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[2023] FCA 628
Federal Court of Australia
2023-06-13
McElwaine J
Original judgment source is linked above.
MCELWAINE J: 1 Dr Ajintha Pathmanathan (the applicant) is a highly intelligent, well qualified, confident and articulate individual of Sri Lankan Tamil ethnicity. Her family migrated to Australia in 1985 when she was a child and settled in Perth, Western Australia. She excelled at school, achieving grades in the top 0.1% of all school leavers in her final year and was admitted to the medical school at the University of Western Australia. She completed her medical degree in 2001, graduating with the award of an MBBS. In 2005, she commenced specialist anaesthesia training at the Oxford University NHS Trust in the United Kingdom. A family event caused her to return to Australia, and she completed her training in Sydney. 2 In 2010, Dr Pathmanathan completed a sub-specialty fellowship in aeromedical medicine and in 2011, a sub-specialty fellowship in cardiac anaesthesia at the Royal Brompton NHS Trust in the United Kingdom, where she held medical registration. In 2011, she was admitted as a fellow of the Australian and New Zealand College of Anaesthetists (ANZCA). In 2016 she was awarded, by the University of Sydney, a Master's degree in International Public Health. She has since completed her course for a Master's degree in Health and Medical Law with the University of Melbourne. In 2012, Dr Pathmanathan commenced practice as a specialist anaesthetist in Perth. She has particular expertise in bariatric anaesthesia. 3 As a consultant Dr Pathmanathan sought and, on 23 February 2012, was granted accreditation rights at the St John of God Hospital, Subiaco (hospital) which is operated by the respondent. In general terms accreditation at the hospital confers authority to provide health care services within approved fields of accreditation. Dr Pathmanathan was accredited as a consultant anaesthetist. She worked with various surgical teams. Her practice experienced success and growth. 4 Dr Pathmanathan now describes herself, somewhat self-deprecatingly, as a "forcefully retired specialist anaesthetist/anaesthesiologist" which on her case was caused by wrongful and unlawful decision-making by the respondent in late 2014 which resulted in the suspension of her accreditation right, a conduct referral to the Australian Health Practitioner Regulation Agency (AHPRA), loss of her livelihood and self-esteem and which overall has caused her much emotional distress and suffering. 5 In late 2017, Dr Pathmanathan made a complaint to the Australian Human Rights Commission (the Commission) alleging that the respondent had engaged in unlawful discriminatory conduct contrary to the Age Discrimination Act 2004 (Cth), the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth). A delegate of the President of the Commission terminated those complaints on 28 February 2018 pursuant to ss 46PF(1)(b) and 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) (Commission Act). The effect of s 46PO(3A) of the Commission Act is that Dr Pathmanathan required leave to commence a proceeding in this Court alleging unlawful discrimination against the respondent. 6 Dr Pathmanathan commenced this proceeding on 3 July 2018, beyond the 60 day time limit set by s 46PO(2) of the Commission Act and without leave. She then sought leave to commence two proceedings, one against the respondent and another (the subject of a separate complaint) against AHPRA. On 5 September 2019, Steward J granted an extension of time and leave to bring a proceeding against the respondent but dismissed the application for leave to bring a proceeding against AHPRA: Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460 (leave judgment). There is another proceeding that Dr Pathmanathan unsuccessfully sought to pursue. On 6 February 2020, Steward J summarily dismissed her proceeding commenced against the operator of the Mount Hospital in Perth in which Dr Pathmanathan contended that, in September 2015, her accreditation was unlawfully terminated on the grounds of disability, sex, race or age discrimination: Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65 (Healthscope). 7 Dr Pathmanathan is a self-represented litigant. In this proceeding she has demonstrated very high level intellectual achievement, communication skills and organisational capacity to marshal a vast amount of documentary evidence and to present it in the form of many affidavits. A significant amount of that material is not in admissible form, but this does not detract from the very considerable effort that Dr Pathmanathan has exerted in the preparation of her case. She displayed civility and courtesy in the conduct of the trial where evidence was heard over a period of 10 days from 17 witnesses, including from her. In all, 13 witnesses were required for cross-examination. The trial was obviously emotional and stressful for Dr Pathmanathan. The central event concerns the conduct of Dr Pathmanathan who, on 28 October 2014, received an iron infusion whilst an anaesthetised patient of hers was undergoing bariatric surgery at the hospital. This incident led to a decision by the respondent's Chief Executive Officer Dr Henderson, communicated to her on 11 November 2014, to forthwith suspend her accreditation, pending satisfactory explanation of her conduct. Thereafter two notifications were made to AHPRA, one by Tottle Partners Lawyers (Tottle Partners), then acting for Dr Pathmanathan and the other by the respondent, that initially resulted in the Western Australia Immediate Action Committee of the Medical Board of Australia (Immediate Action Committee and the Medical Board) deciding on 15 December 2014 to propose to take immediate action in relation to Dr Pathmanathan's registration by imposing a condition on her registration that she must not practice as a medical practitioner until the outcome of a satisfactory health assessment and further decision by the Medical Board. The Immediate Action Committee further resolved to require Dr Pathmanathan to undergo that assessment and invited submissions about the proposed action by 18 December 2014. 8 Submissions, both written and oral, were made to the Immediate Action Committee, AHPRA and the Medical Board over an extended period. Dr Pathmanathan submitted to a psychological assessment that concluded she was not suffering a mental impairment, although she did display narcissistic personality traits. Certain supervisory conditions were ultimately imposed on her registration, which AHPRA publicly notified. 