Medical Board of Australia v Dieu (Review and Regulation) (Corrected) [2014] VCAT 1597

1. In relation to the amended allegations dated 1 October 2014, which have been admitted by Dr Dieu, the Tribunal finds that Dr Tam Dieu engaged in unprofessional conduct within the meaning of that term as used in paragraphs (a) and (b) of section 3 of the Medical Practice Act 1994, namely:
   • (a) Professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; and
   • (b) Professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers;

and that the unprofessional conduct was of a serious nature.

1. In relation to the amended allegations dated 1 October 2014, which have been admitted by Dr Cass, the Tribunal finds that Dr Mervyn Cass engaged in unprofessional conduct within the meaning of that term as used in paragraphs (a) and (b) of section 3 of the Medical Practice Act 2004 namely:
   • (a) Professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; and
   • (b) Professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers.

Having made the above findings, the Tribunal makes determinations in each of Z187/2014 ( Dr Tam Dieu), and in Z188/2014 (Dr Mervyn Cass), as follows:

1. The respondent is reprimanded.
2. A condition is imposed on the respondent's registration as follows:

(1) The respondent is to attend and complete six sessions, each of an hour in duration, the sixth session being at least two months subsequent to the fifth session, covering the following content:

(a) Post-operative care;

(b) Clinical decision-making;

(c) Patient management; and

(d) Professional communication with fellow health professionals, patients and their families.

(a) obtain the Board's approval of the educator prior to the commencement of the education, such an approved educator:

• (i) to hold general registration as a registered medical practitioner for a period of not less than seven (7) years; and

• (ii) not be in a close collegiate, social or financial relationship with the respondent;

(b) commence the education sessions within one (1) month of being advised that the Board has approved the educator and to complete the education within eight (8) months of the conditions being imposed;

(c) provide to the Compliance Department at AHPRA, within twenty eight (28) days of the date of completion of the education, a report which covers the following:

• (i) the respondent's reflection on the issues raised by the notification;

• (ii) a written summary of the outcomes/lessons learnt from the education sessions; and

• (iii) a written summary of how the respondent intends to apply this knowledge to his practice;

(d) advise the approved educator that, within twenty eight (28) days of the completion of the education, the Board requires a report stating:

• (i) the dates the education occurred; and
• (ii) the content of the education; and
• (iii) whether or not the respondent has, in the opinion of the educator, satisfactorily participated in and understood the contents of the education.

(3) AHPRA may communicate with the educator in relation to the respondent's compliance with the conditions on his registration. Included in such communication, AHPRA may provide the approved educator with a copy of these conditions and details of the notification made against the respondent prior to the commencement of the education.

(4) The above reports and statements will be relied upon by the Board when determining whether the respondent has complied with the conditions on his registration.

(5) If the Board is not satisfied that the respondent's report and that of the educator demonstrate to the satisfaction of the Board that the respondent has benefited from the education, the respondent may be required to provide a further report and/or undergo further education in respect of the matters referred to in paragraph (3) paragraph (1) above.

(6) The respondent is responsible for all the costs associated with these conditions including the cost of the report from the educator.

(7) The education sessions attended pursuant to the conditions are over and above the continuing professional development requirements in respect of the respondent's registration.

The review period in respect of these conditions is to be two (2) months from completion of all of the steps set out in condition (2) above.

