The iron infusion incident
95 Although this is the last reported incident in time, it is the one which occupied most attention during the trial, is pivotal to the decision-making of the respondent and founds the primary allegation of Dr Pathmanathan that she suffered unlawful discrimination because she was singled out and suffered a suspension of her accreditation when, on her version of the events, multiple other persons who were present in the operating theatre on 28 October 2014 were knowing participants in and accessories to the fact of the cannulation and delivery of an iron infusion. For that reason I address the evidence relating to this incident first.
96 There are four issues that Dr Pathmanathan agitates:
(1) Was the infusion a solo act by Dr Pathmanathan;
(2) What, if any, was the relative risk to the patient and Dr Pathmanathan;
(3) Did the respondent adequately investigate the facts before deciding to suspend the accreditation of Dr Pathmanathan; and
(4) Did the respondent fail to afford procedural fairness to Dr Pathmanathan.
97 Dr Pathmanathan's contention is that each issue should be resolved in her favour and, if so, I should infer that the respondent's decision-making and actions were unlawfully discriminatory. As I understood her submissions, that proposition holds even if some of the issues are resolved unfavourably to her.
98 The hospital records for Theatre 18 on 28 October 2014 record the admission of patients for surgery performed by Mr Chandraratna in two sessions: one commencing at 7.30 am and the other at 1.30 pm. Three patients are listed in the first session and two in the second. The recorded anaesthetist is Dr Pathmanathan. The iron infusion incident occurred during surgery on the last patient. That patient was admitted to the hospital, but not to theatre, at 11 am. Dr Janet Barry is recorded as the surgical assistant. The procedure to be performed is described as:
Laparoscopic Sleeve Gastrectomy - Revisional + Minimiser Ring.
99 A general anaesthetic was given by Dr Pathmanathan. The records do not disclose the time surgery commenced or was completed although it is recorded that the patient was admitted to the ICU at 1900.
100 At my direction, and in common with each relevant witness, Dr Pathmanathan gave viva voce evidence-in-chief relating to the primary disputed events and conversations. Her oral evidence on those matters was as follows. From mid-2014, Dr Pathmanathan was providing anaesthetic services in Melbourne and Perth. This required significant amounts of travel. She consulted a general practitioner, Dr Barry, on 14 October 2014 in consequence of feeling lethargic. Dr Barry took a blood sample. Dr Pathmanathan attended the hospital on the morning of 28 October 2014, in order to administer anaesthetic to surgical patients. Whilst checking her patient records for the day, she came across her blood test results and observed that her iron levels were deficient.
101 Armed with that information, Dr Pathmanathan had several discussions with her colleagues, explained that she suffered from an iron deficiency and requested advice as to what medication, in the form of tablets, might be taken. One of her colleagues, she is unable to remember who, suggested that she receive an iron infusion instead of a course of iron tablets. On her evidence discussion about her iron levels and what might be taken to address the deficiency extended over an approximate five hour period. The persons with whom she discussed the matter at least included Dr Barry, Mr Chandraratna and a person who was not identified in the evidence, but was often disparagingly referred to by Dr Pathmanathan as "Dr Nameless". On Dr Pathmanathan's account, this person was a former pharmacist who had later in life chosen to study medicine and was at the time a medical student. At some point during these discussions, the product Ferinject was mentioned. Dr Pathmanathan stated that this is a newer preparation to address iron deficiency which does not carry a significant anaphylactic risk. On her assessment Ferinject carries a negligible anaphylactic risk: something in the order of one in 100,000 to one in a million.
102 Ms Karen Morris was assigned as the anaesthetic technician for the surgical list, although she did not usually perform that role to assist Dr Pathmanathan. Dr Pathmanathan recalls that she attended the theatre later in the afternoon of 28 October 2014 when she became "part of the discussion". Dr Pathmanathan decided that she would receive an infusion of Ferinject and for that purpose wrote out a pharmacy script which she requested Ms Morris to take to the hospital retail pharmacy. This Ms Morris did and returned a little later with the Ferinject. This product required some form of preparation, which is usually the task of a nurse. Ms Morris assisted Dr Pathmanathan to prepare the product. An operation was at that time underway in an adjoining operating theatre, Theatre 17, with Dr Longhorn as the anaesthetist. Dr Pathmanathan says that she went into the adjoining theatre and spoke with Dr Longhorn to ask him "if he would assist". By that evidence she meant take over and assume responsibility for the handling of her anaesthetised patient for the period of the iron infusion and assist with the infusion. Her evidence of that conversation is:
So I went to speak to Dr Longhorn, who was in operating theatre 17 and asked if he would assist. I told him about who the patient was. So that's our way of handing over a patient. And I said, "This is the case", and, "Can you help? This is my last case. And can you help with the cannulation and the monitoring and iron - you know, the iron infusion and monitoring the patient?" And he agreed, which is why we then sent Ms Morris or then - which is why we decided to proceed.
103 Once the Ferinject had been prepared, Mr Chandraratna requested Dr Nameless to "unscrub and help administer the iron infusion". There are several steps required to be performed to administer an iron infusion. In addition to the evidence of Dr Pathmanathan, there is tendered as an exhibit in this proceeding the basic components of the apparatus. The Ferinject is prepared and placed into a clear plastic bag which is attached to a tube. The plastic bag is placed on a stand so that the liquid may be infused by force of gravity. On the evidence of Dr Pathmanathan, the bag was placed on a high stand, the liquid is dark brown in colour and in consequence was visible to each of the persons in the operating theatre. The theatre itself is relatively compact and rectangular in shape with an approximate dimension of 5m by 5m.
104 Dr Pathmanathan is unable to recall who was responsible for placing the iron infusion bag onto the stand. Nor can she recall exactly what role Dr Nameless and Ms Morris performed. In order to receive the infusion, Dr Pathmanathan explained the procedure which commences with the insertion of a needle into a vein in the back of her left hand. On her account it is not possible to undertake the necessary steps without assistance. Her evidence is:
DR PATHMANATHAN: There's a needle that has to go into my vein. So I have to put a tourniquet on.
HIS HONOUR: Yes.
DR PATHMANATHAN: Then there's - so that my veins are easy to access - and then there's a needle that has to go into my vein. And then there's a plastic bit that gets left in. And the needle gets withdrawn out. And then the infusion has to be, you know - wherever it's hanging, it has to be picked up, brought across and connected. And, also, the tourniquet has to be let go at that same time. This plastic bit has to be secured. And the blood - there has to be compression there as well because the blood has to stop flushing out, otherwise, you will have, you know, kind of - a bit of a - - -
HIS HONOUR: Is that what you mean by a "bloodbath", which I've read in your material?
DR PATHMANATHAN: Yes, a "bloodbath". So you would actually have to have blood gushing out, which would have been recorded in the notes because the - I've looked at the surgical count sheet now. And I don't believe there's any discrepancy there. And so the - every material in the operation gets counted, just in case they don't get left in the patient for whatever reason. And so the - even a swab would be counted. So if there was blood everywhere, that would have been counted on the surgical - on the operation record. That's why I asked for that operation record. And there was - I know from memory there was none. So the infusion gets picked up, gets connected. Somebody has to hold the compression on the vein to stop the blood from squiring out.
And the needles has - there has to be tapes to secure the needle or the plastic, I should - the cannula part. And then somebody comes in, connects it. And then somebody has to hold it down, while the securing is - or to make sure that it just doesn't get pulled out because that's another risk that happens, that these infusion kits get pulled out. So then that has to be secured. And that usually takes two hands. So, really, with one hand, it's impossible to implausible that I would have done it, and there's - also, there was absolutely no reason for me to have - having done it in a room full - there was almost 10 to 12 people in that room. There was no reason for me to do that when there's all these skilled practitioners around, and I've got Mr Chandraratna asking his surgical scrub assistant to - who's a medically - who's a medical professional, to give me this infusion, and this is something, as I said before, that nurses are skilled to do as well, including medical students. So it's not - you don't have to be a specialist anaesthetist for this. Is there anything else I need to tell you or remember? Is there any clarification?
105 I did not require further clarification in response to Dr Pathmanathan's question. Her evidence then continued to the effect that Dr Longhorn entered the theatre and the following occurred:
So just to let you know, Dr Longhorn came in the middle of it, put his hand on my shoulder, which I didn't think was a problem as - just to - and he looked at the monitor, looked at me and said, "Good. I'm just next door if you need." In his affidavit, he says he spoke to Ms Morris, and he may well have. I'm not sure. I don't recall that, but he - he - I know he came in. He was happy with the status at that time - and that he was going to be next door if we needed.
106 Dr Pathmanathan then gave evidence about risk of harm to the anaesthetised patient whilst the iron infusion procedure was performed. On her evidence there was "no risk of harm to the patient" because of the ready availability of Dr Longhorn to assume responsibility, no infection risk was proposed because Dr Pathmanathan was approximately 2m away from the patient and Ferinject is recognised as a low risk product.
107 A more fulsome account of the iron infusion incident is set in one of Dr Pathmanathan's affidavits dated 25 October 2015 with the title: Fraudulent Complaints Part 2. Although infused with argument and inadmissible material, the account in that affidavit is:
13. Fact 38: On 14 Oct 2014, Dr Janet Barry performed a blood test for iron studies and thyroid function tests in Operating Theatre 18 at the Respondent's Hospital.