9 On 21 October 2015, the Western Australian Board of the Medical Board of Australia (Board) considered an application by Dr Pathmanathan to remove those restrictions. It decided to modify the restrictions by removing some of them. On 6 November 2015, Dr Henderson advised Dr Pathmanathan that, despite the decision of the Medical Board, he was not confident that her skill levels were sufficient to permit her to practice as an independent specialist at the hospital. In the event of removal of all restrictions on her practice, he noted that she may reapply for accreditation. 10 In the events as they occurred, Dr Pathmanathan's accreditation expired on 20 February 2015. On 9 December 2015, the Medical Board decided to remove the remaining conditions upon her registration "because the Board acknowledged that the requirement for supervision has impacted upon your ability to sustain full time work and considers that there has been a material change in your circumstances in this regard." 11 Despite removal of those conditions, the applicant's case is that she has been unable to obtain full-time work as a consultant anaesthetist in Australia, or elsewhere, that her professional reputation has been ruined and that in consequence she should receive an award of very substantial damages. Dr Pathmanathan calculates her pure economic loss claim at approximately $120 million. 12 Dr Pathmanathan in her pleadings, comprising an amended statement of claim filed 13 May 2022 (54 pages) and a reply filed 4 October 2022 (341 pages) asserts a large number of disparate causes of action, some of which are very difficult to understand. In summary, the claims embrace unlawful discrimination on the basis of race, sex, age and imputed disability, negligence, fraud, fraudulent misrepresentation, intimidation, unlawful interference with trade or business relations, tortious conspiracy, breach of trust, breach of confidence, constructive trust, invasion of privacy, defamation, breach of contract, torture and "equity in justice". The respondent did not pursue an application to strike out the pleadings, in whole or in part, as failing to disclose a reasonable cause of action. Mindful of the obligation at s 46PR of the Commission Act to conduct this proceeding without being bound by technicalities or legal forms, I have proceeded by attempting to ascertain the substance of the various complaints made by Dr Pathmanathan, although as observed by Robertson J in Maiocchi v Royal Australian and New Zealand College of Psychiatrists [2014] FCA 301 at [8], this provision does not dispense with the obligation to adequately inform a respondent of the case that must be met. In this case the pleadings must be read with the very extensive number of affidavits relied upon by Dr Pathmanathan and the documents contained in the agreed court book of 4,615 pages. 13 For the detailed reasons that follow, I have concluded that the claim must be dismissed. In material respects, I reject the evidence of Dr Pathmanathan where inconsistent with the evidence of other witnesses and contemporaneous documents, some of which were authored by her. I do not find that Dr Pathmanathan deliberately gave false evidence before me. Rather, I am prepared to accept that on material differences, her recollection of events is the result of reconstruction rather than recollection and, to adopt a label that Dr Pathmanathan relied on in submissions to me (as to why I should reject certain evidence given by witnesses for the respondent), in metacognition research it is accepted that false memory can be created over time due to false attribution error. As put by Dr Pathmanathan: "So when you feel that somebody else has done the wrong, and so you attributed all the error to the other person instead of yourself." Dr Pathmanathan assented to my proposition that one might reach the same conclusion about aspects of her evidence (indeed the evidence of any person) and emphasised that contemporaneous documents tend to be more reliable. 14 What is clear is that Dr Pathmanathan has spent many years studying, sifting, sorting and analysing the evidence that she relies upon in order to found her overarching contention that her career was ruined by a group of white senior male doctors who were determined to target her as a progressive, young, female doctor of Sri Lankan ethnicity who had managed, despite these attributes, to break through "the glass ceiling" of the medical profession in Perth. That case theory finds no support in any of the evidence before me. To an extent, some of the allegations that Dr Pathmanathan makes against individuals in this case are scandalous.
The conduct of the trial 15 Despite that the relevant events occurred in Perth and most of the witnesses reside there, Dr Pathmanathan commenced this proceeding in the Victorian registry of the Court. Eventually it was agreed that the trial should proceed in Perth. 16 The evidence comprised affidavits and a court book. Dr Pathmanathan relies on a total of 24 affidavits made by her between 25 October 2018 and 20 February 2023. A considerable amount of material in those affidavits is argumentative, comprises submissions or is otherwise inadmissible for various reasons. Counsel for the respondent, Mr Millar, adopted a pragmatically sensible attitude and did not engage in the tedious process of identifying individual objectionable paragraphs or sentences. Rather, in the interests of efficiency, he was content for all of the applicant's affidavits to be read without objection, reserving the right to submit at a later stage that certain material was irrelevant or of little or no weight. 17 Dr Pathmanathan also filed affidavits from Dr Donald Kane, Dr Michael Kerr, David Cruse, Judith Corbett, Dr Angella Figliomeni (her sister), Professor Ashish Sinha, Professor Jan Mulier, Suresh Lakshmanan, Dr Steve Watts, Dr Nick Ford and Dr Carol Warfield. During the trial and, on the application of the respondent, I ruled as inadmissible or Dr Pathmanathan did not press the affidavits of Dr Kane, Dr Kerr (in part), Mr Cruse, Dr Figliomeni (in part), Mr Lakshmanan, Dr Ford and Dr Warfield. Ultimately, Mr Millar did not require Dr Figliomeni, Professor Sinha or Professor Mulier for cross-examination and their affidavits were read into evidence. 18 I record that the evidence of Mr Lakshmanan presented particular difficulty for the applicant. He is an accountant by education, training and experience. Dr Pathmanathan believed that his report would be admitted to establish her past and future economic loss claims. In fundamental respects his report failed to comply with the requirements of s 79 of the Evidence Act 1995 (Cth). Moreover, his opinion is expressed in the form of an academic analysis as to the principles that one might apply in assessing damages for past and future economic loss. He was not briefed with a statement of facts to form the basis of his assumptions, his analysis did not proceed by reference to the past historic income earned by Dr Pathmanathan in the conduct of her practice, and nor did he undertake calculations in order to derive a range of future economic loss, discounted to present day values. My rejection of the entirety of his evidence left the applicant without any expert evidence to establish her economic loss claim. 