1. On 19 January 2007, Lauren James had liposuction surgery under general anaesthetic at the Centre of Cosmetic and Plastic Surgery (COCAPS), 73 Kooyong Road, Caulfield, which operated as a day procedure clinic. She was 26 and healthy. Ms James was discharged home the same day.
2. Ms James died at 10.15 pm on 22 January 2007. She died where she lay in the hallway of her home after collapsing twice that evening. Ambulance officers had unsuccessfully attempted to revive her for 45 minutes.
3. In August 2010, the Coroner found that Ms James died due to complications from liposuction surgery, namely sepsis; decreased respiratory function secondary to microthrombi, fat emboli, probable inhalation of gastric contents and infection; and central nervous system depression due to a combination of drugs (pethidine and proxyphene).
4. The Coroner also found that Ms James' death had been preventable.
5. The Coroner's findings, and these proceedings, focussed not on the surgery but on the post-operative care of Ms James.
6. The Coroner criticised the delivery of post-operative care to Ms James, and the communication on 22 January between the medical practitioners involved in Ms James' care.
7. One of the identified failures in the post-operative process at COCAPS was that the surgeon who operated on Ms James was not involved in the communication between Ms James partner and COCAPS about her condition until three days post-operatively, and was only notified that she had attended for a review on 22 January at around the time she was discharged home.
8. The Coroner also commented that changes were made at COCAPS following Ms James' death, reflecting acceptance that there were problem practices, describing the changes made as "commendable initiatives which should improve patient safety at COCAPS". The relevant findings of the Coroner are set out in more detail below.
9. These proceedings, heard together, concern the professional conduct of Dr Tam Dieu and Dr Mervyn Cass on 22 January 2007, the day Ms James died.
10. Dr Dieu was Ms James' treating surgeon. Dr Cass was the medical director of COCAPS and reviewed Ms James at COCAPS eleven hours before she died.
11. To their credit, both Dr Dieu and Dr Cass have admitted the allegations made by the Board against them.
12. Dr Dieu admits that he engaged in unprofessional conduct of a serious nature in that, on 22 January 2007, he failed to meet his obligations as treating surgeon to provide adequate and appropriate post-operative management for Ms James.
13. Dr Cass admits that he engaged in unprofessional conduct in respect of a number of failures on that day, and that in his role as medical director of the COCAPS he failed to ensure that there were adequate systems, procedures and standards for post-operative care of patients of the COCAPS.
14. Dr Dieu and Dr Cass also agreed to proposed determinations.
15. Determinations are the orders the Tribunal makes in disciplinary proceedings against health practitioners after the Tribunal has made findings of unprofessional conduct. As explained below, they have a protective rather than a punitive purpose.
16. Because the events leading to the allegations occurred in 2007, the Tribunal has made findings under the legislation then in force, the Medical Practice Act 1994 (the Act) using the language of that Act, namely unprofessional conduct of a serious nature (which can include professional misconduct), and unprofessional conduct.
17. Having made findings, the question for the Tribunal is: what are the appropriate determinations in the particular circumstances of this tragic case.

1. The purpose of determinations in disciplinary matters is protective, not punitive - the objective of any determination is primarily the protection of the public and the maintenance of professional standards in the eyes of the public.[1] Determinations do not have retribution as their objective.
2. As Doyle CJ expressed it in Craig v Medical Practitioners Board: [2]

A disciplinary Tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which secure the maintenance of proper professional standards. A disciplinary Tribunal will also consider the protection of the public, and of the relevant profession, by making orders that will assure the public that appropriate standards are being maintained within the relevant profession.

1. The task of the Tribunal in disciplinary proceedings is well described by Cosgrove J in Dickins v Law Society:[3]

There is high authority for the proposition that the powers given to the Disciplinary Committee to discipline a practitioner are entirely protective in character. No element of punishment is involved... But to say that is merely to say that the powers are to be exercised for the purpose of, and in a manner seen likely to achieve, the maintenance of that high standard of conduct within the profession which will continue its good reputation, and protect, not only the future of the professional, but also protect its clients from harm.

With this object in mind, the Committee is required to look to the future. Even if the practitioner's misconduct is relatively slight, he may yet be struck off, if his capacities and attitude have been revealed to be such that his continuance in practice constitutes a threat to the profession. On the other hand, conduct which is of itself more grave in nature, may not warrant striking off, if it is seen as a temporary and explicable departure from the practitioner's own high standards... The order which the committee is called upon to make is that order which, in its opinion, is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct.

