patient A, who was, as she herself acknowledged, very confrontational. All of these circumstances explain, but do not necessarily condone the unduly belligerent attitude adopted by the respondent, which we accept as having been established on the basis of the evidence of Ms Campbell.
7. In evaluating this conduct, we also bear in mind the evidence of Dr Challis, which we accept, to the effect that the respondent faced a difficult challenge in endeavouring to persuade the patient and her mother of the real risks which were involved in the birth of the baby whilst maintaining a therapeutic relationship. Sadly, the respondent did not succeed in meeting this challenge. We agree with the opinion of Dr Challis that the conduct of the respondent on this occasion was below the standard that one would normally expect of a medical practitioner of the respondent's level of training and experience, but we conclude that it was not so significantly below that standard as would enable us to characterise it as unsatisfactory professional conduct.
8. In the same way, it might be said that the respondent's conduct at the hospital in dealing with Patient A and her mother was improper, but not sufficient to attract the characterisation of unsatisfactory professional conduct. Whilst, clearly, the provisions of the two Codes relied upon in the particulars have been breached, in that the respondent failed to accord the appropriate courtesy, the circumstances in which this occurred as we have stated them would not justify the breaches as constituting unsatisfactory professional conduct. In terms of effective communication, there must be some doubt about whether any communication at that time would have been effective given the firm predisposition of the mother and the patient to a particular course of conduct which was contraindicated in terms of the safety of the baby.
9. For all of these reasons we conclude that particulars 3 and 4 have not been made out.

Conclusion

1. We conclude that Complaint 1 and the particulars thereof have not been made out and that the Complaint should be dismissed. In so finding, we should not be taken in any way to have condoned the conduct of the respondent. Whilst on call, as we have found, he had consumed 5.85 standard drinks in a period of 3.5 hours. On the basis of the expert opinions of Doctors Challis and O'Connor, such conduct was described as being significantly below the standard reasonably expected of any medical practitioner whatever his or her level of training or experience and would thereby constitute unsatisfactory professional conduct under section 139B of the National Law. His misconduct was compounded because he put himself at risk of being impaired which created a consequential risk to the safety of the public, especially as the respondent was the only specialist obstetrician available on call at the hospital at that time. Fortunately for the respondent, the Complaint and particulars were not formulated in terms that the consumption of that level of alcohol over that period of time ipso facto constituted unsatisfactory professional conduct and it was this matter alone that allowed him to avoid any finding of unsatisfactory professional conduct.
2. We were asked to reserve costs and we shall do so.

Orders 1. The appeal is dismissed 2. Costs are reserved with liberty to apply which should be exercised within one month of this date. 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: 28 November 2016