19 I considered it part of my duty to afford procedural advice to Dr Pathmanathan as a self-represented litigant and as part of my obligation to conduct the trial conformably with the requirement of s 46PR of the Commission Act that I should advise her that there were, at least, two options open to her in consequence. One, to seek an adjournment of the trial and the other to make, albeit at a very late stage, an application to divide the issues of liability and quantum as separate questions pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) (Rules). Dr Pathmanathan made an application for the latter, which Mr Millar opposed. After hearing detailed argument I provided ex tempore reasons on 14 March 2023 and made an order to separate these issues. I adjourned to a date to be fixed the question of damages, if it arises. The trial proceeded limited to the question of liability. The primary reason which informed that exercise of my discretion is that Dr Pathmanathan genuinely did not understand what was required of Mr Lakshmanan in order to produce a report in admissible form on the question of damages. I made it plain that but for the fact that she is a self-represented litigant, I would not have exercised my discretion in her favour. 20 Shortly prior to the commencement of the trial at a case management hearing, Dr Pathmanathan applied for leave to issue 41 subpoenas addressed to individuals to attend and give evidence at the trial and one to the respondent to produce documents. I refused those applications, save for three subpoenas addressed to Dr David Knox, Professor Constantine Michael, Dr Michael Levitt and to the respondent, respectively. A matter arose during the evidence of Dr Levitt which required a separate evidentiary ruling. Without his knowledge at the time, Dr Pathmanathan electronically recorded a discussion that she had with him on 19 January 2017. When he subsequently became aware of this recording, he did not consent to its use nor to a transcript made from the recording which Dr Pathmanathan attached to one of her affidavits. Mr Millar submitted that I should reject the transcript as illegally obtained evidence contrary to s 5 of the Surveillance Devices Act 1998 (WA) and pursuant to s 138 of the Evidence Act. After hearing argument on the point, I ruled this material inadmissible and for the reasons given ex tempore on 16 March 2023. 21 The respondent relies on various documents in the court book together with evidence from Karen Morris, Dr Henderson, Michelle McCorkill, Dr Janet Barry, Larissa Johnstone, Mr Harsha Chandraratna, Dr Joseph Pracilio and Dr Ralph Longhorn. 22 At the commencement of the trial I directed that, despite that it was intended that evidence-in-chief would be given by adoption of affidavits, I would be assisted if the evidence of each witness relevant to disputed conversations and events, be led viva voce. This was agreed. Proceeding in that way significantly assisted my assessment of each witness.
Abbreviated chronology 23 To assist in comprehension of these reasons I set out a chronology of the key events, though there is considerable dispute about what was said during various conversations and whether certain events as alleged by the respondent occurred in the manner alleged. Date Event Scope of dispute, if any 7 November 2011 Dr Pathmanathan applies to the respondent for accreditation in anaesthetics. 23 February 2012 The respondent grants accreditation to Dr Pathmanathan in anaesthetics. 13 November 2013 An incident is reported relating to the conduct of Dr Pathmanathan on 12 November 2013, referred to in evidence as the patient in the corridor incident. This incident was not raised with Dr Pathmanathan at the time. The reported facts are disputed. 27 May 2014 An incident is reported relating to the conduct of Dr Pathmanathan on 27 May 2014, referred to in the evidence as the lunch incident. This incident was not raised with Dr Pathmanathan at the time. The reported facts are disputed. 25 June 2014 An incident is reported relating to the conduct of Dr Pathmanathan on 24 June 2014, referred to in the evidence as the distressed patient incident. This incident was not raised with Dr Pathmanathan at the time. The reported facts are disputed. 28 October 2014 This is the date of the iron infusion incident, which is central to this case. The allegation is that Dr Pathmanathan self-cannulated in order to receive an iron infusion, while a patient of hers was unconscious on an operating table and was being operated on. This incident was not raised with Dr Pathmanathan until 11 November 2014. It is the incident that primarily caused the respondent to suspend Dr Pathmanathan's accreditation rights at the hospital. The central facts are disputed. 30 October 2014 Ms Morris discusses the iron infusion incident with Dr Pracilio. The content of the discussion is disputed. 30 October 2014 Dr Pracilio speaks with Dr Longhorn informally concerning the iron infusion incident. The content of this discussion is disputed. A further issue to be resolved is whether the discussion occurred on 7 November 2014. 8 November 2014 Dr Pracilio commences an examination of the iron infusion incident. The adequacy of the investigation and the timeliness of when and how the iron infusion incident was raised with Dr Pathmanathan is in dispute. 10 November 2014 Dr Pracilio discusses with Dr Henderson the outcome of his examination of the facts concerning the iron infusion incident, and other conduct of Dr Pathmanathan. Dr Henderson resolves to suspend Dr Pathmanathan's accreditation. The content of the discussion is disputed. 11 November 2014 Dr Pracilio meets with Dr Pathmanathan to notify her of the decision to suspend her accreditation pending further investigation and review. On the evidence of Dr Pracilio, Dr Pathmanathan admitted that she self-cannulated to administer an iron infusion on 28 October 2014. The content of this discussion is disputed. 11 November 2014 Dr Henderson advises Dr Pathmanathan in writing that her accreditation at the hospital is suspended forthwith, pending satisfactory resolution of concerns regarding her practice. Two incidents are referred to as informing that decision: the iron infusion incident and the patient in the corridor incident. The factual basis for the suspension is disputed, together with the adequacy of the investigation undertaken by the respondent. 17 November 2014 Tottle Partners, then acting for Dr Pathmanathan and MDA National Insurance (MDA), correspond with Dr Henderson and request certain information relating to the allegations as then framed against Dr Pathmanathan. 