Legislation cited: Health Act 1993 (ACT) ss 10, 54

Health Practitioner Regulation National Law (ACT) ss 3, 5, 39-41, 126, 140, 146, 155-159, 160, 178, 182, 185, 193, 196, 199, 202, 225

Health Practitioner Regulation National Law (ACT) Act 2010

Cases cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750

Bernadt v Medical Board of Australia [2013] WASCA 259

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536

Department of Health & Community Services v JWB & SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218

Felix v General Dental Council [1960] AC 704

Hocking v Medical Board of Australia & Anor [2014] ACTSC 48

Hocking and Medical Board of Australia [2015] ACAT 22

Jemielita v Medical Board of Australia (Unreported, WASC, Library No 920584, 13 November 1992

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390

Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295

Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449

Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234

Marine Hull & Liability Insurance Co Ltd v Hurford & Anor (1986) 10 FCR 476

Medical Board of Australia v Roberts [2014] WASAT 76

O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204

Pillai v Messiter (No 2) (1989) 16 NSWLR 97

R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 64 AAR 120

Vissenga v Medical Practitioners Board of Victoria [2004] VCAT 1044

Texts/Papers

cited: Code of Conduct of The Royal Australasian College of Surgeons

Good Medical Practice: A Code of Conduct for Doctors in Australia

Benali et al 'Hip Subluxation as a Complication of Arthroscopic Debridement' (2009) Journal of Arthroscopy 405

JWT Byrd et al 'Hip Arthroscopy in the Presence of Dysplasia' (2003) 19 Arthroscopy: The Journal of Arthroscopic and Related Surgery 1055

BG Domb et al 'Arthroscopic Capsulotomy, Capsular Repair, and Capsular Plication of the Hip: Relation to Atraumatic Instability' (2013) 29 Arthroscopy: The Journal of Arthroscopic and Relation Surgery 162

Victor Ilizaliturri 'Complications of Arthroscopic Femoracetabular Impingement Treatment: A Review' (2009) 467 Clinical Orthopaedic and Related Research 760

Michael SH Kain et al 'Periacetabular Osteotomy After Failed Hip Arthroscopy for Labral Tears in Patients with Acetabular Dysplasia' (2011) 93 Journal of Bone and Joint Surgery, Suppl 2: 57

DK Matsuda 'Case Report, Acute Iatrogenic Dislocation Following Hip Impingement Arthroscopic Surgery' (2009) 25 Arthroscopy 400

Omer Mei-Dan, MD, Mark McConkey, MK and Matthew Brick, MD 'Catastrophic Failure of Hip Arthroscopy Due to Iatrogenic Instability: Can Partial Division of the Ligamentum Teres and Iliofemoral Ligament Cause Subluxation?' (2012) 28 The Journal of Arthroscopic and Related Surgery 440-445

Javad Parvizi et al 'Arthroscopy for Labral Tears in Patients with Developmental Dysplasia of the Hip: A Cautionary Note' (2009) 24 The Journal of Arthroplasty No 6 Suppl 1, 110

The Reasons for Decision handed down on 19 June 2015 in the matter of Medical Board of Australia v Hocking and Hocking v Medical Board of Australia (Occupational Discipline) [2015] ACAT 44 are amended as follows:

Delete : "Overall, the Tribunal finds that Dr Hocking behaved in a way that constituted unsatisfactory professional performance in relation to allegation 2."

substitute: "Overall, the Tribunal finds that Dr Hocking did not behave in a way that constituted unsatisfactory professional performance in relation to allegation 2."

ACT CIVIL & ADMINISTRATIVE TRIBUNAL OR 13/48 AND 14/31

1. As to allegation 1, the practitioner has behaved in a way that constitutes unsatisfactory professional performance by debriding Patient B's acetabular rim while performing hip arthroscopy contrary to the patient's medical condition.
2. As to allegation 2, the practitioner has behaved in a way that constitutes unsatisfactory professional performance by failing to disclose a restriction on his registration which had the potential to affect the treatment he was able to provide to the patient.
3. As to allegation 3, the practitioner has behaved in a way that constitutes unprofessional conduct by creating a second report of the hip arthroscopy some 3 or 4 months after the operation, in order to indicate that the symptoms suffered by the patient following hip arthroscopy were not due to the way he carried out the surgery.
4. After considering the decisions recorded at 1 to 3 above, the Tribunal decides to impose conditions on the practitioner's registration as set out in 12 below.

1. As to allegation 1(a), the practitioner has no case to answer and no further action is to be taken in relation to the injection of Platelet Rich Plasma (PRP) into Patient A's left hip joint.
2. As to allegation 1(b), the practitioner has behaved in a way that constitutes unsatisfactory professional performance by failing to refer Patient A to another paediatric orthopaedic surgeon who was not restricted in carrying out surgery if necessary on Patient A.
3. As to allegation 2, the practitioner has no case to answer and no further action is to be taken in relation to the misrepresentation made to Patient A's parents to the effect that an orthopaedic colleague in Melbourne had used PRP treatment for Perthes disease in children with success and that this colleague had endorsed the use of PRP treatment for Patient A.
4. As to allegation 3, the practitioner has no case to answer and no further action is to be taken in relation to obtaining informed consent from Patient A's parents before administering the PRP treatment.
5. After considering the decisions recorded at 5 to 8 above, the Tribunal decides to impose conditions on the practitioner's registration as set out in 12 below.

1. The appellable decision of the Medical Board of Australia dated 5 December 2013 is set aside and the decision set out in orders 11 and 12 below is substituted.
2. Conditions 1-3 imposed on the registration of the practitioner are set aside from the date of this order.

1. For the twelve months from the date of this order the following conditions are imposed on the practitioner's registration.

(i) discuss pre-operatively all complex cases (including complex hip and knee surgery cases) with suitably qualified surgeons. This should be followed up by a presentation of all post-operative outcomes of the same procedures during the post-operative period;

(ii) specifically highlight his arthroplasty audit, including the audit of review arthroplasty and including the National Joint Replacement Registry outcomes as part of his continuing professional development, audit and peer review process;

(iii) practise within a departmental setting in the public hospital environment and within a group session in the private sphere;

(iv) organize a theatre arrangement so that his major cases are performed in a location and time such that a second surgeon is available to join the surgery if the clinical complexity of the case requires 'buddy' support;

(v) on or before the 19 June 2016, provide a report together with supplementary evidence to the Medical Board of Australia on his compliance with the terms of this condition.

1. There are three applications before the ACT Civil and Administrative Tribunal:
   • (a) Medical Board of Australia v Dr Richard Hocking (OR48 of 2013) (Patient B matter);
   • (b) Medical Board of Australia v Dr Richard Hocking (OR31 of 2014) (Patient A matter); and
   • (c) Dr Richard Hocking v Medical Board of Australia (OR4 of 2014) (Conditions appeal).
2. The matters are dealt with separately in these reasons. The first two are in the nature of disciplinary proceedings brought by the Medical Board of Australia (the Board) against Dr Hocking. In the third matter, Dr Hocking is appealing against a decision of the Board which imposed certain conditions on his registration.
3. The parties agreed that one of those conditions (condition 2), relating to retraining, was satisfied. It was also agreed that the conditions appeal should be considered after the applications dealing with Patient A and Patient B were determined. Counsel for the Board submitted:

If it were the case that Dr Hocking were completely vindicated by the tribunal on both of those matters, then in the absence of any material change of circumstances it would follow that the restriction in condition 1 would be lifted - all other things being equal - if, on the other hand he was not, it would then need to be reviewed to determine (a) how significant are the findings in those matters if the findings are made and (b) whether or not the penalty the tribunal decides to impose ... in effect supersedes any conditions[1].

1. The applications were heard by the ACT Civil and Administrative Tribunal on 16, 18-20, 23-24, and 26-27 March 2015. Where appropriate the relevant evidence appears under the 'Consideration' section for each matter.
2. In the reasons following, a reference to 'ACAT' or 'tribunal' refers to the ACT Civil and Administrative Tribunal generally, whereas 'Tribunal' refers to the members hearing these matters.

1. The reasons below explain why the Tribunal has reached its decisions in these matters.

1. Dr Hocking is a registered medical practitioner. He qualified as a doctor on 6 January 1997. Thereafter he trained as a specialist orthopaedic surgeon commencing practice in 2002. In 2006 he was admitted as a Fellow of the Royal Australian College of Surgeons. He specialised in adult and paediatric hip and pelvic surgery. In 2008 he took over the practice of Dr David McNicol, an adult and paediatric orthopaedic surgeon, situated in Woden. He has since sold that practice and from mid-2014 has not worked in Canberra.
2. The following facts are agreed, in some instances with corrections or additions by the Australian Health Practitioner Regulation Agency (AHPRA) and by Dr Hocking. The facts reflect the claims made by Dr Hocking and the Board's responses. The text has been edited by the Tribunal without changing the substance of the contentions and the responses:
   • (a) on 24 March 2011, practitioners from the Sydney Children's Hospital wrote to AHPRA regarding Dr Hocking's treatment of two paediatric patients (Sydney Children's Hospital notification);
   • (b) on 12 April 2011, Professor Paul Smith, a Canberra-based orthopaedic and trauma surgeon, and Professor of Surgery at ANU Medical School, lodged a notification with AHPRA regarding Dr Hocking's treatment of four patients (Professor Smith notification). He attached two letters describing the events the subject of the notification, namely his own letter dated 12 April 2011 and a letter from Dr Stephen Bradshaw dated 20 March 2011;
   • (c) on 2 May 2011, the ACT Board of the Medical Board of Australia met to consider the Sydney Children's Hospital notification and the Professor Smith notification and decided to investigate the notifications pursuant to the Health Practitioner Regulation National Law (ACT) (National Law) for the reasons set out in minutes of the Board dated 3 May 2011. On 5 May 2011 Dr Hocking provided an undertaking to the effect that he would perform no elective open hip surgery and would involve a senior colleague in the management of major pelvic injuries, pending completion of the investigation. On 21 June 2012, after the investigation, the Board imposed six conditions on the applicant's registration to practise medicine (Conditions 1-6.) The Board notified Dr Hocking of these conditions on 26 June 2012;
   • (d) on 26 February 2013, Dr Hocking provided submissions to the Board dated 15 and 22 February 2013, including reports from supervisors, and requested that Conditions 1-6 be lifted. The Board met on 28 February 2013 to review Conditions 1 to 6 and to decide whether to substitute Conditions 1 to 3 (proposed action). The Board notified Dr Hocking by letter of 1 March 2013 of the proposed action. Dr Hocking's solicitor made written submissions to the Board in respect of the proposed action by letter of 20 March 2013;
   • (e) on 16 April 2013, Dr Hocking appeared before the Board and made oral submissions regarding the proposed action;
   • (f) on 8 May 2013, the Board wrote to Dr Hocking and advised that it had decided to replace Conditions 1-6 with three conditions (Conditions 1-3). Condition 3 stated that the Board would review Conditions 1-3 within six months of notice of their imposition, that is, after a period ending on 8 November 2013;
   • (g) on 29 November 2013, Dr Hocking provided submissions to the Board, including reports from his supervisors, Dr Michael Gillespie and Dr David Young, and requested that Conditions 1-3 be lifted. The Board met on 5 December 2013 to review Conditions 1 to 3; and
   • (h) on 2 January 2014, the Board wrote to Dr Hocking and stated that it had considered the reports from his supervisors, as well as the submissions made on 29 November 2013. The Board decided, in accordance with section 126(3)(a) of the National Law, that Conditions 1-3 should not be removed but should be imposed again and reviewed after a further period of six months.

1. In July 2012, Dr Hocking commenced a period of retraining and supervision. His supervisors were Dr David Young, a leading orthopaedic surgeon with a practice in Melbourne, Dr Michael Gillespie, a consultant orthopaedic surgeon, and Dr Peter Morris, an orthopaedic surgeon, both in Canberra. Dr Hocking made regular visits to Melbourne to consult with and to observe Dr Young's work. Dr David Hardman, a Canberra-based consultant vascular surgeon, was also appointed as a mentor to Dr Hocking.

1. The Tribunal is to make its decisions in accordance with the Health Practitioner Regulation National Law (ACT) Act 2010 (National Law), the legislation which adopted, subject to certain modifications, the National Law as applying in the ACT.[2]
2. Section 196 in Division 12 of the National Law sets out the decisions the tribunal may make about a registered health practitioner. Section 198 in Division 12 of the National Law provides that Division 12 of the National Law applies despite any provision to the contrary of the Act that establishes the responsible tribunal but does not otherwise limit that Act.

1. In making its decisions, the Tribunal is also to take account of the objectives and guiding principles underpinning the National Law. In particular, it must consider the following objectives: that the law is 'to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered_'_; and that 'restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality'.[3]
2. The first two matters relate to notifications concerning the treatment by Dr Hocking of two patients, Patient A and Patient B, both children. The relevant item of 'notifiable conduct' in relation to Patient A and Patient B is that Dr Hocking "placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards".[4]
3. If findings are made adverse to Dr Hocking, the Tribunal's role is to consider liability for the breaches leading to those notifications, and whether to impose a penalty.
4. The relevant matters are:
   • (a) OR 13/48: an application by the Board dated 11 December 2013 for de-registration or other penalty in relation to an allegation that Dr Hocking had engaged in conduct that constituted professional misconduct, unprofessional conduct or unsatisfactory professional performance concerning his treatment of Patient A; and
   • (b) OR 14/31: an application by the Board that a penalty be imposed on Dr Hocking in relation to an allegation that Dr Hocking had engaged in conduct that constituted professional misconduct or unprofessional conduct or unsatisfactory professional performance concerning his treatment of Patient B.

1. It is accepted in professional disciplinary proceedings that the Board bears the onus of proving matters, and that the standard of proof in civil matters is the balance of probabilities. In disciplinary hearings of this kind, that is often expressed as requiring comfortable satisfaction or an 'actual persuasion'.[5]
2. The Board, in its closing submission, submitted that the Tribunal should be 'comfortably satisfied to the Briginshaw standard' that its charges were made out. Counsel for Dr Hocking reminded the Tribunal that its findings require an 'actual persuasion, and not merely a mechanical comparison of probabilities'.[6]
3. The Tribunal accepts that the rules of evidence 'are founded upon principles of common sense, reliability and fairness'[7] and, to that extent the principles arising from the decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362 per Dixon J should apply. In so saying, the Tribunal is indicating its appreciation of 'the need not lightly to reach conclusions carrying grave consequences'.[8]
4. As Logan J observed in Sullivan at [8]:

... the Tribunal's conclusions must be based on logically probative material [and] where that conclusion may have grave consequences for a party to the review ... it would not lightly be reached and this factor intrudes on what the Tribunal should regard as probative in the making of a reasonable decision.

1. The Tribunal also notes, in the context of the reference to the 'Briginshaw standard', that in Sullivan, the Full Court of the Federal Court rejected a submission that the AAT had made an error of law in failing to adhere to the Briginshaw principle and confirmed that tribunals are not bound to apply the rules or principles of evidence, such as those arising in Briginshaw.[9] As the majority in Sullivan observed, such a principle:

... would be inconsistent with the well-entrenched acceptance of the proposition that curial proceedings are inherently different from the tasks entrusted to decision-making by administrative tribunals and the Administrative Appeals Tribunal in particular; and would be inconsistent with the flexibility of procedure deliberately entrusted by the Legislature to the Tribunal.[10]

1. That statement of principle is consistent with the recent observation of the High Court in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 396 per French CJ:

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 [(1933) [1933] HCA 30; 50 CLR 228] 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".

1. The issues are whether in relation to his treatment of Patient A and Patient B, Dr Hocking behaved in a way that constituted 'unsatisfactory professional performance', 'unprofessional conduct', or 'professional misconduct', as defined in section 5 of the National Law.[11] If the Tribunal finds breaches of one, some, or all of those standards, the Tribunal is able to impose a penalty.[12]
2. There is limited documentary indication of what are those standards. In that context, the Tribunal notes the statutory authority for the Board to develop codes and guidelines which are to be used by bodies such as the Tribunal in disciplinary proceedings.[13] It would be helpful if detailed standards were to be developed by the Board.
3. The Tribunal was referred to the Code of Conduct of the Royal Australasian College of Surgeons (surgeons' Code) and Good Medical Practice: A Code of Conduct for Doctors in Australia (doctors' Code) for relevant standards. The two Codes profess to be 'the standards of ethical and professional conduct expected of doctors by their professional peers and the community (doctors' Code, 1.1) or 'defines the professional behaviour of surgeons' (surgeons' Code, 2). However, they do not identify with specificity the standards which are reasonably to be expected of someone with five or six years' experience and an equivalent level of training to Dr Hocking.

Matter: OR 13/48 - Patient B and Dr Hocking's Behaviour

1. Patient B was born with a congenital hip dysplasia,[14] that is, dislocation or misalignment of her left hip. In 1999, on arrival in Australia, age two, she was diagnosed with the condition and in 2000 underwent treatments to restore her hip to its proper location. She was again treated for hip problems when she was four. When the family moved to Canberra, Patient B came under the care of Dr McNicol. Her care moved to Dr Hocking when he took over the practice of Dr McNicol in 2008. There was medical evidence that her hip dysplasia was in the moderate range at level 1 using the Crowe criteria.[15]
2. On 14 April 2011, when Patient B was 13, her general practitioner, Dr Lees, referred her to Dr Hocking for a reassessment as she had developed a limp and been experiencing increasing pain over the previous three to four years. Dr Hocking saw Patient B on 27 May 2011 and reviewed imaging of her hip which showed hip dysplasia. Dr Hocking advised Dr Lees, by letter dated 31 May 2011, that the patient may require a peri-acetabular osteotomy (PAO).[16] An arthrogram (MRI) on 10 June 2011, also revealed a possible 'supero-anterior[17] labral[18] tear' that was at the '12 o'clock position', and a poorly developed acetabulum[19] with an edge angle described in the joint report of the experts around the time of the arthroscopy as between 0-5 degrees, and in other evidence between 5 and 10-15 degrees, as compared with the normal 25 degrees.
3. On 19 August 2011, after receipt of the MRI, Dr Hocking saw Patient B and advised her that he proposed a two-stage treatment plan to repair her hip, and on 23 August 2011 he wrote to Dr Lees and explained the two-stage treatment plan. First, he proposed an arthroscopy[20] to suture the labral tear and to assess the quality of the cartilage; second, a peri-acetabular osteotomy (PAO) to 're-direct the acetabulum into a more favourable position', to be performed 'some time later'. He categorised the urgency as Category B, that is, within the next 90 days.
4. On 15 February 2012, Dr Hocking performed a left hip arthroscopy on Patient B at the Calvary Public Hospital, Canberra. In his post-operative report (first report/first operation report) dated 15 February 2012[21] Dr Hocking listed abnormal findings as labral tear, pincer lesion[22] and hip dysplasia. The report then went on:

The labrum was degenerate. The degenerate material was debrided and then a stitch was attempted to be placed in the labrum. The labrum was too degenerate and the stitch cut out. The labrum was debrided[23] back to a stable rim. The underlying acetabular rim was exposed and a pincer lesion was encountered. The rim was recontoured so that the pincer lesion would not impinge after the planned PAO.

1. Some three to four months later Dr Hocking produced a second more detailed account of the operation (second report/second operation report)[24]. This second report was written when Dr Hocking became aware that a complication had followed the surgery on Patient B, which could lead to disciplinary proceedings and, on the advice of Dr McNicol and Dr Gillespie, an orthopaedic surgeon in Canberra, who had been appointed by the Board to supervise Dr Hocking following an earlier complaint relating to him. This second report noted that Dr Hocking had decorticated[25] the 'bone adjacent to the tear ... with an arthroscopic burr to facilitate healing of the repair', referred to the failure of the attempted suture of the labrum, and continued:

These pieces [of the labrum] were deemed irreparable, and as such the labrum was debrided. ... Having lifted the capsule off the anterior [front] margin of the acetabulum an extra articular[26] lump of bone was identified protruding from the anterior acetabulum... This same lump is identified in the preoperative standing false profile view, proximal to the joint. This lump was then removed with the burr in preparation for the periacetabular osteotomy (which would be the next planned procedure). This lump has been referred to as a pincer lesion in the shorthand operation report as no other abbreviated description exists for such a lump. The lesion does not truelly (sic) fit the accepted definition of a pincer lesion and thus calling it a pincer lesion is a misnomer in the shorthand operation report. Image 4[27] shows the anterior acetabular margin with this extra articular lump removed. Image 4 also shows in the foreground the remnant of the acetabular labrum at the margin of [Patient B's] acetabular rim indicating that the contour of the acetabular rim was not altered by the burr as the labral remnant remained in position.

1. Patient B was discharged on 16 February 2012 and initially appeared to be in a satisfactory condition. However, when she was first seen post-operatively by Dr Hocking on 23 March 2012, some five weeks after the arthroscopy, he informed Dr Lees that she was 'not making the usual recovery that we see after a hip arthroscopy', that she 'had an irritable hip', and was 'walking with a Trendelenburg limp'. Following the surgery, Patient B had been attending physiotherapy at the Calvary hospital but with limited success and Dr Hocking referred her to another physiotherapist who identified a marked leg length discrepancy and reported a lack of expected improvement.
2. Dr Hocking saw Patient B again on 5 April 2012, and on 10 April 2012, in a letter to Dr Lees, he noted that she 'is much better now'. He repeated that she was 'eventually going to need to have a peri-acetabular osteotomy as her lateral edge angle is only 15 degrees'.
3. On 31 May 2012, an x-ray identified 'quite marked dysplastic feature to the left acetabulum, with superolateral subluxation[28] of the femoral head, and ... moderate secondary osteoarthrosis[29] changes'.
4. Patient B was readmitted to hospital and on 1 June 2012, under anaesthesia, her left hip was returned to position. However, even with traction, the hip continued to dislocate. Dr Hocking again reported to Dr Lees on 28 June 2012 that the hip dislocated 'with external rotation' and said he was discussing the case with Professor Paul Smith. At this time, Patient B was no longer his patient, nor was Dr Lees her general practitioner.
5. In early June, at the request of her family, Patient B's care had been taken over by Professor Smith. Following further CT imaging, an MRI scan, and advice from colleagues, Professor Smith wrote to Dr Zekra, then general practitioner for Patient B, on 19 June 2012 noting that the imaging had confirmed that the hip had dislocated and following the arthroscopy there had been a 'rapidly progressive joint destructive process' and there was 'clear evidence of loss of articular surface and damage to the femoral head'. He also noted, after observing the intraoperative images taken at the time of the surgery, that 'significant bone was removed from the anterior margin of the left hip joint'. His letter went on 'This, in my view, is highly likely to have critically destabilised [Patient B's] left hip joint leading to the rapid destruction of the joint itself'.
6. At Professor Smith's request, on 26 June 2012, Patient B was examined, under anaesthesia, by Dr Solomon, a Sydney orthopaedic surgeon, specialising in surgery of the hip and knee. Dr Solomon informed Professor Smith on 2 July 2012 that the imaging:

... shows a markedly subluxed left hip with arthritic changes and destruction of the cartilage on both the femoral and acetabular side. ... I believe that the reason why this hip deteriorated so rapidly is that the combination of hip arthroscopy, large capsulotomy,[30] labral resection and bone resection has rendered a dysplastic hip even more unstable and as a result the femoral head subluxed and eroded the superior edge of the acetabulum.

I find it puzzling that the arthroscopic operative report comments on a pincer lesion as this type of impingement does not exist in hip dysplasia. As you know the problem with dysplasia is too little bone rather than too much bone.

1. On 20 July 2012, Professor Smith performed a total left hip replacement on Patient B with acetabular bone grafting.
2. A notification to the Board concerning Patient B was made by Dr Solomon dated 9 July 2012. The matter was considered by the Immediate Action Committee of the Board, which, on 7 September 2012 advised that it proposed to take immediate action, namely, to appoint an investigator to consider the circumstances leading to the notification.[31] Following submissions made by Dr Hocking, the Board advised on 13 March 2013 that it had decided to remove the 7 September 2012 immediate action conditions on his registration, and would refer the matter to a Performance and Professional Standards Panel (Panel) of the Board pursuant to section 182 of the National Law.
3. There were six allegations investigated by the Panel which found 'no case to answer' on five of the allegations. In relation to the allegation that Dr Hocking 'debrided [Patient's B's] left acetabular rim' the Panel found 'there was unsatisfactory professional conduct which may constitute professional misconduct', and referred the matter to the tribunal.
4. For the purposes of the hearing by the Tribunal, a panel of experts was convened to produce a report on Patient B's treatment. The panel was chaired by Dr A Cairns, a consultant orthopaedic surgeon, and the panel comprised Dr Young, Dr McNicol, Professor Smith and Professor Cundy, an adult and paediatric orthopaedic specialist in Adelaide, who contributed to the proceedings as the independent expert at the request of the Board. Dr Cairns's summary of their conclusions follows, together with a summary of the points of dissension of Professors Smith and Cundy.