1. The risk of repetition by a practitioner of his or her conduct is an important factor for the Tribunal to consider in making determinations;[4] as is the risk of replication of the conduct by others, unless there is appropriate censure of the conduct.
2. The Tribunal will consider factors such as the nature of the conduct, the need for specific deterrence (deterring the practitioner) and general deterrence (deterring others), any prior or subsequent disciplinary findings against the practitioner, and any mitigating factors. It will assess whether the conduct is a one-off lapse in judgment or is part of a pattern of failures, which may indicate that the practitioner is unfit to practice.
3. Where, as here, a substantial period has elapsed since the events in issue, that passage of time gives the Tribunal the opportunity to assess the practitioner's behaviour in the intervening period.
4. The Tribunal looks for evidence of insight on the part of the practitioner, particularly signs of mature reflection on what has happened, because that can provide reassurance that the conduct is unlikely to be repeated.
5. The Tribunal looks for evidence of remorse - acknowledgment of responsibility for any failures, changes in behaviour or practice, and a resolution never to let it happen again.
6. Some care must be taken when making decisions involving conduct of a practitioner that has had serious consequences, such as in this case.
7. It is well established that conduct is to be assessed by its nature and not by its consequences.[5] That said, the more serious the potential consequences, the more careful a practitioner needs to be.
8. When it comes to determination, where the potential consequences of the conduct in question are serious, the importance of ensuring that the conduct will not be repeated or replicated increases. Because the objectives of determinations are protective, not punitive, however, it is also important to ensure that there is no element of retribution, for its own sake.
9. In this context, it is clear that both Dr Dieu and Dr Cass deeply regret the combination of failures that resulted in Ms James' death. The agreed statements of facts in each case represent a clear and unequivocal acknowledgement that things were not done that should have been done, and that they failed to meet their obligations as medical practitioners.
10. The following extracts from the agreed statements of facts set out the relevant facts common to both proceedings. The extract refers to Dr Gerard Sormann, the then owner and Director of COCAPS. The Board withdrew proceedings against Dr Sormann, who has retired from practice.

1.3 Ms James, aged 26 at the time, made contact with COCAPS late in 2006 regarding her wish to have a liposuction procedure.

1.4 Ms James was first assessed by Dr Cass on 5 December 2006, at which time he referred her to Dr Tam Dieu, plastic and reconstructive surgeon. He saw her on the same day.

1.5 On 8 January 2007, Ms James attended a pre-operative consultation with Dr Cass at COCAPS.

1.6 On 19 January 2007, Ms James had liposuction surgery under general anaesthetic (Dr Andi Borsaru was the anaesthetist), performed by Dr Dieu at COCAPS, and she was discharged that afternoon.

1.7 On 20 January 2007, Ms Margo Bray, a Division 1 registered nurse and the Director of Nursing at COCAPS, made contact with Ms James, and recorded that she had mild to moderate discomfort and swelling.

1.8 On 21 January 2007, Ms James complained of increased pain, swelling and bleeding. Mr Dal Zotto, Ms James' partner, called Dr Cass's paging service at around 1.14 pm. Dr Cass returned the call at around 2.00 pm and advised increased analgesia and compression. Dr Cass advised that they call COCAPS in the morning if they were still concerned regarding Ms James' condition.