(a) The Applicant was under duress of a toxic environment, long work hours and fly-in-fly-out work to Melbourne. She was tired and had discussed a blood test with Dr Barry.
(b) Dr Barry performed that day at the end of the operating theatre list at approximately 20:00 / 21:00 (pm). Dr Barry had assisted the Applicant by performing the phlebotomy service
i. Notably, on 11 Nov 2014, the Dr Barry brought in some Claratyne to the Respondent's operating theatre for the Applicant to take.
See Annexure MF-38b p1
(c) Although the Respondent was tired, she was not 'unfit for work'.
Certainly, the culture at the Hospital was to require staff to attend even when tired. On 2 Dec 2012, the Respondent had written a note condemning the Applicant for not responding in the early hours of the morning. She had worked from 6am to 2am the following morning, i.e. 20 hours non-stop virtually with her day-time lists and overnight labour ward work. This was the culture in medicine. See Annexure MF-38b p2
14. Fact 39: On 28 Oct 2014, Dr Janet Barry, Dr Harsha Chandraratna and the third surgical assistant (a junior doctor and ex-senior pharmacist) had recommended the Applicant have an iron infusion that day in the Operating Theatre.
(a) A course of events followed including;
i. At 6am prior to starting work at 7am, the Applicant reviewed her blood results as it was in the pile of patient results. At a glance she noticed the bold red number showing iron deficiency.
ii. At approximately 10:00am, the Applicant said to Dr Janet Barry, "I know why I'm tired. I'm iron deficient. Which iron tablets should I take?"
iii. It was upon this request that either Dr Barry or Dr Chandraratna from the surgical team stated along the lines of "Why do you want to take tablets? We can give you an iron infusion today. We give it to our patients all the time (in outpatient clinic)"
iv. All three doctors from the surgical team insisted the iron infusion was safe and the Applicant should have it administered that day.
v. The Applicant went next door to ask Dr Ralph Longhorn to assist which he agreed to.
vi. Approximately 10 people were present, including but not limited to, Dr Chandraratna, Dr Janet Barry (surgical assistant to Dr Chandraratna), Dr Unnamed (second surgical assistant to Dr Chandraratna), L White (a registered nurse), R Gallwey (a registered nurse) and Karen Morris (anaesthesia technician), at least 3 nurses at the doorway and Dr Ralph Longhorn who attended to monitor. We note all the names have not been revealed as the Respondent has failed to release the Operating Theatre Records despite multiple requests.
vii. Ms Karen Morris agreed and attended the Hospitals pharmacy to retrieve the iron infusion mixture.
viii. The Junior doctor un-scrubbed and assisted Ms Karen Morris to administer the iron infusion.
ix. During the infusion, Dr Ralph Longhorn specifically attended during the infusion, checked the patient, and patted the Applicant on the shoulder. He stated he would be next door in Operating Theatre 17 if they needed anything. (Operating Theatre Records from OT17 had been requested but withheld by the Respondent)
x. The iron infusion took place during the maintenance phase of surgery, as Professor David Story, the independent expert pointed out - at a time when Anaesthetists play Sudoku, Crosswords, or chat etc.
xi. The Applicant completed Anaesthetising the patient and those for the rest of the day. The Anaesthesia and Surgery took place with no risk of harm nor any harm to the patient.
(b) The Respondent was the Duty Anaesthetist on the day.
(c) Relevantly, during the iron infusion, the Applicant had handed over patient care to Dr Ralph Longhorn, from OT 17, who had accepted the handover and responsibility. The Applicant has sworn statements denying self-cannulation and self-administration, a highly improbable and impossible act under the circumstances. Ten staff and accredited practitioners willingly participated in the iron infusion.
(d) AJ Montgomery et al, "Review of Self-Medication in Physicians and Medical Students" (2011) 61 Occupational Medicine 490 - medical practitioners have high rates of reliance on informal peer networks for treatment.
(e) The surgeons witness statement and nurses coerced incident report provide contradictory facts. It is defamatory to state the Applicant made an unprofessional decision, as she was repeatedly recommended by the surgical team. No sworn affidavits from the participants, disclosure of identities, or witness statements from 2014, have been submitted by the Respondent to date.
(Original emphasis.)
108 Dr Pathmanathan also gave evidence that she made a file note recalling the iron infusion incident, although she could not recall precisely when it was made. To the best of her recollection it was made before 25 November 2014. The document reads:
The iron infusion incident:
• I was feeling tired and had thought after glancing at my blood results in a pile of results the morning of the iron infusion that I was iron deficient
• I had no intention to act on the blood results when going into work that day and hence only a cursory glance at the blood results
• During the early stages of the day ... maybe case 2 or 3 I casually mentioned "I know why I'm feeling tired guys... what iron tablets shall I take"
• The response by the surgical assistant &/or surgeon was why do you want to take tablets. We can give you a infusion today. It's easy and we administer a lot of these in our clinic.
• I had previously been to a dinner meeting where discussion of the iron preparation had occurred and was certainly aware of it's safety profile and had used it in my practice at least once or twice before.
• The third assistant was a postgraduate medical student but prior was a pharmacist at a regional hospital
• I asked repeatedly how safe it was and was reassured by all three that this was an extremely safe new drug
• Certainly when I googled the drug during the day I found this to be true. The TGA in fact puts the risk of the drug for any serious reactions which may render me unable to provide an anaesthetic at 1 in 1000 to 1 in 10 000.
• Thus in consideration of risk I felt that the following;
• The drug was safe to me and thus would not affect my ability to provide an anaesthetic
• Having a second senior anaesthetist involved and certainly other clinicians in a tertiary facility would render the risk to the patient as zero and to me as less than 1:1000 in inability to practice.
• I initially needed a fair bit of thinking, researching, consideration to think this was a good idea. It was not my initial judgement but my lapse was to go against my initial judgement to be convinced by the reassurance and recommendation of my colleagues to take the iron infusion
• I during the second last case or last case during a quiet period wrote a prescription and asked her to go to the pharmacy. The drug was dispensed and charged to my credit card.
• I never left the room. The lack of availability of anaesthetic nurse in theatre environments is normal. They often leave during the quiet period of anaesthesia and often don't tell us where they are. Numerous times I will ask for my nurse but will have a substitute stand in. So this was not abnormal.
• The infusion itself was set up by my anaesthetic technician and senior medical student/previous pharmacist thus I was able to care for the patient during this time.
• It seemed that the down time during the last case was the most opportune for the following reasons;
• The patient was in status quo
• There was little interaction needed by me with the patient
• All I had to do was monitor and be vigilant which I was still able to do during the 2-5mins of the insertion of cannula and iron infusion
• Dr Longhorn was available at this time and had not gone home
• Other hospital staff were available
• So this was the lowest risk period during the day
• The second anaesthetist came into cannulate and checked the cannula and me and further reassured me and nothing more was said
• The cannula was immediately removed after the infusion and I felt well.
The room had the following people;
l. Surgical Assistant
2. Surgeon
3. Second anaesthetist
4. Junior medical practitioner (about to be an intern or already an intern)/ex-pharmacist
5. Anaesthetic technician
6. Scrub nurse
7. Floating nurse
8. Another one or two nurses
Two weeks later I had an appointment to see Dr Joe Pracilio. I saw him after my next bariatric list and he was aware that I was going to give further Anaesthesia that day and asked me to see him after the list.
That meeting was the first time we had discussed the incident and he was unaware that others were involved. He had not performed an intrahospital inquiry by this stage but had sought legal advice to immediately suspend me.
The conversation with Dr Pracilio is as follows;
"The phone is ringing off the hook", "You are the talk of the town", "everybody wants me to do something about you"
"I have no choice but to suspend you indefinitely", "I know you have worked many years and your career has now come to an end". Don't be mistaken "I won't be able to sleep tonight"
When I explained that Dr Longhorn was involved. He said "was Ralph involved", "why didn't he stop you", "what was Ralph thinking", and after a few moments of consideration he said "if you mentions Ralphs name I will have to suspend him too", "so I suggest you don't and if you do I have other complaints about you". "I have been told you transferred an intubated ICU patient and left them in the corridor", I said it's highly unlikely that I would do that and I certainly don't recall any such event. I do recall stopping in the corridor and returning fentanyl to the recovery but the patient was never intubated. Further the patient was stable and well. He then said well I have already spoken to lawyers so I suggest you get legal representation. He further said "the lawyers might come after me but I am not scared". He then said "I heard about the glycine incident", "I gave you that list and you are meant to look after your surgeon", "how could you". I believe he had received incomplete information from another hospital that he was using against me in a wrongful context. I stated to him that a root cause analysis had been performed and there was no finding of any anaesthetic wrongdoing.