Joint Report Patient B - Dr Cairns, provided 16 March 2015

Dissenting aspects of the report by Professor Smith, and Cundy (15 March 2015)

• It was agreed that [Patient B] was diagnosed with a dislocation of the left hip, and received treatment which commenced at age 2 years. At that time she underwent a left hip open reduction and Salter pelvic osteotomy performed by Dr Terence Hillier, orthopaedic surgeon practising in Albury-Wodonga. The experts agreed that the treatment rendered was for delayed presentation of developmental dysplasia of the left hip.
• The experts agreed that [Patient B] was assessed by General Practitioner, Dr Katy Lees in 2011 and referred to Dr Richard Hocking with the diagnosis of left hip acetabular dysplasia, pain provoked during sporting activities, and tendency to limp.
• The experts agree that imaging investigations conducted about that time demonstrated a 'centre edge angle' of the hip in the region of 0 degrees to 5 degrees, and a steep slope to the sourcil (acetabular roof), including an MRI scan reporting an antero-superior tear of the acetabular labrum.
• The experts agree that Dr Richard Hocking's decision to perform a hip arthroscopy for treatment of the MRI-documented labral tear followed by subsequent peri-acetabular osteotomy (PAO) intended to prolong the longevity of the hip joint, was a reasonable clinical decision, notwithstanding argument and division of opinion within the orthopaedic community at large as to whether intra-articular pathology within the joint should be treated in two stages, as proposed by Dr Hocking, or in one stage at the time of performance of the pelvic PAO.
• The experts agree that within a short time following the surgery the patient's left hip joint became unstable and dislocated.
• The experts agree that the resultant instability hastened the onset of arthritis and the emergent need for hip joint replacement.
• The experts agree that current conventional orthopaedic wisdom is to proceed with the second stage PAO in a timely manner, as soon after the hip arthroscopy as clinically appropriate.
• The experts agree that the second stage osteotomy should be delayed until the hip has 'settled down' following the arthroscopy, preferably in the absence of any stiffness or signs of irritability. ...
• The experts agree that the patient's post-operative management following the hip arthroscopic surgery was not optimal....
• [T]he experts agree that the left hip arthroscopy resulted in instability osteoarthritis of the patient's left hip and hastened the need for hip joint replacement.
• The experts agree that this unfortunate outcome has been experienced by other surgeons working in the area, and it is increasingly documented within the orthopaedic literature, including prior to the index operation of 15 February 2012.
• The experts agree that the creation of the document known as 'aide memoir' by Dr Hocking on the advice of Drs McNicol and Gillespie, ['some three or four months after the operation'] was not unreasonable [and was prudent] in the circumstances. ...
• The experts agree that left untreated, her situation would now be considerably worse. It is reported that the patient has derived a good result and is functioning well following left total hip replacement. However, total hip replacement has a finite life and will require revision, several times during her lifetime.

• The experts do not agree about the intra-operative findings reported by Dr Hocking in either of his accounts of the arthroscopic surgery undertaken
• There is disagreement between the experts over the issue of where and how much bone was removed from the region of the acetabular margin.
• It was not agreed by the experts that Dr Richard Hocking's post-arthroscopic management was sub-optimal because of factors outside his control.
• [T]he experts disagree as to the validity, accuracy and reliability of the ['aide memoir'], based upon the apparent discrepancies as compared to the contemporaneous operation report formulated at the time of the surgery, some four months before the latter 'aide memoir' also dated 15 [February] 2012.
• The experts disagree regarding the issue of debridement of the patient's acetabular rim while performing a hip arthroscopy on 15 February 2012, contrary to the patient's medical condition, as outlined above. This disagreement was largely based upon the controversy regarding the precise location and quantity of bone removed.
• The experts were unable to offer specific comment regarding the significance of the current embargo (other than recognising that it precluded [Dr Hocking] from doing so at the time) which would have prevented Dr Hocking from performing a peri-acetabular osteotomy, the second of the two stage treatment plan recommended to the patient, given that none of the parties are cognisant of what was in Dr Hocking's mind at the time. It was noted that the hip arthroscopy was performed on 15 February 2012, and that the embargo in place at that time was potentially to be lifted on or about 26 June 2012 (paragraph 3, Statement 'A'), a time interval which would not be inconsistent with an acceptable interval between the two procedures, had the unfortunate catastrophic complication not occurred.
• The experts disagree as to the possible motivation underlying the statements made with the ['_aide memoi_r'].

1. The Board submitted that the allegations in the Patient B matter are as follows:

Allegation 1 - by debriding Patient's B's acetabular rim (that is, by removing bone from the rim of the hip socket) while performing a hip arthroscopy on 15 February 2012 on her left hip, which was not indicated by her medical condition, Dr Hocking engaged in unsatisfactory professional performance.

Allegation 2 - by failing to disclose to the patient and her family the restriction on his registration which had the potential to affect the treatment he was to provide to her involving a two-staged treatment plan, the second stage of which (the peri-acetabular osteotomy) he was restricted from performing, Dr Hocking engaged in professional misconduct or unprofessional conduct.

Allegation 3 - by creating a second operation report in respect of the hip arthroscopy performed on 15 February 2012 which on its face purported to be a contemporaneous account of the operation but which was written several months after the operation, Dr Hocking engaged in professional misconduct, or unprofessional conduct.

1. Dr Hocking contended in relation to allegation 1 that:[32]
   • (a) he did not remove significant bone from Patient B's acetabular rim;
   • (b) he resected a bump outside of the articular part of Patient B's hip joint, proximate to but not from her left acetabular margin as, in his professional opinion, if the bump had been left in place it would cause impingement after the second (PAO) stage of Patient B's treatment; and
   • (c) the superior defect in Patient B's left hip acetabulum was a defect caused after Patient B's left hip subluxed and some time after the 15 February 2012 hip arthroscopy.[33]

1. The Tribunal observes that in coming to its decision it has taken note of several matters which affected the weight it gave to some of the copious evidence:
   • (a) the testimony of all but one of the experts was polarised to a greater or lesser extent, the exception being Professor Cundy the independent expert;
   • (b) only two people had seen the inside of Patient B's hip joint and hence were in a better position to assess its anatomic state. Each of those persons (Dr Hocking and Professor Smith) had opposing views of the relevant state of her hip joint and what occurred to cause the dislocation of the hip;
   • (c) two of the witnesses for Dr Hocking (Dr Young and Dr McNicol) admitted that they had relied to a significant extent on conversations they had with Dr Hocking when compiling their expert reports;
   • (d) the two principal witnesses for the Board (Professor Smith and Professor Cundy) would not claim to be hip arthroscopists. Nonetheless, they are experienced orthopaedic surgeons and Professor Cundy said that he had undertaken arthroscopic procedures on many joints but not the hip, so he is a practising arthroscopist. In addition, Professor Smith pointed out, that although he was not a practising hip arthroscopist, arthroscopy being a technology which had developed after he became a surgeon, he has acted as assistant or observer on hip arthroscopic procedures over the last couple of years in order to become fully familiar with the current state of hip arthroscopic techniques;
   • (e) the issues in this matter arose in 2012 and 2013. Since then, there has been a change in Dr Hocking's circumstances, namely, he has abandoned his paediatric practice except for emergency surgery, only undertakes adult elective hip and pelvic surgery, and no longer practises in the Australian Capital Territory;
   • (f) the evidence of the orthopaedic surgeons in the two hospitals in which Dr Hocking has been working in the last twelve months (Dr Furzer, North West Regional Hospital, Burnie, Tasmania and Dr Finch, head of the orthopaedic department, Tamworth Rural and Regional Hospital) provided a recent appraisal of his technical skills, competence and knowledge in his orthopaedic sub-specialty;
   • (g) some of the experts (Dr Young, in his 9 April 2014 report, Dr McNicol in his report 22 July 2014) point out that isolated images cannot give an accurate picture of what occurred during surgery; others, such as Professor Smith, comment that the images are insufficiently distinct to be helpful, a feature in part of the developmental stage of the skeleton of Patient B. In addition, the scanned images are enlargements and have pixelated, thus losing resolution.[34] Finally, the joint report in this matter noted that 'How much bone has been removed at the time of the hip arthroscopy is difficult to judge from the limited arthroscopic photographs available'. These matters detract from the weight to be attributed to the images.

Allegation 1: Debriding Patient B's acetabular rim

1. This has been the most complex and technical of the allegations before the Tribunal. One of the difficulties is a definitional one. It is illustrated in this observation by Dr Hocking:

The arthroscope, which is the camera in this photograph, is situated outside of the hip joint. When I am talking about the hip joint, I am meaning the specific part of the hip joint which is the articulation between the femoral head, and the acetabulum. It is true that the hip joint also includes the capsule but the hip joint has intra-articular compartments and extra-articular compartments. The arthroscope, in this position, is in one of the extra articular compartments that hip arthroscopists refer to as the para-labral gutter. This is immediately in from of the hip joint and does not show inside the hip joint, thus the appearance of a burr in this compartment indicates that the burr is not in the hip joint itself but is anterior to the hip joint'.[35]

1. Other difficulties have been the conflicting evidence from the medical experts, including as to the interpretation of the images, the exact location of the removal of bone during the arthroscopy, and the absence of imaging of Patient B's hip between 15 February 2012 and 11 April 2012.

1. Dr Young's report dated 12 September 2012 noted the reference in Dr Hocking's first report to 'a pincer impingement' being resected and went on:

Dr Richard Hocking assures that there was no attempt to remove a pincer lesion but simply to freshen the bone underneath the torn labrum, to reattach the labrum which I would concur is totally appropriate. After there was a failure to be able to get sutures to hold in the labrum, part of the labrum was resected but again due to technical difficulties unfortunately the mini capsulotomy used to access the labrum was not repaired at the time of surgery. However, the patient was asked to remain on crutches for a prolonged period of time to protect the hip from subluxation and the patient was advised to undergo a Periacetabular Osteotomy'.

1. He then observed that 'many surgeons around the world have had this experience_'_,[36] which was well documented in the literature including an article by Mei-Dan and Brick,[37] and concluded: 'I believe Dr Richard Hocking ... became the victim of an unfortunate complication, perhaps avoidable if the proposed Periacetabular Osteotomy was performed soon after the hip arthroscopy'. In his report of 9 April 2014, Dr Young noted:

One could be critical of embarking upon that labral report finding that the labrum was too degenerate to repair and needing to resect it and then not protecting the hip with an immediate periacetabular osteotomy.

1. Dr Young reported on 9 April 2014: 'I do note in the detailed operative report [second report] of Richard Hocking, he talks about removing a 'spur of bone from the edge of the acetabulum' which he felt might cause pincer impingement. A spur of bone simply means flattening the edge of the acetabular rim which would not in itself reduce the coverage of the femoral head significantly and therefore would play only a minor part in de-stabilising the hip. The capsulotomy and the fact that the labrum was not repairable were the two aspects of the hip arthroscopy intervention that most contributed to the instability in the hip, as the subluxation was occurring, producing acetabular edge overhanging and then the rapid onset of subluxating osteoarthritis' (at 3-4).

1. In his report of 7 December 2012 Professor Cundy had noted that in the second operation report Dr Hocking had stated that 'the contour of the acetabular rim was not altered by the burr as the labral remnant remained in position'. Professor Cundy said of this comment: 'This would appear to indicate that Dr Hocking was aware of the potential dangers of removing bone from the acetabular rim in a patient with hip dysplasia'. He then went on: 'I consider it was inappropriate to remove the bone from the patient's acetabular rim especially, as stated in the 'first' operative report, the labrum was found to be not suitable for repair prior to the described bony rim surgery (at 5).
2. In his 11 September 2014 report Professor Cundy commented on the location of the bone removal by Dr Hocking:

This 'first' operative report ... indicates that a pincer lesion was encountered after the acetabular rim was exposed and the rim was recontoured. This clearly indicates that bone was removed from the patient's acetabular rim. The 'second' operative report provides different details and makes reference to a 'lump' of bone which was removed and includes details to differentiate it from the pincer lesion described in the 'first' operative report. In fact, the initial pincer lesion is described in the 'second' report as a 'misnomer' and [the second report] later makes specific mention that the contour of the acetabular rim was not altered by the burr. This is different to the 'first' operative report where it is clearly stated that 'The rim was recontoured so that the pincer lesion would not impinge after the planned PAO'.

1. Professor Cundy confirmed in a letter dated 24 February 2014 that he had viewed the supplied images but was 'of the opinion that three of the images are consistent with the action of surgical bony debridement of the acetabular rim'. As he had said in a report of 12 December 2012: 'I consider the debridement of the acetabular rim was not required and the performance of this part of the procedure has contributed to the hip subluxations'.
2. He pointed out that the stability of the hip joint relies on structures including the 'bony structures of the hip joint, the capsule and the surrounding labrum' and that: 'The procedure of left hip arthroscopy performed on [Patient B] did alter all these 3 structures by way of bony debridement of the acetabular rim, division of the capsule ... as well as debridement of the labrum (which was deemed irreparable)'.
3. In response to a question about whether the intra-operative photographs show that Dr Hocking removed bone from the patient's acetabular rim during the operation in question, Professor Cundy said in his report dated 11 September 2014:

The intra-operative photos indicate that a burr was introduced into the joint. The intra-operative photos do not readily reveal what was exactly performed with the indicated burr, however, the 'first' operative report does clearly indicate that 'the rim was recontoured' and I feel it is reasonable to therefore assume that this bone recontouring was performed with an instrument similar to the burr as evidenced in the operative photographs.

In addition the 'second' operative report makes mention of the use of a burr but in this report Dr Hocking alleges that this was used to remove extra articular bone. Whilst the intra-operative photographs do not clearly demonstrate removal of bone from the acetabular rim, the 'first' operative report written by Dr Hocking indicates that this was performed.

1. In his evidence to the Tribunal Professor Cundy said:

We've got strong suggestions from the intra-operative photos that bone was removed. We've got evidence from comparing the pre-arthroscopy and the x-rays and the x-rays done during the arthroscopy that bone was removed and comparing those with the post-operative x-rays as well it also reflects that bone has been removed from the acetabular rim beyond a simple freshening up of the bone.[38]

1. He provided, at short notice, a further report for the Tribunal after he had given his initial evidence. This report, dated 22 March 2015, commented on a number of extra images that were produced for the first time by Dr Hocking at the hearing (Hocking images). The report affirms his opinion, based on the images supplied, that the anterior wall of the acetabulum overlapped the acetabular roof and was not clearly separate from it as Dr Hocking's diagram on the second of his images indicated. He interpreted the information from Hocking image 7/17 as indicating that the extra-articular bump 'is on the acetabular rim'.
2. He agreed that the burr used in the operation was in the hip joint 'as described anatomically' as it was 'in the para-labral gutter'. As he said both the 'intra-articular' and the 'extra-articular' compartments 'are within the hip joint proper'. He confirmed that the term 'extra-articular' really means 'it's not within the opposing surfaces of the femoral head and acetabulum'. However, 'it is within the hip joint'.[39] He repeated that his reading of Hocking images 10/17 and 11/17 'confirms removal of bone from the acetabular rim'.
3. Professor Cundy also noted that if the location of the bump was as shown by Dr Hocking, it would not have caused impingement after a PAO as it was well above the acetabular rim. That again suggested that it was the acetabular rim from which bone was removed rather than above it. He adhered to this view under cross-examination.[40]
4. He reiterated this view in his evidence on 24 March 2015 when he said:

... it's been alleged that when a peri-acetabular osteotomy is performed, that bump of bone there would impinge on the femoral head/neck area. I do not believe that is possible. The bump of bone is outside the acetabular rim, and if I put the femoral head in the socket ... when the peri-acetabular osteotomy is done, the pelvis is shifted laterally and anteriorly to improve the coverage of the socket over the ball. Now, if the bump of bone is up there and you've tilted your pelvis laterally and anteriorly, what will happen is that the acetabular rim will bump into that area well before that bump of bone would bump into it.[41]

1. In his final evidence to the Tribunal on 24 March 2015, Professor Cundy said, in his view, using the clock face analogy to describe the site of the debridement according to Professor Smith, the area of bone removed was around 10 o'clock to 1 o'clock but Hocking image 9/17 suggested that the bone removed was from 12 o'clock to 2 o'clock. That brought the site of the debridement closer to the red dot on Hocking image 9/17 which, as Dr Hocking claims, was where he located and removed a bump.[42] He did concede that if the bump of bone was in the location suggested by Dr Hocking, removal of it would 'be highly unlikely to destabilise the hip joint'.[43]
2. In response to the argument of Dr Hocking that it was rapid arthritic change, rather than any excess removal of bone by him that caused the need for the total hip replacement, Professor Cundy said that the 31 May x-ray revealed 'bone-on-bone articulation' and he observed 'less bone in the area of the acetabular rim'.[44] When asked whether the deterioration of the hip bone between February and April could have been due to weight-bearing, rather than removal of bone during the arthroscopy, he said he was surprised at the rapidity with which the deterioration occurred. In his view the bone was removed surgically, rather than due to natural causes and this was confirmed by the first report.[45]
3. On this issue, the transcript contains the following interchange between counsel for Dr Hocking and Professor Cundy:

Is there any other explanation for the change in the contour of the acetabulum between the x-rays that were taken 11 April 2011 and those taken on 31 May and 3 June 2012?---It is possible that with weight bearing that the femoral head has caused a deformity to that area as well as on that area depicted.

For instance, if the femoral head was subluxing because the - for example, the removal of part of the labrum and the capsulotomy itself, that could well, I'm going to suggest to you, cause the bone on bone friction in precisely the area that's shown in those later x-rays. Do you agree with that?---I agree it is possible, but it does surprise me with the rapidity of which those occurred.

That presumably depends on the idiosyncratic anatomical qualities of the individual patient?---Yes.

... And in all of those circumstances, the truth is, isn't it, Professor, you are not able to say whether what is shown on those 31 May and 3 June x-rays is a result of surgical removal of bone as opposed to friction caused by a subluxing joint?---Indeed, I am able to say that there was surgical removal of bone from that area because it's clearly stated in the first operative report that bone was removed from the acetabular rim.[46]

1. Professor Cundy refuted Dr Hocking's evidence to the Tribunal that, if the quantity of bone removed was as described by Professor Smith, there would have been insufficient time to complete the removal within the time taken for the arthroscopy. As he noted, if Dr Hocking's account was accepted, it took him less than five minutes to remove the 'extra-articular bump' and even if the amount of bone removed was larger, 'with powered instruments, such surgical debridement can be efficiently performed and not take much longer [than 5 minutes] to perform' (at 3). In cross-examination he maintained that to burr away two to three cubic centimetres of bone, the amount estimated by Professor Smith, would take five to ten minutes.[47]

1. Professor Smith took over the care of Patient B in early June 2012. On 29 June 2012 Professor Smith wrote to Dr Hocking and said:

As I discussed with you this morning, there was in my opinion no indication for removal of bone in this patient. Contrary to your assertion that the reason that this hip came out of joint was due to the capsulotomy, the real reason is bone removal. The degree of bone loss following your arthroscopy is apparent when the preoperative and postoperative radiographs are compared. The issue in hip dysplasia is that there is not enough bone. Removing bone makes things worse - as exemplified in this case. Your operation report clearly states that you found a pincer lesion and removed bone - there is no pincer lesion in a patient with hip dysplasia - including this patient - I have diligently reviewed all XR and preop scans and have verified this. The patient had significant anterior and superior bone deficiency - see the false profile view for confirmation.

1. On 20 July 2012 he wrote to the general practitioner of Patient B, following the total hip replacement he had performed on Patient B that day, and noted:

On the acetabular side there was a significant superolateral defect measuring approximately 3cm in length by 1.5cm in height. [Patient B's] own native femoral head was used to reconstruct the defect with the graft configured in a figure 7-type format fixed with several screws. A 52mm outside diameter acetabular component was inserted with a single supplemental screw.

1. On 5 December 2012, Professor Smith wrote to the Board. In that letter he noted: 'I have reviewed x-rays taken in April 2011 and these clearly demonstrated evidence of left hip dysplasia, there was no evidence of any degenerative joint disease at that stage of the well maintained joint space'. His report continued:

I have thoroughly reviewed ... the preoperative plain radiographs taken in April 2011 and preoperative MRI scan of the hip taken in June 2011. There is no evidence of a left acetabular pincer lesion seen on preoperative imaging. A pincer lesion is defined as excess acetabular bone which thereby impinges on the femoral neck at the extremes of movement. [Patient B] in fact demonstrates evidence of a deficiency of acetabular bone, namely hip dysplasia, which is the opposite end of the acetabular morphological spectrum to that seen in a pincer lesion situation.

[Following a history of the matter, the report continued:]

At further review approximately three months following the operation [arthroscopy] an x-ray was taken. The x-ray showed that the left hip had almost fully dislocated and had gone on to develop significant radiological signs of arthritis.

[The report noted that on 6 June 2012 Professor Smith examined Patient B while she was in hospital:]

Review of her radiological investigations clearly demonstrated a significantly subluxed left hip joint with evidence of significant acetabular bone loss and degenerative changes on x-ray. I organised an urgent CT and MRI scan on the basis of the plain x-ray series. Those investigations ... [demonstrated] once more major joint degenerative changes with full thickness chondral surface loss confirmed on MRI arthrogram imaging. Significant acetabular bone loss was confirmed both on CT scan and MRI scan...

The inescapable conclusion as to why [Patient B's] left hip had come out of joint and developed rapid arthritic change with total destruction of joint surface was that the combination of the hip arthroscopy and associated capsulotomy together with an extensive labral resection and removal of bone had rendered a hip which was dysplastic to begin with and therefore at risk, even more unstable leading to the hip migrating out of joint producing point loading and subsequent degeneration.

1. In a statement in July 2013 Professor Smith noted that in an email exchange between himself and Dr Hocking in mid-June, Dr Hocking had sent him 'the photos of [Patient B's] hip joint at the time of the first hip scope' but that this was not the complete set. His statement continued[48]:

.... Dr Hocking did not give me the intraoperative pictures which showed the removal of bone from the acetabular rim. I received those pictures from the patient, when she showed me the complete set of x-rays and intraoperative images. At that point I realised that bone had been removed during the arthroscopy.

20. I specifically asked Dr Hocking about this (verbally). I said to him words to the effect of: "Did you remove the bone, Richard?"

21. He answered in words to the effect of: "no".

1. In a letter to solicitors for the Board dated 17 February 2014, Professor Smith said in response to a question 'What evidence have you relied upon to come to the conclusion that bone was removed from the patient's acetabular rim by Dr Hocking?'-

Several of the available intraoperative photographs showed a large area of debrided bone continuous with the hip joint itself. One of the available intraoperative arthroscopic photographs clearly shows an arthroscopic burr which has been introduced into the joint. The purpose of an arthroscopic burr is to remove bone.

Further evidence that bone has been removed from [Patient B's] acetabular rim is available by comparison of the preoperative plain radiographs versus the post-surgical radiographs which clearly demonstrate loss of acetabular rim bone.

Further to this when undertaking [Patient B's] hip replacement a significant anterolateral bone defect was encountered consistent with the above removal of bone. That bone defect required bone grafting in order to restore bone stock at the acetabular rim.

1. In response to the question 'What consequences followed the removal of bone?' Professor Smith said:

[Patient B] had extensive acetabular labrum and acetabular bone removed by Dr Hocking. The direct consequences of the removal of both labrum and acetabular bone were to remove critical supportive structures responsible for load bearing and stability of the hip joint. Because of the removal of these structures [Patient B's] hip became unstable, came out of joint, and became rapidly destroyed as a result.

1. In a further letter to solicitors for the Board of 3 September 2014, Professor Smith maintained that, despite Dr Young's comments, the intraoperative photographs demonstrate that Dr Hocking removed significant bone from the patient's acetabular rim during the operation in question. His reasons were that the burr within the joint was directed to an area of exposed bone in continuity with the hip joint, the removal of bone was consistent with the radiographs post-surgery which showed bone loss, and he had found a corresponding bone defect when he did the hip replacement surgery. He also said in evidence that he had been convinced, prior to his total hip replacement surgery, that bone had been removed based on Dr Hocking's first operation report, the arthroscopy images, the x-ray, the CT scan and the MRI scan, all of which were 'consistent with removal of bone from the acetabulum'.[49]
2. Professor Smith supplied at short notice a supplementary statement, dated 23 March 2015, following the production by Dr Hocking of the Hocking images, some of which had not previously been seen.
3. In relation to Dr Hocking's testimony, Professor Smith said Dr Hocking:

... incorrectly represents the site of the defect and the site of bone graft to the superior-posterior acetabular rim. This is a misrepresentation, as reference to my hip replacement operation record will clearly demonstrate. The defect was in the antero-superior acetabular rim'.

1. He agreed that the site of the bone removal Dr Hocking presented in Hocking image 9/17 is antero-superior which is where the defect was found and the bone graft placed. That description appears to correspond to the antero-superior region of the hip joint, that is, in front and above the acetabular rim. Professor Smith denied in cross-examination that the bony lump which was debrided was a centimetre or so away from the acetabular rim.[50] He also said that the debridement, using the clock-face analogy was closer to 10 to 12 on the clock face.[51]
2. Of the Hocking image 11/17 he said in his report of 25 March 2015 that 'The image to the right clearly demonstrates bone which has been removed down to the line of the acetabular joint margin. This is inside the joint. This is inconsistent with Dr Hocking's claim that bone was only removed from an extra-articular structure'. He also noted of image 11/17 that the 'marked areas do not correspond to the area of bone defect encountered at hip replacement surgery and where the bone graft was placed'.
3. In relation to Hocking image 12/17 and photos 5 and 6, Professor Smith disagreed with Dr Hocking that 'It is impossible for this photograph to be taken if the area of bone that is alleged to have been removed was removed during the operation_'_. His disagreement was because he said 'the view is of the remaining posterior segment of labrum and does not include the more antero-superior acetabular rim where that and the associated labrum had been removed'.
4. Professor Smith was also critical of the conclusions drawn by Dr Hocking in relation to the Hocking image 13/17. The reason was that it was a two dimensional image of a three dimensional structure and on such an X-ray image, he said 'it is simply not possible to conclude whether a bone defect is anterior or posterior'. By contrast, as he said, it is possible to so conclude relying on a CT scan and in Patient B's case, the CT scan confirmed the defect is antero-superior. He said, the location of the defect was also confirmed in the operative findings as contemporaneously documented as antero-superior.
5. Professor Smith also disagreed with Dr Hocking's evidence that Hocking image 15/17 indicated there had been 'significant advancement in arthritis comparing x-ray taken on the 31st May vs x-ray taken 17th July', because, as he said, 'the two radiographs demonstrate virtually identical levels of joint destruction'.
6. In earlier evidence, Professor Smith had said there was no arthritic change in Patient B's hip prior to the arthroscopy. His evidence was that Patient B was a 'young, very fit, active young lady. She had fantastic bone quality',[52] and that she 'had no evidence of any arthritic change at all on her imaging studies prior to her arthroscopic surgery_'_.[53] He also said 'there is no bone that is protruding anywhere on any pre-operative imaging.[54]
7. The evidence of the good state of Patient B's hip bone pre-operatively was supported by the radiographic findings which were:

1. 29 January 2002: 'Bone density is normal throughout'. 2. 26 June 2007: 'No ... significant bone or joint abnormality is seen'.