25 November 2014 Tottle Partners provide a detailed submission on behalf of Dr Pathmanathan to Dr Henderson, responding to the allegations concerning the iron infusion incident and the patient in the corridor incident. According to the submission, Dr Pathmanathan admitted to the iron infusion incident including that she self-cannulated, did not recall the patient in the corridor incident, but did recollect an undated incident where she paused on the way to the ICU with a post-operative bariatric patient and walked approximately 10m to a change room. Dr Pathmanathan contends that this correspondence was sent whilst she was under duress, is factually incorrect and was sent without her instructions. 26 November 2014 The respondent provides details of two further incidents relating to the conduct of Dr Pathmanathan: the lunch incident and the distressed patient incident. The facts concerning the further two incidents are disputed. 1 December 2014 Dr Henderson notifies AHPRA of the iron infusion incident as a mandatory notification of an event that in his opinion placed the public at risk of harm because Dr Pathmanathan practiced in a manner that was a significant departure from accepted professional standards. The basis for the notification is disputed. 9 December 2014 Tottle Partners correspond with AHPRA to notify it of the additional allegations as set out in the letter from Dr Henderson of 26 November 2014. Dr Pathmanathan disputes that this notification was provided with her authority. 15 December 2014 The Immediate Action Committee meets to consider whether to take immediate action concerning Dr Pathmanathan and resolves to propose to restrict her right to practice until undergoing a health assessment and further approval from the Medical Board. It also resolves to require the health assessment. 15 December 2014 AHPRA corresponds with Tottle Partners and sets out the proposed condition that Dr Pathmanathan not practice as a medical practitioner until completion of a health assessment and further determination by the Medical Board. Dr Pathmanathan is invited to make submissions relating to the proposed condition by 18 December 2014 (erroneously stated as 18 December 2015). 17 December 2014 Dr Pathmanathan and representatives of Tottle Partners meet representatives of the respondent. Minutes of the meeting record a statement by Dr Pathmanathan that the iron infusion incident was the wrong thing to do. The content of the matters discussed is disputed. 18 December 2014 Tottle Partners provide a written submission to AHPRA. The events which led to the iron infusion incident are set out, including an admission that Dr Pathmanathan self-cannulated and expressed regret. Responses are also provided to each of the other allegations. It is submitted that Dr Pathmanathan should not be suspended and that in the alternative certain conditions on her right to practice be imposed. Dr Pathmanathan disputes that the submission accurately records the events, says that it was sent whilst she was under duress and that she was pressured into not mentioning the involvement of others in the iron infusion incident. 19 December 2014 The Immediate Action Committee meets and resolves to impose a condition on Dr Pathmanathan's registration that she must not practice as a medical practitioner until she has undergone a health assessment and has been deemed fit to return to practice by the Medical Board. 6 January 2015 AHPRA appoints Dr Uzma, psychiatrist, to assess Dr Pathmanathan and provide a report. 6 January 2015 AHPRA advises Dr Pathmanathan of the appointment with Dr Uzma on 14 January 2015 and warns her that if she did not agree to attend, the Medical Board may continue to take proceedings under the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law). 9 January 2015 Clayton Utz Lawyers (Clayton Utz), then acting for Dr Pathmanathan lodge a review application with the State Administrative Tribunal (SAT) against the decision of the Immediate Action Committee of 19 December 2014. This application was not proceeded with. 23 January 2015 Dr Uzma provides a report to AHPRA regarding the consultation with Dr Pathmanathan on 14 January 2015. The opinion expressed is that Dr Pathmanathan is not currently suffering any psychiatric impairment but does have narcissistic personality features. The recounted history includes a statement apparently made by Dr Pathmanathan that she self-cannulated during the iron infusion incident. The history as set out is disputed. 28 January 2015 A copy of Dr Uzma's report is provided to Clayton Utz. 9 February 2015 Dr Pathmanathan and her lawyers meet with a representative of the Medical Board to discuss Dr Uzma's report. The content of the discussion was not addressed in evidence 9 February 2015 Clayton Utz correspond with AHPRA and enclose a proposed voluntary undertaking signed by Dr Pathmanathan erroneously dated 10 February 2015. Pursuant to it, Dr Pathmanathan agreed to nominate a senior medical practitioner to act as her mentor, to attend an ethics educational course, to attend medical reviews with her general practitioner and to attend six sessions of psychotherapy. Dr Pathmanathan disputes that the undertaking was provided with her fully informed consent and of her own free will. 10 February 2015 The Western Australia Health Committee of the Medical Board of Australia (Health Committee) meets and resolves to remove the suspension of practice condition imposed on 19 December 2014. The Committee is satisfied that Dr Pathmanathan does not suffer from any psychiatric impairment. This decision does not finalise the conduct investigation. 11 February 2015 AHPRA advises Clayton Utz of the decision made on 10 February 2015, that the investigation will continue in relation to the notified conduct and that the undertaking offered was not accepted. 12 February 2015 Clayton Utz correspond with Dr Henderson and propose that Dr Pathmanathan surrenders her accreditation on certain conditions. Dr Pathmanathan disputes that this proposal was the result of her fully informed consent and exercise of her own free will. 19 February 2015 The respondent rejects the voluntary surrender of Dr Pathmanathan's accreditation as proposed. 20 February 2015 Dr Pathmanathan's accreditation with the hospital expires by effluxion of time. 16 June 2015 The Western Australia Notifications Committee of the Medical Board (Notifications Committee) meets. The Notifications Committee decides to defer making a decision under s 167 of the National Law in order to obtain an independent expert report from a specialist anaesthetist, further information from Dr Pathmanathan and copies of hospital policies. 