109 As I have noted, Dr Pathmanathan was not made aware that any report had been made to the respondent about the iron infusion incident until 11 November 2014 when the matter was raised with her by Dr Pracilio. Her evidence-in-chief of that meeting is that she was working at the hospital as an anaesthetist on another bariatric surgery list. At some time during that day, Dr Pracilio requested that she meet with him after hours. She was not warned as to the purpose of the meeting. Upon completion of the list, she attended Dr Pracilio in his office. No other persons were in attendance. Dr Pracilio asked Dr Pathmanathan to give her account of the iron infusion incident. On her evidence she informed him that Dr Longhorn was involved. In response he said, words to the effect, that if there was further mention of Dr Longhorn's name that he "will make other - I've got other complaints about you, but this is enough". The discussion continued to the effect Dr Pracilio stated that the incident would be "the end of [her] career", at which time Dr Pathmanathan became emotional. The precise recollection of what occurred thereafter suffered in consequence. She recalls Dr Pracilio advising that she was to be "suspended indefinitely", that her lawyers may "come after" Dr Pracilio but that did not concern him. She was advised to appoint a lawyer through contact with MDA which at that time was the professional indemnity insurer for medical practitioners. At this point Dr Pathmanathan was crying and her evidence is that Dr Pracilio stood up from his seat and came over to hug her, which she resisted. The meeting concluded thereafter.
110 Dr Pathmanathan claims to have made a contemporaneous file note of her discussion with Dr Pracilio, although her evidence as to when it was made and if subsequently amended is unsatisfactory. I pause at this point to note that there are very many documents attached to the various affidavits of Dr Pathmanathan that have been edited or which contain commentary as edited by her long after the relevant events. The note contains black and red text and states:
Meeting with Joe Pracilio Head of Anaesthesia & Pain medicine /Director of Medical Services, Head of Clinical Governance (now deputy CEO) (transcript):
Occurred at end of bariatric list (after 5pm) with no support person and no prior warning.
This transcript was written by myself post meeting on the day.
That meeting was the first time we had discussed the incident and he was unaware that others were involved. He had not performed an intrahospital inquiry by this stage but had sought legal advice to immediately suspend me.
The conversation with Dr Pracilio is as follows;
• "The phone is ringing off the hook", "You are the talk of the town", "everybody wants me to do something about you"
• "I have no choice but to suspend you indefinitely", "I know you have worked many years and your career has now come to an end". Don't be mistaken "I won't be able to sleep tonight"
• When I explained that Dr Longhorn was involved. He said "was Ralph involved?", "why didn't he stop you", "what was Ralph thinking",
• and after a few moments of consideration he said "if you mentions Ralphs name I will have to suspend him too", "so I suggest you don't and if you do I have other complaints about you".
• "I have been told you transferred an intubated ICU patient and left them in the corridor", I said it's highly unlikely that I would do that and I certainly don't recall any such event. I do recall stopping in the corridor and returning fentanyl to the recovery but the patient was never intubated. Further the patient was stable and well (and being looked after by the nurse (surgical and anaesthetic)).
• He then said well I have already spoken to lawyers so I suggest you get legal representation. He further said "your lawyers might come after me but I am not scared".
• He then said "I heard about the glycine incident", "I gave you that list and you are meant to look after your surgeon", "how could you?". I believe he had received incomplete information from another hospital that he was using against me in a wrongful context. I stated to him that a root cause analysis had been performed and there was no finding of any anaesthetic wrongdoing. ?Breach of privacy
• When he had given me the list upon my starting my career his specific statement was" this list is worth about $150K/yr". It was a fortnightly session.
(Original emphasis.)
111 The red text commences with the sentence "The conversation with…". In cross-examination, Dr Pathmanathan initially stated that she first believed that this note had been prepared by her on 11 November 2014. However, upon observing that she had recorded Dr Pracilio as the Deputy CEO, she then considered that the note must have been made at some time in 2015, probably after 26 October 2015 when Dr Pracilio assumed that role. She further agreed that the note was likely modified on at least one occasion in 2015. Ultimately she concurred with the proposition that the file note is not in the original state that it may have been in, in 2014. Somewhat obviously, that evidence detracts from the weight that might have been accorded to this document as a true contemporaneous note of a discussion that is in issue.
112 Although not directly addressed in the evidence, I infer that following the meeting with Dr Pracilio the applicant received the correspondence from Dr Henderson of 11 November 2014 advising her that her accreditation had been suspended forthwith. The letter provides:
Dear Dr Pathmanathan
This letter is to notify you that your accreditation at St John of God Subiaco Hospital is suspended forthwith, pending the satisfactory resolution of my concerns regarding your practice.
Issues of concern
I understand that there have been two recent incidents where you have inappropriately attended to personal matters whilst there have been patients in your care.
The first incident occurred on Tuesday 28 October 2014. It is alleged that whilst you attended to an anaesthetised patient undergoing bariatric surgery in theatre you cannulated yourself and administered an iron infusion. Apart from the breach of theatre protocol and the neglect of the patient that this behaviour suggests, if you had had an adverse reaction to the iron infusion the patient would have been left in theatre without an Anaesthetist. This behaviour falls well short of accepted professional standards.
It is also alleged that on one occasion whilst you were escorting a patient in your care from main theatre to the intensive care unit, you left the patient in the corridor with the anaesthetic technician/nurse, proceeded to the change room, got changed into your street clothes and then returned to escort the patient to intensive care.
I do not have confidence in your ability to practice to an appropriate professional standard. Pending a satisfactory explanation for your conduct, I have decided to suspend your accreditation until further notice in accordance with By-Law 27.2 of the St John of God Health Care By-Laws for Health Professions, dated December 2012 (By-Laws).
I request that you provide a written response to the allegations set out above by 5pm on Tuesday 25 November 2014. I will then consider your response and take any further action I consider appropriate.
Yours sincerely
Dr Lachlan Henderson Chief Executive Officer
cc: Dr Joe Pracilio, Director Medical Services
(Original emphasis.)
113 Dr Pathmanathan was extensively cross-examined on her evidence. As a general observation, very often her answers to straightforward questions were given in the form of speeches, were argumentative or were not answers to the questions that were put to her. In many respects her evidence was dissembling and implausible.
114 Dr Pathmanathan repeatedly denied in cross-examination the proposition that she is the one who decided that she would have an iron infusion during the course of an operation on a patient on 28 October 2014. One example is:
So you had a discussion with your medical colleagues and decided that you would take an iron infusion as a quick form of treatment?---No. That's incorrect. So the way you worded it is very incorrect. I did not say that I would take an iron infusion. I said my colleagues had recommended an iron infusion and I - I agreed with them and I said, "Okay. If you think so, I'm happy" - you know, I'm not sure of the exact wording of the communication on that day. It's quite a number of years ago, but we all agreed that I would have an iron infusion. So I don't - I want you to be very clear in that I did not say I would take an iron infusion. It was certainly in a room full of 10 to 12 people with the advice of - of my colleagues.
Well, it was still your decision that was then made to proceed with an iron infusion?---No, it wasn't. You're - so - sorry.
Well, you weren't being forced to do anything. You went along with it?---So - - -
You made a decision?---Mr Millar, I put to you have you ever been in - - -
HIS HONOUR: No, Doctor?---Okay. So - - -
It's not helping - - -?---So I - - -
It's not helping me to follow the evidence if you want to argue with the cross-examiner. It's not helping me if you want to give long explanations that are not required for by the simple questions put. Now, you can continue like this, but I've warned you. It's not helping me at the moment. Mr Millar.
MR MILLAR: Yes. Thank you, your Honour.
You agree you weren't being forced to do anything on that occasion. You agreed with it. You went along; you made a decision?---There's a hierarchy in the surgical theatre. Mr Chandraratna was the senior, and Dr Barry was advising me on my health. So I would say that under the circumstances of the hierarchy, no, I wasn't - how can I put it because the - because I have to be careful of what you're trying to imply, I believe. Sorry. I'm not - but I would say no to your - if I - the short answer is no, and the slightly longer is there was a group conversation and there was group thinking here and there was hierarchy within that room.
115 Dr Pathmanathan in cross-examination often referred to "group thinking", that "we decided to proceed", that she was one of the individuals "involved" in the incident, "there was camaraderie in that room" and "we all thought that it was fine. I think that's why we went ahead with it." Dr Pathmanathan always employed the normative plural defensively in order to justify the decision that was made to have the iron infusion. Sometimes she varied her answers by emphasising that the decision was made by "all of us", was the result of a "group discussion" and following discussion with "[her] senior colleagues" it was decided to proceed with the infusion. In answering in that way, Dr Pathmanathan would often avoid giving an answer to a question that was self-evident if, as I find, she perceived that avoidance was in her interest. As an example, one of very many, her evidence was:
What you took on 28 October, you agree, was something that was only available on prescription, yes?---So I think what we all agreed in the room that day, which is numerous people in the room that day - we all agreed that, yes, I would have Ferinject. And a prescription was written for Ferinject. I've asked your pharmacy---
116 The simple and self-evident answer to that question, conformably with the evidence-in-chief of Dr Pathmanathan, is that Ferinject required a prescription and one was obtained at her direction.
117 Throughout the entirety of her evidence, Dr Pathmanathan insisted that the decision to have the iron infusion was not one made by her alone, but was agreed to by the others present in the operating theatre: Mr Chandraratna, Dr Barry, Ms Morris and Dr Nameless.