1. 11 April 2011: 'There are no arthropathic changes at this stage'.

1. It was not until 31 May 2012 that the images recorded: '[T]here are moderate secondary osteoarthrosis changes_'_.
2. Professor Smith's report of 23 March 2015 denied that the 'mark events' indicators on the chart relied on by Dr Hocking to indicate that he had limited time for conducting the arthroscopic procedure were indicators of the actual surgery time. Accordingly, his view was that Dr Hocking had up to 90 minutes for surgery, a period more than adequate to undertake the degree of bone removal he posited. He remained firmly of that view despite cross-examination.[55] Professor Smith concurred with Professor Cundy that large amounts of bone can be removed rapidly by means of a power burr. As he said in evidence in response to Dr Hocking's assertion about lack of time, the amount of bone removed could be done, using a burr 'in 15-20 minutes easy'.[56]

1. In a report dated 22 July 2014, Dr McNicol said that in his professional opinion 'In order to affect a labral repair I would expect debriding of the acetabular rim subjacent to the area to be repaired'. He noted that he had seen images 1-6 provided to him and said they were 'isolated static images ... generally of poor quality'.
2. Dr McNicol said that following a Salter osteotomy, as had been performed on Patient B when she was 2 years of age, in his experience the result of the osteotomy and the attendant bone graft involved, 'usually leads to an irregularity of the bone and an associated bone bump immediately above the acetabular margin but in the extra-articular region'.
3. In cross-examination, Dr McNicol conceded that, for the purpose of his report of 22 July 2014, he should have addressed the reports of Professors Smith and Cundy when answering the question whether Dr Hocking removed a significant amount of bone from the acetabular rim, and that he had not done so.
4. He also conceded that he'd 'been informed that there was a bony prominence' and he had accepted that, relying on Dr Hocking's second operation report and that he had believed Dr Hocking when he said the second report was more reliable than the first.[57] He agreed that he was not relying on the first operation report, and had not done so following his discussions with Dr Hocking.[58]
5. Dr McNicol also volunteered that he had discussed the operation with Dr Hocking.[59] He said he had done so also looking at the imaging and at models of the pelvis, as well as the past history of Patient B, albeit he acknowledged that he had agreed that 'looking at isolated images can be exceedingly misleading'.[60]

1. Dr Hocking said he encountered an extra-articular bump during the surgery, and he maintained that:

This was the only part of bone that was removed, other than decortication, during the course of the operation. And as the tribunal can see, it is in a different location to the area that the board is claiming I erroneously removed at the time of Patient B's operation.[61]

1. He also said the bump was 'not inside the joint, nor is it on the acetabular rim'.[62] His claim that the bone removal was 'extra-articular' was because he was 'trying to distinguish from an articular pincer lesion',[63] and because he wanted to establish that he had not removed bone from the acetabular rim. In support of his view that he had not removed bone as suggested by Professor Smith, Dr Hocking said the Hocking image 12/17, taken after traction had been removed, showed 'a degenerate but intact labrum'. He said 'It is impossible for this photograph to be taken if the area of bone that is alleged to have been removed was removed during the operation'.[64] It was also his evidence that to remove the amount of bone suggested by Professor Smith would have taken over 40 minutes and could not have been essayed during the actual operating time available.[65]
2. Dr Hocking's principal argument was that the hip degeneration after the arthroscopy as indicated by x-rays on 31 May 2012 which showed 'moderate secondary osteoarthrosis', was due to arthritic changes consequent upon 'point of point loading, particularly on the acetabular side'. As he said the arthritic change to the left hip:

...is more pronounced than on the radiograph of the right-hand side. This indicates that this process was rapidly evolving. I concur that there has not been further subluxation but I would contest that the bone itself shows further changes that were present but to a lesser extent on the views of 31 May.[66]

1. Dr Hocking said, having viewed the Hocking image 12/17 containing photographs 5 and 6:

... thus, it is my contention that the amount and the location of bone erosion occurred postoperatively and it was of a sufficient amount for Prof Smith to determine that a figure 7 graft was required for him to stabilise his acetabular component at total hip replacement surgery.[67]

1. The Tribunal was provided with a considerable number of published papers relating to hip arthroscopy. Those dated after February 2012 have generally not been considered since Dr Hocking's behaviour is to be considered by reference to relevant standards at that time. The Tribunal, by relying on these papers, has assumed that an orthopaedic surgeon such as Dr Hocking with a sub-speciality in hip and pelvic surgery would keep up to date with the published clinical findings of colleagues. The Tribunal is confirmed in that view by Dr Hocking's record of attending conferences in his speciality area, and by the sustained period of retraining and supervision to which he has recently been subject. Dr Hocking also conceded to the Performance and Professional Standards Panel that he was aware of the literature.[68] Accordingly the Tribunal has inferred that Dr Hocking would have seen at least a selection of the nominated articles prior to performing the arthroscopy on 15 February 2012.
2. The Tribunal accepts the view of the experts that hip dislocation following an arthroscopic procedure is a combination of damage to the three major static stabilisers of the hip being bony structures, the labrum, and the cover or capsule of the joint. The orthopaedic literature contains warnings about the destabilising effects on the hip of treatments which affect one or more of those three stabilisers. A summary of the articles follows:

'... isolated treatment of the labral lesion in the presence of underlying hip dysplasia may carry a high risk of failure to improve symptoms and function in the long term because the abnormal mechanics are not changed'. As a consequence, the article concludes: 'Patients with hip dysplasia who undergo arthroscopic debridement of a labral tear need to be carefully watched, and earlier intervention with a periacetabular osteotomy should be considered'.[69]

'... it is known that the labrum is an important structure that confers stability to the hip by increasing the volume of the acetabulum. Hence, it is intuitive to deduce that excision of labrum, particularly in patients with shallow sockets, is likely to compromise stability further. ... Hence, we believe that labral excision in patients with symptomatic dysplasia, in addition to failing to control symptoms in a large number of cases, can also have a detrimental effect on patient outcome by further compromising the biomechanics of the hip and increasing the stress on the lateral region of the acetabulum'.[70]

'Instability after hip arthroscopy is due to a number of factors, including excessive rim trimming, capsulotomy, overzealous labral resection, or inadequate labral repair'.[71]

'Our case shows that catastrophic instability can result despite minimal disruption of the static stabilizers [bone, labral and capsuloligamentous tissue]... In patients with dysplasia, rapid, sustained degeneration can be expected with any degree of subluxation'.[72]

'Bony hip instability may develop in relation to excessive bone removal from the acetabular rim. Different from soft tissue instability, excessive bone resection from the anterior acetabular rim may result in anterior hip dislocation'.... No bony resection must be performed in cases that have center-edge angles of 20 degrees or less as measured in the anteroposterior pelvis radiograph.[73]

'Simple debridement of the deteriorated portion of the labrum is unlikely to accentuate this subluxation potential but great care must be taken in the debridement procedure, especially avoiding an overly zealous resection'.[74]

'Case reports of subluxation and dislocation after arthroscopic hip surgery ... highlight the potential negative impact of capsulotomy without closure in the presence of hyperlaxity or when normal osseous constraints are compromised'. That is because 'Biochemical and clinical studies have consistently shown that the hip joint capsule plays an important role in maintaining stability of the hip joint'.[75]

1. Professor Cundy also quoted from two articles:
   1. '... the reduction in bony containment in a dysplastic hip joint increases the probability of subluxation, especially where the acetabular labrum is trimmed excessively' and 'to minimise the possibility of hip instability, it is important not to reduce the stabilising factors (Table 1) over the hip joint too much, especially in a dysplastic hip joint'. [76]
   2. 'No rim trimming is performed in femoro-acetabular impingement patients exhibiting a dysplastic acetabulum', and Table 2 'Tips and Pearls to prevent iatrogenic hip dislocation': 'avoid rim trimming with dysplastic acetabulum'. In addition the article also noted that although 'Most experienced hip arthroscopic surgeons do not perform routine capsular repair' the author suggested that in patients at risk, capsular repair can help stabilize the hip.[77]

1. The parties' closing submissions can be summarised as follows:

1. Dr Hocking's evidence was that his reports indicated that he had recontoured the acetabular rim;
2. the evidence of Professors Cundy and Smith was that the bone had been removed from the acetabular rim based on a comparison of the pre and post-operative x-rays, in particular a comparison of images 1/13 and 5/13 of exhibit A1. Dr Young also agreed with this;

1. the cause of the missing bone was not due to acetabular wear from the grinding of bone on bone, due to activity on the part of Patient B. That suggestion was 'based on an incorrect factual assumption as to Patient B's relative activity during this period';

1. this submission was also based on the first operative report which was contemporaneous and its contents were therefore to be relied on as compared with the second report;
2. Dr Hocking's claim that he only removed a bony impingement from the extra-articular region was belated. That is supported by Dr Young's first expert report which records what he had been told by Dr Hocking and refers to cutting off bone that might be a cam impingement, which Dr Hocking said was not the kind of impingement present in Patient B;
3. Dr Hocking admitted that there was no reference in Dr Young's first report dated 9 September 2012, to his advising Dr Young that he had removed any bone other than during the decortication of the acetabulum;
4. it was not part of Dr Hocking's treatment plan of 19 August 2011 to remove bone during the hip arthroscopy and had a bony impingement been recorded, he would have seen it and recorded it as part of his treatment plan; and
5. Dr Hocking engaged in conduct where the skill, judgment possessed and care exercised by him in the process of the practice of his profession fell below the standard reasonably expected of a health practitioner of an equivalent level of training or experience and amounted to unsatisfactory professional conduct.

1. Dr Hocking did not make an admission against interest in cross-examination when he said he had exposed the underlying acetabular rim 'and a pincer lesion was encountered' and [t]he rim was recontoured'. He denied that meant he had recontoured the rim itself. As he said 'The rim is not being a specific anatomical feature here'[78] and 'What I've done is I've recontoured an extra-articular part of the hip which is irrelevant to stability'.[79] He pointed out there was a distinction between the 'intra-articular' and the 'extra-articular' part of the acetabular rim;
2. Dr Hocking did not remove significant bone from Patient B's acetabular rim. He resected a bump outside of the articular part of Patient B's hip joint, proximate to but not from her acetabular margin;

1. Dr Hocking's evidence was that Photographs 5 and 6 of Exhibit A1 show that the area of bone alleged by Professors Cundy and Smith to have been removed, remained intact, and is visible at the end of the 15 February 2012 procedure. In contrast, Professors Cundy and Smith were not able to explain where photograph 5 and photograph 6 were taken;[80]

1. Dr Hocking maintains that to have debrided a volume of bone this large with an instrument as fine as an arthroscopic burr, would have taken in excess of 40 further surgical minutes which would have taken him outside the surgical time evidenced for the arthroscopy;
2. the bone removed from Patient B's left hip acetabulum was a defect caused after Patient B's left hip subluxed, and some time after the 15 February 2012 hip arthroscopy;
3. according to Dr Young's evidence the mechanism of subluxing osteoarthritis, following hip arthroscopy, has three causes:

(i) if the capsulotomy incision, used to gain access to the joint for the instruments, is not firmly closed and protected. In Patient B's case, the Performance and Professional Standards Panel has already decided the Dr Hocking had no case to answer for not repairing Patient B's capsulotomy as it is standard practice among hip arthroscopists;

(iii) removal of bone from the roof of the acetabulum. Patient B experienced the two most common causes - capsular weakness and the loss of labral tissue;

1. the literature, in particular the Mei-Dan and Brick article, reported that rapid clinical and radiographic deterioration can occur in the space of months after hip arthroscopy.

1. There are four aspects of the question about the cause of the deterioration of Patient's B's hip:

1. could the post-arthroscopy damage to her hip be due to two only of the major static stabilisers, namely, the irrepairable labrum, and the failure to suture the hole in the capsulotomy; 2. could the disclocation have been due to activity by Patient B causing deterioration of the bone in a situation where two of the stabilisers had been weakened;

1. was there sufficient evidence that the deterioration of the hip was due to action taken by Dr Hocking; and

1. was there sufficient operational time for Dr Hocking to have removed the quantity of bone alleged by Professor Smith?

If the response to (a) is yes, there is no liability in Dr Hocking since it is accepted that the failure to repair the labrum was due to the pre-existing state of the labrum and could not have been avoided; and the Board has found that there is no case to answer about the failure to seal up the capsule since not doing so is common practice in the profession.

(a) Was the deterioration of bone due to the effect of the capsulotomy and the failure to repair the labrum alone?

1. There is no dispute that Dr Hocking performed a capsulotomy to facilitate the arthroscopy and also that he did not suture the capsule at the conclusion of the arthroscopy. There is also no dispute that the labral repair failed due to the damaged state of the labrum.
2. Dr Hocking maintains that the literature supports the possibility of rapid arthritic change following subluxation due solely to malfunction of two of the three static stabilizers of the hip joint, the failure of the labral repair and the capsulotomy.
3. The Tribunal accepts that the papers referring to the impact of a weakening or damage to one only of the stabilisers do not claim that there is definitive evidence that this can lead to hip instability. Matsuda notes that in patients at risk of hip dislocation, there are good reasons as a matter of caution to effect capsular repair. Equally BG Domb et al conclude that 'arthroscopic hip surgeons should become facile with arthroscopic repair or plication techniques to restore proper capsular integrity and tension when indicated'[81]. The Tribunal notes, however, that the Domb article post-dates the events of 15 February 2012, and both articles point out that it is as yet unclear whether capsular cuts left unrepaired affect instability.
4. None of the articles deal with the impact of damage or weakness in two of the stabilisers. The article by Mei-Dan does indicate that 'rapid, sustained degeneration can be expected' when all three static stabilisers are weakened and that that can result from even 'minimal disruption to the static stabilisers'. Moderate arthrosis was apparent in Patient B by 31 May 2012, some 2.5 months after the operation. The rapidity with which this change arose in Patient B, suggests all three stabilisers were involved in her case.
5. That finding is supported by evidence from imaging prior to the arthroscopy that there was no evidence of arthrosis prior to the surgery. That is consistent with her youth. It would be unusual for a 14 year old to experience deterioration of bone. As Professor Smith indicated, she was a 'young, very fit, active young lady. She had fantastic bone quality' and she 'had no evidence of any arthritic change at all on her imaging studies prior to her arthroscopic surgery'. The imaging prior to the arthroscopy also supports this finding.
6. Given the rapidity of the change in the period February 2012 to 31 May 2012, the accelerated nature of the deterioration is more likely to have been due to a combination of change to all three of the static stabilizers, rather than two only. That finding is consistent with the literature which indicates that excessive rim trimming coupled with a capsulotomy, and inadequate labral repair are likely to lead to rapid hip instability particularly in patients with hip dysplasia. According to Mei-Dan, even minimal disruption to the three static stabilisers can lead to dislocation. That conclusion is also consistent with the findings by Benali and Matsuda referred to earlier.

(b) Was the dislocation due to activity by Patient B where two of the stabilisers had been weakened?

1. Dr Hocking suggested that the rapidity of the deterioration was due to weight bearing on the hip by Patient B following the arthroscopy. In other words, that the cause of the missing bone was acetabular wear from the grinding of bone on bone, due to activity on the part of Patient B. The Tribunal does not accept that submission. The Tribunal notes that Patient B was asked by Dr Hocking to remain on crutches 'for comfort', and for a prolonged period, according to Dr Young's 12 September 2012 report. She did continue to experience pain immediately after the surgery as evidenced by her reluctance to engage in post-operative physiotherapy. She consulted Dr Lees in March who referred her to Dr Hocking due to the continuation of her pain. Having seen her on 20 March 2012, Dr Hocking recommended injection of a local anaesthetic and use of steroid to speed up pain reduction.[82] These events indicate that her hip remained painful up to five weeks after the operation.
2. In a further letter to Dr Lees on 10 April 2012, Dr Hocking says 'she is much better now' indicating pain reduction. However, a letter from her physiotherapist, dated 4 May 2012, noted that Patient B reported on-going pain and weakness in her left hip and that she could not walk the five minutes from home to school. The physiotherapist also indicated he would need another five weeks of treatment to achieve a satisfactory outcome. Professor Solomon noted in his report of 2 July 2012, that she was still reliant on crutches when he saw her at the end of June 2012. This history indicates that it is likely that her pain continued until July 2012 when she underwent her total hip replacement and that she used crutches throughout this period. The Tribunal finds accordingly that use of crutches, particularly during the period from mid-February to 31 May 2012 when moderate osteoarthosis was identified, meant that deterioration of Patient B's hip was not due to the impact of weight-bearing on her left hip.

(c) Was sufficient bone removed from the acetabular rim by Dr Hocking to contribute to hip instability?

1. Dr Hocking's first report stated that he had 'recontoured the rim'. In evidence he denied that the contour of the acetabular rim was altered, asserting instead that the rim is a broad three dimensional area and the bone he burred was anterior to and above the rim, about 1cm from the margin and could not have contributed to hip instability. Dr Hocking did concede during the hearing that he had decorticated bone on the acetabular rim other than his burring of the extra-articular bump. The Tribunal notes that this decortication has variously been described as 'recontouring' the rim, and freshening the bone, in preparation for the PAO.
2. The experts did not agree on this issue. There is, however, evidence that the rim itself was recontoured and a significant amount of bone removed. The evidence of Professor Smith, Dr Solomon and Professor Cundy to this effect is as follows:

1. 'Several of the available intraoperative photographs showed a large area of debrided bone continuous with the hip joint itself. ... Further evidence that bone has been removed ...is available by comparison of the preoperative plain radiographs versus the post-surgical radiographs which clearly demonstrate loss of acetabular rim bone'.
2. 'The combination of the hip arthroscopy and associated capsulotomy together with an extensive labral resection and removal of bone had rendered a hip which was dysplastic to begin with and therefore at risk, even more unstable leading to the hip migrating out of joint producing point loading and subsequent degeneration'.

1. The burr within the joint was directed to an area of exposed bone in continuity with the hip joint, the removal of bone was consistent with the radiographs post-surgery which showed bone loss, and he had found a corresponding bone defect when he did the hip replacement surgery.

1. Professor Smith also relied on the evidence from the first operation report, the arthroscopy images, the x-ray, the CT scan and the MRI scan, all of which he said were 'consistent with removal of bone from the acetabulum'.
2. He also said there is no bone that is protruding anywhere on any pre-operative imaging.
3. 'Contrary to your assertion that the reason that this hip came out of joint was due to the capsulotomy, the real reason is bone removal. The degree of bone loss following your arthroscopy is apparent when the preoperative and postoperative radiographs are compared'.
4. The inescapable conclusion as to why [Patient B's] left hip had come out of joint and developed rapid arthritic change with total destruction of joint surface was that the combination of the hip arthroscopy and associated capsulotomy together with an extensive labral resection and removal of bone had rendered a hip which was dysplastic to begin with and therefore at risk, even more unstable leading to the hip migrating out of joint producing point loading and subsequent degeneration.
5. Initially Dr Hocking did not provide me with all the radiographs taken during the arthroscopy, but when I did see the remainder 'At that point I realised that bone had been removed during the arthroscopy' something Dr Hocking specifically denied when asked.
6. Dr Hocking 'incorrectly represents the site of the defect and the site of bone graft to the superior-posterior acetabular rim. This is a misrepresentation, as reference to my hip replacement operation record will clearly demonstrate. The defect was in the antero-superior acetabular rim'.
7. 'The site of the bone removal Dr Hocking presented in [Hocking] image 9/17 is antero-superior which is where the defect was found and the bone graft placed. That description appears to correspond to the antero-superior region of the hip joint'.

Dr Solomon noted, following his examination of Patient B under anaesthesia in early July 2012, that in his opinion the hip instability was due to a combination of factors affecting the stabilising agents for the hip including 'bone resection'.

1. '... three of the images are consistent with the action of surgical bony debridement of the acetabular rim', and Hocking images 10/17 and 11/17 'confirm removal of bone from the acetabular rim'.
2. Given the location of the burr in the images, and referring to the first operation report which states that 'the rim was recontoured', 'it is reasonable to ... assume that this bone recontouring was performed with an instrument similar to the burr as evidenced in the operative photographs'.

1. 'We've got strong suggestions from the intra-operative photos that bone was removed. We've got evidence from comparing the pre-arthroscopy and the x-rays done during the arthroscopy that bone was removed and comparing those with the post-operative x-rays as well it also reflects that bone has been removed from the acetabular rim beyond a simple freshening up of the bone'.

1. 'I consider it was inappropriate to remove the bone from the patient's acetabular rim especially. As stated in the 'first' operative report, the labrum was found to be not suitable for repair prior to the described bony rim surgery'.
2. In oral evidence Professor Cundy had responded 'Yes' to the question 'Do you still consider that Dr Hocking removed bone from the patient's acetabular rim'.

1. As noted earlier, Dr Young and Dr McNicol admitted in cross-examination, and stated in their reports that they had relied on conversations with Dr Hocking in the opinions they provided in their reports. So although those opinions support the view of Dr Hocking the Tribunal has given little weight to their evidence.
2. The Tribunal has relied on the evidence of Professor Smith, as one of the two persons who has operated on Patient B's hip, and in particular the evidence of Professor Cundy because he was the only independent witness and the Tribunal was impressed with the evidence he provided to it. Reliance on Professor Smith's evidence also means that the Tribunal has accepted that a significant amount of bone had been removed from Patient B's acetabular rim. It may not have been the 3 cubic centimetres Professor Smith estimated, but as the person who inserted a wedge of bone to supplement the missing bone, he was in the best position to assess the amount and location of the bone deficit. That evidence, according to Professors Cundy and Smith, was also supported by the pre and post-operative imaging, and what Professor Smith found during hip surgery on Patient B. Dr Solomon also confirmed, following his examination of Patient B, that there had been 'bone resection', at a site which affected stability of the hip.
3. Dr McNicol also noted that following a Salter osteotomy as performed on Patient B, it 'usually leads to an irregularity of the bone and an associated bone bump immediately above the acetabular margin but in the extra-articular region'. This evidence would support Dr Hocking if there was evidence that this had occurred in Patient B. However, the reports by the experts interpreting the imaging do not support such a bone development in Patient B.
4. Dr Hocking firmly denied that he debrided Patient B's acetabular rim. His later evidence was that his reference in his first operation report to having 'recontoured' the rim, meant no more than a 'freshening of the bone' and that the pincer lesion to which he referred, was more accurately described in his second operation report as 'an extra-articular lump of bone' removed. In his favour, both his first report and the letter on 23 March 2012 to Dr Lees referred to removal of a pincer lesion, which he later claimed was the bump. However, the first report also referred to 'recontouring' the acetabular rim, and in his oral evidence Dr Hocking confirmed he had undertaken bone decortication as well as removal of the bump, that decortication being of the acetabular rim.
5. The Tribunal is not inclined to accept Dr Hocking's denial that he removed bone from the acetabular rim. He acknowledged that he had made a mistake in his first operation report, and in the letter two weeks later to Dr Lees, in his reference to a 'pincer lesion'. Such a lesion is not present in a dysplastic hip. Despite that later concession, he had earlier attempted to conceal his mistake. The description of the second operation report as a 'shorthand report', and the reference to a pincer lesion as a 'misnomer' appear to be deliberate attempts to cover up his mistake. In addition, the removal of any reference in the second report to 'recontouring the rim' suggests a further attempt by Dr Hocking at a recasting of events. These changes cast doubt generally on the veracity of Dr Hocking's view of what happened during the arthroscopy. Professor Smith's evidence that Dr Hocking did not provide all the arthroscopic images to Professor Smith either when discussing Patient B's case, or when he handed over her care contribute to that impression. Professor Smith's evidence that when he obtained the complete set of images and identified removal of bone from the acetabular rim, but that Dr Hocking had denied this occurred, add to this view.
6. In addition, the Tribunal is not minded to accept Dr Hocking's revised version of the record for a practical reason. As Professor Cundy pointed out, if the bone removed was only above the acetabular rim, it would not in fact impinge on the femoral head after the PAO, in which case there would have been no need to excise it in preparation for the PAO. This supports the evidence that the site of the lump of bone was closer to the acetabular rim than Dr Hocking alleged, and raises the possibility that in 'freshening up' (decortication) of the bone at the acetabular rim he removed more bone in this area than is indicated by use of those terms.
7. That assertion is also at odds with the evidence of Professor Smith that he had to reconstruct a portion of the acetabular rim with a wedge of bone from Patient B's femoral head. That evidence indicates that there was missing bone and as the next finding indicates, it was not likely to have been caused solely by the moderate osteoarthritic change which eventuated after the arthroscopy. That view is also consistent with the earlier finding, based on the evidence of Professors Cundy and Smith and Dr Solomon's report that there had been resection of bone on the acetabular rim as evident in the radiographs and as visible to Professor Smith during the total hip replacement surgery. Dr Young also indicated that even minimal removal of bone could have a destabilising effect.
8. The Tribunal prefers to rely on the first operation report rather than the second because of its contemporaneity, and the fact that it predated any attempt by Dr Hocking to recast the events of 15 February 2012 in a more favourable light in the face of probable disciplinary action concerning the complications faced by Patient B.
9. Professor Cundy also noted that it can be inferred from the removal of the reference in the second operation report to recontouring the rim that Dr Hocking was aware of the consequences of more than minimalist bone removal in this area of the hip in someone with a dislocated hip. His comment reflects the warnings in the literature that for patients with dysplasia, there is a higher risk of complications when there has been 'excessive rim trimming, capsulotomy, or labral repair' and that even 'minimal disruption of the static stabilizers' can lead to 'catastrophic instability'[84]; that dislocation can occur due to 'excessive bony removal from the acetabular rim' and that patients with a 'centre degree angles of 20 degrees or less should not be subject to bony resection'.[85] Patient B's centre edge angle was according to the experts between 0 degree to 5 degrees, and in other evidence up to 15 degrees. In addition, the papers state that patients with hip dysplasia who undergo arthroscopic debridement 'need to be carefully watched',[86] and 'labral excision in patients with symptomatic dysplasia, 'can ... have a detrimental effect on patient outcome' due to compromises of the biomechanics of the hip.[87] These reports signify that any weakness in any of the three stabilisers of the hip for someone with hip dysplasia, much less with disruption to two or even three of the static stabilisers, increases the risk of hip dislocation.
10. In addition, since there was absence of bone on the acetabular rim when Professor Smith undertook the total hip replacement, there must have been a cause for that missing bone. In the previous section of the decision the Tribunal has concluded that deterioriation of the bone was not due to arthritic changes following active use of the hip. In that event, the absent bone is more likely to be due to removal of bone whether on the rim or above and close to the rim, that could only have been effected by Dr Hocking. As the evidence of Professors Cundy and Smith indicated, and the arthrograms confirm, he was using a burr during the arthroscopy and the purpose of that instrument is to remove bone. That conclusion is supported by the evidence, which was not shaken during cross-examination of Professors Cundy and Smith, supported by that of Dr Solomon, the findings in the literature, and Dr Hocking's first operation report. The Tribunal was not persuaded by Dr Hocking's later evidence in particular due to his deliberate attempt to change his evidence on this issue in the second operation report.