17 June 2015 Clayton Utz correspond with AHPRA and request that the Medical Board expedite the resolution of the investigation as a matter of urgency and propose, on behalf of Dr Pathmanathan, that she be cautioned in acknowledgement of a lapse in her professional judgement which she conceded occurred in relation to the iron infusion incident. 1 July 2015 The Notifications Committee meets and resolves to caution Dr Pathmanathan and to impose seven conditions upon her entitlement to practice. 10 July 2015 AHPRA advises Clayton Utz of the matter as resolved by the Notifications Committee on 1 July 2015. 24 August 2015 Clayton Utz correspond with the respondent, note the action recently taken by AHPRA and inquire as to whether it will now accept the voluntary surrender of accreditation as offered on 12 February 2015. 4 October 2015 Dr Pathmanathan corresponds with Dr Henderson and withdraws each of her offers to voluntarily surrender her accreditation with the respondent. 15 October 2015 Dr Pathmanathan requests AHPRA remove the remaining conditions upon her right to practice. 21 October 2015 The Board meets. It considers Dr Pathmanathan's application to remove all of the remaining restrictions upon her registration, and in doing so received a 15 minute oral submission from Dr Pathmanathan. The minutes of the meeting record that Dr Pathmanathan expressed remorse about "her error in self-administering an iron infusion". The Board rejects Dr Pathmanathan's application, but resolves to remove some of the restrictions that it had earlier imposed. The accuracy of some matters recorded in the minutes is disputed. 5 November 2015 AHPRA advises Dr Pathmanathan of the decisions made by the Board on 21 October 2015. 6 November 2015 Dr Henderson advises Dr Pathmanathan that he is not confident that her skill levels are sufficient for her to practice as a specialist anaesthetist at the hospital but that upon removal of the remaining restrictions, she may reapply for accreditation. 3 December 2015 Dr Pathmanathan provides a written and verbal submission to the Medical Board in support of her application to remove the remaining restrictions on her right to practice. 9 December 2015 The Medical Board resolves to remove the remaining restrictions imposed on the right of Dr Pathmanathan to practice medicine. 11 December 2015 AHPRA advises Dr Pathmanathan of the decision made by the Medical Board on 9 December 2015. 17 November 2017 Dr Pathmanathan lodges a complaint with the Commission alleging unlawful discrimination by the respondent on the basis of her age, race and sex. 20 February 2018 Dr Pathmanathan provides additional material to the Commission in support of her complaint. 28 February 2018 A delegate of the President of the Commission advises Dr Pathmanathan of the decision to terminate her complaint pursuant to s 46PH(2) of the Commission Act. 3 July 2018 Dr Pathmanathan commences this proceeding. 5 September 2019 Steward J grants leave to Dr Pathmanathan to bring this proceeding pursuant to s 46PO of the Commission Act.
24 Many other events were the subject of extensive evidence relied on by Dr Pathmanathan. I limit my findings of fact to those necessary to address the material aspects of Dr Pathmanathan's claim and the respondent's defence.
Structure of the claims 25 It is not a productive exercise to set out portions of Dr Pathmanathan's pleaded claims or to explain their protean development in the form of the overly detailed, and in part impenetrable, reply comprising a mixture of hundreds of pages of argumentative contentions, submissions and evidence. As finally resolved and expressed in closing submissions by Dr Pathmanathan her claims are as follows.
Unlawful discrimination claims 26 First, the basal claims of unlawful discriminatory conduct engaged in by the respondent contrary to the Racial Discrimination Act, the Sex Discrimination Act, the Age Discrimination Act and the Disability Discrimination Act 1992 (Cth). Dr Pathmanathan presses a somewhat novel claim of discrimination on the basis of "the intersectionality of protected attributes violating her human rights in the sphere of economic and social life, as in the discrimination statutes." How that is put is explained by Dr Pathmanathan in her closing submission: The applicant has an intersectionality of protected attributes relevant to race, age, sex, and imputed disability discrimination. Scientific and corporate research evidence shows, those with intersection of race, age and sex suffer compounded or heightened discrimination particularly at the higher tiers of leadership. 27 Delving a little deeper into that claim, Dr Pathmanathan refers me to the Center for Intersectional Justice, a non-profit organisation founded in Berlin in 2017. According to the website homepage of that organisation it: [I]s dedicated to advancing equality and justice for all by combating intersecting forms of structural inequality and discrimination in Europe. We envision a world free of systemic oppression in which each individual has access to resources, voice, power and safety. Such a world will only emerge if structural institutional and historical barriers that have led to marginalisation, invisibilization and lack of access and opportunity for minority groups … are addressed. 28 Dr Pathmanathan emphasises the definition of intersectionality promulgated by the Center: The concept of intersectionality describes the ways in which systems of inequality based on gender, race, ethnicity, sexual orientation, gender identity, disability, class and other forms of discrimination "intersect" to create unique dynamics and effects. For example, when a Muslim woman wearing the Hijab is being discriminated, [sic] it would be impossible to disassociate her female* from her Muslim identity and to isolate the dimension(s) causing her discrimination. All forms of inequality are mutually reinforcing and must therefore be analysed and addressed simultaneously to prevent one form of inequality from reinforcing another. For example, tackling the gender pay gap alone - without including other dimensions such as race, socio-economic status and immigration status - would likely reinforce inequalities among women. 29 Dr Pathmanathan did not refer me to any case where this concept has been applied in addressing discrimination claims brought pursuant to any of the statutes upon which she relies. Nonetheless, I note the existence of a considerable body of academic literature where the concept finds discussion, for example: Goldblatt, B "Intersectionality in International Anti-discrimination Law: Addressing Poverty in its Complexity" (2015) 21(1) Australian Journal of Human Rights 47. My research has failed to turn up any case that has considered this issue pursuant to the discrimination statutes relied on by Dr Pathmanathan. 