1. Patient A underwent a three-stage termination procedure conducted over three days: 16, 17 and 18 August 2011.
2. Dr Duncan's conduct in question is limited to his professional practice in treating and managing the health of Patient A on 18 August 2011.
3. On 18 August 2011, and prior to the arrival of Patient A at Croydon Day Care Surgery, Dr Duncan was shown some pathology results which showed acute renal failure and markedly elevated liver function tests.
4. At 10:14 am on 18 August 2011, the blood results were received for blood taken on 17 August 2011 and they were markedly abnormal. eGFR was 8 indicating kidney failure. This was stated in the Melbourne Pathology result sheet. The results delivered showed - Sodium 129 L, Potassium 3.4 L, Chloride 94 L, Bicarb 20, Urea 12.0 H, Creat 539 H, eGFR 8, Anion GAP 18, Bili 134 H, ALP 171 H, GGT 361 H, ALT 337 H, AST 856 H, Protein 57 L, Albumin 32 L, Globulin 25.
5. Dr Duncan saw these blood results prior to Patient A being taken into the operating theatre.
6. On 18 August 2011, and shortly after her arrival at Croydon Day Surgery, Dr Duncan observed that Patient A was jaundiced and unconscious. Dr Duncan assessed that Patient A was not fit for an anaesthetic at the time and required transfer to a tertiary hospital. He informed Dr Schulberg, (who was conducting the procedure), of the same.
7. Dr Duncan did not make any records, by way of clinical notes or otherwise, of his pre-operative assessment of Patient A.
8. At or around 10:30 am, Patient A was then taken to theatre and the uterine contents were evacuated during a procedure taking approximately ten minutes. Dr Duncan observed that Patient A was unconscious during the procedure. Dr Duncan did not administer any anaesthetic or any drugs to Patient A whilst she was in theatre.
9. A Hudson mask was placed over the face of the patient, providing oxygen, but Patient A was not intubated.
10. Dr Duncan did not make any records, by way of clinical notes or otherwise, of Patient A's intra-operative condition.
11. At or around 10:45 am, Dr Duncan handed over Patient A to recovery nurses in the recovery area at Croydon Day Surgery. He later returned to theatre to continue with the patient list, in doing so, Dr Duncan left the unconscious Patient A without direct medical supervision by himself and/or by another medical practitioner present at the clinic.
12. Dr Duncan did not make any records, by way of clinical notes or otherwise, of his post-operative instructions for Patient A.
13. At 10:53 am, an Ambulance arrived at Croydon Day Surgery. Paramedic staff attended to Patient A at 10:55 am.
14. At 10:59 am, paramedic staff requested the dispatch of a Mobile Intensive Care Unit for the purpose of transferring Patient A to Box Hill hospital.
15. Patient A arrived at Box Hill hospital at 12:22pm.

1. The two allegations that are maintained by the Board in respect of Dr Duncan are as follows:

Between on or about 10.35 am and midday on or about 18 August 2011, Dr Duncan engaged in professional misconduct (within the meaning of paragraphs (a) and/or (b) of the definition of 'professional misconduct' as defined in section 5 of the National Law) or 'unprofessional conduct' (as defined in section 5 of the National Law), in that he performed anaesthesia for other routine operations thereby leaving his unconscious patient, Patient A, without direct medical supervision by himself and/or by another medical practitioner present at the clinic.

On or about 18 August 2011, Dr Duncan engaged in professional misconduct (within the meaning of paragraphs (a) and/or (b) of the definition of 'professional misconduct' as defined in section 5 of the National Law) or 'unprofessional conduct' (as defined in section 5 of the National Law), in that he failed to adequately record his medical treatment of Patient A.

(a) Dr Duncan failed to record his pre-operative assessment of Patient A; and/or

(b) Dr Duncan failed to record Patient A's intra-operative recordings; and/or

(c) Dr Duncan failed to record post-operative instructions for Patient A.

2.1 All of the conduct the subject of the allegations against Dr Duncan occurred after 1 July 2010 and accordingly the applicable regulatory scheme is that contained in the Health Practitioner Regulation National Law Act 2009 (Vic) (National Law).

(a) all references to professional misconduct are references to the definition of professional misconduct in section 5 of the National Law; and

(b) all references to unprofessional conduct are references to the definition of unprofessional conduct in section 5 of the National Law.