(d) Was there sufficient operational time to remove the quantity of bone alleged?

1. Dr Hocking contended that he could not have removed the alleged quantity of bone within the operational time. Professors Cundy and Smith dispute that finding given the effectiveness of the burr, and the fact that at most it would have taken between 15-20 minutes to remove the bone from the acetabular rim, given Dr Hocking's own evidence that he removed the lump of bone above the acetabular rim in about 5 minutes. The Tribunal accepts the evidence of the medical experts that removal of a considerable quantity of bone can be effected relatively quickly and it would have been feasible to have debrided the acetabular rim to the extent found in the time available.

1. The Tribunal finds, given this evidence, that Dr Hocking did remove bone from on, as well as above, the acetabular rim, and that removal increased the likelihood of hip instability so that when the failure of labral repair and the non-closure of the capsulotomy are added to the bone removal, that led to the rapid deterioration of Patient B's dysplastic hip post arthroscopy, with a resultant need for a total hip replacement.

Allegation 2: Failing to disclose restrictions on registration

1. Dr Hocking contended that he did not disclose the restrictions on his registration to Patient B's mother as there was no legal requirement to do so, and he was under the impression that the undertaking he had made would be removed in good time after the arthroscopy for him to perform the proposed peri-acetabular osteotomy. That impression he claimed was due to correspondence from the Board, and telephone conversations with the Board, between himself and the Board, and between his legal team and the Board.[88] In particular he contended that:

1. no provision of the Health Act 1993 (ACT) or the National Law required him to disclose his undertaking to the Board to Patient B on 27 May 2011 or 19 August 2011 as AHPRA was yet to finalise its investigation;[89] 2. the investigation into the Board's notification had only just begun,[90] and between 10 May 2011 and 1 August 2011 he was given every indication that AHPRA's investigations would be concluded quickly;

1. at the 27 May 2011 consultation there was no clear indication that Patient B required an elective open hip pelvic procedure;

1. at the time of the 19 August 2011 consultation the Board's investigation had already exceeded three months and he anticipated by the time Patient B would require a PAO, the investigation would be complete;[91] and 2. if Patient B required urgent surgical treatment of the kind precluded by the 5 May 2011 undertakings, he was willing to transfer surgical cases and did so when it became apparent that Patient B's condition had deteriorated and she required surgical intervention in June 2012.[92]
2. Patient B's mother maintained in her statements dated 10 July 2013 (at [5]), 25 September 2013, and 5 March 2015 that, at the time of her consent, she was unaware of the undertaking. Dr Hocking confirmed that he had not disclosed his undertaking to Patient's B's mother.[93]

1. The Tribunal accepts that there is no specific requirement in the Health Act 1993 (ACT) for disclosure to a patient of restrictions on registration. Nonetheless, such an obligation could be encompassed within one of the Act's objectives, namely, 'to ensure that ... patients have information that is sufficient to enable them to make informed choices'.[94] Compliance with the Act's objectives may be imposed on a doctor in the individual agreement between the doctor and the health service.[95] However, the Tribunal was not provided with this evidence.
2. The conditions on a surgeon's registration or a voluntary undertaking are required to be notified on the website of the Board, and as such can theoretically be discovered by any patient.[96] That also means there is a legal requirement for notification of an undertaking to the world at large. There is no evidence that the mother of Patient B accessed that website. Such notification does not impose any legal obligation of disclosure by the health professional to individual patients. At the same time, notification to a patient or consent-giver would be required in order for there to be informed consent by that person, assuming that the undertaking, as in Patient B's case, had a bearing on the treatment to which consent was required.
3. In addition, the Tribunal notes that the surgeons' Code states: 'A surgeon will ... be open and honest, particularly when the patient has suffered a complication or adverse event'.[97] Although the clause specifically refers to complications and adverse events as an occasion for openness and honesty by the health professional, that is only an example. Openness and honesty are generally relevant to the development of trust between a health practitioner and patient, a quality which is integral to the therapeutic relationship.
4. The Code also provides that 'It is a breach of this Code ... to undertake a procedure that the surgeon is not ... credentialed to undertake'.[98] Although Dr Hocking had not undertaken the surgery, this provision relates to minimising risk and is sufficiently broad to include all aspects of a surgical process, including informing a patient about the nature of proposed surgery, who will perform it, and any restrictions on performance of the surgery by the health practitioner.
5. The National Law provides that standards such as those contained in the Codes may be used in disciplinary proceedings 'as evidence of what constitutes appropriate professional conduct or practice for the health profession'.[99]
6. So there is a professional obligation to disclose, if relevant, any undertaking restricting the ability of a surgeon to carry out surgical procedures, and a failure to do so may be considered to amount to a breach of one or more of the disciplinary standards which the Tribunal has to apply. The failure to disclose restrictions can result in an adverse finding in legal proceedings. To that extent, there is a legal obligation as well as an ethical and professional obligation to disclose restrictions on practice when pertinent to proposed treatment.
7. The Tribunal rejects Dr Hocking's assertion since it considers he was taking an unnecessarily narrow, technical view, of any legal obligation to disclose.

1. The second, more significant, explanation was that Dr Hocking had an expectation that his undertaking would not be in effect at the time of the proposed second-stage treatment for Patient B. The Tribunal accepts that, as a public patient undergoing elective surgery, there would be a considerable delay in scheduling the second operation. It took six months, from August 2011 till February 2012, for the arthroscopy to be scheduled. Dr Hocking was aware of these delays.
2. Dr Young, in his letter of 9 April 2014, explained that 'Dr Hocking was under the belief that his restrictions were about to be lifted and that he would be able to do the peri-acetabular osteotomy himself in the public sector at a time not too distant from the hip arthroscopy undertaken'.
3. However, despite that reference to Dr Hocking's explanation, Dr Young noted in his report that he agreed with the statement of Professor Cundy that 'the failure to disclose the practice restriction ... does not ... [fully substantiate] the standards expected by an orthopaedic surgeon by professional peers'.
4. Dr Young also said that he did not believe the failure to disclose was professional misconduct or unprofessional conduct as:

Dr Hocking was working in a public hospital as part of the team looking after the patient. Dr Hocking was not looking after this patient as a private patient having the sole responsibility for the patient, but rather as a member of an orthopaedic department. ... As it was the department looking after the patient, I do not see an obligation to disclose to the patient that he himself could not do the open surgery.

1. The Tribunal considers this suggested abdication of responsibility in relation to a patient in the public health system is inappropriate, given the central role of the surgeon for treatment of all patients, a view strongly supported by Professors Smith and Cundy in their statements respectively of 3 September 2014, and 11 September 2014.
2. Professor Cundy, in a report dated 11 February 2014, acknowledged the embarrassment for a health practitioner revealing that they had practice restrictions. However, as he said, the existence of the restrictions is an indication for the general practitioner to refer to another practitioner and, in this instance, the general nature of the operation, a PAO, and the fact that it is generally performed shortly after an arthroscopic labral repair, should have prompted early arrangements to be made for such a procedure.
3. He also suggested that it was in the patient's best interest for the hip arthroscopy to be performed by the surgeon who was to perform the larger PAO procedure, but noted 'this may not always occur particularly if the surgeon specialising in periacetabular osteotomy does not have particular skills in hip arthroscopy'. He concluded 'the earlier involvement of a colleague who had no restrictions in practice would have been appropriate, particularly to schedule an early peri-acetabular osteotomy within weeks or months of the labral report'.
4. Professor Cundy's opinion, however, was that the failure did not 'fall substantially below the standard expected'.[100]

1. Dr Hocking tendered evidence of the correspondence between himself, his legal representatives, and the Board between May and August 2011 to illustrate that, at the time he proposed the two-stage procedure for Patient B, he expected that before the PAO would be scheduled his undertaking would no longer be in force. He referred in particular to five letters either between himself and the Board, or his legal representative and the Board, dated, 10 May 2011, 11 May 2011, 24 May 2011, 20 July 2011 and 18 August 2011 which he claimed supported that belief.[101]
2. His evidence was that at the 27 May 2011 consultation with Patient B's mother the context was that the PAO operation was only 'potential' and hence there was no need for disclosure at that time.[102] By the time of the consultation on 19 August 2011, Dr Hocking's evidence was that he had again been assured by the Board the previous day that there would be an outcome shortly. At the same time, the Board's Minutes of 13 October 2011 record that at its 18 August 2011 meeting, the Board had rejected a request by Dr Hocking to revise the undertaking,[103] and by email from his legal representative, at noon on 19 August 2011, Dr Hocking was informed that the application has been refused.[104]
3. Dr Hocking's 'Further Statement' dated 20 February 2013 said that 'Between May and September 2011, the Board did not provide me with any indication as to the progress of the investigation being undertaken by Ms Bjerring-Leyland' [the Board's investigator].
4. Dr Hocking was cross-examined on the whole of his evidence. He said he believed not only that he was going to get an expeditious decision, but that the restriction on doing a periacetabular osteotomy was about to be lifted.[105]
5. He conceded, however, in cross-examination, in relation to the documents on which he was relying to illustrate his expectation, that '20 of the 25 documents did not give rise to the state of mind he claimed to have at the time'.[106] In relation to the five documents he initially said gave rise to the expectation, he accepted that no reason was given for the expectation in two of the documents; in relation to the others, he eventually agreed that the time frame for an assessment arranged by the Board was either indeterminate or did not support his state of mind. In the result, Dr Hocking accepted that a particular letter from the Board dated 24 May 2011 which referred to the matter being dealt with 'expeditiously', had also said that the matters were complex, needed to be investigated and the implication was that this could take some time.[107]
6. Dr Hocking had also conceded, in relation to a question posed to him by the Performance and Professional Standards Panel at its hearing on 18 October 2013, that it would have been better to have revealed the restrictions on his ability to perform the PAO at the time he obtained consent to the two-stage procedure.[108]
7. In his closing submission, Dr Hocking's counsel suggested that as at 19 August 2011, the arthroscopy was planned for some indeterminate time in the future, Patient B being a public patient. Accordingly as the submission said 'It is a counsel of perfection, informed by hindsight, to impose on Dr Hocking an obligation that he should have discussed the undertaking in the circumstances as they were as at 19 August 2011'.[109]
8. The Tribunal notes that the surgeons' Code states that it is for a surgeon to 'refer a patient when the best procedure for the patient is not within the scope of practice of the surgeon',[110] and that the surgeon should 'always act in the best interests of [the] patient.[111] Dr Hocking should have appreciated that it might not be within the scope of his practice to undertake a PAO following the arthroscopy. To obtain the consent of Patient B and her mother to a treatment plan which Dr Hocking might not be able to perform was not to 'act in the best interests' of Patient A, not least because, as Professor Cundy indicated (see earlier), another clinician might not have decided to treat Patient B in the manner proposed.

1. Given the facts and the concessions made by Dr Hocking in cross-examination, the Tribunal finds Dr Hocking must have been aware that until the investigation was complete, his restrictions on practice would not be lifted and these facts cast doubt on the reasonableness of his expectation at that time. Accordingly, despite his closing submission on this issue, and given the known delays in Board and public hospital processes, the evidence on which Dr Hocking relied was insufficiently substantial to satisfy the Tribunal that Dr Hocking could claim he had a reasonable belief, by August 2011, that the undertaking would not be in place at a time when he might reasonably expect to perform the PAO.
2. The Tribunal is satisfied that there was a legal, ethical, and a professional obligation to inform Patient B of the undertaking. Assuming the findings following the arthroscopy confirmed the previous imaging, a PAO would be required for Patient B. Given his undertaking, and likely time-frames for its removal, the undertaking restricted Dr Hocking's ability to perform the second stage of the proposed treatment. In those circumstances, Dr Hocking should have referred to the restriction so that another surgeon could have been chosen. The beneficial consequence would have been that there may have been a speedier and possibly an alternative approach to treating Patient B. Sharing that information may also have affected the consent of the mother of Patient B, another reason supporting the need to disclose.

Allegation 3: Creation of second operation report

1. Dr Hocking contends that the second operation report of the hip arthroscopy on Patient B was a retrospective account of the procedure created for his own benefit, as an aide memoire, on the advice of senior colleagues, and the document was not placed on the patient's record, so there was no case to answer in relation to this allegation.

1. On 15 February 2012 Dr Hocking created an operation report (first operation report) of the hip arthroscopy performed on Patient B that day. The relevant details are set out in paragraph 28 above.
2. In about June 2012, when it became clear that there were complications following the arthroscopy performed on Patient B, Dr Hocking consulted Dr McNicol and Dr Gillespie. At a meeting on 15 June 2012, they advised him to write a more detailed account of the operation. Dr Hocking's evidence was that he had done so the following weekend, which would have been in the second half of June.[112] This report has been referred to as the second operation report. The relevant parts of this report are set out above in paragraph 29.

1. The second operation record, on its face, appears, from its format, to be an operation report. For example, it contains Dr Hocking's letterhead, the name of the patient with her date of birth, the names of the surgeon, the anaesthetist, and the name of the doctor assisting, and a reference, at the end, to the immediate post-operative state of the patient and Dr Hocking's recommendation that she attend physiotherapy. Tellingly, the only date on the document was the date of the operation. To all intents and purposes, despite not being addressed to the general practitioner, the report was a genuine post-operative report.
2. Even allowing for the format to be due to Dr Hocking's use of a template for the report, the failure to indicate anywhere on the document the date it was produced, raises an inference that the report was not a mere 'memory-jogger' as Dr Hocking asserts. Moreover, the inference is heightened by the circumstances in which the report was compiled - possible disciplinary proceedings - and the fact that it contained accounts of key aspects of his 15 February 2012 arthroscopy at odds with the record in the contemporaneous first operation report.
3. One difference was that the second record was 2.25 pages in length, as compared to the original report, the operative detail of which was, at most, half a page. Not only the length of the report, but the description of the bone removed is different. There is an attempted explanation for the incorrect reference in the first report to a 'pincer lesion', and there is no reference in the second report to recontouring the acetabular rim, as referred to in the first report.
4. Dr Hocking told the Tribunal that the reference to pincer lesion in the first operation report was a mistake because he had used a template that contained a standard reference to a pincer lesion which he failed to delete.[113] The Tribunal was advised by counsel for Dr Hocking that the template in its February 2012 form is no longer in existence, so this assertion could not be corroborated.[114]
5. The second operation report under 'Surgical Procedure' states, following a reference to the repair of the labrum:

Having lifted the capsule off the anterior margin of the acetabulum an extra-articular lump of bone was identified protruding from the anterior acetabulum. This is seen in image 3. This same lump is identified on the preoperative standing false profile view, proximal to the joint. This lump was then removed with the burr in preparation for the peri-acetabular osteotomy (which would be the next planned procedure). This lump has been referred to as a pincer lesion in the shorthand operation report as no other abbreviated description exists for such a lump. The lesion does not truelly (sic) fit the accepted definition of a pincer lesion and thus calling it a pincer lesion is a misnomer in the shorthand operation report. ... Image 4 also shows in the foreground the remnant of the acetabular labrum at the margin of her acetabular rim indicating that the contour of the acetabular rim not altered by the burr as the labral remnant remained in position. (Tribunal's emphasis)

1. In his evidence Dr Hocking accepted that the emphasised words in the previous paragraph were contrary to his evidence that the reference to a pincer lesion was a mistake. He accepted that the emphasised words reflected a deliberate choice in the absence of another abbreviated description.[115] The Tribunal finds that Dr Hocking failed to give a credible explanation for his claim that the reference to a pincer lesion was an innocent mistake.
2. The authenticity of the account given in the immediate aftermath of the arthroscopy is underscored by the letter Dr Hocking wrote to Patient B's general practitioner, dated 23 March 2012, in which he observed 'In terms of the hip arthroscopy itself, she had a very minor procedure where I debrided the labrum and debrided an extra articular Pincer Lesion'.
3. Dr Hocking's counsel said at the hearing that 'Dr Hocking has openly admitted that that initial operation note was not accurate',[116] a concession which further supports the assessment that the second report was an attempt to correct the record and thereby absolve Dr Hocking from potential adverse consequences for the complications which occurred in relation to his treatment for Patient B.

1. In the joint report in relation to Patient B provided by Dr Cairns, after the conference of medical experts, the experts agreed that the creation of an aide memoire on the advice of Dr McNicol and Dr Gillespie was not unreasonable, and was prudent in the circumstances. However, the experts were unable to agree as to the possible motivation underlying the statements in the second operation report prepared some four months after the first report, or the validity, accuracy and reliability of the second operation report. That disagreement was based on the apparent discrepancies between the first, contemporaneous, operation report and the later record. Dr McNicol preferred the second operation report. Dr Young preferred Dr Hocking's word from the telephone calls between the two, which supported what was in the second report, and Professors Smith and Cundy preferred the first operation report.
2. Dr Young said in his report dated 9 April 2014:

In relation to the Board's allegation that Dr Hocking created a second report, it would be my advice to Dr Hocking also that he needed to give a second report to expand on the details of his first report. ... Given that a complication had occurred there was a definite need for Dr Hocking to explain exactly what had gone on at the time of the hip arthroscopy so that others could understand why the complication might have arisen and learn from that.

1. In a report dated 11 September 2012 Dr McNicol said that the advice he gave in 2012 to prepare an 'aide-memoir', had been because he anticipated that the matter might be referred for review. As he indicated in his later, 24 July 2014, statement, he considered the report could be needed if the circumstances were to be reviewed not only by the M&M [Morbidity and Mortality] Committee, but also the Clinical Privileges Committee of The Canberra Hospital, or by the Board, in disciplinary or related proceedings. Dr Gillespie provided a similar explanation in a statement of 13 August 2014.
2. In a report of 22 July 2014 Dr McNicol gave the history of the second operation report and then observed:

The 'aide memoir' is not a substitute operation report that was filed or used to replace the operative report in this patient's records. It was a detailed report that was filed in Dr Hocking's personal case notes, which might be used in the future to refresh his memory as to the details of the hip arthroscopy. As events have unfolded that was a prudent thing for Dr Hocking to have done.

It is entirely within Dr Hocking's right to create a second document. That document however has not been appropriately labelled as an amendment to an operation report or an aide-memoire. It is not clearly documented when that second report was formulated. The second report differs substantially from the first contemporaneous report.

1. Professor Smith**,** in a report dated 3 September 2014, said of the two records:

The initial Operation Report clearly documents a pincer lesion and that the acetabular rim was re-contoured such that the pincer lesion would not impinge. This operation record is contemporaneous. This record makes clear reference to a pincer lesion and surgery to remove a pincer lesion. A pincer lesion is an entity which has a clear definition. A pincer lesion did not exist in [Patient B's] case. If Dr Hocking subsequently claims that he did not perform surgery on a pincer lesion, but another lesion, why is this not documented appropriately in this first, contemporaneous report?

1. He concluded that Dr Hocking was within his rights to make the later record, but said 'such documentation should be appropriately dated, and appropriately titled with an appropriate preamble'. As he said, had he done so, it would have been clear that the document was not an operation report.
2. Professor Cundy, in a report dated 7 December 2012, said of the two reports:

The shorter version has been referred to by Dr Hocking as a 'short hand operative report' and the second document provides a more complete technical description of the operative procedure ... This second operative report is particularly detailed and could be interpreted as anticipating complications particularly with considerable in depth discussion in relation to the potential misnomer of a 'pincer lesion' contained in the short hand report as well as reference to the femoral head being reduced after traction was released and reference to 'no immediate concerns were raised as to difficulty with mobilisation'. The longer operation report would appear to have been dictated at least the day after the surgery by way of the first sentence of the last paragraph in the longer operation report.

In addition, it is noteworthy that Dr Hocking indicated in the 5th paragraph of his [second] operative report that '... the contour of the acetabular rim was not altered by the burr as the labral remnant remained in position'. This would appear to indicate that Dr Hocking was aware of the potential dangers of removing bone from the acetabular rim in a patient with hip dysplasia.

1. In a further report dated 11 February 2014, Professor Cundy said of the second report:

It is accepted good practice to write contemporaneous medical notes, ideally at the time of consultation, immediately after the consultation/operation or at the end of the day's work ... [or] next day. Beyond such reasonable time, recall of the specifics may become more distant and the reliability of one's records are diminished. In this regard, provision of an even more detailed operation report written 3 or 4 months later is not acceptable practice amongst Orthopaedic Surgeons and is below the standard expected.

I feel that this conduct [the report 3-4 months later] does fall substantially below the accepted standard for a number of reasons.

Firstly, the more detailed report, assuming it was completed 3 or 4 months later, provides a notable and significant increase in detailed information which could be interpreted as reflective of the then known complications which ensued with [Patient B]. This would appear consistent with a breach of the RACS [Royal Australasian Code of Surgeons] Code of Conduct.

Secondly, I would expect an Orthopaedic Surgeon to not 'back date' an operative report or medical notes. Indeed, it is usual training and practice in the Hospital setting to not back date notes and, if there is a need to back date a note for a particular reason, that the date and time that the note is written is clearly indicated in the documentation and that the note is not contemporaneous.

1. In a report dated 11 September 2014, Professor Cundy restated his opinion that the provision of a second, more detailed operation report three or four months later falls substantially below the expected standard for an orthopaedic surgeon with equivalent training and experience to Dr Hocking.
2. Professor Cundy identified the reasons for that opinion as follows:

The 'second' operative report, completed almost four months later (and also dated 15 February 2012, the date of surgery), describes a separate lesion which was not mentioned in the 'first' operative report and indicates that this lump was outside the hip joint margins and, in fact, describes this differently as an 'extra-articular lump'. The 'second' operative report also goes into a high level of detail in relation to image 4 ... indicating that the contour of the acetabular rim was not altered by the burr as the labral remnant remained in position. This is somewhat at odds with the 'first' operative report which makes no mention of this extra articular lump and is quite specific that the acetabular rim was recontoured to avoid later impingement after a planned PAO. I again express my concerns in relation to the specific details contained with the 'second' operative report which provide substantial additional information which are pertinent to the subsequent complications encountered in [Patient B's] hip. The 'second' operative report could be interpreted as being predictive of the subsequent catastrophic dislocation of her hip joint. ...

Whilst it is reasonable to collate one's opinion and thoughts in relation to a patient's management, such documents should be appropriately dated, include an explanatory covering note and importantly not be able to be misconstrued as a self-serving altered medical record or to be misleading.