30 I do not find that the concept is of no assistance in understanding how Dr Pathmanathan frames her discrimination claims, though ultimately I am bound to proceed in accordance with the provisions of each statute and the settled judicial interpretation of the principles to be applied. 31 This is not to say that Dr Pathmanathan relies only on her intersectionality argument. It is clearly in addition to her apparently more straightforward claims of race, sex, age and imputed disability discrimination. Those claims are difficult to disentangle from an array of contentions that begin with the overarching claim that the respondent "wields significant power and influence in the healthcare, legal and political communities" in Western Australia. Dr Pathmanathan repeatedly references this as the "circuit of power" comprising senior accredited medical practitioners (invariably white males) "anointed with powerful roles and titles" holding various positions in third party organisations thereby enabling the respondent to "effect influence and inducement (implicit or explicit) through the circuit". Amongst those actors, Dr Pathmanathan names several witnesses in this proceeding: Professor Michael, Dr Levitt, Dr Henderson (the CEO of the respondent at the time), Dr Pracilio and Dr Longhorn. At the outset I should observe that there is no basis in the evidence for those claims against these medical practitioners and others whom I have chosen not to name as they did not give evidence and could not rebut the assertions of Dr Pathmanathan. These untenable contentions should never have been made and are scandalous for detailed reasons that I will later explain. 32 Returning to Dr Pathmanathan's narrative, the unlawful discrimination commenced in mid-2013, when she asserts that her work with education committees was interfered with and malicious rumours began to circulate about her in an endeavour, so it is said, to induce others to cease working with her, so that by April 2014 she was requested to leave the Perth Anaesthesia Group by Dr Craig Schwab: which she did of her own accord to practice independently. When I inquired of Dr Pathmanathan in her closing address how this conduct was related to the respondent, Dr Pathmanathan asserted without any evidence that Dr Schwab was induced to act by unnamed senior doctors of the respondent. This is another example of serious allegations made against a plethora of individuals without any basis in fact. There are many others, some of which I later address in these reasons. 33 Thus in setting out what are the allegations of unlawful discriminatory conduct against the respondent, I focus only on the four key matters of complaint, two of which led to the suspension decision taken by Dr Henderson on 10 November 2014 and two more of which explain subsequent decision-making by the respondent. 34 The first matter relates to an alleged incident on 12 November 2013, being the patient in the corridor incident, and is the subject of an internal incident report prepared the next day. The reporting system is known as RiskPro. In substance it was reported that at the conclusion of a surgical procedure and when the patient was being transferred to the ICU, Dr Pathmanathan stopped in the corridor to return a quantity of drugs to the Post Anaesthesia Care Unit (PACU) and subsequently in the vicinity of the theatre reception area the following occurred (without correcting for spelling or grammar): As we were walking through theatre reception area I thought I heard Dr Pathmanathan say "maybe I should grab my clothes" I said "sorry?" She replied "no never mind". We kept walking and I then heard her say "it will only take a minute" I turned and looked at her and she said "two secs Ill be right back, the patient is stable". Dr Pathmanathan then quickly walked back towards the theatre reception area. I turned to the orderly (Brad) who was pulling the bed and asked "what the?" as I was surprised. He said "I think she went to get her clothes what do we do?" I said we can't move without her and so we came to a stop in the area just before the lifts and I advised the Anaes tech (Rob) to let the lift go as the anaesthetist was not with us. Rob and I talked to the patient who said she was uncomfortable, her observations on the ICU transfer monitor remained stable. We waited there for a couple of minutes until I saw her coming and I advised the tech to call the lift and when she reached us I expressed that she was gone a long time. She replied that someone had stolen her shoes. I told the orderly that we should proceed to ICU. In the lift Dr Pathmanathan asked me about security cameras in the changerooms. I advised her that there was no cameras. I did not confront Dr Pathmanathan about her leaving us at this time as I didn't think it appropriate over the patient and in front of other people. Once in ICU Dr Pathmanathan did her handover and I waited for the ICU nurse. Once she had handed over she asked me how we could report the theft. I said we could do so on the computer and tell shifty. She spoke to the ICU Dr again and then asked me if I would do the report. I said that we could once we got back to main theatre. Dr Pathmanathan then left ICU. On return to Main Theatre I spoke to shift coordinator who advised me that Dr Pathmanathan's shoes were there in the office. I rang the Dr to advise her of her shoes and to see where she was so as to speak to her. She advised me that she had already left (I assume in her scrubs) and that she would come in tomorrow. There were several other people in the coordinators office so I did not feel comfortable discussing it with her on the phone. I waited until others left and then discussed the situation with the shift coordinator (Aruna Thathiah). We advised Mr Chandraratna of the situation over the phone. 35 The person reporting this incident is disclosed by name, together with the name of a witness. It is further recorded that patient safety was compromised, but the outcome was not harmful. This incident was not raised with Dr Pathmanathan until November 2014. 36 The second reported incident, being the lunch incident, is recorded as having occurred on 27 May 2014. The RiskPro in part reads: Patient in PACU @ 1210 - hypertensive ++, desaturating, oxygen requirements increasing, erratic breathing with LMA. Anaesthetist Ajintha Pathmanathan contacted - in tearoom - stated she needs to finish her lunch. Gave phone order for Sugammedex, Clonidine and Naloxone - all given. 1245 - Patient still not awake with all above still happening. Anaesthetist phoned in OR and pleased asked to review patient in PACU she stated she couldnt come as had another patient on table - Dr Knox in PACU and attended to patient and stated he would himself go into OR to get Dr Pathmanathan. 