3.1 At all relevant times, Dr Duncan was subject to and bound to comply with the Medical Board of Australia's Good Medical Practice: A Code of Conduct for Doctors in Australia (Code of Conduct).[1]

3.2 Dr Duncan's obligations under the Code of Conduct included, relevantly:

(a) minimising the risk to patient A, in line with Principle 6 of the Code of Conduct;[2] and

(b) maintaining clear and accurate medical records in line with Principle 8.4 of the Code of Conduct.[3]

3.3 At all relevant times, Dr Duncan was subject to and bound to observe the standard of conduct that is reasonably expected of a registered health practitioner of his level of training and experience.

3.4 That standard required Dr Duncan to ensure that direct medical supervision by himself and/or by another medical practitioner present at the clinic was provided to Patient A in circumstances where that patient presented with abnormal blood work and was still unconscious following an operation.[4]

3.5 That standard also required Dr Duncan to make an adequate record of his medical treatment of Patient A. [5] Such a record should have included, at a minimum:

(a) his pre-operative assessment of Patient A;[6]

(b) his intra-operative recordings in relation to Patient A; and

(c) his post-operative instructions for Patient A.

3.6 That standard required[7] for the creation of the record of medical treatment is the maintenance of clear and accurate medical records for the essential purpose of continuing good care of the patient, which requires:

(a) keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management;

(b) ensuring that records are sufficient to facilitate continuity of patient care;

(c) making records at the time of the events, or as soon as possible thereafter.

6.1 Dr Duncan further admits that by his conduct referred to in allegations 3 and 4 and the facts admitted in this agreed statement that he has engaged in unprofessional conduct within the meaning of 'unprofessional conduct' in section 5 of the National Law, in that he engaged in conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.

1. We are satisfied that the Agreed Statement of Facts comprehensively records the facts as set out in the Tribunal books presented to the Tribunal.

1. In Commonwealth v Director Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476, the High Court reflected on the important public policy benefit in receiving and where appropriate accepting agreed penalty submissions by tribunals in these types of matters. No agreement between a regulator and an individual can, however, supplant the duty of the Tribunal to determine the level of conduct alleged in the sanctions to be imposed. Nevertheless, any such agreement between the parties is a relevant matter for us to take into account.
2. The Board and Dr Duncan jointly submit that the matters admitted by Dr Duncan (Allegations 3 and 4) constitute unprofessional conduct.
3. Unprofessional conduct is relevantly defined in section 5 of the National Law as follows:

Unprofessional conduct of registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers...

1. We are satisfied that Dr Duncan engaged in unprofessional conduct.
2. Dr Duncan was aware of his patient's abnormal blood results taken on the previous day indicating acute renal failure and elevated liver function tests. He knew that his patient was very unwell. He had assessed her as not fit for anaesthetic and requiring transfer to a tertiary hospital.
3. Dr Duncan had an obligation to ensure that direct medical supervision was provided to his patient in circumstances where she presented with abnormal blood chemistry, was jaundiced and was still unconscious following her operation.
4. The obligations of Dr Duncan are well summarised by Dr Charles Nadin in his report dated 22 November 2012:

A patient who is still unconscious and now post-operative and hence still unwell would need to be carefully monitored until transfer. This is not simply a patient who is in recovery who has had a routine anaesthetic in operation, but a very ill patient. A GPA would need to be constantly involved in her care, until a safe transfer could occur. Having coordinated her transfer it is likely that a GPA would accompany the patient to the tertiary hospital. This is unless the paramedics indicated there was no need, which is unlikely. A GPA is well equipped to deal with any ongoing issues during transport. It is very unlikely any GPA would ever leave the patient in the care of the recovery staff only in these circumstances and certainly not to continue with the care of other patients.

1. In breach of that obligation, Dr Duncan handed over care of his patient to recovery nurses and returned to his patient list. He was unable to comply with his obligations to this patient and ensure the appropriate care of other patients. In doing so, he placed her post-operative care at a sub-standard level.
2. Dr Duncan made no records of his post-operative instructions regarding his patient's care. As was observed by this Tribunal in Medical Board of Australia v Lai [2011] VCAT 1754 at [17]:

Proper record-keeping is not simply an administrative function. Medical practitioners' notes and other records serve a number of important purposes. They reflect what the patient has reported and what diagnosis is made. An absence of notes may lead to a practitioner failing to take into account all the symptoms and other matters raised and risk an incorrect or incomplete diagnosis. The notes allow the practitioner to record and explain the treatment to be undertaken and what outcomes are sought to be achieved. The notes should set out details of the treatment including dosages and how and when the treatment is to be administered. The notes can be important as a reference tool for future consultations or treatments. They are a source of information for other practitioners who may have cause to treat the patient. It is important that they are also legible. All of these aspects assist in providing good treatment to the patient.