1. In his 29 January 2013 statement for the Board, Dr Hocking admitted use of 'pincer lesion' in the first operation report was a mistake. He also conceded that his second operation report was 'for the purposes of providing a more comprehensive report ... of the operation' and to 'explain my reference to a pincer lesion'. Through his senior counsel at the Panel hearing he had also said of the second report: 'the reason for the second report was that at that time it became clear that he was going to have to hand over the care and conduct of this patient to another doctor'. This was a reference to Patient B becoming a patient of Professor Smith on or about 6 June 2012.[117] Under questioning at the Panel hearing, however, he acknowledged that the reason he produced a second report was that 'people would latch onto' the mention in the first report of his mistaken reference to a 'pincer lesion'.[118]
2. At the Tribunal hearing, Dr Hocking explained the purpose of the second operation report in three ways:

(i) that the words 'pincer lesion' were in a template he used for doing post-operative reports and by accident, had not been deleted;[119]

(ii) as an abbreviated expression because there was no other way of describing the lesion,[120] a view he repeated in his closing submission where he said the use of pincer lesion was due to the absence of an appropriate word in a newly developing area of arthroscopy;[121] and

(iii) that there had been no appropriate language on his template to describe this bony bump. The result he said had 'led to significant confusion'.[122]

1. Also, at the hearing he said the document was never intended to be a post-operative report since he had never placed it on the patient's file and it was intended only to go on his medico-legal file. As such it was intended solely as a memory jogger for himself. However, by accident a member of his staff had included it in a bundle of documents which went to the Board for its hearing and at that point, it became more widely known.[123] He also affirmed that in his documents for the Panel he had said:

The purpose of the aide-mémoire was so that I could revisit that report and use that report to help me prepare submissions, prepare reports, prepare for a discussion with the panel. The purpose of the report was not to be given out to other members of my profession, or in fact any profession. It was for my own reading.[124]

1. That was consistent with his statement of 16 February 2015 for the purposes of this hearing where he said that:

I wrote the 'second operation report' at a time in my professional career when the Board had only just completed a 12 month investigation into a separate matter, and at or around 1 June 2012, had proposed to impose conditions on my registration that would significantly impede the way that I was able to practice (sic) my profession'.

1. He also said in that statement 'I never held out the 'second operation report' to be a contemporaneous record of the procedure that I performed on 15 February 2012'.
2. Dr Hocking conceded in cross-examination that he wrote the second report to clear up any misunderstanding by the Board.[125] However, that purpose was not reflected in his documents or evidence at hearings, as he agreed. For example, he had not attempted to explain the intended use in any of his documents to the Board, including to its Performance and Professional Standards Panel. At the Tribunal, he had not clarified the misunderstanding in his Tribunal affidavit other than saying the second operation report was prepared 'for the purposes of providing a more comprehensive report of the operation',[126] and he acknowledged that his counsel had not referred to its intended use in his opening submission to the hearing.[127]
3. Dr Hocking agreed that his failure to take steps to explain these misunderstandings created by the second record was a mistake on his part, but said that when the document became an issue, the reason for its production 'became impossible to explain.[128] He attributed his failure to attempt to correct the wrong impression about the second operation report as the fault of his solicitors.[129] He did concede however, that the proper thing to have done was to clear up the misapprehension.[130]
4. Dr Hocking was also cross-examined on earlier statements he had made about his accuracy of report-writing and meticulous keeping of records. In response he said he made 'every attempt to be as accurate as I can in the operation reports that I write' but he could not be absolute about that promise.[131] Later he denied that his motivation for writing the report was because 'it might lead ultimately to a significant impediment on the way that you are able to practise your profession'. Instead he said his motivation was 'Justice'.[132]

1. The doctors' Code specifically states that good medical practice involves making records at the time of the events, or as soon as possible afterwards'.[133] Similarly, the surgeons' Code says that 'The surgeon will 'Maintain legible, contemporaneous patient notes etc',[134] and that 'It is a breach of the Code to 'Falsify records at any time' and to 'Alter records after an adverse event'.[135]
2. The emphasis on the probative value of contemporaneity for the purposes of good record-keeping was denied by Dr Hocking at the hearing. He justified that denial: 'Because [he said] the surgeon can remember the operation, and specifically operations that are unusual, for quite some time'.[136] At the same time he accepted that he had presented evidence to the Panel which stated that he was a person who was meticulous about preparing contemporaneous and accurate reports, on the assumption that this was good medical practice. He also acknowledged that any delay in producing operation reports could be inconsistent with the 'Personal reflections' segment of a statement he made to the Board on 19 September 2011 in which he said he 'will be careful to include relevant information in the operation report and the record'.[137]
3. In response to a question from the Tribunal, Dr Hocking said he would have conducted some 240 surgical operations in the period between 15 February 2012 and mid-June 2012. He also affirmed that the majority of those operations were complex. Dr Hocking acknowledged, in an email to Dr Balakumar of 12 September 2013, of the presumably more interesting or complex cases he had taken to Melbourne for discussion with Dr Young and Dr Balakumar in October 2012, that 'I am struggling to remember all that was said about every case'. In other words, despite his claim to be able to remember details of operations, particularly complex ones, in this email he concedes that even he has difficulties remembering details of such cases some time after the event.

1. The Tribunal accepts Dr Hocking's evidence that the second operation report was created after the meeting on 15 June 2012, probably prior to the end of June. His evidence, coupled with the anxiety he evinced in having several conversations about the matter with Dr Gillespie and Dr McNicol, culminating in the meeting on 15 June 2012, support the date being in the second half of June, rather than later as suggested by the Board.
2. On balance the Tribunal considers that it is unlikely that Dr Hocking was able to recall the detail of Patient B's particular case, some four months later, with the degree of precision and accuracy he asserts. His own evidence also underscores the importance of records of practitioners being made contemporaneously, consistent with the practices required by the two relevant Codes.
3. That finding has consequences. It means that Dr Hocking's production of a second record of the operation was made principally for use in possible proceedings, and was designed to cover up a mistaken reference to 'pincer lesion' and to present in a more favourable light what steps he undertook during the arthroscopy. The attempt at a cover-up diminishes Dr Hocking's credibility in relation to this matter. In addition, it means that Dr Hocking's record keeping falls below the standards in both the doctors' Code and the surgeon's Code. His attempt to alter the record is also a breach of the surgeons' Code.
4. Those standards reflect the fact that the practice of medicine requires accuracy in reports. Errors in reports and falsification of reports are inappropriate in a surgeon since a post-operative report is relied on by others in their subsequent care of patients and accuracy is paramount. So to describe the first report as a 'shorthand report' and to acknowledge that it has errors is not the behaviour expected of a competent and responsible professional.
5. The experts, in their joint report, disagreed as to the possible motivation underlying the statements made within the latter report. The joint report also said:

The experts disagree as to the validity, accuracy and reliability of the document, based upon the apparent discrepancies as compared to the contemporaneous operation report formulated at the time of the surgery, some four months before the latter 'aide Memoir' also dated 15 October (sic) 2012.

1. The disagreement of the experts as to the motivation mirrors the disagreement between those experts generally depending on whether they are supporters of Dr Hocking, or are critical of his actions. With the exception of Professor Cundy, the Tribunal has taken this into account when evaluating the weight of the evidence provided by the experts.
2. Dr Hocking variously said of his motivation, the mistaken reference to a 'pincer lesion' and of the changes between the two reports, that these were due to:

(ii) there were no other abbreviations of the expression;

(iii) because he had neglected to take the term out of his template;

(iv) to provide an explanation for people who would latch onto his mistaken reference to a 'pincer lesion';

(v) in order to prepare a detailed handover note for the surgeon who took over care of Patient B;

(vi) in order to have evidence assuming the matter came up at review hearings; and

(vii) that he had never intended to use the report in his defence. The variety of explanations given by Dr Hocking for the discrepancies between the two reports means the Tribunal has been disinclined to rely on his evidence on this issue.

1. Dr Hocking's closing submissions contended that 'any findings as to his credit ... cannot be met by the material advanced by the Board from cross-examination'. That does not prevent a finding, which the Tribunal makes, that Dr Hocking deliberately prepared a second report in order to have a detailed account he could use in possible proceedings, and that the second report was an account which presented his actions on 15 February 2012 in a more favourable light. He should not have attempted to deny this purpose as he did, for example, in his statement of 19 February 2014. The Tribunal is not prepared to dismiss this allegation as requested by Dr Hocking particularly given the standards imposed on health practitioners in relation to production of their records.

1. Part 8 of the National Law (sections 138 to 207 inclusive) is entitled 'Health, performance and conduct'. Under the relevant provisions of part 8, a person may notify AHPRA if, relevantly:

(a) a practitioner's professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner's professional peers; or

(b) the knowledge, skill or judgment possessed, or care exercised by, a practitioner in the practice of the practitioner's health profession is, or may be, below the standard reasonably expected.

1. AHPRA must then refer the notification to the Board, which makes a preliminary assessment of the matter. The Board can then either dismiss it or further investigate it. Once the Board has investigated the matter, it is then open to the Board to take no further action. If, however, the Board reasonably believes the way a practitioner practises the health profession, or the practitioner's professional conduct, is or may be unsatisfactory then, subject to section 193, the Board can either deal with the matter itself or constitute a performance and professional standards panel to which the matter is to be referred.
2. Section 193(1) of the National Law relevantly provides as follows:

Matters to be referred to responsible tribunal

(1) A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if

(a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason

(i) the practitioner has behaved in a way that constitutes professional misconduct ...

1. In this instance, in relation to the allegation that Dr Hocking 'debrided [Patient's B's] left acetabular rim' the panel found 'there was unsatisfactory professional conduct which may constitute professional misconduct', and the Board referred the matter to the Tribunal.
2. The expression 'professional misconduct' is defined in the National Law as follows:

professional misconduct_, of a registered health practitioner, includes - _

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. The expression 'unprofessional conduct' is defined in the National Law. Only relevant elements of the definition follow:

unprofessional conduct, of a 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, and includes -

(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and

1. The expression 'unsatisfactory professional performance' is defined in the National Law as follows:

unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

1. The expression professional misconduct is defined to include unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. The definition is inclusory and is not an exhaustive statement of that term. Thus, 'professional misconduct' under the National Law can include professional misconduct which does not fall within any of the paragraphs in the definition of that term, for example conduct which is characterised as professional misconduct or its equivalent under earlier vocational disciplinary legislation.[138]
2. As McLure P noted in Bernadt v Medical Board of Australia [2013] WASCA 259 at 23, professional misconduct has both a performance component (conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience) and a conduct component (conduct whether occurring in connection with the practice of the practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession).
3. The Board argued that the test of whether professional misconduct has occurred still includes the test of 'infamous conduct in a professional respect' which was adopted in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750:

If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of infamous conduct in a professional respect.

1. The adjective 'infamous' is a term 'denoting conduct deserving of the strongest reprobation, and indeed so heinous as to merit, when proved, the extreme professional penalty of striking off.[139] In Pillai v Messiter (No 2) (1989) 16 NSWLR 97 at 200-201, Kirby P commented on what was formerly considered to be professional misconduct as follows:

Departures from elementary and generally accepted standards of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct. ... But the statutory test is not met by mere professional incompetency or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.

1. The Tribunal accepts that the impugned conduct must be assessed in a realistic context and not with an expectation of perfection.[140]
2. There are now detailed provisions in the relevant definitions in the National Law and in the doctors' Code and the surgeons' Code identifying the nature of such conduct, and the expected skills, values and conduct of those practising in these professions.
3. The expression unprofessional conduct is defined to mean 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. The definition also includes examples of 'unprofessional conduct'. Unlike the definition of 'professional misconduct', the definition of 'unprofessional conduct' is an exhaustive statement of that term. Unprofessional conduct is clearly conduct of a less serious nature than professional misconduct. Whether or not a practitioner is guilty of unprofessional conduct must be judged in accordance with the standards of his or her profession.
4. The definition of unprofessional conduct also has both a performance component and a conduct component. The performance component is professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or by the practitioner's professional peers. The conduct component is, for example, the conviction of the practitioner for an offence under an Act other than the National Law, the nature of which may affect a practitioner's suitability to continue to practise the profession.
5. The definition of the term 'unsatisfactory professional performance' is also an exhaustive statement of that term. It refers to a medical practitioner's performance as a practitioner rather than their conduct. Unsatisfactory professional performance has only a performance component (the knowledge, skill or judgment possessed, or care exercised by a medical practitioner is below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience).
6. That definition is suggestive of a generalised deficiency in the way in which a practitioner handles his or her professional affairs.[141] In Jemielita, Owen J was considering the meaning of 'incompetency' under the now repealed Medical Act 1894 (WA). It is likely that a finding of unsatisfactory professional performance will occur where the performance of the practitioner concerned has consistently fallen below the expected standard as a medical practitioner, or where the practitioner has never attained that standard.[142]
7. Section 196(1) of the National Law provides as follows:
   1. Decision by responsible tribunal about registered health practitioner

_(1) After hearing a matter about a registered health practitioner, a responsible tribunal may decide - _

(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or

(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;

(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;

(iii) the practitioner has behaved in a way that constitutes professional misconduct;

(v) the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board that registered the practitioner information or a document that was false or misleading in a material particular; or

1. Section 196 of the National Law provides for a hierarchy of possible findings by the Tribunal. These are that:

1. there is no case to answer (section 196(1)(a)); 2. the conduct is unsatisfactory professional performance (section 196(1)(b)(i));

1. the conduct is unprofessional conduct (section 196(1)(b)(ii)); or

1. the conduct is professional misconduct: (section 196(1(b)(iii)).

1. The issue for the Tribunal is whether the Board's allegations, to the extent that they have been established, amount to unsatisfactory professional performance, professional misconduct or unprofessional conduct.
2. The task of the Tribunal in deciding the standard of conduct of Dr Hocking in the matters being considered differs according to the respective standards to be applied:[143]

1. for a finding of 'unprofessional conduct' the conduct must be 'substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience'; 2. for a finding of 'professional misconduct' the standard is the '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'; and

1. for a finding of 'unsatisfactory professional performance' the standard is that the health practitioner's 'knowledge, skill or judgment, or care exercised by the practitioner ... is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience'.
2. The definitions of 'unprofessional conduct' and 'unsatisfactory professional performance' require a comparison with someone with the same level of training and experience as Dr Hocking as at the dates on which the two treatments occurred, namely, 15 February 2012 (Patient B), and 8 April 2013 (Patient A). On the first of those dates, Dr Hocking had been in practice as an orthopaedic surgeon for five years; on the second, for six years. Although there is an absence of medically endorsed evidence as to the specific standards for someone with Dr Hocking's background, the Tribunal has relied on the evidence of some of the experts on these issues.
3. The Tribunal has power to impose a penalty following a hearing of a matter concerning a registered health practitioner where it has decided that the practitioner has acted in a way that constitutes unsatisfactory conduct, unprofessional conduct and professional misconduct. Penalties include ordering deregistration, suspension, payment of a fine, or the imposition of conditions. Those penalties are provided under the National Law s 196(2) which provides as follows:

If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following

(b) impose a condition on the practitioner's registration, including, for example

(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or

(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or

(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or

(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or

(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;

(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;

(d) suspend the practitioner's registration for a specified period;

(3)If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.

(4)If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to

(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or

(b) prohibit the person from using a specified title or providing a specified health service.

1. Board submitted in its Closing Submissions that the findings it sought were that Dr Hocking's conduct amounted to:
   • (a) unsatisfactory professional performance by removing substantial bone from Patient B's acetabular rim;
   • (b) professional misconduct within (a) of that definition in section 5 of the National Law by failing to disclose to the patient and her family the restriction on his registration which had the potential to affect the treatment he was to provide to her, alternatively, unprofessional conduct;
   • (c) professional misconduct within (a) of that definition in the section 5 of the National Law by creating a second operation report in respect of the hip arthroscopy performed on 15 February 2012;
   • (d) unsatisfactory professional performance as to the judgement and care exercised by Dr Hocking in the practice of the health profession in his failure to refer Patient A at the time he formed the view that the patient needed a PVFO and failing to consult more with colleagues in the use of a novel treatment; and
   • (e) further, or in the alternative, professional misconduct within (b) of that definition in section 5 of the National Law as the conduct the subject of allegations (a)-(c), each being instances of unprofessional conduct when considered together is conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.[144]

1. Dr Hocking's Closing Submissions related to Patient B and Patient A. His submissions in relation to Patient B, in summary, were:
   • (a) Dr Hocking did not remove significant bone from Patient B's acetabular rim. Dr Hocking resected a bump outside of the articular part of Patient B's hip joint, proximate to but not from her left acetabular margin;
   • (b) the charge that Dr Hocking failed to disclose to the patient and her family the restriction on his registration should be dismissed in light of the inconsistencies in the evidence of Patient B's mother, the events of 27 May 2011 and 19 August 2011 which contextualise the allegations, the absence of any legal obligation to disclose the restrictions, and the reasonableness of Dr Hocking's expectations that those restrictions would be lifted prior to the time the PAO would be performed; and
   • (c) the charge in relation to the preparation of the second operation report should be dismissed since Dr Hocking's production of the 'aide memoire' must be seen in the context of the evolving history of this matter, which until this hearing did not assume the significance it has received in the hearing and it would be unfair to penalise him for its production in this context, and in particular that a finding as to his credit cannot be met by the material advanced by the Board from cross-examination.

1. Dr Hocking also submitted he has no case to answer in OR 13/48. Alternatively, he submitted if his conduct has fallen below the standard expected of him, his extended period of Board imposed conditions is sufficient to assuage concerns about his capacity to practise in the future.
2. In particular the risk to the public of Dr Hocking's continuing to be involved in conduct below the standards expected is negligible given his successful mentoring; his development of insight into some of the shortcomings of his conduct, his extended period of practice subject to conditions, the successful completion of his retraining as required, and the undertakings he is prepared to provide.
3. The Tribunal has taken into account the extensive evidence and submissions in this matter.

Allegation 1. Debridement of Patient B's acetabular rim

1. The experts in the joint report agreed that it was the arthroscopy which resulted in instability osteoarthritis and hastened the need for hip joint replacement and that this unfortunate event has been experienced by other surgeons and documented in the orthopaedic literature.
2. The Tribunal has found that the rapid deterioration of bone in Patient B's hip was due to the weakening of all three of the static stabilisers of the hip joint. In other words it has found that there was removal of bone at or around the acetabular rim, together with a failure to repair the labrum and to suture the capsulotomy after the arthroscopic procedure. The Tribunal has also found that the rapid deterioration was not due to weight-bearing on the part of Patient B. It followed, so the Tribunal found that Dr Hocking's removal of bone during the arthroscopy contributed to the subsequent hip dislocation experienced by Patient B.
3. The Tribunal has also accepted, based on the evidence of Professor Smith that there was a significant amount of bone removed, resulting in the need for replacement of bone by a wedge grafted from the patient's femoral head. Removal of bone is also supported by the evidence of Professor Cundy and Dr Solomon. The literature warns in the case of patients with dysplastic hips that even minimal weakening of the three static stabilisers of the hip may lead to dislocation of the hip and that particular care should be taken with patients with dysplasia in the face of disruption to the supporting structures. Dr Hocking, as an orthopaedic surgeon of his training and experience, should have been aware of these dangers. The experts have also agreed that Dr Hocking's post-operative management was not optimal. Dr Hocking was aware that there were problems as he recommended pain-relief through local anaesthetic and steroids five weeks after the operation. In other words, Dr Hocking should have appreciated earlier that there were complications in relation to Patient B's hip and taken steps to assess the situation.
4. The Board has submitted that in this instance, the Tribunal should find Dr Hocking's conduct was unsatisfactory professional performance. The Tribunal is aware that unfortunate complications occur in surgery, and are not always due to the technical incompetence of the surgeon. However, in light of the findings of the Tribunal as to Dr Hocking's removal of bone during the arthroscopy, the warnings in the literature that weakening of the three static stabilisers can lead to rapid deterioration of the hip, the findings of the experts that Dr Hocking's post-operative management was not optimal, the Tribunal finds that Dr Hocking's conduct fell below the standard of skill, and care reasonably exercised by someone of an equivalent level of training or experience and did amount to unsatisfactory professional performance.[145]

Allegation 2: Failing to disclose restrictions on registration

1. The report of the experts noted that the embargo in place in February 2012 was potentially to be lifted on or about 28 June 2012, based on the initial Statement A. The report concluded that this involved 'a time interval which would not be inconsistent with an acceptable interval between the two procedures, had the unfortunate catastrophic complication not occurred'. As a consequence, the experts made no comment/finding on this issue.
2. The Tribunal has found that Dr Hocking's beliefs about the potential lifting of the restrictions referred to in the report of the experts were not reasonable.
3. The Tribunal has also found that Dr Hocking should have referred Patient B to another surgeon when a speedier or possibly alternative approach to her treatment could have been undertaken. The Tribunal notes that even Dr Young in his 12 September 2012 report said that it was unfortunate that an earlier PAO was not undertaken which might have prevented the complication which occurred. That view was supported by Professor Cundy.
4. The Board contended that the Tribunal should find Dr Hocking's conduct amounted to professional misconduct. Alternatively there should be a finding of unprofessional conduct.
5. Professor Cundy's opinion was that the failure did not 'fall substantially below the standard expected'. That leaves open the possibility that the conduct could be unsatisfactory professional performance. The Board submitted that the failure to refer was either professional misconduct or unprofessional conduct. Counsel for Dr Hocking submitted that:

It is a counsel of perfection, informed by hindsight, to impose on Dr Hocking an obligation that he should have discussed the undertaking in the circumstances as they were as at 19 August 2011.

1. The views of the medical experts (Dr Young, Professor Cundy and Professor Smith) were that Dr Hocking's failure to refer, although not substantially below the standard to be expected of a competent practitioner, did not meet the standard expected by professional peers.
2. The Tribunal accepts, as Professor Cundy notes, that the failure was not substantially below the expected standard, and accordingly the conduct did not meet either of the two more stringent standards.
3. The Tribunal is not prepared to find that the failure amounted to conduct which was substantially below expected conduct, particularly in view of Professor Cundy's opinion. Nor is it prepared to find that the conduct was of such a nature that the practitioner could have been prosecuted for, or convicted of an offence in relation to the contravention. There was no evidence to support findings of that degree of seriousness. In these circumstances, the Tribunal finds that this aspect of Dr Hocking's pre-operative procedures in the Patient B matter amounted to unsatisfactory professional performance.[146]

Allegation 3: Creation of second operation report

1. The Board has submitted that Dr Hocking's actions in producing a second operation report was professional misconduct. Counsel for Dr Hocking submitted that unless the Tribunal makes a finding that the document was deliberately created to provide a false explanation of what actually occurred in the operation, the charge should be dismissed. The Tribunal has found that there was an admitted error in the first report in relation to the reference to a pincer lesion. That means Dr Hocking's record keeping falls below the standards in both the doctors' Code and the surgeons' Code. Errors in records to be used by others are regarded as significant since those records are used by those in treatment of the patient. Second, it has found that Dr Hocking altered the original record in a manner which was intended to benefit himself in any potential disciplinary or other proceedings.
2. The Tribunal takes account of the fact that the second report was not intended to be placed on the patient's file. It was for his private use only. Nor was the document intended to get into the public arena. Nonetheless, it was intended to be used by him, if necessary, to present his actions in a more favourable light in possible disciplinary hearings. Such a purpose is at least self-serving. The altered record was also in breach of the surgeons' Code that the surgeon 'be open and honest, particularly when the patient has suffered a complication or adverse event'.[147] So, the Tribunal is satisfied that the action was in breach of the relevant principles referred to earlier in both the surgeons' and the doctors' Codes.

228. Professor Cundy's opinion was that such actions were substantially below the standard to be reasonably expected of a registered health practitioner of an equivalent level of training or experience. That opinion takes account of the fact that Dr Hocking has exhibited more than one instance of unprofessional conduct, that is, conduct of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers. In these circumstances, the Tribunal finds that the preparation of the second report amounted to unprofessional conduct.[148]

1. In summary, the Tribunal has found that Dr Hocking's conduct in relation to allegation 1 was unsatisfactory professional performance, that allegation 2 was also unsatisfactory professional performance, and that his conduct in relation to allegation 3 was unprofessional conduct. These findings reflect his failure to refer, his attempted cover-up in his second record, and his poor clinical performance. However, in light of the generally favourable reports on his performance in the last twelve months, the improvement in his record of notifications, and the retraining he has undertaken, coupled with the opinion of Dr Gillespie that Dr Hocking's performance in routine adult hip and pelvic surgery is perfectly competent, the Tribunal does not find that, even in combination, his conduct merits deregistration.

**Matter: OR 14/31 - Patient A and Dr Hocking's Behaviour

1. Dr Hocking had been treating Patient A, a 9 year old boy, for Perthes' disease of the hip since 2011. Perthes' disease is a condition more commonly affecting juveniles and has no known cause. The symptoms are pain due to inflammation of the inside of the hip joint. Treatment is principally designed to reduce inflammation and pain, and thus to increase the patient's mobility.
2. Dr Hocking first diagnosed Patient A with Perthes' disease on 10 May 2011. On 7 July 2011 Dr Hocking confirmed, following receipt of x-rays, that Patient A's left hip was in the early phase of Perthes' disease. Patient A began to experience increasing pain and he was treated with steroid injections performed under general anaesthetic on 26 September 2011, and 1 March 2012. Petrie casts for night-time wear were also introduced.
3. On 25 July 2012, following a consultation with Patient A, Dr Hocking foreshadowed to Patient A's general practitioner, possible surgical intervention in the form of a proximal femoral varus osteotomy (PFVO)[149] which Dr Hocking said he 'would plan to coordinate in the next three months'.[150] The procedure is open hip surgery which, in July 2012, Dr Hocking was prohibited from performing under conditions on his registration. On 19 November 2012, Dr Hocking again treated Patient A with a steroid injection under general anaesthetic.
4. At a consultation on 30 October 2012, Dr Hocking informed Patient A and his mother that he was recommending delaying the PFVO procedure until Patient A's hip had greater flexibility which he proposed to facilitate by injecting Platelet Rich Plasma (PRP) inter-articularly into the hip. PRP is a treatment involving the patient's own blood which is harvested and reinjected in concentrated form. The treatment is categorised as autologous because the blood cells are obtained from the person, the subject of the treatment.
5. On 31 October 2012, he also advised Patient A's general practitioner of his changed recommendation. In his letter to the general practitioner, he said:

I have shown [Patient A's] x-rays down in Melbourne to a Colleague, Dr Jitt Balacuma (sic) and he was concerned that with the migration of the femoral head that an osteotomy may not be the most appropriate thing right at the moment. We think that a better thing to do would be to get [Patient A's] head more concentrically reduced by doing an intra-articular injection of an anti-inflammatory and possibly also some platelet derived growth factors.