1.9 On 22 January 2007, the following events took place;

• At around 8.15 am, Mr Dal Zotto called COCAPS to advise that Ms James' pain and bleeding continued;
• At around 11.00 am, Ms James attended COCAPS and was examined by Dr Cass, who then called Dr Gerard Sormann, the owner and director of COCAPS, to examine her and Dr Sormann prescribed 100mg pethidine and 4mg Zofran, which were administered by Nurse Bray, and Endone tablets;
• At around 11.30 am - 11.45 am, Ms James was discharged;
• Also at around 11.30 am Dr Sormann contacted Dr Dieu;
• At around 3.45 pm, Mr Dal Zotto contacted COCAPS regarding his concern about Ms James' bleeding and continued pain and his call was transferred to Dr Cass;
• At 4.07 pm, Dr Cass called Dr Dieu (as accepted subsequently by the Coroner, although not recalled by Dr Dieu) regarding Ms James' condition and, according to Dr Cass, Dr Dieu said that he "would attend to her";
• At around 4.45 pm, Mr Dal Zotto again telephoned COCAPS about Ms James' bleeding and spoke to Dr Cass, who said that he would update Dr Dieu, which Dr Cass said he did, but Dr Dieu denies (and Mr Del Zotto understood that Dr Cass would get back to him again in 5 minutes after speaking to Dr Dieu);
• At 5.26 pm, Mr Dal Zotto telephoned COCAPS and left an after-hours urgent message for Dr Cass, who had not called back;
• At 5.41 pm, Mr Dal Zotto again telephoned COCAPS and left further messages for Dr Cass to call;
• At 6.06 pm, Mr Dal Zotto again telephoned COCAPS and left further messages for Dr Cass to call (Dr Cass said that he did not receive these calls from Mr Dal Zotto);
• At 6.30 pm, Dr Dieu contacted Mr Dal Zotto, reassured him that Ms James' condition of pain, swelling and blistering was routine. Dr Cass contacted Mr Dal Zotto shortly afterwards and confirmed that Dr Dieu had made contact (Dr Cass says that he did not make this call in response to the messages sent by Mr Dal Zotto, but that he made it of his own volition, and he says that he was told by Mr Dal Zotto that Ms James was "reasonably settled");
• At about 8.00 pm, Mr Dal Zotto left to have coffee with his friend who was leaving for overseas;
• At 8.06 pm, Mr Dal Zotto spoke with Ms James on his mobile telephone;
• Some time shortly after 8.20 pm, Mr Dal Zotto received a telephone call from Ms James' grandmother, Ms Margaret Braley, who said that Ms James had fallen into the bath and she asked him to return urgently;
• At 8.45 pm, Ms Braley telephoned COCAPS seeking an urgent return call;
• At 8.48 pm, Mr Dal Zotto telephoned Dr Cass by mobile to tell him of the situation and Dr Cass advised him to telephone again when he reached home;
• Immediately after, at about 8.50 pm, Mr Dal Zotto telephoned Ms Braley, who told him that Ms James had fallen in the hallway and was still there, Mr Dal Zotto spoke briefly with Ms James;
• At 9.06 pm, Mr Dal Zotto arrived at home, confirmed Ms James was breathing but unresponsive, and contacted Dr Cass, who agreed that an ambulance should be called which Mr Dal Zotto did immediately;
• At 9.15 pm, Dr Cass contacted Dr Dieu, and suggested that he tell Mr Dal Zotto to ask for paramedics to bring Ms James to COCAPS instead of hospital and Dr Cass left a message with Mr Dal Zotto to this effect;
• At 9.29 pm, the ambulance arrived, called for MICA back-up, and attempted to revive Ms James for 45 minutes;
• At around 10.15 pm, Ms James died where she lay in the hallway of her home.

2.1 The Coroner conducted an investigation into Ms James' death in a hearing held in November 2009 and March 2010.

2.2 On 6 August 2010, the Coroner found that Ms James died due to complications from liposuction surgery, namely sepsis, decreased respiratory function secondary to microthrombi, fat emboli, probable inhalation of gastric contents and infection, and central nervous depression due to a combination of drugs (pethidine and proxyphene). The Coroner also found that the death had been preventable.