118 When competing evidence from other witnesses intended to be called by the respondent was directly put to her, Dr Pathmanathan would often question the credibility of the evidence on the basis that their statements were knowingly false or that she personally found it "unbelievable" that a particular witness would make a statement contrary to her recollection of the events.
119 When confronted with contemporaneous documents which recorded events contrary to her evidence, Dr Pathmanathan would often attempt to explain away the plain objective meaning or, more seriously, would assert that the author had fraudulently made up the documented account. As an example, with reference to the RiskPro report made by Ms Morris concerning the iron infusion incident, Dr Pathmanathan pleaded in her consolidated statement of claim that it was fraudulent in material respects. On a copy of the report annexed to an affidavit of Dr Pathmanathan, she annotated it as: "COERCED AND FRAUDULENT REPORT OMITS ALL OTHER PARTIES ROLE AND INVOLVEMENT".
120 Another example is the annotation highlighted in red font to the notification made by the respondent to AHPRA on 1 December 2014 concerning the iron infusion incident. Dr Pathmanathan notes that the incident was not subject to an objective "unbiased investigation at the hospital", describes Dr Pracilio as "protagonist in false claims", asserts that self-cannulation is impossible and concludes with:
SJOGH is duty-bound not to make any false, misleading statements. Pervert the course of justice, discriminate… see mission and values - hospitality, compassion, justice, respect, excellence (incl in conducting investigations and clinical governance
121 Another example, that I deal with later in these reasons, is when confronted with correspondence from her lawyers to the respondent, AHPRA and the Medical Board containing admissions as to her conduct, Dr Pathmanathan gave evidence that the lawyers were acting contrary to her interests and the admissions were obtained under duress.
122 This is not to say that Dr Pathmanathan steadfastly refused to make any admission contrary to her interests or the framing of her case in this proceeding. On many occasions it was put to her that she unilaterally decided to undertake the iron infusion procedure and did so voluntarily, free from the influence of others who were present in the operating theatre on that day. In response, Dr Pathmanathan admitted that what she did was "a silly thing to do". The full context of that evidence should be understood. Her answer was:
I've already described how the iron issue - infusion happened. I initially didn't want to, and then there was a group over a number of hours, and there was groupthink, and we all - I - you know, I've already said it was a silly thing to do, and I still say it's a silly thing to do. I don't think it's suspendable. I don't think I should be publicly humiliated or my life ruined, but I think it was a silly thing to do, and I think all of us in that room, probably, are thinking now - not at the time but now are thinking it was a really silly thing to do, obviously, because of all the things that have happened subsequent, but I think it was - I don't think anyone thought, and, certainly, I still don't think - I can't speak for the others - that there was anything that compromised patient safety or that compromised our professional standards or - I don't think anyone thought there was a problem.
123 As might be expected, cross-examining counsel pursued that evidence, in the context of an admission apparently made by Dr Pathmanathan at a later point in time to the Medical Board of Australia, as follows:
MR MILLAR: Well - so the whole process - the iron infusion is something that you now realise you really shouldn't have done?---Well, I'm not sure about the gravity of "really shouldn't have done", but I - I would say it's a silly thing to do, and if I had the chance again, I wouldn't have done it.
Well, when you say "it's a silly thing to do", is that an attempt to trivialise it to say, "Well, it's" - you know, "It's silly, it's not necessarily the best thing to do"? It was a mistake, wasn't it?---No, it's like going to the toilet. It - and - something - you know, like - it - well, it's not as trivial - it's not as common as going to the toilet, but it was - it was - I mean, I'm - it - I just feel like it was a silly thing to do.
Sorry, help me with the analogy about going to the toilet. What does that mean?---Well, I don't - well, anaesthetists go to the toilet. They do all sorts of things. And sometimes you can be called into question, and - and you think, "Well, was that a silly thing to do?" And so it's - like, it was a silly thing to do. I'm not trivialising it, as in - but I don't think it was that - I don't think it was that - - -
MR MILLAR: That's not going to the toilet, it's undergoing a medical procedure within the operating theatre. You accept that?---I accept it. That's why - that's why I'm saying it was a silly thing to do.
You had told the Medical Board of Australia that you had made a mistake. And what I put to you is you knew it then, and you know it now. It was a mistake. You shouldn't have undergone the iron infusion that day?---I respectively disagree, and my peers - I rely upon my peer opinions as well.
124 As will be noticed, despite this admission Dr Pathmanathan continued to maintain her overall contention that she implemented an iron infusion with the knowledge, agreement or at least the acquiescence, of other colleagues and who were not the subject of any investigation or suspension of accreditation rights.
125 She disagreed that bariatric surgery poses significant risks, contending that this evidence was given under a false premise which exaggerates the risk, a matter to be calculated by surgeons and not by anaesthetic technicians. Dr Pathmanathan became quite argumentative when questioned about the risks of surgical procedures introducing, at one point, an unhelpful and quite irrelevant anecdote based on a recent news report to the effect that in a different hospital of the respondent, a surgical procedure performed on a child with a brain injury had resulted in severance of an artery. Dr Pathmanathan repeatedly offered long and discursive answers to uncomplicated propositions that were put to her. She did so, I conclude, in order to deflect attention from the point of the question where, at least on her perception, the answer might not have been helpful to her case. I illustrate this by reference to an example when Dr Pathmanathan was questioned, on a hypothetical assumption, as to the role of an anaesthetist when something goes wrong in an operation:
So if there's a rupture to a major artery, you have to leap immediately into action, making sure that you're monitoring the blood pressure and oxygen levels for the wellbeing of the patient. You would agree with that?---Well, I am always monitoring, so I'm never stopping because we can hear what's happening with noises. We've got alarms on all of our machines, and there's different, say, cacophony of alarms, and we kind of have learned what alarm is what, and I can see the monitor, but I'm not actually physically doing the blood pressure or any of these things. It on - it's an automated machine, so the monitor does - - -But - - -?---You know, to the tools - the monitoring technology, I should say, not tools, do the monitoring, and - but I actually would be paying attention if - to that - if - to the alarms. If my back is turned, I would hear the alarm. But, actually, with bleeding, what happens more often than not - it's not often the alarm per se, it would be the surgeon saying, you know - because the surgeon can see the surgical field, so it's the surgeon who can see the bleeding, and he will say, "Ajintha, there's bleeding." And so I react probably - that's probably the first thing that I would hear before I see it transpire and the alarms because it takes - just like we talked about yesterday for anaphylaxis development, takes time for the bleeding to show through on hemodynamic instability. So it's not instant. It's not like a sudden cardiac event. It's - yes.
126 It will be noticed that the answer to what was a straightforward question was not given until the last two words of what was otherwise a rambling and unhelpful answer.
127 Another example which arose is when Dr Pathmanathan was taken to the hospital records for the patient who was anaesthetised during the iron infusion procedure. After her attention was drawn to the document, she was asked to confirm what was plain on the face of the record: the patient was required to be admitted to the ICU at the conclusion of the operation. In answer Dr Pathmanathan chose to address my associate in court by name, requested that certain emails that she had sent to my Chambers the last evening be produced, contended that each of Mr Chandraratna's patients were routinely required to be admitted to ICU and then began to give evidence about surgical risks. At that point I interrupted, to remind her that the simple question was whether the patient the subject of the record was in fact admitted to ICU. I advised her that it was not helping her case to give long explanations in answer to simple questions. Only at that point, did Dr Pathmanathan respond affirmatively to the question. There are many other examples in Dr Pathmanathan's cross-examination when I felt it necessary to advise her that her discursive and non-responsive answers were not assisting my ability to understand the evidence and ultimately to make correct findings of fact.
128 I next address the evidence-in-chief relied on by the respondent which is to the effect that Dr Pathmanathan was solely responsible for the decision to self-cannulate and administer the iron infusion and that, on several occasions, she has admitted to that fact. As with Dr Pathmanathan, I required viva voce evidence to be given in relation to each disputed event and conversation, notwithstanding the filing of affidavit evidence from each of the respondent's witnesses.
129 Karen Morris is a qualified anaesthetic technician and has been an employee of the respondent since February 2006. Her evidence is set out in her affidavit made on 20 December 2022. She described her role as assisting consultant anaesthetists in theatre duties. This includes monitoring patients while an anaesthetist cannulates the patient, administering oxygen and assisting to ensure that the patient's airway remains clear. She holds qualifications in anaesthetic technology.
130 On 28 October 2014, Ms Morris commenced work at approximately 12:30 pm. She relieved another technician as the anaesthetic technician to Dr Pathmanathan later in the day. When she did so, Mr Chandraratna was performing the last scheduled operation for that day in his list. She recalls overhearing portions of conversation between Dr Pathmanathan, Mr Chandraratna and Dr Barry. She was not intently listening to the subject matter and has no recollection of any specific discussion about an iron infusion. She had other duties to attend to. Within the operating theatre she was approximately 2m away from Dr Pathmanathan and 3m from Mr Chandraratna. There are surgical drapes which separate the surgeon from the patient's upper torso and head. She does recall "talk" about Dr Pathmanathan having an iron infusion. She emphasises that she was not listening for the entire conversation and only heard "snippets", for the reason that she considered that this was none of her business.
