MEDICAL BOARD OF AUSTRALIA -v- WOOLLARD [2017] WASCA 64 (11 April 2017)

MEDICAL BOARD OF AUSTRALIA -v- WOOLLARD [2017] WASCA 64 (11 April 2017) - WASCA 2017 case summary — Zoe

[79]

If Dr Woollard had not yet completed a training program in coronary angioplasty at the time that he undertook what was a complex multi-vessel stenting procedure then my personal opinion is that that circumstance was entirely unacceptable.

My understanding is that the Cardiac Society of Australia and New Zealand had in place guidelines for training in coronary angioplasty in 2005. I do not know whether the Cardiac Society itself has any authority in declaring a Cardiologist competent or otherwise to proceed to undertake angioplasty without supervision. Likewise I do not know whether the Mount hospital had in place at the time (December 2005) credentialling criteria to ensure that Doctors performing angioplasty had undertaken a formal training program.

Worldwide, and in Australia in particular, training programs in angioplasty generally specify a precise number of angioplasties which must be undertaken either as primary or secondary operator. In general, as of 2005, an individual would not be considered competent until they had completed a training program.

I would not consider it appropriate that [Patient B] should have had a complex angioplasty procedure performed by an operator who had not completed a training program, or who was yet to complete a training program and was unsupervised.

I would note that I do not know that whether from a legal perspective completion of a training program is a prerequisite for an operator to undertake a coronary angioplasty procedure within Australia, either now or as of December 2005, [sic].

To summarise using the information available it is impossible to tell whether the adverse outcome (death) which occurred was in the setting of a competent operator encountering an avoidable or unavoidable complication which was managed well expertly, albeit with an adverse outcome, versus a less than expert operator performing to a standard below that expected of an interventional Cardiologist.

...

The inference drawn from Dr Hockings letter of 8 December 2005 was that Dr Keith Woollard may still have been in training as of the date of the procedure (15 December 2005) during which the patient died. If that was the case, and he was unsupervised, I would consider that unacceptable and entirely inappropriate. To perform the procedure unsupervised during a period of (incomplete) training may have contributed to or directly resulted in the patient's death. I would reiterate that I do not know whether in December 2005 there was any legal requirement for Dr Woollard to be 'trained' if he were undertaking an angioplasty procedure of any sort. (emphasis added)

[157]

In the early 1980s, when angioplasty was first introduced at Royal Perth Hospital, I indicated a desire to participate.

There was no formal training program. However, over a subsequent period of 1 - 2 years, I was involved with more than 100 angioplasty procedures carried out by Dr Geoffrey Cope at Royal Perth Hospital. Many, but not all, of the patients were my patients from Fremantle Hospital who I had referred for angioplasty. I stayed on after my angiogram sessions at Royal Perth Hospital for Dr Cope's subsequent angioplasty sessions on patients who were not mine.

Dr Cope has acknowledged that it was possible that I observed cases performed by him, although he has no memory of me doing so. However, his statement says he did not perform any cases with my assistance. In answer to this I expressly recall having both observed and assisted Dr Cope perform those procedures in the 1980s. I have a clear recollection of being scrubbed and performing tasks at his instruction, including insertion of catheters, inflation of balloons and injection of contrast. These tasks are identical to those performed by a 'secondary operator' in a formal program. In relation to those patients who were my patients, I was also responsible for the decision on whether they should undergo angioplasty (rather than medical treatment or bypass surgery) and for the post procedural care. During these procedures there were usually 4 people in the room (Dr Cope, myself, a nurse and a radiographer) and a technician in the control room adjacent to the procedure room.

...

I considered that I had been a 'secondary operator' when working with Dr Cope. For my patients, I made the initial decision as to whether angioplasty (rather than persisting with just medical treatment or being referred for coronary artery surgery) should be recommended to the patient. I was always responsible for the pre and post procedural management of my patients. I would always scrub in during the procedures. My involvement during the procedure would vary case to case but I did perform tasks instructed by Dr Cope, as outlined above.

As of December 2005 I believed that my experience observing and assisting Dr Cope in over 100 angioplasty procedures many years before, together with frequent exposure to angioplasty in the intervening period, my extensive involvement in educational programs about angioplasty and in particular my management before and after angioplasty of several thousand of my patients, and combined with the 153 procedures listed in the log, was more than adequate to meet the descriptor.

[311]

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness ...

In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective - ie protective of the public - in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds. In particular, in a context where the disciplinary power of the Tribunal extends both to the making of an order permanently removing a medical practitioner from the Register with consequent loss of entitlement to practise and to the imposition of a fine of up to $25,000, there is plainly an analogy between the concept of abuse of a court's process in relation to criminal proceedings and the concept of abuse of the Tribunal's process in relation to disciplinary proceedings ...

As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners. (footnotes omitted)

[312]

140 In Walton, the events leading up to the commencement of the relevant proceedings against the medical practitioners had a lengthy history. The medical treatment the subject of the complaints (which, for convenience, may be called the 'new complaints') was a form of psychiatric treatment known as 'deep sleep therapy', which was administered together with electro-convulsive therapy. The deep sleep therapy was alleged to be of 'no medical worth' and 'unjustifiably dangerous'.[137] The treatment occurred in the period 1973 - 1978. Deep sleep therapy became a matter of political interest, and a form of departmental investigation was carried out in, it seems, the late 1970s.[138] A patient died as a result of the treatment and there was a coronial inquest. The coroner reported in 1982, when the matter was referred to the Attorney General. There was also major litigation between one of the doctors and a former patient, which was attended by substantial publicity. In 1982 and 1983, certain complaints were made against one of the practitioners, and in 1985 and 1986, the assistant secretary of the Department of Health laid a number of formal complaints under the relevant legislation against the medical practitioners. Those complaints were themselves the subject of an application for a stay on the basis that those proceedings constituted an abuse of process. In 1986, the court permanently stayed those original complaints.[139] In that proceeding, the court found that the delay in bringing proceedings was 'appalling and without justification' and that the failure to take action years earlier was 'inexcusable'.[140] There followed a Royal Commission into deep sleep therapy. One of the doctors subject to complaint (Dr Herron) gave evidence before the Royal Commission over 29 days. The Royal Commission was itself extremely critical of the delay on the part of the Health Department in investigating and pursuing complaints against the medical practitioners. After the conclusion of the Royal Commission, the Department initiated the new complaints against the medical practitioners. The new complaints were not identical with the original complaints which had previously been stayed, but they arose out of the same pattern of professional conduct as gave rise to the earlier complaints, and there was a substantial degree of overlapping of issues between the two.[141] In the New South Wales Court of Appeal, Gleeson CJ was not satisfied that the medical practitioners would not be able to obtain a fair trial by reason of the delay in bringing proceedings.[142] In relation to whether the continuation of the proceedings would be, of itself, so unfairly or unjustifiably oppressive as to constitute an abuse of process, his Honour considered that the matter was 'finely balanced', but the balance was tipped in favour of the granting of the stay.[143] His Honour, in that regard, was particularly influenced by the fact of the stay of the earlier proceedings in 1986. This was a consideration informed by the principle against double jeopardy.[144]

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MEDICAL BOARD OF AUSTRALIA -v- WOOLLARD [2017] WASCA 64 (11 April 2017)

Legislation Cited (1)

Cases Cited (25)