(a) Dr Cass, Dr Sormann and Dr Dieu were all under an obligation to ensure that arrangements at COCAPS for the provision of post-operative care were not only understood between them, but operated effectively from the patient's perspective;

(b) At the review at 11.00 am on 22 January 2007, Dr Cass and Dr Sormann failed to appreciate that Ms James was showing the signs of post-operative complications, which required investigation and not just increased analgesia;

(c) It was reasonable for Dr Cass to defer to Dr Sormann in respect of a "wait and see" with a review envisaged at 4.00 pm or thereabouts, but Dr Cass bore some ongoing responsibility for ensuring that the review with Dr Dieu actually took place;

(d) Dr Sormann's telephone discussion at 11.30 am with Dr Dieu was sufficient to absolve him of individual responsibility for Ms James' post-operative care thereafter (apart from his obligations as owner and director in respect of systems at COCAPS);

(e) Dr Dieu failed in his obligation to provide adequate post-operative care to Ms James in that:

• (i) He failed to review her in a timely way after the telephone discussion with Dr Sormann at 11.30 am, during which he was appraised of sufficient facts to warrant investigation of the underlying cause of her increased pain and her departure from the normal or expected clinical course;
• (ii) His telephone call to Mr Dal Zotto at 6.30 pm was a wholly inadequate clinical response in all the circumstances.

3.1 The Coroner received expert opinions from medical practitioners, including:

• Dr John Flynn, Cosmetic Surgeon and Fellow of the Australasian College of Cosmetic Surgery;
• Dr John Rastos, Accident and Emergency physician;
• Dr Ian Carlisle, Plastic Surgeon;
• Associate Professor Donald Marshall, Plastic Surgeon.

3.2 Dr Flynn's expert opinion included the opinion that:

• on 22 January 2007, given Ms James' experience of increasing pain 3 days post-operatively, it was not appropriate to provide increased analgesia without further investigation as to possible causes - admission to hospital would have been appropriate at this time;
• when Mr Dal Zotto spoke to Dr Cass at 4.45 pm on 22 January 2007, and described further increasing pain, persistent blood loss and blistering (a new development), this should have prompted an immediate reassessment of the patient, if not immediate transfer to hospital;
• when Mr Dal Zotto spoke to Dr Dieu at about 6.00 pm that day, and was told about the blisters, an immediate reassessment was indicated rather than reassurance and the possibility of a review the following day;
• there seems to have been a persistent reluctance to recognise the seriousness and deteriorating nature of Ms James' situation even though her symptoms were clearly out side the usual post-operative norms.

3.3 Dr Rastos' expert opinion included the opinion that:

• the presence of worsening pain and undiminished blood loss 3 days post-operatively is strongly suggestive of complication of surgery;
• the most common complications of liposuction - infection, deep venous thrombosis and haemorrhage - cannot be excluded on history and examination alone and all require further investigation;
• the failure to investigate the cause of Ms James' post-operative pain and blood loss represents a significant departure from what would have been widely accepted by peer professional opinion in Australia in 2007 to be competent professional practice;
• had blood tests been performed on the morning of 22 January 2007, the results would, on the balance of probabilities, have shown evidence of anaemia and infection which would have resulted in hospital admission, administration of intravenous antibiotics and the patient's survival without significant disability;
• Dr Dieu's failure to advise Ms James to go urgently to a hospital emergency department in all the circumstances represents a significant departure from what would have been widely accepted by peer professional opinion in Australia in 2007 to be competent professional practice and led directly to Ms James' death;

3.4 Dr Carlisle's expert opinion included the opinion that:

• the pre-operative assessment was adequate;
  • the procedure would seem to have been carried out in a competent manner with removal of an appropriate amount of fat;
  • it was inappropriate that the surgeon, Dr Dieu, was not involved in the post-operative management of Ms James;
  • the seriousness of Ms James' condition on presentation on the morning of 22 January 2007 (day 3 post-operative) was not recognised.