1. On 8 March 2013, as the latest x-rays had shown further deterioration of the joint, Dr Hocking wrote to Patient A's general practitioner and stated: 'I think that [Patient A] could also be a candidate for a PRP injection into the hip'. Dr Hocking confirmed that recommendation by letter on 19 March 2013.
2. At around the same time,[151] in a consultation with Patient A and his mother he proposed that instead of a further steroid injection he would inject PRP. He acknowledged that he had not personally injected PRP into the hip of any other patient with Perthes' disease, but that a colleague in Melbourne, Dr Balakumar, had been trialling PRP, including by injecting it into the hip, with good results. Following this advice, the patient's mother consented to the PRP procedure for Patient A. The imaging of deterioration to the hip was confirmed by MRI and on 8 April 2013, the PRP procedure was undertaken on Patient A under general anaesthetic.
3. After the operation, a file note of Dr Hocking dated 23 April 2013, noted a discussion with the mother of Patient A in September 2012 that 'currently she would like to continue waiting for surgery', meaning the PFVO surgery. Dr Hocking also said 'Hopefully we will have some degree of resolution in the next few weeks and we will be able to give her a more firm plan as to what to do'.
4. On 18 April 2013, the Board received an anonymous notification concerning this treatment under cover of a letter from Dr Robert Griffin, the administrator of the Clinical Privileges Committee (Committee) at The Canberra Hospital. The notification was made in accordance with section 146 of the National Law. The notification asserted that the treatment administered to the patient was unwarranted therapeutic experimentation and it placed the patient at risk of a general anaesthetic and at risk of introducing infection into the joint without any evidence of the treatment's efficacy and safety.
5. On 22 April 2013, the Board wrote to Dr Hocking to advise that it proposed to take immediate action under the section 156(1)(a) of the National Law and to seek his submissions. On 24 April 2013 Dr Hocking attended a hearing on the matter. Following the hearing, on 26 April 2013 the Board, decided to take immediate action by suspending Dr Hocking's registration, pending the outcome of an investigation into the allegations.
6. On 3 May 2013, Dr Hocking applied to the tribunal for the suspension to be set aside.[152] On 6 May 2013, the Tribunal made a stay order pending the hearing of the matter. On19 July 2013 the ACT Supreme Court continued the conditional stay. The tribunal held a merits review hearing of the suspension decision on 16-17 September 2013 and 25 September 2013. On 25 September 2013, the tribunal reserved its decision. On 13 March 2015, that Tribunal made the following orders: [153]
   1. A decision to impose a condition on the applicant's registration prohibiting him from treating paediatric patients who have Perthes' Disease with platelet rich plasma unless he does so under the supervision of a specialist orthopaedic surgeon approved by the respondent Board is substituted for a decision to suspend his registration.
   2. This decision is an immediate action decision.
7. On 4 July 2014, the Board filed an application with the tribunal for disciplinary action in relation to Dr Hocking's treatment of Patient A.
8. The allegations in the application for disciplinary action in the Patient A matter are as follows:

(a) By treating Patient A, a 9 year old with Perthes' disease by injecting Platelet Rich Plasma (PRP) under general anaesthetic into the patient's left hip joint, Dr Hocking engaged in unsatisfactory professional performance. At that time it was contended that there was no direct clinical support, or published research in support of the use of PRP and that its use was unproven technology in treating Perthes' disease.

(b) Having formed the view by 25 July 2012, that Patient A should undergo proximal femoral varus osteotomy within the next three months and by failing to refer Patient A to another paediatric orthopaedic surgeon who was not restricted in carrying out such surgery if necessary on Patient A Dr Hocking engaged in unsatisfactory professional performance.

By misrepresenting to Patient A's parents, prior to the PRP treatment, that PRP treatment for juvenile Perthes' disease sufferers was treatment which had been provided by an orthopaedic colleague, Dr Balakumar, in Melbourne with some success, Dr Hocking engaged in professional misconduct.

By failing to obtain informed consent from Patient A's parents prior to administering the PRP treatment as required by the surgeons' Code and the doctors' Code, Dr Hocking had engaged in unsatisfactory professional performance.

1. The Board contended that Dr Hocking's failure to refer Patient A at the time he formed the view that the patient needed a PVFO and his failure to consult more with colleagues in the use of the novel treatment, were errors of judgment and care in the practice of the health profession and amounted to unsatisfactory professional performance.
2. Dr Hocking contended that he provided appropriate care for Patient A and kept his mother informed of Patient A's treatment options. He only changed Patient A's treatment recommendation after consultation with Dr Balakumar, and the appropriateness of that change is supported by Perthes' expert, Professor Little.[154]
3. Dr Hocking also contended in relation to Patient A:
   • (a) the failure to refer must be seen in the context of the history of the matter including that negotiations were proceeding on a number of fronts, it would have been inappropriate to operate as long as stiffness remained in Patient A's hip joint, in circumstances in which if necessary an alternative surgeon could have been found reasonably quickly, when the circumstances had been discussed with Patient A's mother who elected to continue to continue treatment with Dr Hocking, and when Dr Hocking believed he had discussed the matter with Dr Balakumar who agreed that his proposed treatment was appropriate;
   • (b) the evidence established that Dr Hocking obtained appropriate informed parental consent to the use of PRP; and
   • (c) it would be imposing too high a standard to find that failing to refer Patient A to another surgeon amounted to unsatisfactory professional performance in circumstances where the difficulties facing Dr Hocking were discussed with Patient A's mother who elected to continue treatment with him.[155]
4. Dr Hocking also submitted he has no case to answer in OR 14/31. Alternatively, he submitted if his conduct has fallen below the standard expected of him, his extended period of Board imposed conditions is sufficient to assuage concerns about his capacity to practise in the future.

1. The joint report of Dr Young and Professor Little, orthopaedic surgeon, Sydney, dated 4 March 2015, in relation to this matter, found as follows:

1. the use of platelet rich plasma (PRP) in Perthes' disease by Dr Hocking appears to be novel; 2. the early phases of Perthes' disease are characterized by an inflamed hip with an effusion and decreased range of motion. Both inflammation and decreased range of motion are widely held to be detrimental to the patient's hip;

1. PRP has been shown to have anti-inflammatory effects in the laboratory setting;

1. only one very limited animal study has been performed using PRP in Perthes' disease. This short term study did not show benefit, with structure being the outcome (not inflammation); 2. PRP is commonly used in many other inflammatory conditions; 3. PRP has been used in tendinopathy and ligament injuries for some time with an evidence base of benefit; 4. intra articular PRP is being used more and more commonly for inflammatory joint conditions. Although the evidence base for this is still being built PRP has replaced corticosteroids in many doctors' practices. It is widely accepted that repeated corticosteroid injections are undesirable and may cause harm; 5. any intervention can have side effects. PRP injection can result in an initial pro-inflammatory reaction, but these reactions are nearly always mild and always self-limiting; and 6. although the injection of PRP intra articularly is novel, as an autologous product it is extremely unlikely to have caused any harm. There is no evidence that patient A had any adverse reaction to PRP.

1. The Tribunal's task is to decide whether the use of PRP in April 2013 fell 'below the standard reasonably expected of a health practitioner of an equivalent level of training or experience'.[156]
2. The treatment was, at the time, a novel therapeutic treatment for Perthes' disease which did not have any published research in support of its use.
3. Dr Hocking conceded in his 13 March 2015 statement that 'novel treatment recommendations are best provided, and implemented, after wider consultation with my professional colleagues'. That concession is to his credit. Nonetheless, that concession was made with hindsight and after mentoring by, among others, Dr Hardman. The Tribunal also notes that Dr Hocking believed he had consulted with Dr Young and Dr Balakumar.
4. The Tribunal notes evidence produced to the hearing in relation to the first four notifications made in relation to Dr Hocking, one of which involved use of a novel surgical treatment in the case of a Perthes' patient, an adult, in 2008. Following that event, Dr Hocking agreed that the treatment plan was controversial, that there were 'no long term studies as the technique I was proposing is new' and that literature 'is developing to support the innovative technique' and that at the time he 'had limited experience' in its use. In other words, he had previously experienced complications for treatment he had undertaken which was novel and claimed he had learned lessons from that experience. The Tribunal is concerned that his judgement has not benefited from those lessons.
5. Professor Little, in his report of 12 May 2013, rejected comments of Dr Young in his letter dated 2 May 2013 and further report of 12 May 2013 concerning the growing usage of PRP. He denied there was evidence to support Dr Young's statements and said there was no published peer review literature on the topic. He concluded that the treatment was novel, but not experimental.
6. In his review of the 30 or so articles listed by Dr Hocking in support of his use of the treatment, Professsor Little's conclusion was that 'more high level clinical trial evidence was required before PRP was considered routine practice or standard of care in any condition', and that 'None of these papers address Perthes' disease'. The only preclinical trial showed no effect of PRP in the piglet model (the animal study trials). The Tribunal accepts Professor Little's evidence on this issue.
7. The joint report of Professor Little and Dr Young concluded that PRP has been shown to have anti-inflammatory effects in the laboratory setting, but that only one very limited animal study has been performed using PRP in Perthes' disease and this short term study did not show reduction in inflammation. The report conceded that PRP is commonly used in many other inflammatory conditions. Nonetheless, the joint report concluded that 'although the injection of PRP intra-articularly is novel, as an autologous product it is extremely unlikely to have caused any harm, and that there was no evidence that patient A had any adverse reaction to PRP'.
8. The Tribunal notes that the surgeons' Code acknowledges the advantages of surgeons acquiring the skills of ... new technology either through 'training courses, mentorships etc' where there is 'proven benefit'.[157] Dr Hocking maintained that he had been trained in the use of this procedure during his two twelve month fellowships in Toronto, and subsequent training in North America.
9. The tenor of the surgeons' Code is that following such training the surgeon is expected to use those skills, provided there is 'proven benefit' and there has been informed consent by patients or their legal consent-givers.[158] To that extent, Dr Hocking's use of PRP, following consent by the mother of Patient A, falls within the practice enjoined by clause 11.2.1.
10. At the same time there is a reference in this segment of the Code to seeking 'to participate in a properly constructed clinical trial' but only 'where appropriate'.[159] Doing the best it can with the available evidence it appears to the Tribunal that Dr Hocking's opinion was that there was no need for clinical trials in Australia, because of the existing practices within the country to use PRP and the references in the 30 or so articles attached to its efficacy or otherwise. However, Professor Little's comments about the predominant outcomes in those articles being the need for more clinical trials, and the paucity of evidence in Australian practice of whether PRP was effective in reducing inflammation, means the Tribunal considers that Dr Hocking's opinion was not warranted.
11. The surgeons' Code only provides that there is a breach when the surgeon has introduced 'a new procedure or technology to a hospital without seeking approval from the local new technology committee or relevant jurisdiction'.[160] Dr Balakumar, in evidence to the Tribunal, said that although in public hospitals there are clinical committees which must be approached before any new technology is introduced by a surgeon operating within the hospital system, that principle does not apply to use of new technology by those in private practice. In that situation, the only constraint is the need to get informed consent from the patient. As Dr Hocking was essentially in private practice, his failure to seek the approval of the relevant committee in either the Calvary Hospital or The Canberra Hospital, where he was a Visiting Medical Officer, did not apply to him.

1. Taking into account all this evidence, the Tribunal finds that as at 8 April 2013 the treatment of PRP for a paediatric Perthes' patient was not known to have been used previously in Australia, and was a novel treatment and cannot be said to be of proven benefit within the terms of clause 11.2 of the surgeons' Code. Accordingly the Tribunal finds that use of PRP for paediatric patients with Perthes' disease was novel and Dr Hocking had not sufficiently taken this into account in his administration of the treatment.

Allegation 1: (b) Failure to refer Patient A to another surgeon

1. The issue is whether, in July 2012, Dr Hocking should have referred the patient to a surgeon who could, if appropriate, have performed the PFVO procedure.
2. Dr Hocking contended that at all stages he had provided appropriate care for Patient A and kept his mother informed of Patient A's treatment options. He only changed Patient A's treatment recommendation after consultation with Dr Balakumar, and the appropriateness of that change is supported by Perthes' expert, Professor Little. Dr Hocking denied that he should have referred Patient A.[161]
3. Dr Young did not advert to the question in his reports. Nor was there a reference to this issue in the joint report.

Allegation 1: (b) Consideration including evidence

1. In July 2012, Dr Hocking was unable to perform the PFVO surgery he had proposed as a possible treatment. Nor was he able to do so three months' later in September 2012. The conditions to which his registration was subject prevented him undertaking unsupervised open hip surgery, and the PFVO procedure was open hip surgery. Although Dr Hocking submitted that he expected to be able to operate with no restrictions by September 2012, if not earlier, the Tribunal has found earlier in these reasons that that expectation was unreasonable.
2. Dr Hocking had been subject to an undertaking or to conditions on his registration since 5 May 2011 and despite all his requests to the Board to lift the conditions and to do so expeditiously, that had not occurred. So by July 2012 he would have known from experience about the slow progress of Board investigations. Accordingly he should have anticipated that he might well not have been able to perform the PFVO operation himself by September 2012. In addition, the conditions had been in place in July 2012 only for some three weeks and were not to be reviewed for at least six months, that is, December 2012. So he must have known in July 2012 that he would be subject to the conditions in September 2012.
3. At the hearing, when questioned as to what steps he had taken to co-ordinate the proposed PFVO within the three months following his recommendation for its use in July 2012, Dr Hocking said he faced two difficulties: he needed 'an eminently qualified experienced orthopaedic surgeon who has managed paediatric patients' as a supervisor;[162] and he was still negotiating with the Board about using Dr McNicol, a Canberra-based orthopaedic surgeon with a specialty interest in paediatric surgery, as a re-trainer, a process which he said 'took till about December'.[163] Contrary to that last evidence, the Tribunal notes that the Board notified Dr Hocking on 20 August 2012 that it had decided not to accept Dr McNicol, as a re-trainer, a decision confirmed by letter from the Board on 11 September 2012.
4. The Tribunal accepts that, in a conversation with Patient A's mother in September 2012, she had expressed a preference for the operation to be undertaken in Canberra. The Tribunal also accepts that there was a dearth of orthopaedic specialists with experience in paediatric work in Canberra.[164] So Dr Hocking was faced with a difficulty of finding an appropriate supervisor for the PFVO operation in Canberra. Dr Hocking's evidence was that he had tried to arrange for such a person in both Sydney and Melbourne, with no success. Even if Dr Hocking hoped, in July 2012, that he would be able to perform this procedure in the September 2012 without a supervisor, the Tribunal finds that he should have told Patient A's mother in August 2012 that he would be unable to perform the procedure, as by then his inability to find a supervisor should have been readily apparent to him.
5. The Tribunal notes the requirement in the surgeons' Code that a surgeon will '...refer a patient when the best procedure for the patient is not within the scope of practice of the surgeon.[165] Similarly, the doctors' Code states that good medical practice involves 'referring a patient to another practitioner when this is in the patient's best interests.[166] The doctors' Code also notes that good patient care involves 'recognising and working within the limits of your competence and scope of practice'.[167] Dr Hocking's scope of practice at that time did not include the performance of open surgery such as a PFVO.
6. Although his recommendation was only that he would 'coordinate' the PFVO by September 2012, which could suggest that he was not undertaking to perform the treatment in person, this inference is undermined by his failing to make any attempt to warn Patient A's mother that he might not be the surgeon who would undertake the procedure. Dr Hocking had also conceded at the Panel hearings in October 2013 that he should have advised of his restrictions on registration in relation to Patient B. By analogy, he should have done so too in the case of Patient A.
7. Professor Little, in his report dated 12 May 2013, said Dr Hocking's continuing management of Patient A, at a time when he had recommended an operation which he was unable to perform, 'may not be ideal as it could alter the behaviour of the [alternative] surgeon. He was more explicit in his supplementary report of 12 March 2015 where he observed 'Dr Hocking should have referred [Patient A] at that time (25 July 2012) to another paediatric orthopaedic surgeon who could undertake, if they saw fit, this procedure'. To illustrate this point Dr Little pointed out that 'By the time ... the PRP injection was administered ... conducting an osteotomy of this kind [PFVO] was unlikely to be a viable option, because the femoral head shape had by then deteriorated'.
8. In other words, the delay in conducting the PFVO surgery, as foreshadowed in September 2012, had resulted in that form of surgery no longer being a viable option. The implication was that had the matter been referred to another surgeon, that person might have chosen a different treatment plan or been able to conduct the PFVO surgery within a shorter time frame and prior to the deterioration of the femoral head.
9. The Tribunal notes Dr Hocking's closing submission that it was appropriate practice to defer the surgery when Patient A's stiffness in his hip first needed to be alleviated, that he believed the advice given by Dr Balakumar was to this effect, that Patient A's mother had requested that the surgery be undertaken in Canberra, and that Dr Hocking was continuing to have difficulty in finding an appropriate supervisor for this location.
10. The Tribunal rejects the submission that 'if it had become necessary for the operation to be carried out [Patient] A could have seen another surgeon reasonably quickly'.[168] Given the preference of Patient A's mother to have the operation in Canberra, the known delays in elective surgery for public patients in Canberra hospitals, and Dr Hocking's admitted difficulty in finding a surgeon to supervise him in that city, that submission is inconsistent with the exigencies Dr Hocking was then facing.

1. The Tribunal finds that in recommending in July 2012 the use of the PFVO procedure 'to be coordinated in the next three months', that is, by September 2012, only some three weeks after the Board imposed conditions which were not to be reviewed before December 2012, Dr Hocking must have known that it was most unlikely that he would be able to perform the procedure at that time.
2. There was no reason to expect, at that time, that the surgery would be delayed, and having informed the mother of Patient A that a PFVO was treatment was proposed within the next three months, he was impliedly indicating to her that he would be the person who undertook the surgery. That implication is the stronger given the fact that Dr Hocking was treating another sibling of Patient A for a similar condition. In this situation he was in breach of the trust which Patient A's mother had developed in him, through the treatment of two of her children for the same condition, not to disclose that in the event that the treatment went ahead as planned, Dr Hocking might not be the one to undertake it. By not warning her of this possibility, Dr Hocking was denying her the opportunity to develop a relationship of trust with another practitioner prior to any PFVO surgery. For these reasons, Dr Hocking was in breach of provisions in the surgeons' Code and the doctors' Codes requiring referral when the procedure might not be within the scope of his practice at that time.

Allegation 2: Misrepresentation to parents of Patient A

1. The issue is whether Dr Hocking misrepresented to the parents of Patient A and to the general practitioner, that PRP for Perthes' had been used with satisfactory outcomes by Dr Balakumar, who had agreed with Dr Hocking's approach. If he did so, did this misrepresent the risks and benefits of use of PRP for a paediatric patient with Perthes' disease?
2. A related issue is whether the misinformation had the effect that the consent from the patient's parents to the treatment (the third issue) was not informed. That proposition depends on a finding as to whether the consent was influenced by Dr Hocking misrepresenting to them that Dr Balakumar had used this procedure for paediatric patients with some benefit (the fourth issue).
3. The Tribunal considers it unlikely that there was any discussion about Patient A in September 2012 as alleged in Dr Hocking's closing submission since the evidence suggests the conversation with Dr Balakumar was of a general nature, involving as it did an invitation from Dr Hocking for Dr Balakumar to come to Canberra to provide supervision of Dr Hocking when undertaking paediatric surgery as required by the restrictions on his practice.
4. Dr Balakumar's evidence in his affidavit of 23 July 2013, was that he declined the invitation, from which it can be inferred that although Patient A's name may have been mentioned, no details were discussed since Dr Balakumar had, according to his evidence which the Tribunal accepts, been reluctant to be involved with the supervision of Dr Hocking from the beginning of their relationship in 2012. That was consistent with his refusal to come to Canberra to supervise Dr Hocking's paediatric surgery.[169]
5. Dr Hocking was of the firm view that he discussed the case of Patient A and the use of PRP for Perthes' disease paediatric patients with Dr Balakumar on 18 October 2012 when he was in Melbourne. However, he contended that the likelihood is that he misunderstood advice that Dr Balakumar had used PRP for a patient with Perthes' disease.[170]
6. Dr Balakumar, in his affidavit[171] for the ACT Supreme Court proceedings,[172] denied firmly that Dr Hocking raised any specific case with him when they were together. He did concede in his letter of late May/early June 2013 that the use of PRP in Perthes' disease may have been a theme in their discussions, and that he had used PRP to treat some adult patients, but denied that he had ever used PRP in the treatment of children with Perthes' disease. As he said:

I would never recommend any form of treatment without first physically examining a patient myself. I would not have recommended PRP as a treatment for Perthes' disease. This is because it is not indicated for this condition and is unlikely to have any positive effect. To date I have not used PRP when treating Perthes' disease, nor am I aware of anybody in Australia (other than Dr Hocking) using PRP to treat Perthes' disease. I would not recommend another practitioner use a treatment which I had not used myself.

1. In the Tribunal Dr Balakumar did not resile from his view that he had not used PRP in treatment of children with Perthes' disease, but conceded in cross-examination that there was always a possibility that he had forgotten a conversation with Dr Hocking about Patient A's case during Dr Hocking's visit to Epworth Hospital to observe Dr Balakumar operating. That concession accords with the specificity of the evidence of Dr Hocking. According to Dr Hocking, when Dr Balakumar was told that Patient A's brother had developed the condition in 2011 (sic, 2008), Dr Balakumar had said Dr Hocking should consider multiple epiphyseal dysplasia, a familial condition.[173]
2. Despite that concession, the Tribunal accepts the statements in Dr Balakumar's affidavit and in the May/June 2013 letter that his standard practice is never to offer advice in relation to a specific patient without personally seeing those patients. The Tribunal is satisfied that this is sound practice and more so, in an interaction with another surgeon with whom, as Dr Balakumar asserts, he was being particularly careful because he knew that that surgeon's registration was subject to conditions.
3. The Tribunal finds that Dr Balakumar adhered to that practice when in conversation with Dr Hocking on 18 October 2012 and that Dr Balakumar did not specifically advise Dr Hocking about the proposed use of PRP for Patient A with respect to Perthes' disease, and had not indicated approval for Dr Hocking's proposed treatment plan for him.
4. The Tribunal finds that a conversation along general lines about Perthes' disease probably did take place in October 2012, but the extent of that conversation was misunderstood by Dr Hocking. Indeed, in his email to Dr Balakumar of 12 September 2013, Dr Hocking conceded that he may not have recorded the conversation accurately. At the same time, not only did Dr Hocking believe the conversation occurred, it was apparently not until September 2013 when there was an interchange of emails between Dr Hocking and Dr Balakumar, some time after the misrepresentation, that Dr Hocking was alerted to the misunderstanding and the Tribunal so finds.

1. The Tribunal finds that Dr Hocking should have warned the mother of Patient A at the time he proposed a PFVO that he might not be in a position to undertake the surgery, explaining the reason, and referred her to another surgeon. In addition, the Tribunal has found that objectively Dr Hocking did mislead the mother when telling her that although he had not used PRP, a colleague, Dr Balakumar had done so with success.

1. The allegation is that by informing the mother of Patient A that the use of PRP had been successfully undertaken and thus reassuring her about the safety and the utility of the treatment, the consent she provided was not made with full knowledge of the risks and was thus not fully informed.

1. The surgeons' Code requires that 'A surgeon will ensure consent has been obtained from the patient (or guardian) before elective operations are undertaken'.[174] 'Informed consent' is defined in the doctors' Code as 'a person's voluntary decision about medical care that is made with knowledge and understanding of the benefits and risks involved'.[175]
2. Dr Hocking said in response to a question about what information he gave her: 'the presentation was a verbal presentation and it was a display of the material in an electronic format that patients would be given a paper format in the room'. As he also said he told Patient A's mother: 'the process of informed consent was on how the mixture would be created, saying that it was from the patient's own blood, informing them of the risks which are lower than with steroid'. He said of the risks:

I told her about the risks of first of all the anaesthetic, then the risk of the potential for infection, the risk that the procedure would have no effect, and the risk that the patient could have some pain from the localised injection into the groin at the time of the procedure.