131 At an unidentified point during the operation, she recalls Dr Pathmanathan leaving Theatre 18 in order to attend Theatre 17, where Dr Longhorn was the anaesthetist. During the procedure Ms Morris left the operating theatre twice - once to obtain some stock and the other to fill a prescription that Dr Pathmanathan had provided to her. That prescription was written for Ferinject. At the direction of Dr Pathmanathan, Ms Morris attended the retail pharmacy which is located within the hospital. She recalls that Dr Pathmanathan gave her the money to pay for the prescription, but could not distinctly recall if she received cash or a debit card. On her return to the operating theatre she noticed that Dr Pathmanathan had assembled on her desk the cannulation apparatus comprising a cannula and an alcohol swab. These articles are commonly found in the anaesthetists' trolley within the operating theatre which she described as "routine stuff".
132 At that point Ms Morris thought that Dr Pathmanathan intended to administer the iron infusion whilst in the operating theatre. She did not consider that to be appropriate and expressed that view to her. On her evidence she expressed concern as to the risk of anaphylaxis and, in accordance with her previous experience, that the procedure may take an hour and a half. In response, Dr Pathmanathan said: "things have changed" and at that point Ms Morris considered that her objections had been ignored. She denied assisting Dr Pathmanathan with the procedure and then stated:
Now, did you have any idea at that stage of the proposed timing of an iron infusion?---No. But when the cannulation happened, I realised that she was going to go ahead with doing it in theatre - - -
"When" - - -?--- - - - straightaway.
Explain what you mean by "when the cannulation happened"?---So when - when the IV needle goes in, that's the access point for the infusion. And I realised that she - she wanted to set-up the - the infusion straightaway and do it there and then.
Did you see that happen, the cannulation?---I - I don't - I don't recollect specifically seeing that happen, but it - it eventuated.
Did you do it?---Not that I recall.
And did you - well, you didn't see anyone else do it either?---No.
No. So what did you do first see to realise that, well, cannulation had occurred?---I saw her put the cannula in, in the vein in the back of her hand, and - - -
Well, just pausing at that point, for non-medicos - - -?---Right.
- - - you're talking - explain exactly what you saw happen?---Okay. So I saw Ajintha with the cannula - the - the needle that goes into the hand - I saw her with it, and I actually saw her put it into a vein, here. And then I realised - - -
HIS HONOUR: Which hand?---It - she used her right hand to put into the back of the left hand. I remember that specifically.
Yes, Mr Millar.
MR MILLAR: And what step would have preceded that? Because you said before you didn't actually see the first step of the cannulation process?---I - I saw her actually do that.
Yes?---But I didn't realise then it - still that she was actually onto doing it then, because you - you can put a dressing on that and leave it there and hook up later.
I see. I see. And what happened then?---I - I got a dressing for her, because, otherwise, if this falls out, she's going to bleed. I did get a dressing. And I remember saying to her, "You've implicated me in this now and it's inappropriate."
And what was said in response by Dr Pathmanathan?---Nothing. It was just shrugged off, so - - -
Now, what was happening with the patient at that stage?---We - the procedure was going to plan, it seemed, and the rest of the team would have been focused on the patient. I'm not aware who realised what - what was going on from the rest of the team, because their focus is the patient and the operation.
133 Ms Morris said that she recalled that Mr Chandraratna and Dr Barry were present in the operating theatre, but could not remember the name of the theatre nurses. She did not recall any medical student being present. On her evidence no other person monitored the condition of Dr Pathmanathan during this procedure, which took between five and 10 minutes to complete.
134 In cross-examination, Dr Pathmanathan challenged much of the evidence of Ms Morris. However, the manner of the cross-examination did not particularly assist my understanding of the material points of difference and for that reason I return to Dr Pathmanathan's cross-examination where the account of Ms Morris was carefully put.
135 Dr Pathmanathan contradicted material aspects of Ms Morris's evidence as sequentially put to her. She denied that it was "[her] idea" to have the iron infusion, insisting that it was a group discussion that commenced at approximately 10 am that day and extended until the infusion was administered; disagreed that it was not open to her to leave Theatre 18 in order to converse with Dr Longhorn in the adjoining theatre; could not recall a statement to the effect that there was a potential for an anaphylaxis reaction from the iron infusion and, when it was put to her that upon return from the pharmacy Ms Morris had noticed that Dr Pathmanathan had assembled the apparatus in readiness for the infusion, she disagreed insisting that Mr Chandraratna had "asked his surgical assistant, Dr Nameless, to unscrub and assist with the administration of the iron infusion - with the cannulation and administration".
136 Dr Pathmanathan was then taken to Ms Morris's evidence to the effect that she expressed concern that the proposed procedure was inappropriate. When asked whether she recalled this, she answered:
I would say that she didn't because if I - if she had, I would have taken notice of that. I would have been aware of it, but I definitely do not agree. I - I don't agree and I definitely do not recall.
137 Next, Dr Pathmanathan denied that Ms Morris had expressed concerns for the safety of the patient. Dr Pathmanathan stated that she could recall being assisted in the procedure by Ms Morris and Dr Nameless but qualified that with the statement: "I don't know precisely what happened eight years later". She denied that an incision was made in order to insert the cannula. When put to her directly as to who actually administered the needle her response was: "I believe that was Dr Nameless" and her evidence as to the necessary steps was then:
So administration involves a number of steps. So, first - so - Ms Morris was there as well. So the first step is putting the needle in, retracting, and then Ms Morris would have handed over the iron infusion to assist Dr Nameless. And then the - there - there would have been a bung, and there - there's - you need two hands for most of these tasks, so there would have been, you know, at least two hands. And I - and Dr Nameless is the one who would have, you know, put the connector through the bungs. You need - not my - so you need two spare hands, I should say. If one hand is incapacitated, you need two extra hands.
138 It was then put to Dr Pathmanathan, by way of an open question, to state what role Ms Morris performed in the procedure. It might have been thought that this afforded Dr Pathmanathan an opportunity to provide direct and useful evidence that more than one person was involved. However, Dr Pathmanathan did not answer that question, choosing rather to reference an email sent by Ms Morris to Dr Pracilio on 10 November 2014, specifying three people and concluding with: "she knows that those three people were there, and she was - so she would be - she was assisting, and she was assisting Dr Nameless, the person that she mentioned in the email…" When pressed again with the question, the extent of her evidence was: "Well, her and Dr Nameless were assisting. Beyond that, I can't be - give you greater precision. This was eight years ago."
139 A little later in her evidence when pressed to be specific as to Ms Morris's role , her evidence was limited to recalling "her involvement with the setting up, obviously, going to pharmacy; I don't recall her exact involvement." The difficulty with that evidence is that when Dr Pathmanathan made her file note of the incident in 2015 (which I have set out above) she stated that the infusion was "set up" by the anaesthetic technician and the senior medical student/previous pharmacist. If the evidence of Dr Pathmanathan is to be accepted as her genuine recollection of the event, rather than as a subsequent reconstruction, it might be reasonably expected that her evidence before me would be consistent with the earlier file note.
140 Dr Pathmanathan strongly disagreed with Ms Morris's evidence that she had nothing to do with the procedure, insisting active involvement on her part but being unable to explain just what that involvement was.
141 I return to the respondent's witnesses.
142 Dr Barry is a general practitioner who regularly works as a surgical assistant to Mr Chandraratna in the field of bariatric surgery at the hospital. She made an affidavit on 22 December 2022 which was read as her evidence-in-chief. She recalls that in the weeks prior to 28 October 2014, Dr Pathmanathan discussed with her and with Mr Chandraratna that she was experiencing tiredness and fatigue. She described this as a general discussion and not a clinical consultation. On the evening of 28 October 2014, she worked as a surgical assistant to Mr Chandraratna at the hospital. Each procedure on that day was for bariatric surgery. Her evidence is that these procedures are "complex in nature, requiring intense concentration". She recollects that during the surgical list, Dr Pathmanathan mentioned that she had received a test result to the effect that she had an iron deficiency. Discussion followed as to the relative benefits of undertaking an iron infusion. She denies recommending a specific procedure to Dr Pathmanathan. She did not advise Dr Pathmanathan to undergo any particular procedure, and denies any foreknowledge of an intent to receive an iron infusion that day.
143 Dr Barry recollects that another person was present in the operating theatre whom she thinks was a medical student. She was not requested by Dr Pathmanathan to perform any role in relation to the infusion. She noticed, at some point, that Dr Pathmanathan had a cannula in the back of her hand, dorsal side, but does not recall if it was left or right. She did not notice how the cannula came to be inserted. She did not raise any concern at the time with Dr Pathmanathan as she did not consider it her "business to comment on it" for the reason that as a surgical assistant, she performed a subordinate role. She did not notice any other person who was involved in the cannulation or the infusion procedure.
144 Dr Barry was briefly cross-examined. She confirmed that she had very little recollection about the content of discussions about the proposal to have the iron infusion. She could not recall Ms Morris attending the pharmacy, nor that Dr Pathmanathan departed the theatre to speak with Dr Longhorn. She could not recollect how long the iron infusion took. She was asked some questions about risk, which is a topic that I separately address.