3.5 Associate Professor Marshall's expert opinion included the opinion that:

• post-operative care is an integral part of the procedure and should be undertaken by the surgeon, unless he is unavailable - in this case Dr Dieu did not see Ms James after the surgery and was remote from the decision-making process;
• the presence of worsening pain suggested there was a complication and investigations would have been appropriate upon examination at 11.00 am at COCAPS;
• increasing pain medication at that time was not appropriate as increasing pain 3 days after a plastic surgery procedure usually indicates a complication and it was unwise to increase the medication outside a hospital setting;
• the amount of pain killers administered was considerably greater than normal and was an indication that there was an underlying complication;
• hospital admission for investigation and treatment was indicated at that time and subsequently;
• Dr Dieu's advice to take further pain medication and see how she went overnight was not appropriate;
• it was not appropriate to request the paramedics transport Ms James to COCAPS rather than hospital.

1. Dr Dieu has admitted that on 22 January 2007, he engaged in unprofessional conduct of a serious nature in that, following the liposuction surgery that he performed on Ms James, he failed to meet his obligations as treating surgeon to provide adequate and appropriate post-operative management in that he -
   • (a) failed to review Ms James in a timely way after his telephone conversation with Dr Gerard Sormann at about 11.30 am; and/or

Dr Dieu did not make any attempt to contact Ms James or Mr Dal Zotto until his telephone conversation with Mr Dal Zotto on or about 6.30 pm, seven hours after Ms James had left COCAPS; * (b) failed to undertake further investigations to determine the nature of the complications that Ms James was suffering; and/or * (c) in a telephone conversation with Mr Simon Dal Zotto at 6.30 pm, Dr Dieu: * (i) failed to conduct any adequate investigation of Ms James' symptoms; * (ii) inappropriately reassured Mr Dal Zotto regarding Ms James' condition; * (iii) failed to suspect a serious complication of the surgery and to advise Ms James to go urgently to a hospital emergency department.

In their telephone discussion at 6.30 pm, Dr Dieu told Mr Dal Zotto that the blisters experienced by Ms James were likely to be related to the tapes and swelling and he reassured Mr Dal Zotto that the swelling and bruising were not unexpected and that if Ms James were not feeling better by the following day, he wished to review her at COCAPS. Dr Dieu provided this reassurance to Mr Dal Zotto without eliciting any further history or details from Mr Dal Zotto and without reviewing Ms James himself. The appropriate medical response to Ms James' condition would have been to suspect a serious complication of the surgery and to advise her to go urgently to a hospital emergency department.

(d) failed to provide appropriate treatment for Ms James' post-operative complications; and/or

(e) failed to admit Ms James to hospital for a review and monitoring; and/or

(f) suggested, at 9.15 pm, that Mr Dal Zotto ask paramedics attending to Ms James to take her to the COCAPS;

In a telephone conversation with Dr Cass at about 9.15 pm Dr Dieu suggested that Dr Cass tell Mr Dal Zotto to ask the paramedics to bring Ms James to COCAPS and Dr Cass left a message with Mr Dal Zotto to this effect. The falls experienced by Ms James indicated that she required urgent assessment in an emergency department of a hospital.

(g) failed to ensure that arrangements at COCAPS for the provision of post-operative care for Ms James:

• (i) were understood between him and Dr Cass and Dr Sormann; and
• (ii) operated effectively from the patient's perspective.

1. That on 22 January 2007, he engaged in unprofessional conduct, within the meaning of that term as used in paragraphs (a) and/or (b) of section 3 of the Act in that he: * (a) in reviewing Ms James at or about 11.00 am, despite appreciating that Ms James was showing the signs of post-operative complications, did not directly order further investigation;

Despite evidence of third day post-operative severe pain and swelling of Ms James' left thigh, Dr Cass failed to:

(i) order any tests; and

(ii) failed to arrange transfer of Ms James to hospital.

(b) failed to ensure that Ms James underwent an adequate period of observation after intramuscular pethidine was administered to her; and/or

(c) failed to ensure that Ms James was not discharged from the COCAPS until her condition had been appropriately assessed; and/or

(d) failed to ensure that a review of Ms James by Dr Dieu occurred; and/or

(e) failed to ensure that arrangements at COCAPS for the provision of post-operative care for Ms James:

• (i) were understood between him and Dr Dieu and Dr Sormann; and
• (ii) operated effectively from the patient's perspective.