1. The absence of medical records compounded the situation. The recovery nurses, ambulance officers and other practitioners were deprived of the benefit of Dr Duncan's instructions as to the patient's care. Given her serious presentation, there was particular need for assiduous records.
2. These matters combined to jeopardise the patient's continuity of care and presented risks for her health.

1. The Board and Dr Duncan jointly submit that:
   • (i) Pursuant to s 196(2) of the National Law, the Tribunal reprimands Dr Duncan; and
   • (ii) Pursuant to s 196(2)(b) of the National Law, the Tribunal impose conditions on Dr Duncan's registration in terms set out in Appendix 1.
2. The imposition of a determination in disciplinary proceedings is not to punish an individual practitioner.
3. The role of the Tribunal in such matters is to protect the public and maintain the professional standards of the profession in the eyes of the public - ensure the maintenance of proper ethical and professional standards. It seeks to deter a practitioner from repetition of the conduct and to deter others from engaging in such conduct.
4. We are confident that Dr Duncan is unlikely to repeat the conduct.
5. It is now some years since the events, the subject of these proceedings, took place. There has been no further such conduct.
6. There had been no previous such conduct in the many years of Dr Duncan's practice. We accept that this was an unusual event. Dr Duncan had not been involved in days one and two of the three-day treatment. He appropriately advised Dr Schulberg that the use of anaesthetic would be unsafe. We note that Dr Duncan did remain with his patient throughout the procedure to ensure patient safety (protection of the airways) at that time.
7. We accept that Dr Duncan is a well-regarded health practitioner. We read a number of impressive references from Dr Duncan's peers. We accept that his reputation is that of a practitioner who has a high regard for patient safety and is conscientious and diligent in his work practices.
8. We are also satisfied that the patient was left alone for a relatively short period and that Dr Duncan could have been readily approached by the recovery nurses if the need arose. We also accept that the recovery nurses were very experienced. More importantly, we note that Dr Duncan did not justify his conduct. He readily acknowledged and recognised the deficiency of leaving his patient.
9. We are satisfied that Dr Duncan has insight into his conduct. He accepts that errors were made on the day. He understands the serious consequences that could have followed. In his evidence before us, he in no way sought to minimise or trivialise his actions. He demonstrated an excellent understanding of the need for good records for the ongoing care and treatment of a patient.
10. He has, through making admission to the facts and conceding that his conduct amounted to unprofessional conduct, reflected this.
11. We are also satisfied that Dr Duncan has an impressive practise history. He estimates that he has performed in the vicinity of 40 to 45,000 anaesthetics over his career. Since this incident he has conducted somewhere in the vicinity of 6 to 7000, all without incident.
12. Nevertheless, we agree with the submissions of the Board that the conduct was serious.
13. We need to deter conduct of this kind. We need to deter Dr Duncan from acting in a similar manner, in the future, and we need to deter other practitioners from so acting.
14. We are satisfied that the proposed determinations achieve this result.
15. A reprimand is a serious form of censure and condemnation.
16. The best way to ensure that there is true ongoing insight is through the use of the targeted conditions suggested by the parties.

1. The Practitioner is to undertake and successfully complete a program of education, approved by the Medical Board of Australia (Board) and including a reflective practice report, in relation to the making of clinical notes, the proper management of critically ill patients, advocating for patients and the practitioner's obligations under the Medical Board of Australia's Good Medical Practice: A Code of Conduct for Doctors in Australia.
2. Within 1 month of the notice of the imposition of these conditions, the Practitioner must nominate, in writing, to the Board for approval, the name(s) of an educator(s) (the educator) to be approved by the Board. The Practitioner must ensure that:
   • (a) The educator(s) nominated is a registered Medical Practitioner who holds unrestricted registration.
   • (b) The nomination is accompanied by the contact details of each nominated educator(s) together with a detailed copy of each of the nominated educator's curriculum vitae which demonstrates that the educator has the training, experience and/or qualifications in order to provide the education.
   • (c) That the nominated educator(s) is not in a close collegiate, social or financial relationship with the Practitioner.
   • (d) The nomination is accompanied by written confirmation from the nominated educator(s) that they have read these conditions and agrees to the nomination, they are not in a relationship with the Practitioner as described in (c) and to provide the report outlined in (f).
   • (e) The nomination is accompanied by a written education plan outlining the form the education will take and how the topics of the education will be addressed. The education plan should consist of a minimum of 8 hours and must include:
     • (i) the making of clinical notes;
     • (ii) the proper management of critically ill patients;
     • (iii) advocating for patients; and
     • (iv) the practitioner's obligations under the Medical Board of Australia's Good Medical Practice: A Code of Conduct for Doctors in Australia.
3. The nomination is accompanied by a written acknowledgement from the Practitioner that AHPRA will obtain a report from the educator at the completion of the education. Such report is to outline the date(s) the education occurred, what the education comprised of and whether or not the Practitioner has, in the opinion of the educator, satisfactorily participated in and understood the contents of the education.
4. The Practitioner must complete the education within 3 months of the notice of the Board's approval of the education.
5. Within 1 month of the completion of the education, the Practitioner is to provide:
   • (i) Evidence of successful completion of the education.
   • (ii) A reflective practice report to the Board demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner's practice and confirmation that the Practitioner has not included this education or the preparation of this written report to satisfy their continuing professional development requirements.
6. The Practitioner must not use the education and/or reflective practice report undertaken in compliance with these restrictions to satisfy the practitioner's CPD requirements.