1. In response to a question to Dr Hocking as to whether Patient A's mother had fully understood the risks and benefits, he said: 'Yes. She had provided informed consent for a similar treatment three times previously'.[176]
2. That she did understand is supported by the affidavit of Patient A's mother of 24 May 2013 in which she said that at a meeting with Dr Hocking in September 2012 he had explained fully the reason he was suggesting an injection of PRP rather than steroids; and had told her about the procedure, the trialling by Melbourne colleagues of the procedure with good results, the advantages of its use, and the need for it to be performed under general anaesthetic.[177] Patient A's mother also confirmed in her statement that she remembered Dr Hocking referring to a Dr Balakumar and that the use of PRP was experimental. The affidavit also stated: 'He has always explained treatment options clearly [and] has taken time to answer our questions'.
3. The Tribunal also has general information from Dr Hocking's supervisors and from the specialists with whom he has recently been working at Burnie and Tamworth that he appropriately obtains consent from patients.
4. Accordingly, the Tribunal accepts that Dr Hocking told the mother of Patient A that he had not previously used PRP for a Perthes' disease patient, that he informed her about the nature of the PRP procedure, and provided information to her of the risks, including that this was a novel procedure for him to perform. In other words, there is no information to suggest that Dr Hocking was not being totally honest with Patient A and his mother.[178]
5. In determining whether the consent was fully informed the Tribunal also needs to determine whether the consent had been influenced by Dr Hocking misrepresenting to Patient A's mother that Dr Balakumar had used this procedure for paediatric patients with some benefit.
6. The Tribunal had no evidence as to whether this additional information persuaded the parents to provide consent. The Tribunal did have evidence that Dr Hocking had the confidence of the mother of Patient A, as evident from her affidavit, that Dr Hocking had been treating a sibling of Patient A's who also had Perthes' disease, that his parents chose to continue using Dr Hocking when Patient A also developed the disease, and Patient A's mother said in her affidavit: 'I only have good things to say about Dr Hocking. I have always been happy with the treatment that Dr Hocking has provided for my family'. These factors suggest that the information about beneficial use of PRP by Dr Balakumar was probably of secondary importance to the consent they provided to use of PRP.

1. The Tribunal is satisfied that Dr Hocking provided relevant information and advice to the parents of Patient A, including the risk of him performing the procedure for the first time, and that their consent was informed and would not have been changed had they been aware that the information about Dr Balakumar's use of the procedure in similar circumstances was untrue.

1. The general issues in relation to the Patient A and Patient B matters are whether Dr Hocking behaved in a way that constitutes either or all of unsatisfactory professional performance, unprofessional conduct, or professional misconduct.[179]
2. The law to be applied was set out in Matter OR 13/48 of these reasons.

1. The Tribunal notes the evidence of Dr Hocking, Professor Little and Dr Young of the absence of any adverse effects from use of PRP for Patient A. The Tribunal also makes the following findings:

1. PRP is used in Australia to reduce inflammation in adult patients for conditions not dissimilar to Perthes' disease; 2. the surgeons' Code recognises the need for training in and use of novel technology;

1. Dr Hocking had significant North American training and experience in paediatric treatment;

1. Dr Hocking was not working within a hospital system and was thereby excused from the requirement to seek prior approval from a hospital committee for use of novel treatment; 2. Dr Hocking had indicated his willingness to consult more broadly in future before trialling novel treatments; and 1. the joint report acknowledged that PRP is increasingly being used to replace treatment with steroids to reduce inflammation.
2. In these circumstances, the Tribunal is comfortably satisfied that Dr Hocking's use of this treatment was not below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. Accordingly, under s 196(i)(a) of the National Law Dr Hocking has no case to answer in relation to this allegation.

1. The Tribunal prefers the opinion of Professor Little to that of Dr Hocking on this issue (see the earlier observations on Dr Hocking's ability to be objective about his performance in the matters under review). Professor Little, in his supplementary report of 12 March 2015, had pointed out that had Dr Hocking referred Patient A in July 2012, the delay which ultimately meant that the osteotomy (PFVO) was not a viable option could have been avoided. The Tribunal also accepts his view that had the matter been referred to another surgeon, that person might have chosen a different treatment plan or been able to conduct the PFVO surgery within a shorter time frame and prior to the deterioration of the femoral head.
2. In addition in failing to make a referral, Dr Hocking was in breach not only of the referral principle but of other principles in the surgeons' Code requiring the surgeon to act in the patient's best interests.[180]
3. On balance, the Tribunal is comfortably satisfied that at the time he proposed surgery for Patient A in the form of the PFVO, he was aware that he might not be able to conduct the surgery and that to fail to refer Patient A to an alternative surgeon in July 2012 was conduct which was below the judgment and care reasonably expected of an orthopaedic surgeon of an equivalent level of training or experience as evidenced by its breach of the surgeons' Code. Dr Hocking behaved in a way that constituted unsatisfactory professional performance: National Law s 196(1)(b)(i).

1. The Board contended that Dr Hocking engaged in professional misconduct by misrepresenting to Patient A's parents that Dr Balakumar had used PRP treatment for Perthes' disease in children with success, and that Dr Balakumar had endorsed the use of PRP treatment for Patient A.
2. Dr Hocking contended that there is no case to answer concerning this allegation.
3. The Tribunal is satisfied that although Dr Hocking should have been more careful in his recollection and recording of the conversation, and should have sought permission to refer to Dr Balakumar's statements in his conversations with Patient A's parents, and their general practitioner, his mistaken belief that Dr Balakumar had successfully used PRP on juvenile Perthes' disease patients, was an innocent mistake and did not fall below any of the standards in section 5 of the National Law. He did not thereby engage in unsatisfactory professional performance. A misrepresentation made in good faith albeit, incorrectly, is not conduct which meets that standard.
4. Overall, the Tribunal finds that Dr Hocking did not behave in a way that constituted unsatisfactory professional performance in relation to allegation 2.[181]

Allegation 3 - Failure to obtain informed consent

1. The Board contended that Dr Hocking engaged in professional misconduct by failing to obtain informed consent from the patient's parents before administering the treatment.
2. Dr Hocking contended that he obtained appropriate informed parental consent in relation to the use of PRP and he has no case to answer concerning this allegation.[182]
3. The case law has acknowledged that 'What is required for a fully informed consent is a question of fact in all the circumstances of each case and there is no precise formula which will determine in all cases if fully informed consent has been given'.[183] Generally it is said that consent is informed where the patient (or guardian) can be said 'to understand fully what is proposed'[184] but 'the choice is meaningless unless it is made on the basis of relevant information and advice'.[185]
4. The Tribunal has found that Dr Hocking did obtain the consent of Patient A's mother in accordance with these standards. This element of the allegations does not amount to unsatisfactory professional performance. Therefore in accordance with section 196(1)(a) of the National Law Dr Hocking has no case to answer in relation to this allegation.

1. In summary, the Tribunal has found that Dr Hocking had no case to answer from his use of PRP, that his failure to refer was unsatisfactory professional performance, but that he did not knowingly misrepresent the safety of the treatment to Patient A's mother, and there is insufficient evidence for the Tribunal to be satisfied that her consent was not informed.
2. In accordance with the matters raised at the hearing and referred to in paragraph 3 above, as Dr Hocking has not been 'completely vindicated' by the Tribunal in OR 13/48 and OR 14/31 the Tribunal will consider Dr Hocking's conditions appeal before determining the penalty to be imposed in the Patient A and Patient B matters.

1. OR 14/04 is an appeal by Dr Hocking, pursuant to section 199(1)(f) of the National Law against the decision of the Board made on 5 December 2013 to refuse to remove conditions imposed on his registration, and to maintain three conditions on his registration.

1. In early April 2011, two notifications were made in relation to Dr Hocking. On 19 April 2011, as a result of an investigation into a notification regarding four other incidents, the Board advised that it intended to take immediate action to suspend Dr Hocking's registration.[186] The proposed 'immediate action' could be taken by the Board where it reasonably believed that, because of the registered health practitioner's conduct, performance or health, the practitioner posed a serious risk to persons, and it was necessary to take immediate action to protect public health or safety.
2. In response, on 5 May 2011, Dr Hocking entered into a voluntary undertaking.[187] The undertaking was in the following terms:

I will undertake no elective adult or paediatric open hip or pelvic surgery, and involve one of my senior colleagues in the management of any trauma surgery involving major pelvic injuries, pending completion of the formal AHPRA investigation.

1. The voluntary undertaking had the effect of forestalling the Board's suspension of Dr Hocking's registration.[188] Dr Hocking was subject to that undertaking between 5 May 2011 and 21 June 2012. The undertaking was notified on the National Register.[189] Accordingly, the undertaking was in place on 15 February 2012 when Dr Hocking performed the arthroscopy on Patient B, the subject of the notification in Matter OR 13/48.
2. On 18 April 2012, following the completion of its investigation, the Board decided to impose conditions on Dr Hocking, final wording to be confirmed.[190] That decision, following submissions and negotiation, was made on 21 June 2012, and took effect from the date of notification to Dr Hocking, namely, 26 June 2012. The Board imposed six conditions on his registration to practice which were as follows:
   1. To be supervised in situ by Dr Gillespie or Dr Morris in the management of any trauma surgery involving major pelvic injuries;
   2. Not to undertake any elective adult or paediatric open hip or pelvic surgery outside of the re-training as outlined at conditions 4 and 5;
   3. To be mentored by Dr Hardman and ensure that Dr Hardman provides to the Board reports on Dr Hocking's progress on a six monthly basis;
   4. To undertake a period of re-training in the areas of open adult hip surgery overseen by Dr Gillespie for a period of time not shorter than six months, and until Dr Gillespie has indicated to the Board's satisfaction that Dr Hocking possesses the required skills, competence and training in these procedures;
   5. To undertake a period of re-training in the areas of adult and paediatric hip and pelvic surgery in a facility approved by the Board and the Australian Orthopaedic Association overseen by a Board approved trainer for a period of time not shorter than six months and until the Board approved trainer has indicated to the Board's satisfaction that Dr Hocking possessed the required skills, competence and training in these procedures; and
   6. To continue undertaking the broad scope of previously unrestricted surgeries.
3. Three orthopaedic surgeons were appointed by the Board under whose supervision Dr Hocking was to conduct surgery. They were Dr Peter Morris and Dr Michael Gillespie, orthopaedic surgeons based in Canberra, and Dr David Young, who practises in Melbourne. Dr Hocking completed a course of retraining in adult arthroscopy and complex open hip procedures, including PAOs, under Dr Young.[191]In addition, an appointment was made of a mentor, namely, Dr David Hardman, a consultant vascular surgeon in Canberra.
4. On 9 July 2012, a further notification was received by the Board in relation to Patient B, and on 23 August 2012, the Immediate Action Committee of the Board decided it would impose further conditions and would investigate Dr Hocking.[192]
5. The additional conditions imposed by the Board on Dr Hocking on 4 September 2012 were as follows:

7. Not to perform any adult or paediatric surgery without a Board approved supervisor present in the operating procedure for the entirety of the procedure.

8. Not to undertake arthroscopies on children and adolescents eighteen years or under.

9. To undertake full-time remediation and re-training of not less than 40 hours per week for a minimum of six months under the supervision of an orthopaedic surgeon approved by the Board.

10. Supervisor reports to be provided at agreed intervals by the approved orthopaedic surgeon in relation to condition 9 only.

11. That a review of all decision to undertake surgical procedures by a Board approved senior colleague occur prior to commencement of procedures.

12. A review of all the conditions is to occur at the conclusion of the investigation or in twelve months' time.

1. Dr Hocking sought review by the tribunal of the Board's decision on 11 September 2012 and applied to the ACT Supreme Court for a stay of conditions 7-12. By order dated 12 September 2012 the Court granted a stay of conditions 7 and 9. In effect these were the substantive conditions. The Supreme Court in that order also accepted Dr Hocking's undertakings to the Court [that] he would:

1. Not undertake arthroscopies on children and adolescents 18 years or under. 2. Not undertake peri-acetabular[193] osteotomies[194] on children and adolescents 18 years or under.

1. Undertake remediation and retraining at an interstate location for a minimum of six months under the supervision of Dr David Young, noting that written certification will be required from Dr Young stating that Dr Hocking can safely and independently perform the procedures referred to in (a) and (b) above by himself at the completion of the six months' retraining.
2. The outcome was that between 12 September 2012 and 4 March 2013, Dr Hocking was subject only to conditions 1-6 and was bound by the undertakings he had given to the ACT Supreme Court.
3. On 28 February 2013, the Board notified Dr Hocking that it proposed to replace conditions 1-6 with conditions 1-3 and invited submissions from him. On 4 March 2013, the Board removed conditions 7-11 but decided to refer the case to the Performance and Professional Standards Panel of the Board.[195] Dr Hocking was advised of this decision on 13 March 2013. On 20 March 2013, Dr Hocking indicated he was not prepared to accept the revised conditions.
4. On 16 April 2013 the Board decided to amend the wording of the proposed new conditions to add the word 'elective' to condition 1. On 8 May 2013 the Board notified Dr Hocking that as it considered he 'has practised orthopaedic surgery' unsatisfactorily, and conditions 1-3, as amended, would be imposed. Those conditions are:

Dr Hocking may perform the broad scope of orthopaedic surgery subject to the following limitation:

1. No unsupervised open elective hip or pelvic surgery apart from routine primary adult hip replacement.

2. Condition 1 will be reviewed upon completion of re-training to the satisfaction of the Board in the surgeries restricted by condition one

3. These conditions to be reviewed within six months of notice of their imposition.

1. On 18 April 2013, a notification concerning Patient A was received by the Board. On 24 April 2013 Dr Hocking was advised that the Board intended to take immediate action to suspend his registration. This action was taken on 26 April 2013. Dr Hocking appealed to the tribunal for review of the Board's decision. On 6 May 2013, the tribunal stayed the suspension decision but on 8 May 2013 imposed an extra condition, namely, that Dr Hocking was not to perform any elective paediatric surgery. Conditions 1-3, as amended remained in place.
2. On 18 October 2013 a Performance and Professional Standards Panel established by the Board conducted a hearing into the Patient B matter. On 5 December 2013, following the report of the Panel, the Board decided that conditions 1-3 would remain in place for a further six months, reviewable in June 2013. These conditions are still in force. Dr Hocking has not practised paediatric elective hip and pelvic surgery, other than trauma surgery, for four years, and in a letter dated 15 May 2014, he pointed out that he closed The Canberra Hospital Paediatric Orthopaedic Clinic to new patients in May 2013 and to all patients in August 2013. He said he no longer intends to perform paediatric surgery.[196]
3. On 1 April 2014, Dr Hocking again wrote to the Board requesting that the conditions on his registration be removed. The Board responded on 22 April 2014, that as the 'conditions' matter was before the Tribunal, it was inappropriate for the Board to take action at that time.

1. Dr Hocking has appealed the decision of the Board to refuse to change or remove conditions 1 to 3. This matter is an appeal under National Law[197]. Section 199(1)(f) provides as follows:

_(1) A person who is the subject of any of the following decisions (an appellable decision ) may appeal against the decision to the appropriate responsible tribunal for the appellable decision - _

(f) a decision by a National Board to refuse to change or remove a condition imposed on the person's registration or the endorsement of the person's registration;

_(1) After hearing the matter, the responsible tribunal may - _

(c) substitute another decision for the appellable decision.

(2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.

1. The nature of the decision making process to be made by the tribunal is not otherwise defined. Nonetheless, it has been accepted by Murrell CJ in Hocking v Medical Board of Australia [2014] ACTSC 48 that the decision of the Victorian Court of Appeal in Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295 (Kozanoglu) should be regarded as authoritative in the ACT. That decision provides that the tribunal, in such proceedings, is to make its decision according to a modified form of merits review. The role of the tribunal was described in by Murrell CJ in these terms at [121]:

... in exercising its jurisdiction, the ACAT is to take into account the material that was before the Board when it made its decision and any additional evidence that bears directly upon the position as it was when the original decision was made.

1. The decision the Tribunal makes must be consistent with s 3(3)(c) of the National Law:

Restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of appropriate quality.

1. In the absence of any indication in the National Law of the specific findings which can be made by a tribunal on appeal the Tribunal is guided by the provisions in section 196 which relate to the role of a responsible tribunal.

1. The Tribunal has decided the Patient A and Patient B matters. The Tribunal has made findings in those matters which are set out in paragraphs 229 and 311 above.
2. In light of these findings, the Tribunal has to decide whether the conditions on Dr Hocking's registration should be maintained or removed. A condition on registration may only be removed once a review period has come to an end, and then only if the Tribunal reasonably believes there has been a material change in the health practitioner's circumstances.[198]
3. The review period has come to an end, and it is for the Tribunal to decide whether to remove the existing conditions on Dr Hocking's registration if it is satisfied that there has been a 'material change' in Dr Hocking's circumstances. The Tribunal must make that decision only if it 'reasonably believes' such a change has occurred. A 'material' change according to the Shorter Oxford English Dictionary means a change which is '4. In a material degree; substantially, considerably'. The word 'material' is an evaluative threshold, and is more than de minimis.[199]
4. A further decision required of the Tribunal is whether Dr Hocking's practice of surgery should be subject to no, or any other, conditions. If the Tribunal does decide to impose further conditions, it must specify a review period for those conditions.[200]
5. In making its decision the Tribunal must take into account the guiding principles of the registration and accreditation scheme under the National Law, particularly, that: '...restrictions on the practice of a health professional are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.[201]

1. The Board contended that conditions 1 and 3 should remain in place at least until the determination of the outcome of the Patient A and Patient B matters, including, if applicable, as to penalty.
2. The Board submits that as the joint report of the expert witnesses for both parties (Dr Young, and Dr Fletcher and Dr Pincus, both orthopaedic surgeons) indicates, all the experts were 'in agreement that Dr Hocking has completed his period of additional supervision and retraining as required by the ACT Medical Board'. That means that condition 2 of the three conditions, namely, that Dr Hocking was to complete 're-training to the satisfaction of the Board in the surgeries restricted by condition 1' is satisfied'. The Tribunal agrees that the evidence supports that submission, that this is a material change, and that condition 2 is satisfied.
3. In relation to conditions 1 and 3 the Board submits that if Dr Hocking is not completely vindicated in Patient A and Patient B matters, depending on how significant are the findings in those matters, the Tribunal will need to determine whether or not the penalty it decides to impose supersedes any of the conditions.[202]
4. Dr Hocking contended that the conditions to which his registration remains subject should be removed as there was:
   1. no evidence that such conditions were required;[203] and
   2. the Board failed to accord Dr Hocking procedural fairness contrary to the requirements of the National Law.[204]
5. No particulars were provided by Dr Hocking as to this second contention concerning breach of procedural fairness, and the Tribunal has accordingly taken it to have been abandoned. In any event, any previous breach of procedural fairness would have been cured by the Tribunal's hearing which took place over eight days, and provided a full review of both facts and law, thus providing a comprehensive opportunity for Dr Hocking to be heard.[205]
6. Counsel for Dr Hocking listed the following reasons his practice was no longer a threat to public safety:

1. successful participation in mentoring with Professor Hardman and supervision with a range of Orthopaedic Surgeons; 2. development of clear insight into some of the shortcomings in his conduct;

1. the extended period in which Dr Hocking has already practised under conditions and the successful completion of the retraining required by the Board; and

1. the undertaking that Dr Hocking is prepared to give.

1. There was some assistance in reports by supervisors, mentors and experts, Dr Young, Dr McNicol, Dr Morris, Dr Gillespie Dr Fletcher, Dr Prisell (Orthopaedic Surgeon, Burnie), Mr Wainwright (Orthopaedic Surgeon, Tamworth) and Dr Finch, (Orthopaedic Surgeon, Tamworth). In summary their evidence as to Dr Hocking's skills and his improved practice is as follows:

1. his technical skills are high: Dr Young: 18.1.2013; 11.7.2014; Dr Morris, 30.01.2013 and 18.4.2013**; Dr Fletcher**, 6.11.2014; and above those of his locum peers: Mr Wainwright, 16.3.2015; Dr Finch, 17 March 2015; 2. he is safe to perform standard hip replacement and pelvic surgery without supervision: Dr Gillespie, 24.1.2013; Dr Morris 30.1.2013 and 13.5.2013; Dr Young, 18.1.2013; Dr Fletcher, 6.11.2014;

1. he is safe to perform complex hip and knee replacement surgery: Dr Young, 11.7.2014; Dr Fletcher, 6.11.2014;

1. he should have a mentor for difficult or unusual hip surgery: Dr Morris, 18.4.2013; Dr Gillespie, 24.1.2013 and 31.10.2013; 2. his communication, interpersonal skills, collegiate relations and professional responsibility awareness is of a high quality: Dr Young, 18.1.2013; Dr Hardman 10.4.2014; Dr Prisell, 20.3.2015; Dr Finch, 17.3.2015; 3. he has developed insights into his failings; Dr McNicol, 14.9.2011; Dr Gillespie, 24.1.2013; Dr Morris, 31.1.2013; Dr Hardman, 10.4.2014; 4. the conditions on his registration should be removed: Dr Young, 18.1.2013 and 11.7.2014; Dr Morris, 26.9.2011, but in 18.4.2013, his report said only for routine hip replacement surgery; Dr Fletcher, 6.1.2014; Dr Finch, 17.3.2015.
2. The Tribunal gives weight to the supplementary report of Professor Hardman, as mentor, dated 24 March 2015. In that report Professor Hardman said, in his opinion, Dr Hocking is now aware of the gravity of the problems that have beset his practice and understands the contribution of the difficult interpersonal relationships, due to his arrogance, with both patients and colleagues; he understands that the community wants him to be a competent surgeon and to work with empathy and insight. He has learned that success in surgery is directly related to working in a team where you recognise both your strengths and weaknesses, and he has developed a sense of personal responsibility for unwanted surgical outcomes and a real sense of advocacy and urgency in trying to obtain the best outcome. He concluded his report by saying:

This journey has been difficult for Dr Hocking, but the last three years have seen a real humility and responsibility inform a sense of professional commitment. I am uncertain as to the Board's desired endpoints from my involvement as a personal mentor, but I am sure that Dr Hocking in 2015 is not the same person whom I met three years ago. This is to the advantage of the community.

1. Some additional support for Dr Hocking's submissions was apparently provided by the following comments: Dr Hocking's 'personal statistics are consistent with his colleagues' (Dr McNicol. 14.9.2011) and 'Dr Hocking's cases ... have not been substantially better or worse than the other orthopaedic surgeons apart from [one] catastrophic case' (Dr Morris, 26.9.2011).

347. Despite these assertions, the Tribunal finds it hard to accept that any orthopaedic surgeon who, at one point, had the Board investigating 44 cases of conduct about which complaints had been made,[206] would not be able to escape a finding that there may be a risk to public safety if that person continued to practise in the areas subject to the complaints. Even though only a small proportion of those cases resulted in adverse findings, the number of complaints made is disturbing. In addition, the Tribunal notes that both Dr McNicol's and Dr Morris's comments were made in 2011, some four years ago, have not been tested in a hearing, and these factors detract from their weight.

1. The Tribunal takes into account the view of Professor Little in his report of 12 May 2013 that AHPRA, and the Tribunal, need to address to what extent the restrictions on Dr Hocking's practice influence the continued management of his patients with conservative therapy. As Professor Little said, 'allowing a specialist to continue to treat patients so long as they don't need an open operation may not be ideal as it could alter the behaviour of the surgeon.' That issue is a factor relating to public safety.
2. Dr McNicol repeated at the hearing that Dr Hocking had learned from his mistakes, that he had insight into what occurred, and that 'notwithstanding that incident, he can now be trusted as a competent and reliable surgeon'.[207]

1. Dr Hocking maintains that his performance and skill level means his practice no longer raises issues of public safety. In summary, the changes he claims have been to his practice are as follows, according to the dates of his reports, statements, or affidavits for the purposes of his various proceedings since 2011:

1. 20.4.2011: I acknowledge I have had surgical complications, but I participate in peer review, personally review my cases and reflect upon my cases and look for improvements in my practice, made changes [including] management of hip dysplasia both operatively and non-operatively, and I will continue to provide a safe, scientifically based, reflective orthopaedic practice.[208] 2. 19.9.2011: [Concerning a case in which following surgery by Dr Hocking, a woman needed an amputation]. I accepted comments and benefited from advice and opinion of the review panel and have introduced 'a modification of surgical technique with respect to handling such issues. I would involve surgical colleagues earlier, and seek another opinion. I have reviewed my own practices and would be careful to include relevant information in the operation report and the record and be clearer in writing in the medical notes, including times and orders and directions and would be careful how I communicate to colleagues and follow things up.

1. 19.9.2011: [In relation to the notification concerning three other patients.] Dr Hocking's statement included:

I recognise that three of the patients all had surgical complications that occurred within a short time frame, and have reviewed my practice to identify any indications of why that should be so, to ensure that my surgical complication rate is not outside acceptable limits, and that my skill and clinical judgement is not open to further criticism; [6.4']. [7.2] The changes I have made as a result of these notifications include improved clinical decision making as a result of discussion and peer review, examination and re-examination of my surgical technique to look at ways of minimising risk and I am much more aware of other surgeon's strategies for avoiding risk and have taken note of advice. As a result I have a higher index of suspicion of surgical injury, appreciate the need to call for assistance early, and to consult more readily in the intraoperative phase, if necessary. I undertake to take advantage of the collegiate support that is available, to be careful to communicate directions and requirements clearly, such as to call me, or to call a consultant, and to document this in the notes, to clarify directions, or post-operative instructions and record these in the notes.

1. 1.4.2014: [In a letter to the Board] During this time I have complied with all the undertakings/conditions that have been placed on me and I have arranged and completed to the satisfaction of my supervisors and mentor the re-training the Board requested in the areas of adult elective hip and pelvic surgery to the level of a subspecialist orthopaedic surgeon. The result is that Dr Hardman was satisfied that the concerns that the Board had in relation to his professionalism were resolved through this mentoring process. He noted that the adult notifications concern patients which predated the period of retraining and therefore any concerns with respect to his judgement/technical skills should be ameliorated by the period of supervision already undertaken.
2. 15.5.2014: [In relation to Patient A]. Dr Hocking said: he appreciated the importance of practising within a team environment, and had a clearer understanding of the ways in which innovative practice is introduced; recognised that novel treatment needs to be introduced in a formalised peer supported way and through a structured clinical trial; the events reinforced his understanding of the ethical principles that govern surgical practice. He went on: 'I have also worked closely with Senior Orthopaedic Surgeons who have helped hone my technical skills and increased my awareness of potential problems that could occur at particular stages of the surgical procedure, and had highlighted the importance of patient communication'. As a consequence, he said he had established a network of peers, had reflected on ways to improve his choices and his range of responses, he would no longer work in professional isolation, and he had established improved interdisciplinary peer networks through these discussions.