145 Mr Chandraratna is a general surgeon, specialising in bariatric and weight loss surgery. He adopted as his evidence-in-chief an affidavit made on 22 December 2022. As I have noted, he performed a surgical list in Theatre 18 on 28 October 2014 with Dr Pathmanathan as his anaesthetist. He recalls conversations with Dr Pathmanathan "over a couple of weeks" regarding her iron deficiency and the potential value of an iron infusion. He recalls that at the commencement of his list that Dr Pathmanathan "announced" that she planned to have the iron infusion at the completion of his list. He stated that these discussions were mostly between Dr Pathmanathan and Dr Barry, although "[he] was there as well". He was uncertain as to who suggested that there be an iron infusion. At first sight that evidence is difficult to reconcile with his recollection of the announced intent of Dr Pathmanathan, but in context, I consider it clear that he was referring to discussions which preceded that announcement.
146 Mr Chandraratna denied that it was his idea for the infusion to be given to Dr Pathmanathan. When asked as to how he became aware of the infusion he stated:
So Ajintha had organised for another anaesthetist to come in and put in the cannula for the infusion at the end of the list, and he had actually popped in during the morning and said hello and - you know, we know him, and - and that was the plan. And then, through the course of the afternoon, when we were operating, Ajintha had kind of announced that she had managed to get a cannula into herself, and - and we - I kind of went, okay. That's fine, you know, you can do that. And then a little bit later, when I looked across and across the drapes, I could - I could see that the infusion was kind of happening, and we were, like, okay. And so that was how that happened.
147 Mr Chandraratna did not notice the insertion of the cannula for the reason that his patient was covered in drapes, which obscured his field of view of Dr Pathmanathan. On his evidence as a surgeon he doesn't "get to see what happens" on the other side of the drapes. He recalls Dr Longhorn visiting the operating theatre after the iron infusion had been given. He recalls that Dr Barry was present, but had no convincing recollection as to whether a medical student was also present, noting however that it was common for medical students to observe operating procedures at the time.
148 When cross-examined, Mr Chandraratna essentially confirmed his evidence-in-chief. He could not recall if Ms Morris had left the operating theatre to attend the pharmacy. It was put to him whether he believes that it is possible or probable to self-cannulate, to which he answered: "Absolutely, yes." He explained that answer referencing when he was a junior doctor he managed to take a sample of his own blood using a butterfly device. He explained that this device had medial wings attached to it with a long 10 to 15cm tube to which the syringe attaches. The advantage is that there is no needle attached to the syringe. He confirmed that a butterfly device was not used on the occasion of Dr Pathmanathan's iron infusion. He was then asked a number of questions about relative risk, to which I will return.
149 Dr Longhorn is a consultant anaesthetist, having graduated in 1991. He is a fellow of ANZCA and a fellow of the Royal College of Anaesthetists (UK). In his evidence-in-chief he adopted his affidavit of 22 December 2022 and, in common with the other witnesses, gave viva voce evidence as to the events of 28 October 2014. When asked to recall what occurred on the day, he commenced by stating that whilst he was in the process of anaesthetising a patient in Theatre 17, Dr Pathmanathan entered his theatre and stated that she required an iron infusion, because she had low iron levels. He said that he had not had any prior discussion with her about that. He was busy and at the time said words to the effect of "we will see". Dr Pathmanathan returned to Theatre 18. Dr Longhorn had planned to speak to Dr Pathmanathan in more detail at a later and more convenient time. The discussion was very brief. To his recollection Dr Pathmanathan did not provide any detail as to how or when the infusion would be performed.
150 Dr Longhorn was very busy attending to his own patients. At some point, it may have been in a break between patients, he entered Theatre 18 and observed the following:
Went next door and saw Ajintha was sat in a chair next to her, and… patient, and there's a cannula in place and an iron infusion was running at that time.
151 Although shocked by what he saw, all that he can recollect saying to Dr Pathmanathan was: "you're giving yourself an iron infusion" or "you're giving yourself the infusion", to which Dr Pathmanathan responded "yes, yes". When pressed for more detail his evidence was:
What did she actually say to you, do you remember?---She said "yes, I've just cannulated myself". And I said to her "are you feeling okay", and she said "yes, yes, yes, I'm fine, no problems". And I looked up at the screen of her patient, the monitor of her patient, I said "is the patient okay?", and Ajintha said "yes, yes, it's all quite stable". And so at that point I said to Karen - I went back next door and said "look, if there's any problems, give me a call".
So how long would you have been in there on that occasion?---Again, it would have been down to three minutes. I've never felt comfortable about leaving patients in theatre for a long period of time. You know, there are quite significant guidelines and ..... only do it for emergency situations and for very brief times. And so I wanted to get with my - you know, I have an anaesthetised patient in the theatre.
152 Dr Longhorn denied being requested to take over the monitoring of Dr Pathmanathan's patient, explaining that an anaesthetist is prohibited from doing so by the relevant professional guidelines whilst caring for his own patient. He recollects advising Ms Morris that if there was a problem, he would be next door.
153 In cross-examination he confirmed that he reported the iron infusion incident on the morning of the following day by leaving a message with Dr Pracilio's personal assistant, who was unavailable to discuss the matter at the time. Shortly thereafter he had a conversation with Dr Pracilio in a corridor of the hospital. Dr Pracilio confirmed that he was already aware of the subject matter and did not require Dr Longhorn to submit a formal report. When pressed to confirm that he did not witness the cannulation, Dr Longhorn confirmed that fact and stated: "You told me you did it by yourself." He further stated that the only other person that he noticed in the room at the time was Ms Morris. In particular, he did not notice a surgical assistant or "Dr Nameless".
154 Dr Longhorn confirmed that Dr Pathmanathan visited Theatre 17 on 28 October 2014 to ask for assistance in receiving an iron infusion. He confirmed that he did not at that stage deny her request. In fact, he confirmed that he agreed to discuss it with Dr Pathmanathan once he had finished his list. It was not his understanding that Dr Pathmanathan intended to proceed during her theatre list. If he had, his evidence is that he would have taken steps to prevent her from doing so. When further pressed, his evidence was:
And once again, you didn't make any documentation despite having significant concern about the incident to make a complaint, and also having significant concern about the legalities?---No. I mean, if I had my time - I said if I had my time - this isn't something that I've been prepared for or expecting - I've never seen before in 20 years of medical practice - I've ever seen another doctor behave in such a way. I was - I was like shocked. And yes, I - if I had my time again, I would have called the Director of Medical Services that evening and told them what was happening that night. And I would, as you said, have made full documentation at that time. But I just called them the next morning.
155 Dr Longhorn was then questioned about the practicality of self-cannulating. His evidence was that it could be achieved using one hand. He then described the steps that would be taken and in doing so was invited by Dr Pathmanathan to demonstrate the procedure by using the infusion apparatus that was received in evidence. Dr Longhorn demonstrated that a tourniquet could be applied, the proposed area of cannulation treated aseptically and that a needle was capable of being inserted into a vein in the top of his left hand (although for the purposes of the demonstration the needle was not actually inserted). He then demonstrated how the cannula would then be attached to the needle. When pressed by Dr Pathmanathan to the effect that it would be very difficult to perform this procedure with one hand unassisted, his answer was: "I would say very simple." He accepted however that it would be more difficult, though not impossible, to apply a cap to the end of the cannula with one hand.
156 Dr Longhorn was also questioned about the relative risk, which evidence I address later.
157 The respondent also relies upon evidence which it characterises as later admissions made by Dr Pathmanathan in addition to the admissions made to Mr Chandraratna and Dr Longhorn.
158 Dr Pracilio is a recently retired specialist anaesthetist. He was the Director of Medical Services at the hospital from March 2014 until June 2017 and the Director of Anaesthesia and Pain Medicine from March 2010 until March 2014. He retired from management roles with the hospital in June 2017, but continued as a consultant anaesthetist until his retirement from medical practice in December 2022.He has over 40 years' experience as a medical practitioner in the public and private sectors. On 30 October 2014, Ms Morris informed him that the iron infusion incident had occurred, and he made a brief handwritten note of that discussion at the time. He confirmed that he had a brief discussion with Dr Longhorn about the incident on or about 30 October 2014.
159 His evidence is that he spent considerable time on Saturday, 8 November 2014, examining the circumstances of the iron infusion event and he looked for RiskPro reports concerning Dr Pathmanathan, at which time he became aware of the report concerning the patient in the corridor incident. He prepared a report as to the result of his investigations in the form of an email sent to the respondent's internal general counsel. The respondent claimed and maintained legal professional privilege over this document. In the course of the trial, I upheld that claim, despite Dr Pathmanathan's submissions. Dr Pracilio was questioned in cross-examination as to whether he recalled "calling around other hospitals" on 8 November 2014. He confirmed that he had, by speaking to two people whom he confirmed as Dr Watts and a Dr Rodriguez. A handwritten note made by Dr Pracilio of those discussions was produced in evidence, which is very difficult to decipher.