1. The Practitioner must submit to one audit of his practice (the audit), including any supporting records, within 8 months of the completion of the education condition, by permitting an auditor (the auditor) approved by the Board to attend any and all places of practice (public and private) for the purpose of the audit and permitting the auditor to provide a report in relation to the findings of the audit. The audit and the audit report are to focus on the making of proper clinical notes, including compliance with the record keeping requirements set out in Good Medical Practice: A Code of Conduct for Doctors in Australia and must include, at a minimum, audit requirements.
2. Within 1 month from the completion of the education condition, the Practitioner must nominate a proposed auditor(s) to be approved by the Board. The Practitioner must ensure:
   • (a) The nominated auditor(s) is a registered medical practitioner(s) who holds unrestricted registration.
   • (b) The nomination is accompanied by the contact details of each nominated auditor(s) together with a detailed copy of each of the nominated auditor's curriculum vitae which demonstrates that the auditor has the training, experience, skills and/or qualifications in order to conduct the audit.
   • (c) That the nominated auditor(s) are not in a close collegiate, family, social or financial relationship with the practitioner.
   • (d) That the nomination is accompanied by written confirmation from the nominated auditor(s) that:
     • (i) they have read these conditions and agree to the nomination
     • (ii) they are not in a close collegiate, family, social or financial relationship with the practitioner
     • (iii) they agree to the nomination, and
     • (iv) they agree to provide a report to the Board following the completion of the audit in relation to their findings.
   • (e) Written acknowledgement that AHPRA will seek a report from the approved auditor. This report will be provided to the Board and will be obtained after the audit.
3. Within 1 month of the notice of the approval of the nominated auditor, the Practitioner is to provide a written audit plan, for approval by the Board, from the approved auditor outlining the form the audit will take and how the area of concerns for the Board will be addressed. The audit will take the form determined by the auditor.
4. In the event the approved auditor is no longer willing or able to provide the audit required, the Practitioner must notify AHPRA within fourteen days of becoming aware the approved auditor is no longer willing or able to provide the audit required and provide a new nomination of a proposed auditor(s) to the Board in the same terms as the previous nomination of auditor(s).
5. The costs of the audit and subsequent report are the responsibility of the Practitioner.

1. Within 14 days of the notice of the imposition of these conditions, the Practitioner is to provide to AHPRA, on the form provided, the details of any and all places of practice, together with, where relevant, confirmation from the Director of Medicine (the senior person) at each and every place of practice that they have sighted a copy of these conditions.
2. With each and every subsequent place of practice the Practitioner must, within seven days of the commencement of practice, provide to AHPRA the details of the subsequent place of practice together with written confirmation, where relevant, from the senior person at each and every subsequent place of practice that they have sighted a copy of these conditions​.​​​​
3. With each and every subsequent alteration to these conditions the Practitioner must, within seven days of the notice of alteration of these conditions, provide to AHPRA, written confirmation from the senior person, where relevant, at each and every place of practice that they have sighted a copy of the altered conditions.
4. Unless expressly provided for within a condition, all costs associated with compliance with these conditions are at the Practitioner's own expense.
5. Pursuant to section 196(3) of the National Law, the review period for these conditions is 12 months.

[1] Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia, Tribunal Book, Tab 25.

[2] Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia, Tribunal Book Tab 25, page 475.

[3] Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia, Tribunal Book Tab 25, page 477.

[4] Report of Dr Nadin, Tribunal Book Tab 33, page 566.

[5] Day Surgery in Australia Report and Recommendations of the Day Surgery Council (revised in 2004), Tribunal Book Tab 26, page 525; Report of Dr Nadin, Tribunal Book Tab 33, pages 562-565.

[6] Australian and New Zealand College of Anaesthetists, Recommendations for Pre-Anaesthesia Consultation (Review PS7, 2008), Tribunal Book Tab 27, page 544.

[7] Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia, Tribunal Book Tab 25, page 477.