1300- Dr Pathmanathan attended to review. Dr Knox told her what he had done and asked how much Fentanyl was given she responded 100 and when he ? it she responded she gave another 50 but not recorded it in OR. She charted further Naloxone (given no improvement in patients condition). ABG also ordered, completed by nursing staff and reviewed by dr. Paperwork also not completed, PCA orders incomplete - not signed and wrong parameters. 1330 - another Naloxone dose given with no improvement. 1340 - paperwork finally completed after asked by PACU coord to fill in. 1346 - patient still remains unresponsive, anaesthetist informed re increasing BSL and stated she would contact ICU. 1400 - Bladder scan 720mls patient still unresponsive so unable to void. 1500- Pt reviewed by Dr for transfer to ICU 37 The person reporting the incident is disclosed by name together with the name of a witness. This incident was not raised with Dr Pathmanathan until 26 November 2014. 38 The third reported incident, being the distressed patient incident, is recorded as having occurred on 24 June 2014. The RiskPro in part reads: Pt. RTW post OT at 1550. On arrival pt. was extremely distressed, crying loudly, clutching at stomach, holding legs up to chest. Anaesthetist with pt. at time. Nurse asked pt why she was distressed, pt stated she was in extreme pain. PCA Fentanyl not connected. Nil analgesia given to pt by anaesthetist (no medications taken with Dr.?). Nurse checked operation record, appeared to have received minimal analgesia intraoperatively. Medical records documented similar issue with pain tolerance in previous surgery. Nurse asked anaesthetist why PCA not connected, anaesthetist asked where RMO was and departed the room. Over the duration of 1 hour, 3.2mg hydromorphone given, 225mcg clonidine and 12mg of ketamine. PCA connected by OT nurse and ICU nurse, ketamine infusion commenced. BP on arrival- 205 systolic BP (MAP >130) confirmed by manual BP, pt. tachycardic. Nil action taken by anaesthetist. Additional hydromorphone bolus' required initially. Pt appeared to have settled, and pain decreased more than 2 hours post arrival to ICU. 39 The person reporting the incident is disclosed by name. No witness is identified. The effect on the patient is described as additional treatment, intervention and temporary harm. Patient pain is noted as having been exacerbated. The potential level of risk is stated as medium. This incident was not raised with Dr Pathmanathan until 26 November 2014. 40 The fourth, and most prominent incident the subject of the proceeding and the trial, occurred on 28 October 2014. It is the iron infusion incident. There is no dispute that Dr Pathmanathan received an iron infusion while an anaesthetised patient of hers was being operated upon by Mr Chandraratna. What is disputed are the events which led to it and, in particular, the involvement of others who, on the case of Dr Pathmanathan, were not investigated, suspended or subjected to any other disciplinary action. The RiskPro was completed by Karen Morris on 10 November 2014, well after she first reported the incident to Dr Pracilio on 30 October 2014. In part it reads: Incident Details When did the Incident/Hazard/Assessment/Inspection OCCUR: 28/10/2014 Incident Time: 08:00 Day of Week: Tuesday Division: SUBIACO Area/Department incident/hazard/assessment/inspection occurred: OPERATING SUITE Describe Incident/Hazard/Assessment/Inspection including site of injury/exposure: (Facts only): On Tuesday 28 October I was the anaesthetic technician in Mr Chandraratna's bariatric surgery list in Theatre 18. I was assisting Dr Pathmanathan and there was chat between the doctors about Dr P having low blood iron. I heard some of the discussion and I thought they were talking about giving Dr P an iron infusion after the list finished, in Mr C's rooms or elsewhere. I talked to Dr P about the anaphylaxis risk, and that she should have it done in a clinic where she could relax also. I went to the hospital's retail Pharmacy to collect a prescription for this purpose for Dr P. The last case of the day was a sleeve gastrectomy revision on a 100kg patient who was going to ICU following her operation. During this case Dr P cannulated herself and gave herself the iron infusion, and was attached to the set-up while using the tungsten bougie in the patient. 41 The report further records that patient safety was compromised and the potential level of risk was high. This incident was not raised with Dr Pathmanathan until late in the afternoon of 11 November 2014 when Dr Pracilio advised her of the decision made by Dr Henderson to suspend her accreditation, pending further investigation and review. 42 The central contention of Dr Pathmanathan is that the respondent has engaged in a "smokescreen" to "create the narrative to explain what had happened" initially to retrospectively justify the suspension of her accreditation rights, the report to AHPRA and the refusal of subsequent requests to remove the suspension or otherwise reinstate full accreditation rights. On her case, I should find that the respondent's decision-making was motivated by and was taken for reasons related to her race, sex, age or imputed disability even if those reasons were not dominant or substantial reasons. Dr Pathmanathan characterises each of the allegations relied upon by the respondent as fraudulent. 43 The claim framed pursuant to the Racial Discrimination Act asserts that the respondent treated Dr Pathmanathan as "an incompetent foreign doctor" and thereby engaged in unlawful racial discrimination contrary to ss 9, 10, 11, 13, 16 and 18. Her overall contention is that the respondent's decision-making was infused by racial prejudice, or at least included considerations of racial prejudice. The case advanced is that the whole of the treatment of Dr Pathmanathan by persons for whom the respondent is legally responsible amounted to an act involving "a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life" within the meaning of s 9(1) of the Racial Discrimination Act. By acting as it did, Dr Pathmanathan contends that the respondent denied to her rights to equality before the law within the meaning of s 10, access to places and facilities contrary to s 11, the provision of goods or services to the public or to any section of the public contrary to s 13, the publication or display or causing to be published or displayed a notice that indicates or could reasonably be understood as indicating an intention to do an act that is unlawful by reason of other provisions of the Racial Discrimination Act, contrary to s 16 and, a matter that was asserted at a late stage during the course of the trial, inciting another person to do an act that is unlawful contrary to s 17. 