160 It was directly put to Dr Pracilio that by 8 November 2014 he had "presumed" that Dr Pathmanathan had self-cannulated to administer the iron infusion. Dr Pracilio denied this stating that he had information to that effect, but he did not form a view as to its truthfulness before speaking with Dr Pathmanathan. Dr Pracilio said that he spoke with Dr Watts and Dr Rodriguez because they "were in positions of administration" at other hospitals, and the purpose of each conversation was to obtain any more information "about [Dr Pathmanathan's] performance" on a confidential basis that may assist Dr Pracilio in his investigation. Dr Pracilio was then taken to his handwritten note dated 8 November 2014. He said that he spoke with Dr Watts and Dr Rodriguez because each had inquired, at earlier points in time, as to how Dr Pathmanathan was performing. He stated that Dr Rodriguez was from the Colin Street Day Surgery, where Dr Pathmanathan had performed some services. Dr Pracilio was informed in that discussion that Dr Pathmanathan was requested to withdraw her application for accreditation. As to the reason, Dr Pracilio said:
I was told that you had done the list, and you had left the hospital. The patient with the laryngeal mask ... the laryngeal mask is a breathing device that goes into patients after a dental case. The hospital rang you, saying the patient is still not awake, and also that your drug - the amount of opioid, which is a schedule 8 drug, documented on your anaesthetic chart didn't equate to what was written in the drug chart - in the drug book. They said, what did you actually give? And you said - supposedly - I don't - this is what was said to me…
161 Dr Pracilio denied speaking to any person from the Mount Hospital on 8 November 2014. He was next questioned about his discussion with Dr Watts, and his attention was drawn to an email sent by Dr Watts to Daniel Heredia on 11 November 2014. At the time Dr Watts was the Director of Anaesthesia at Hollywood Private Hospital in Perth. Dr Pracilio denied that he had ever suggested to Dr Watts that the accreditation of Dr Pathmanathan at Hollywood Hospital should be withdrawn or suspended. He said that his conversation with Dr Watts "was purely on behaviour, nothing more." He denied that he had discussed details of Dr Pathmanathan's clinical cases, stating that: "I would never allow the privacy of a patient to be discussed with another doctor from another hospital. No names and no procedures were discussed." When it was put to him directly that he discussed the iron infusion event with Dr Watts, he answered:
No. I think I said I'm - I'm - I'm reviewing Ajintha for an event that occurred in hospital. I did not, as I said, discuss your infusion with anyone apart from the CEO, the legal person from our organisation and the director of quality and risk in our organisation, mainly through that email I sent on 8 November in the afternoon of the Saturday.
162 It was again put to Dr Pracilio that he embarked on a process of "collecting information" about clinical cases of Dr Pathmanathan from other hospitals, which Dr Pracilio denied and continued:
Not that I asked for. I just said what was your behaviour like at the other hospitals because our main concern was your distraction from poor monitoring and not abiding - and not committing yourself to the guidelines of our organisation.
163 Returning to the evidence-in-chief in the investigation process, Dr Pracilio considered the circumstances of each incident and reported his findings to Dr Henderson on 10 November 2014. Based on his report, and his recommendation, Dr Henderson advised that he would act to suspend the accreditation rights of Dr Pathmanathan, pending further investigation.
164 The following day, Dr Pracilio arranged to meet with Dr Pathmanathan for the purpose, according to his evidence, of having her confirm what had happened in the operating theatre on 28 October 2014. His evidence is that, he put to her directly the question: "Did you self-cannulate and give yourself an iron infusion?" To which her response was: "Yes, I did". His evidence as to what then occurred is:
What happened next?---Well, that at that point, obviously, I had already had discussions with the CEO, because the [sic] only the CEO has the authority to suspend a practitioner or temporarily remove a practitioner from the list of credentialled doctors, so I don't have that authority, so I had already spoken to the CEO and his guide to me was if that is the actual fact we need to provide temporary suspension of accreditation and we need to look at the pattern of practice of the practitioner to assess where we will go further with that aspect of the temporary removal of accreditation. So my role was to, firstly, confirm that the event actually did take place which was wayward [sic] outside the By-Laws of our organisation and then to advise her that she had been suspended. I followed that up with my concerns for her wellbeing that evening. I said, "Do you have anyone to talk to this evening? Have you family? Have you friends?" I think she said she didn't have family but she had friends to discuss it with and I went one point further. I offered her help through Converge, which is a - a - a private organisation that helps practitioners or staff that may be having some mental concerns associated with actions that have taken place, so we did offer her that as well. And what I recall she didn't take the card nor accept any assistance in that matter.
165 In cross-examination, Dr Pracilio was asked many questions about the adequacy of the investigation that he undertook, which I address as a separate topic. It was directly put to him that a reason which informed his view that Dr Pathmanathan should be suspended was her ethnicity and he answered: "A doctor's a doctor. A human's a human. That's how I look at it." He denied that he was aware of other rumours or complaints concerning Dr Pathmanathan originating in 2013. Dr Pracilio was intensely questioned as to whether he believed that Dr Pathmanathan had managed to set up an iron infusion and self-cannulate herself to administer it in the operating theatre and within a timeframe of between 10 and 15 minutes. Dr Pracilio confirmed that this is what was reported to him, that it raised a matter of serious concern but that he did not form a view as to the truth of the allegations until after he spoke with Dr Pathmanathan. In due course, Dr Pracilio was taken to the file note made by Dr Pathmanathan of her meeting with Dr Pracilio on 11 November 2014. He was given time to read the note in full. He said of Dr Pathmanathan's version of the discussion:
This is pure fabrication. None of this was said. Some of the things that you say I've said are not the way I - I construct a sentence. It's not the way I speak. None of this happened in our meeting. I say that categorically, and I stand by my reputation that it's not true.
166 Various sentences in the note were then put sequentially to Dr Pracilio. He denied the version of the discussion as recorded by Dr Pathmanathan in materially relevant respects. He described as a "total fabrication" the suggestion that he had questioned her about Dr Longhorn's involvement, and as "absolute rubbish" the assertion that he warned Dr Pathmanathan not to involve Dr Longhorn. He said that the iron infusion incident was the only matter that was discussed. He further denied expressing confidence that he was not concerned about being legally pursued, although he did accept that he advised Dr Pathmanathan to speak to her medical indemnity insurer in order to provide her with "support". He also denied leaving his seat in order to approach Dr Pathmanathan to give her a hug.
167 Dr Pracilio accepted that suspending an accredited practitioner is "incredibly serious" and may cause serious harm to the person involved. Dr Pracilio stated that the decision was made to suspend Dr Pathmanathan because of her poor behaviour and poor patient management. He denied that a reason for the decision was because Dr Pathmanathan: "was young, brown and very successful female in full-time private practice" stating:
Not at all. I - I don't - I don't subscribe to that at all. I don't - I don't - I don't distinguish you with any other person apart from a human being. Doesn't matter what your colour is, what your age is or what your race is. I'm not that sort of person, and the organisation I work for doesn't behave like that at all, and I never heard your age, colour or race mentioned in any meeting with relation to your cannulation. Not once. And I can stand up and say that 1000 times because it's the truth.
And they've suspended other brown doctors before though?---Please don't use that word. It's - it's derogatory.
Well, I put to you that it's just a matter of fact, but - - -?--- No, that's not a matter of fact. Not for St John's. It may happen elsewhere, but we don't suspend people because of their colour. The suspension is either to do with their abilities to do their job or because of the fact they didn't behave in an appropriate manner. It doesn't matter whether you're fat, white and balding, or whether you're brown, short, and a woman. It doesn't matter.
Okay?---We look at the - - -
All right?--- - - - objectivity of the person.
Yes?--- - - - not what the person looks like or what they do.
So you're saying - - -?---It's what they do in theatre.
You didn't investigate anyone else in that room because you knew it was me who did - who was the person in the wrong?---No one else contravened the By-Laws.
It was absolutely without doubt me? Okay?---It's all about the By-Laws.
It's all about the By-Laws?---It is. You broke the By-Laws.
168 On 25 November 2014, Tottle Partners acting for Dr Pathmanathan provided a detailed written submission to Dr Henderson in response to his letter of suspension of 11 November 2014. In various ways, Dr Pathmanathan contends that this submission was prepared whilst she was suffering extreme duress, was not thinking clearly and/or did not reflect her instructions at the time. Even if those matters were true, I deal with these contentions later in my reasons, they were not made known to the respondent at the time. In response to the iron infusion incident, the submission provides at paragraphs [6.1]-[6.14]:
6.1 The Practitioner admits that on 28 October 2014, she cannulated herself and administered an iron infusion, whilst attending to a patient undergoing a bariatric procedure in theatre.
6.2 The circumstances in which that occurred are set out below:
(a) Given her unusual fatigue, and history of anaemia, the Practitioner had ordered some blood tests for iron, ferritin, thyroid function and vitamin D levels.
(b) Early that day, the Practitioner had had a discussion with Dr Janet Barry (GP/surgical assistant), Dr Harsha Chandraratna (bariatric surgeon) and an ex pharmacist (now a medical student) regarding her iron deficiency and hypothyroidism.
(c) Dr Barry and Dr Chandraratna routinely deal with nutritional deficiency in their bariatric practice. The former pharmacist said, and they agreed that the new preparation for iron infusion, Ferinject (ferric carboxymaltose) gave rise to fewer adverse reactions than previous preparations, and could be given over 5 minutes as a push or infusion.