2. Dr Cass also admits that in his role as medical director of the COCAPS, he engaged in unprofessional conduct, within the meaning of that term as used in the Act in that he failed to ensure that there were adequate systems, procedures and standards for post-operative care of patients of the COCAPS.

Systems operating at the COCAPS at the time of Ms James' surgery and post-surgical management were inadequate and/or inappropriate in that they failed to require that all patients receiving injectable opiates at the COCAPS remained under observation at the COCAPS for an appropriate minimum period of time.

1. Section 45A of the Act lists the determinations available where the Tribunal finds that a practitioner has, whether by act or omission, engaged in unprofessional conduct of a serious nature, and where the Tribunal finds the practitioner has, whether by act or omission, engaged in unprofessional conduct of a serious nature.
2. Where the conduct is unprofessional conduct, the available determinations are:
   • That the practitioner undergo counselling,
   • That the practitioner undertake further education of a specified kind,
   • That the practitioner be cautioned,
   • That the practitioner be reprimanded.
3. In the case of a finding of unprofessional conduct of a serious nature; in addition to the above, the Tribunal may -
   • Impose any condition, limitation or restriction on the registration of the practitioner,
   • Impose a fine of not more than $2,000.00,
   • Suspend the registration of the practitioner for a specified period,
   • Cancel the registration of the practitioner,
   • Disqualify the practitioner from applying for registration within a specified period.
4. The Tribunal may make any combination of the available determinations depending on the particular circumstances and its assessment of what is required to protect the public.
5. It is sometimes the case, as here, that the Board and the practitioner come to an agreement between themselves as to what might be the appropriate determinations and make joint submissions. It is appropriate that the Tribunal give consideration to any such submissions, but ultimately it is for the Tribunal, and the Tribunal alone, to determine what orders are required.

1. The unprofessional conduct of a serious nature that Dr Dieu admits took place almost 8 years ago. He is now 46 years of age. He was a relatively young surgeon in January 2007, having obtained his Fellowship in 2003. His surgical skill is not in doubt. He was not present, and was not asked to be present when Ms James attended COCAPS at 11.00 am on 22 January 2007. He did not make the decision to administer increased analgesia without further investigation, nor was it his decision to discharge Ms James home after the review and after the administration of 100mg of pethidine.
2. The fact that he was "out of the loop" until 11.30 am on 22 January 2007 does not relieve him of his responsibility for what occurred.
3. We are satisfied that Dr Dieu has recognised the problems with the systems that were in place at COCAPS and is determined not to practise in such a system again.
4. He resigned from COCAPS in 2007. He now has his own practice at a day surgery in partnership with two other doctors, together with a continuing employment with Eastern Health at Box Hill Hospital. His practice is a traditional one - if he is the treating surgeon, he is the first port of call for the patient.
5. Dr Dieu, by choice, no longer performs liposuction, not because of a lack of confidence in his ability to perform the surgery, but because of what he described to the Coroner as a "mental scar" in respect of this tragedy. Cosmetic surgery is now a minor part of his practice - approximately five percent - with the balance being skin cancer and hand surgery.
6. He is undoubtedly remorseful. In his letter to AHPRA in response to the investigation he said:

In summary, as the surgeon, I feel responsible for Ms James' death. I am extremely sorry for it. I have taken steps to avoid it occurring again.