1. The Tribunal notes that there is noticeable repetition in these statements over the last three to four years, and that Dr Hocking's claims to have acquired increased skills, knowledge and understanding have been belied by further complications with his practice.
2. At the same time, the Tribunal notes that the supervision reports by Dr Gillespie, Dr Young, Dr Morris and Dr Hardman illustrate that over the period of their supervision or mentoring, Dr Hocking demonstrated a marked improvement in clinical decision-making, collegiate interaction and technical performance. Those reports, not all of which have been fully supportive as the qualified remarks of Dr Gillespie illustrate,[209] have, however, been reinforced by the most recent reports of medical experts with whom Dr Hocking has worked in Burnie and at Tamworth. In particular the undated report of Dr Finch, orthopaedic surgeon in Tamworth who, conscious of the conditions to which Dr Hocking was subject, closely supervised him in every aspect of his work.

... as a competent caring orthopaedic surgeon; was 'well above average' compared to several other recent locums; that his 'informed consent was above average'; showed 'sound decision making, [he] was well read, accepted advice and showed no major variances in standard orthopaedic practice to common orthopaedic problems'; and he had 'no major concerns regarding his competency or surgical ability.

1. Those remarks led to his opinion that Dr Hocking should be able to function as an independent orthopaedic surgeon, and are pertinent for the Tribunal's decision-making.
2. The joint report of Dr Fletcher and Dr Young, dated 17 February 2015 (joint report), suggested a number of advisory notes for Dr Hocking's future practice. The joint report recommended:

1. The current restrictions imposed upon Dr Hocking's AHRPA restrictions be lifted, subject to completion of medical-legal processes and satisfactory outcomes.

2. Dr Hocking be required to pre-operatively discuss all complex cases (including complex hip and knee surgery cases) with suitably qualified surgeons. This should be followed up by a presentation of all post- operative outcomes of the same procedures during the post-operative period.

3. Dr Hocking specifically highlight his arthroplasty audit, including the audit of review arthroplasty and including the NJRR outcomes as part of his CPD, audit and peer review process.

4. Dr Hocking practise within a departmental setting in the public hospital environment and within a group session in the private sphere.

5. That for the next 12 months, consideration should be given to organizing a theatre arrangement where Dr Hocking's major cases are performed in a location and time such that a second surgeon may join the surgery if the clinical complexity of the case requires 'buddy' support.

6. These arrangements give the right balance between patient safety and natural justice to Dr Hocking and demonstrate good clinical governance.

1. Dr Pincus disagreed and said that the current restrictions on the practice of Dr Hocking should be maintained. He also was of the opinion that recommendations 2 to 5 were impractical.
2. In evidence, Dr Hocking said the recommended conditions were feasible restrictions in a limited number of hospitals, including the North West Regional Hospital in Burnie, where he worked in 2014, and subsequently the regional hospital in Tamworth where he is currently employed. As he said provided he could continue in Tamworth Rural Regional Hospital:

I would be able to practice (sic) with the proposals that have been suggested. If, however, conditions are placed that jeopardise that work, I may struggle to find any other department that operates in such a capacity to allow me to fulfil the suggestions that Dr Fletcher made.[210]

1. The Tribunal is aware that Dr Gillespie and Dr Morris, two of his supervisors, were of the opinion that Dr Hocking still required support and a form of supervision for more complex hip and pelvis surgery. That view is shared by Dr Pincus. At the same time, the reports of Dr Gillespie and Dr Morris were written two years ago and Dr Pincus has not personally supervised Dr Hocking. His contact with Dr Hocking was as a member of the Performance and Professional Standards Panel which considered a referral in relation to Dr Hocking in October 2013.
2. Counsel for Dr Hocking has indicated that Dr Hocking is willing to provide an undertaking to the Tribunal that he will not perform any elective paediatric procedures (that is, the types of procedures where children would be referred to a Children's Hospital), aside from trauma or emergency surgery (which includes follow up procedures such as removal of instrumentation etc).
3. The Minutes of the Board meeting of 16 April 2013 noted that all trauma [surgery] in Canberra is performed in the context of a large teaching hospital and is subject to review and audit by Dr Hocking's peers. The Tribunal notes that this practice is likely to be replicated throughout the hospital system. Therefore, a mechanism exists and trauma work is doing what needs to be done to stabilise the patient'. The implication from this comment was that Dr Hocking did not need to have any condition on his registration relating to trauma surgery. That is relevant to the issue of conditions.
4. Reference was made at the hearing to Vissenga v Medical Practitioners Board of Victoria [2004] VCAT 1044 in which Morris J said at [33]:

Reasonable people are tolerant of occasional lapses, particularly if these lapses do not form a consistent course of conduct, or, if taken separately are insufficiently serious to warrant intervention by those charged with acting on behalf of the State.

1. The Tribunal concurs with this view. Having said that, the history of this matter indicates that there is a 'consistent course of conduct' by Dr Hocking which warrants the continuation of some restrictions. Dr Hocking's registration has been continually subject to conditions or an undertaking since 2011, that is, nearly 4 years, and were continued despite regular challenges by Dr Hocking. That, of itself, indicates a continuation of a pattern of performance which was sufficiently below standard to be subject to limitations.
2. Against that, the Tribunal notes that there has been a considerable diminution in the volume of complaints made about Dr Hocking's performance. There were five notifications in 2013, but only two, or if the more recent Tasmanian notification is included 3, notifications in 2014. This compares with 9 in 2012, and more in previous years.[211] Even allowing for the fact that Dr Hocking's total workload has reduced significantly (he undertook 83 surgeries in 2013 and only 32 in the six months to July 2014) the reduction in numbers of notifications as a proportion of his workload is material. Dr Hocking has also, in part because of the conditions imposed upon him, given up his paediatric practice. Nonetheless, these are ameliorating factors.
3. In addition to the diminution of his 'error rate', the Tribunal is conscious that Dr Hocking has undergone a considerable period of retraining and close supervision, he does appear to have learned lessons from the experiences over the last few years, and the most recent reports of his performance are encouraging. The Board has agreed that he has satisfactorily concluded his period of retraining, and the Tribunal considers there would be no value for a continuation of that condition.
4. The joint report of experts states that the conditions should be lifted subject to 'satisfactory outcomes'. It is not clear what is meant by that expression. The similar comment by the Board only referred to completion of the Tribunal processes, not necessarily tying them to a complete exoneration of Dr Hocking.
5. The Tribunal has found that some of the allegations made against Dr Hocking are made out and that he has not met the standards against which his conduct as a health practitioner is to be measured. At one level, that is not a satisfactory outcome. At the same time, the Tribunal is aware that the events to which those allegations relate occurred some years ago. Since then, although another notification was received in the second half of 2014, there is evidence of a significant improvement in Dr Hocking's performance.

1. In summary, the Tribunal accepts that there remain some concerns about Dr Hocking's performance and his capacity for insight into, and self-reflection about, fundamental matters relating to character and his own conduct.[212] However, the Tribunal also accepts that the retraining to which he was subject has been satisfactorily completed, and that the close supervision to which he was subject had achieved its purpose at that time.
2. Accordingly, the Tribunal finds that the decision to refuse to remove conditions 1-3 to which Dr Hocking's registration is subject should be set aside and substituted by the new conditions in Order 12 in accordance with the recommendations in the joint report of Dr Fletcher and Dr Young.
3. Dr Hocking has indicated that the recommendations in the joint report of Dr Fletcher and Dr Young are manageable provided he practises in an environment akin to the hospitals in Burnie and Tamworth. The understanding of the Tribunal is that Tamworth Rural Regional Hospital is intending to offer him an extended contract and assuming that transpires, the recommended conditions should not be unduly restrictive and provide the correct balance between permitting him to practise his profession, while taking account of the safety of the public.

Consequences of Findings in OR 13/48 and OR 14/31

1. The conditions in Order 12 take into account all of the Tribunal's findings in these matters. They are a global response to the outcomes.
2. The Tribunal also finds that the undertaking offered by Dr Hocking should be accepted. Although it has accepted that he no longer practises or intends to practise in paediatric surgery, other than trauma surgery, where he is supported by a team, the Tribunal considers as a matter of public safety that the formalising of that position should be placed on the public record.
3. The Tribunal is satisfied that these conditions are consistent with s 3(3)(c) of the National Law.

1. The parties have agreed that they will bear their own costs.

Mr N J Beaumont SC, with Ms R Withana (OR 13/48 and OR 14/04)

Australian Government Solicitor (OR 13/48 and OR 14/04)

[1] Transcript of proceedings 16 March 2015 at page 10 lines 5 - 12

[2] Hocking v Medical Board of Australia [2015] ACAT 22 at [8]- [9]

[4] Section 140(d) of the National Law

[5] O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204

[6] Dr Hocking's Closing Submissions [4.35]

[7] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 64 AAR 120 at [93] per Flick and Perry JJ

[9] Sullivan, at [104], [114] per Flick and Perry JJ (Logan J agreeing with the outcome).

[11] Section 196(1)(b) of the National Law

[12] Section 196(2) of the National Law

[13] Sections 39-41 of the National Law

[14] Dysplasia is an abnormal development, for example, of cells, tissue, or an organ. Dysplasia of the hip is a developmental deformation or misalignment of the hip joint

[15] Transcript 16 March 2015 at page 80

[16] A peri-acetabular osteotomy is a surgical procedure involving the cutting of bone (the osteotomy) around the acetabulum (hip socket)

[17] Anterior is the front; superior is the top

[18] The labrum is the rim of soft tissue, or fibrocartilage surrounding the acetabulum which stabilises the hip by deepening the socket and protects the joint surface

[19] The acetabulum is the cup-shaped socket of the pelvis in which rests the head of the femor (thigh bone), the two forming the hip joint. The acetabular rim is the outer edge of the acetabulum

[20] An arthroscopy, or arthroscopic surgery, is a minimally invasive surgical procedure on a joint in which an examination and sometimes treatment of damage is performed using an arthroscope, a special illuminating instrument and, if needed, other instruments, inserted into the joint through a small incision or portal

1. [22] Pincer lesion or impingement arises when the ball-shaped femoral head rubs abnormally against the acetabulum or cup-shaped socket into which it fits, because there is an excess of bone on the anterior acetabulum, inhibiting normal movement. This type of impingement occurs because extra bone extends out over the normal rim of the acetabulum and causes an impingement on the thigh bone when the hip is flexed. 'Impingement' refers to some portion of the soft tissue around the hip socket getting pinched or compressed

[23] Debridement is the surgical removal of foreign material and damaged tissue from a wound or organ

[25] Decortication is a procedure used in surgery involving the removal of the surface layer, membrane, or fibrous cover of an organ

[26] Extra-articular to the hip joint is outside the joint femur or thigh bone

[27] Image 4 refers to the photographs which were taken during the operation, and were in evidence at the hearing

1. [28] A 'subluxation' means the ball (femoral head) is partially out of the hip socket; while a dislocation implies that the ball was completely out of the socket.

[29] 'Osteoarthritis' is chronic non-inflammatory arthritic bone disease

[30] A capsulotomy is an incision that opens the clear, cellophane-like capsule that wraps around an organ, in this case, the hip joint

[31] Pursuant to sections 155-159 of the National Law

[32] Dr Hocking's Closing Submissions at [4.8]

[33] Dr Hocking's Closing Submissions at [4.26]

[34] Transcript of Proceedings 18 March 2015 at page 116

[35] Transcript of Proceedings 20 March 2015 at page 269

[36] Dr Young in his report dated 9 April 2014 said that he had found at least 6 peer review articles 'detailing the risk of rapid onset subluxation osteoarthritis of the hip after hip arthroscopy

[37] Omer Mei-Dan, MD, Mark McConkey, MK and Matthew Brick, MD 'Catastrophic Failure of Hip Arthroscopy Due to Iatrogenic Instability: Can Partial Division of the Ligamentum Teres and Iliofemoral Ligament Cause Subluxation?' (2012) 28 The Journal of Arthroscopic and Related Surgery 440-445

[38] Transcript of Proceedings 16 March 2015 at page 48

[39] Transcript of Proceedings 24 March 2015 at page 439

[40] Transcript of Proceedings 24 March 2015 at pages 438-439

[41] Transcript of Proceedings 24 March 2015 at page 432

[42] Transcript of Proceedings 24 March 2015 at pages 433-434, 437, 438

[43] Transcript of Proceedings 24 March 2015 at page 439

[44] Transcript of Proceedings 16 March 2015 at page 45

[45] Transcript of Proceedings 24 March 2015 at pages 54-55

[46] Transcript of Proceedings 16 March 2015 at pages 54-55

[47] Transcript of Proceedings 24 March 2015 at page 440

[49] Transcript of Proceedings 18 March 2015 at page 112

[50] Transcript of Proceedings 24 March 2015 at page 457

[51] Transcript of Proceedings 24 March 2015 at page 457

[52] Transcript of Proceedings 18 March 2015 at page 113

[53] Transcript of Proceedings 18 March 2015 at page 123

[54] Transcript of Proceedings 18 March 2015 at page 116

[55] Transcript of Proceedings 24 March 2015 at pages 456-457

[56] Transcript of Proceedings 24 March 2015 at page 460

[57] Transcript of Proceedings 19 March 2015 at pages 193, 195

[58] Transcript of Proceedings 19 March 2015 at pages 194-195

[59] Transcript of Proceedings 19 March 2015 at page 194

[60] Transcript of Proceedings 19 March 2015 at page 194

[61] Transcript of Proceedings 20 March 2015 at page 270

[62] Transcript of Proceedings 20 March 2015 at page 270

[63] Transcript of Proceedings 20 March 2015 at page 284

[64] Transcript of Proceedings 20 March 2015 at page 271

[65] Transcript of Proceedings 20 March 2015 at page 271

[66] Transcript of Proceedings 20 March 2015 at page 273

[67] Transcript of Proceedings 20 March 2015 at page 272

[68] Transcript of Performance and Professional Standards Panel hearing, October 2013, 22

[69] Michael SH Kain et al 'Periacetabular Osteotomy After Failed Hip Arthroscopy for Labral Tears in Patients with Acetabular Dysplasia' (2011) 93 Journal of Bone and Joint Surgery, Suppl 2: 57, 60

[70] Javad Parvizi et al 'Arthroscopy for Labral Tears in Patients with Developmental Dysplasia of the Hip: A Cautionary Note' (2009) 24 The Journal of Arthroplasty No 6 Suppl 1, 110, 112

[71] 'Abstract' for 'Omer Mei-Dan et al 'Catastrophic Failure of Hip Arthroscopy Due to Iatrogenic Instability: Can Partial Division of the Ligamentum Teres and Iliofemoral Ligament Cause Subluxation? (2012) 28 Arthroscopy: The Journal of Arthroscopic and Related Surgery, 440. This volume of the journal was not published until March 2012. However, it was accepted in December 2011 and it is reasonable to assume that it was available to the profession prior to its official publication. The parties referred to this article with no objection.

[72] Omer Mei-Dan et al 'Catastrophic Failure of Hip Arthroscopy Due to Iatrogenic Instability: Can Partial Division of the Ligamentum Teres and Iliofemoral Ligament Cause Subluxation? (2012) 28 Arthroscopy: The Journal of Arthroscopic and Related Surgery, 440,442

[73] Victor Ilizaliturri 'Complications of Arthroscopic Femoracetabular Impingement Treatment: A Review' (2009) 467 Clinical Orthopaedic and Related Research 760

[74] JWT Byrd et al 'Hip Arthroscopy in the Presence of Dysplasia' (2003) 19 Arthroscopy: The Journal of Arthroscopic and Related Surgery 1055, 1060

[75] BG Domb et al 'Arthroscopic Capsulotomy, Capsular Repair, and Capsular Plication of the Hip: Relation to Atraumatic Instability' (2013) 29 Arthroscopy: The Journal of Arthroscopic and Relation Surgery 162, 165, 170

[76] Benali et al 'Hip Subluxation as a Complication of Arthroscopic Debridement' (2009) Journal of Arthroscopy 405, 407

[77] DK Matsuda 'Case Report, Acute Iatrogenic Dislocation Following Hip Impingement Arthroscopic Surgery' (2009) 25 Arthroscopy, 400, 403

[78] Transcript of Proceedings 23 March 2015 at page 337

[79] Transcript of Proceedings 23 March 2015 at page 338

[80] Transcript of Proceedings 16 March 2015 at page 62 and 18 March 2015 at page 115

[81] BG Domb et al 'Arthroscopic Capsulotomy, Capsular Repair, and Capsular Plication of the Hip: Relation to Atraumatic Instability' (2013) 29 Arthroscopy: The Journal of Arthroscopic and Relation Surgery 162

[82] Letter from Dr Hocking to Dr Lees, 23 March 2012

[83] Dr Solomon did not provide evidence to the Tribunal. The Tribunal has referred to his evidence because he had clinically examined Patient B under anaesthesia prior to the hip replacement surgery for the purposes of a report to Professor Smith

[84] Omer Mei-Dan et al 'Catastrophic Failure of Hip Arthroscopy Due to Iatrogenic Instability: Can Partial Division of the Ligamentum Teres and Iliofemoral Ligament Cause Subluxation? (2012) 28 Arthroscopy: The Journal of Arthroscopic and Related Surgery, 440

[85] Victor Ilizaliturri 'Complications of Arthroscopic Femoracetabular Impingement Treatment: A Review' (2009) 467 Clinical Orthopaedic and Related Research 760

[86] Michael SH Kain et al 'Periacetabular Osteotomy After Failed Hip Arthroscopy for Labral Tears in Patients with Acetabular Dysplasia' (2011) 93 Journal of Bone and Joint Surgery, Suppl 2: 57

[87] Javad Parvizi et al 'Arthroscopy for Labral Tears in Patients with Developmental Dysplasia of the Hip: A Cautionary Note' (2009) 24 The Journal of Arthroplasty No 6 Suppl 1, 110

[88] Transcript of Proceedings 20 March 2015 at page 277

[89] Dr Hocking's Closing Submissions [4.50]

[90] Dr Hocking's Closing Submissions [4.48]

[91] Dr Hocking's Closing Submissions [4.49], Transcript of Proceedings 20 March 2015 at page 277

[92] Dr Hocking's Closing Submissions [4.51], [4.52]

[93] Transcript of Proceedings 20 March 2015 at page 277

[94] Section 10(e) of the National Law

[95] Section 54 of the Health Act 1993

[96] Section 225(k) of the National Law

[97] Clause 13.1.9 of the surgeons' Code

[99] Section 41 of the National Law

[101] Dr Hocking's Closing Submissions [11]

[102] Dr Hocking's Closing Submissions [13]

[103] Documents Related to Disciplinary Action against Dr RA Hocking, 32

[104] Tender Bundle for Cross-examination, 129

[105] Transcript of Proceedings 23 March 2015 at page 357

[106] Transcript of Proceedings 23 March 2015 at pages 359, 361, 363- 364, 370, 372- 374, 376-378, 380. See also Sch 1 to Board's Closing Submissions

[107] Transcript of Proceedings 23 March 2015 at page 369

[108] Transcript of Proceedings 23 March 2015 at pages 381-382

[109] Dr Hocking's Closing Submissions [4.54]

[110] Clause 2.1.1 of the surgeons' Code

[111] Clause 3.1.10 of the surgeons' Code

[112] Transcript of Proceedings 23 March 2015 at page 284

[113] Transcript of Proceedings 23 March 2015 at page 341

[114] Transcript of Proceedings 16 March 2015 at page 28

[115] Transcript of Proceedings 23 March 2015 at page 342, Dr Hocking's Closing Submissions [66]

[116] Transcript of Proceedings 23 March 2015 at page 55

[117] Transcript of Proceedings 23 March 2015 at page 353

[118] Transcript of Proceedings 23 March 2015 at page 350-351

[119] Transcript of Proceedings 23 March 2015 at page 336

[120] Transcript of Proceedings 23 March 2015 at page 341-342

[121] Dr Hocking's Closing Submissions [15]

[122] Transcript of Proceedings 20 March 2015 at page 280

[123] Transcript of Proceedings 20 March 2015 at pages 310-311

[124] Transcript of Proceedings 20 March 2015 at page 310

[125] Transcript of Proceedings 20 March 2015 at pages 302, 304-305, 309

[126] Transcript of Proceedings 23 March 2015 at pages 335, 341

[127] Transcript of Proceedings 23 March 2015 at page 349

[128] Transcript of Proceedings 20 March 2015 at page 312

[129] Transcript of Proceedings 20 March 2015 at page 314

[130] Transcript of Proceedings 20 March 2015 at page 315

[131] Transcript of Proceedings 20 March 2015 at page 296-297

[132] Transcript of Proceedings 20 March 2015 at page 300

[133] Clause 8.4.5 of the doctors' Code

[136] Transcript of Proceedings 20 March 2015 at page 292

[137] Transcript of Proceedings 20 March 2015 at page 296

[138] Medical Board of Australia v Roberts [2014] WASAT 76 at [174]

[139] Felix v General Dental Council [1960] AC 704 at 720

[140] Vissenga v Medical Practitioners Board of Victoria [2004] VCAT 1044

[141] Jemielita v Medical Board of Australia (Unreported, WASC, Library No 920584, 13 November 1992 at 19) (Jemielita)

[142] Medical Board of Australia v Roberts [2014] WASAT 76 at [182]

[143] Section 5 of the National Law

[144] Board's Closing Submissions [121]

[145] National Law s 196(1)(b)(i).

[146] National Law s 196(1)(b)(i).

[147] Clause 3.1.9 of the surgeons' Code

[148] National Law s 196(1)(b)(ii).

[149] A proximal femoral varus osteotomy is an operation to remove part of the thigh bone to restore normal anatomy

[150] Dr Hocking Statement of 13 March 2015

[151] Affidavit of Patient A's mother, dated 24 May 2013 at [19]

[153] Hocking v Medical Board of Australia (Occupational Discipline) [2015] ACAT 22

[154] Dr Hocking's closing submissions [6.7]

[155] Dr Hocking's Closing Submissions [6.9]

[156] Section 5 of the National Law

[157] Clause 11.2 of the surgeons' Code

[158] Clause 11.2.1 of the surgeons' Code

[159] Clause 11.2.3 of the surgeons' Code

[160] Clause 11.2 of the surgeons' Code

[161] Transcript of Proceedings 23 March 2015 at page 383

[162] Transcript of Proceedings 23 March 2015 at page 286

[163] Transcript of Proceedings 23 March 2015 at page 286

[164] Transcript of Proceedings 23 March 2015 at page 286

[165] Clause 3.1.10 of the surgeons' Code

[166] Clause 2.1.4 of the doctors' Code

[167] Clause 2.2.1 of the doctors' Code

[168] Dr Hocking's Closing Submissions [6.8]

[169] Affidavit of Dr Balakumar, 23 July 2013 [11]

[170] Dr Hocking's Closing Submissions [6.12] [6.13]

[171] Affidavit of Dr Balakumar, 23 July 2013 [11]

[172] Hocking v Medical Board of Australia [2014] ACTSC 48

[173] Transcript of Proceedings 20 March 2015 at page 287

[174] Clause 2.2.1 of the surgeons' Code

[176] Transcript of Proceedings 24 March 2015 at page 424

[177] Affidavit of Patient A's mother at [4]

[178] Clause 3.1.9 of the surgeons' Code

[179] Section 196(1)(b) of the National Law

[180] Clause 2.1.1 of the surgeons' Code

[181] Section 196(1)(b)(i) of the National Law

[182] Dr Hocking's Closing Submissions [6.14], [6.16]

[183] Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449 at 466

[184] Department of Health & Community Services v JWB & SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218 at [19]

[185] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at [14]

[186] Section 156(1) of the National Law

[187] Sections 155 & 156 of the National Law

[188] Section 155(b) of the National Law

[189] Section 225(k) of the National Law

[190] Section 178(2)(c) of the National Law

[191] Dr Hocking's Closing Submissions [8.8]

[192] Section 160(1) of the National Law

[193] Peri-acetabular osteotomy is a surgical treatment for hip dysplasia which by realignment of the acetabulum over the femur preserves and improves the function of the hip joint.

[194] An osteotomy is a surgical procedure that involves cutting of the bone.

[195] Section 182 of the National Law

[196] Transcript of Proceedings 20 March 2015 at page 290

[198] Section 126(3)(a) National Law

[199] Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536 at [15] per Finn J

[200] Section 196(3) of the National Law

[201] Section 3(3)(c) of the National Law

[202] Transcript of Proceedings 23 March 2015 at page 10

[203] Section 178 of the National Law

[204] Section 179 of the National Law

[205] Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 at 246 per Wilcox J, whose judgment was affirmed by the Full Court in Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234

[206] Statement by Dr Hocking, 16 February 2015**:** 'AHPRA has now investigated the treatment that I provided for approximately 44 of my former patients'

[207] Transcript of Proceedings 19 March 2015 at page 180

[208] Attachment to letter to his legal representative

[209] Dr Gillespie's report of 24 January 2013 said he 'has a good understanding of the surgical approach/dissection for routine hip replacement surgery' and that he 'is safe to proceed with routine straightforward primary hip replacement cases without direct in-theatre surgical supervision' (at 1, 2)

[210] Transcript of Proceedings 20 March 2015 at page 291

[212] Board's Closing Submissions 27, [127]