(d) They suggested to the Practitioner that the infusion could be given that day. The Practitioner interpreted this as a recommendation that she have the infusion that day. In retrospect, she can see that this was not in any way an appropriate course.
(e) The Practitioner had not previously considered or planned to administer an iron infusion. Given the manner in which the issue came up, she failed to reflect upon the wisdom of doing so that day. She drew false reassurance from the presence of other senior medical practitioners in theatre.
(f) The Practitioner ordered Ferinject from the pharmacy and asked a senior colleague to cannulate her for an iron infusion. He said he would do so in between his cases.
(g) The iron infusion was set up between cases.
(h) The last case of the day was a revisional gastric sleeve procedure (which takes approx. 2-2.5hrs).
(i) The Practitioner recalls that the patient was obese, but not morbidly so, with few other co-morbidities (depression).
(j) At the time of this procedure, the Practitioner had been administering anaesthetics for bariatric lists for almost two years, and was comfortable with the anaesthetic challenges presented by bariatric patients, and with the usual course of revisional laparoscopic sleeve gastrectomy.
(k) The procedure was going smoothly. Dr Chandraratna had inserted the trocars. The abdomen was insufflated, the patient was in position, the bougie was down. Dr Chandraratna was stapling the patient's pouch. At this stage of the procedure, the risk of significant blood loss is much lower than it is earlier in the procedure. This stage of the procedure usually lasts approximately 30 minutes.
(l) It was at this point that the Practitioner cannulated herself and hooked up the iron infusion that was already prepared. The infusion took approximately 5 minutes to go through. The Practitioner felt no ill effects at any time.
(m) The senior colleague she had asked to cannulate her came into theatre to cannulate the Practitioner, but she advised him that it was not necessary.
(n) The Practitioner then disconnected the infusion and finished the procedure.
(o) After the procedure, the Practitioner reflected upon her decision to cannulate herself and administer the iron infusion in theatre. On reflection, she knew that she should not have done so.
6.3 The Practitioner very much regrets the decision to administer an iron infusion during the procedure.
6.4 She frankly admits that to do so was a significant error of judgement, and that it has given rise to Dr Henderson's concerns.
169 Dr Pathmanathan, with representatives from Tottle Partners attended a meeting at the offices of the respondent on 17 December 2014. Present also were Dr Jane Deacon, from MDA, Dr Pracilio, Ms Morgan-Hobbs, an in-house lawyer of the respondent, and Ms McCorkill who was then employed as the respondent's consumer liaison manager and who made handwritten contemporaneous notes of the meeting. Ms McCorkill made an affidavit in this proceeding on 20 December 2022, presented as a witness and was cross-examined. She attached a typed transcript of her notes to her affidavit. She was not directly cross-examined to the effect that her notes were inaccurate or that there were material omissions. Rather, she was taken to a separate record of the meeting expressed in the form of a letter from Tottle Partners to Dr Pathmanathan dated 18 December 2014. That correspondence does not purport to be a transcript of the matters discussed: rather, it is a commentary upon the subject matter of the discussion. In any event, nothing was put to or said by Ms McCorkill which causes me to doubt the accuracy of her note. In part it reads:
Ferinject injection- Dr Pathmanathan ('Dr P') said she was not sure injection was given while tungsten boujee in the patient, Joe read out incident report confirming this. Confirmed as primary matter of concern. Dr P confirmed it was the wrong thing to do.
170 On 18 December 2014, Tottle Partners corresponded with AHPRA in response to notification that the Medical Board proposed to take immediate action against Dr Pathmanathan in the form of suspension from practice, pending a medical review and further decision of the Board. In responding to the iron infusion incident, the correspondence replicated the relevant paragraphs from the previous letter of 25 November 2014 sent to the respondent.
171 From January 2015, Clayton Utz acted for Dr Pathmanathan. Mr Cooper was the responsible partner. On 16 January 2015, Mr Cooper emailed Dr Pathmanathan regarding a discussion that he had with AHPRA. He noted the engagement of Dr Uzma to prepare a report, that thereafter the matter may be able to be resolved and he closed by advising that he would shortly draft a letter addressed to the respondent "tendering your resignation. We can discuss that letter once you have read it". Dr Pathmanathan responded by email on 21 January 2015 and in part said:
I concur with your last email that I should admit to the facts surrounding the allegation but I and the colleagues and friends who I have discussed this with agree that it is not serious misconduct nor placing significant risk to the safety of the patient. Ferinject has a very safe profile and is given in GP consult rooms without all the facilities of a surgical theatre and major hospital. Further, the drugs that I give my patients carries more risk not that it is relevant to argue these points. There was no harm to the patient nor did I or any of my colleagues present at the time assess the incident causing significant risk. I should not have done it with hindsight and it was a mistake but it is not a crime worthy of current punishment nor dragging in unsubstantiated allegations to paint the picture and my integrity in the worst light possible.
172 In cross-examination, Dr Pathmanathan contended that this did not amount to an admission of self-cannulation and self-administration. She stated that Clayton Utz and her insurer pestered her relentlessly, that Clayton Utz were not acting in her best interests and were somehow conspiring with MDA to that effect. I also deal with these contentions later in my reasons, but once again pause to observe that these matters were not asserted at the time to the respondent.
173 Dr Uzma, a consultant psychiatrist, met with Dr Pathmanathan on 14 January 2015 in order to undertake a psychiatric assessment and to report her findings to AHPRA. In her report dated 23 January 2015, under the heading "mental state examination", there appears a factual record of matters stated by Dr Pathmanathan to her. Inter alia, it is recorded that:
Dr Pathmanathan's insight about her conduct on the day of 28th of October 2014 was fair. She said "it was a stupid thing to do" She was aware of the possible consequences of her action on that day. Her judgement to me was also fair.
…
Dr Pathmanathan said that around October 2014 she was feeling physically run down and tired. At that time she had broken up with her boyfriend was moving houses and working. She said that she felt she was "time poor". She discussed this with her medical colleagues at work who suggested that she did some blood tests. She did these in the blood tests indicated a very low functioning thyroid state with a THS level of 19.8. She discussed these results with her medical colleagues. She said her colleagues suggested a trial of a new iron infusion, used for nutritional supplement to patients who had bariatric surgery which might help her with her fatigue. She said one of her colleagues, who was a former pharmacist, also assured her about the safety of the infusion. On October 28th while she was in operating theatre attending a patient undergoing surgery, she cannulated herself and gave herself the infusion. She said the infusion took 3 to 5 minutes to be completed and she resumed attending the patient. She said she did it in the presence of colleagues present at that time in the theatre. She said now she has realised that it was a serious lapse of her judgement. She reported that the patient care was not compromised and she realised that it could have been. She said that she never injected or infused herself in the past. She said that at that time it did not occur to her that she should consult her GP or her endocrinologist after finding her hypothyroid status, and she realised she certainly had not been thinking clearly.
174 Dr Uzma was not called as a witness, but it is Dr Pathmanathan who attached a copy of her report to one of her affidavits. When confronted with this report in cross-examination, Dr Pathmanathan said that these facts were inferred from material that was provided to her for the purpose of undertaking the assessment by the Medical Board. Her evidence was that Dr Uzma did not specifically ask her about the iron infusion incident adding: "I barely recall, actually, the meeting." In her evidence it is only the material in that letter that is contained in quotation marks that I should accept as having been stated by her to Dr Uzma.
175 Objectively, I do not accept that evidence of Dr Pathmanathan. Although Dr Uzma was likely provided with background material, including the contemporaneous evidence about the iron infusion incident which I have referred to, these paragraphs are not expressed as a summary of that material. The multiple references to "she said" bespeak of a summary of the discussion between Dr Pathmanathan and Dr Uzma during the consultation.
176 On 21 October 2015, the Board met to consider the restrictions that had been imposed on Dr Pathmanathan. A copy of the minutes of that meeting is annexed to an affidavit of Dr Pathmanathan. The minutes record that the Board received and considered a compliance report and supporting documents including a verbal submission from Dr Pathmanathan. The minutes include the following:
The Practitioner's verbal submission commenced at 16:12 and finished at 16:27
The Practitioner expressed remorse about her error in self-administering an iron infusion. She detailed her work history, experience, the sequence of events relating to the error and the negative consequences to her career and provided a handout to Members.
177 The handout was a printed copy of a PowerPoint presentation authored by Dr Pathmanathan dated 21 October 2015. In the introduction to that document it is said:
On 28th October 2014 I made a mistake at work which I am extremely remorseful of and was so immediately after with my own personal reflections.
178 The mistake admission is repeated under separate headings in the PowerPoint and it is also contended by Dr Pathmanathan in it that the initial submission of Tottle Partners was prepared in accordance with advice that Dr Pathmanathan should "show remorse" and may have given rise to "the erroneous perception that I may have a significant personal crisis impacting on my ability to practice". The document continues in order to correct that perception. When cross-examined about this document, Dr Pathmanathan said that she was "led to believe" that she had made a mistake by her lawyers and repeated her denial that she did not self-cannulate.