1. In addition, Dr Dieu made special mention of the fact that he was unable to openly express his regret to Ms James' family prior to the Coronial findings, because of specific legal advice that he not do so. Dr Cass received the same advice and was under similar constraints.
2. We are satisfied that there is very little risk of Dr Dieu ever repeating the conduct that led to Ms James' death, or any similar conduct. We are satisfied that he has more than sufficient insight to ensure that he would never again be placed in the position of being excluded from important decisions concerning a patient on whom he had performed surgery.
3. Further, the fact that he has not contested the allegations is a strong indication of insight and remorse and weight must be given to that in formulating any determination.
4. Dr Dieu has also agreed to a reprimand, which is a serious form of censure and condemnation. It is, effectively, a black mark that remains on a practitioner's professional record forever - it "certainly does not trivialise serious lapse of professional standards, and has potential for serious adverse implications for the medical practitioner".[6]
5. In addition, he has agreed to conditions being imposed on his registration that he take a number of steps, at his expense, as a requirement of continued practice. Those conditions are set out in our orders and there is no need to repeat them here. Dr Dieu's willingness to undertake the education specified, some years after the event in question, provides additional reassurance that he will not reoffend.
6. There have been no disciplinary findings against him in the years since Ms James death, save for a caution from the Board about ensuring that patients attend follow up appointments. The Board issued the caution in 2014, but it related to a 2007 event where a patient failed to attend a second scheduled follow up appointment
7. General deterrence is served, in our view, by our published findings in this matter, in addition to the adverse findings of the Coroner, and the implications of the reprimand.

1. Because of the system then in place at COCAPS, Dr Cass had more direct involvement in Ms James' post-operative care, on 21 January 2007 and the morning of 22 January 2007, than did Dr Dieu.
2. Dr Cass bears, and admits, responsibility for his failures on the morning of 22 January 2007 to order further investigation and/or to arrange transfer of Ms James to hospital, keep her under observation after the pethidine was administered, and ensure that a review by Dr Dieu occurred. He also bears, and admits, responsibility, as medical director of COCAPS, for the systems, procedures and standards then in place for the post-operative care of patients.
3. Dr Cass is now 73 years of age. He made the decision to retire this year, but has accepted a one-day-a-week appointment conducting executive health checks at Sonic Health Plus. COCAPAS no longer operates.
4. These proceedings are the first and only disciplinary proceedings against Dr Cass in 49 years of practising medicine.
5. Changes were made at COCAPS soon after Ms James' death. The Coroner described those changes as 'commendable initiatives.'
6. We are satisfied that Dr Cass shows insight into what went wrong, and remorse for the tragic consequences of the failures evident here.
7. The long period of time that has passed since these events without any repetition, and his acceptance of responsibility by the admissions he has made mean that, as with Dr Dieu, specific deterrence is not an important factor here.
8. General deterrence is important here. It is essential that those with responsibility for the post-operative care of patients ensure that there are clear lines of communication; that medical practitioners are clear in what they communicate; and that responsibilities are well-defined and understood Failing to do so will carry serious professional consequences.
9. For similar reasons to those expressed above in relation to Dr Dieu, we consider that general deterrence is served in this particular case by the 'black mark' of a reprimand, the adverse findings made, and the conditions placed on registration.
10. The tragic and preventable death of a healthy young woman, of itself, should be more than sufficient deterrence to any practitioner.

[1] Ha v Pharmacy Board of Victoria [2002] VSC 322 para [91] and [97], followed in Medical Practitioners Board of Victoria v Grolaux (No 2) (Occupational and Business Regulation) [2009] VCAT 978; see alsoHealth Care Complaints Commission v Lichfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637.

[3] Unreported, Supreme Court of Tasmania. See also Chiropractic Board of Australia v Hooper [2013] VCAT 136 at [22]

[4] Ha v Pharmacy Board of Victoria at paragraph 101. An assessment of the ongoing risk posed by the practitioner should be central to the imposition of a determination.

[5] Pillai v Messiter (No 2) (1989) 16 NSWLR197 at 200, referred to in Medical Practitioners Board of Victoria v Williams and Lichter [2010] VCAT 1277 at [17]

[6] Medical Practitioners Board of Victoria v Swieca (Occupational and Business Regulations) [2009] VCAT 419 at [52].