44 The difficulty with these various claims commences with the omission of specific pleadings of material facts that are said to establish each claim. However, in adopting a broad and beneficial approach, the case advanced by Dr Pathmanathan invites me to infer that all, or some, of the decisions taken and actions implemented by the respondent, through each of the persons for which it is legally responsible, were because of her race or ethnic origin. 45 The claims asserted pursuant to the Age Discrimination Act commence with the proposition that when practising as a consultant anaesthetist in Perth, Dr Pathmanathan was relatively young: and most certainly was much younger than each of her senior male colleagues and persons responsible for the administration of the hospital. The applicant pleads reliance on ss 14, 15, 16, 18, 20 and 28. These claims also rely on the drawing of an inference, from all of the relevant circumstances, that the applicant's relatively young age was a reason (even if not the dominant or substantial reason) which informed decision-making by persons for whom the respondent is legally responsible and for the action taken in consequence of those decisions. Thus, Dr Pathmanathan contends that she suffered discrimination contrary to s 14 on the ground of her age in that she was treated less favourably than, in circumstances that are the same or are not materially different, the respondent treated or would treat a person of a different age and the respondent did so because of her age, a characteristic that pertains generally to the age of persons in her position or one that is generally imputed to persons of the same age as Dr Pathmanathan, as young members of the medical profession. 46 A claim of indirect discrimination is asserted contrary to s 15, even though at the outset of the trial, I specifically questioned Dr Pathmanathan as to whether her claims were brought for direct or indirect discrimination and she confirmed the former. In any event, and accepting that this matter is at least obliquely pleaded, the claim is that Dr Pathmanathan suffered unlawful discrimination on the ground of her age in that the respondent imposed a condition, requirement or practice upon her which was not reasonable in the circumstances and which had or was likely to have the effect of disadvantaging persons of the same age as Dr Pathmanathan at the time. Adopting her oral closing submission, she had "broken the glass ceiling" of the establishment of the Perth medical profession, was successful and thereby represented a threat either professionally or economically to her more senior (very much older) colleagues and competitors. Her career was effectively terminated because as a young and successful anaesthetist she suffered unlawful direct or indirect discrimination because of her age. 47 In addition, or in the alternative, Dr Pathmanathan asserts that the decisions made by the respondent and the action taken constituted unlawful discrimination in relation to employment, against contract workers, access to premises or the provision of services and facilities contrary to ss 18, 20 or 28. 48 Like the claims framed pursuant to the Racial Discrimination Act, Dr Pathmanathan does not distinctly identify the material facts relied upon by her as founding each of these contentions. Her claims rest upon the drawing of certain inferences that she invites based upon all of the evidence that has been adduced and considered objectively. The basal point that she relies upon is that her relatively young age was a reason, it need not be the dominant or substantial reason, for decision-making and action taken by the respondent. If that is so, then her claims of unlawful age-based discrimination are made out. 49 Turning next to the Sex Discrimination Act, Dr Pathmanathan contends that she continuously suffered discrimination by various persons for whom the respondent is legally responsible because she is female contrary to ss 5, 14, 16 and 22. Like each of her other discrimination claims, her case rests upon drawing inferences that the respondent treated her less favourably than, in circumstances that are the same or are not materially different, the respondent treated or would treat a person who is male and an accredited medical practitioner at the hospital. Anchored by that broad proposition, Dr Pathmanathan asserts unlawful discrimination contrary to s 14 in employment, s 16 in relation to contract workers and s 22 relating to the provision of services or facilities. 50 Once again, Dr Pathmanathan does not specifically identify the material facts relied upon in order to establish the claims which rest on the broad contention that I should infer from the whole of the evidence that being a successful female anaesthetist was a reason for decision-making and action taken by the respondent. In further support of this claim, Dr Pathmanathan relies upon published research to the effect that there is "significant gender discrimination in the anaesthesia profession and particularly in leadership - higher paying and more powerful positions". 51 The final discrimination claim relies upon the Disability Discrimination Act, which Dr Pathmanathan frankly acknowledges was not the subject of her terminated complaint to the Commission, but which she now contends arises out of similar facts in order to establish that the respondent discriminated against her based on an imputed disability, being a belief that she suffered from some form of psychiatric disorder. From that proposition, Dr Pathmanathan contends that various individuals breached her privacy by spreading malicious rumours relating to her personal health, induced AHPRA to refer her to a psychiatrist for a mental health assessment and published material to the effect that her personal health may have impacted her ability to practise as an anaesthetist. 52 Dr Pathmanathan does not identify how this allegation is put. Although she asserts that the imputed disability relates to her mental health, she does not specify which provisions of the Disability Discrimination Act are said to have been infringed by the respondent or how the conduct identified by it is a disability that it imputed to her within the meaning of disability as defined at s 4. However, by adopting a broad and beneficial approach, I assume that her contentions rest upon unlawful discrimination in the provision of services or the making available of facilities within the meaning of s 24 and on the basis that the respondent unlawfully discriminated on the ground of an imputed mental health disability by refusing to provide services to or to make facilities available to Dr Pathmanathan or in the terms or conditions or the manner in which those facilities or services were made available to her. Even understood in that way, Dr Pathmanathan fails to explain how it can be the case that imputed disability discrimination occurred in making the suspension decision, when this issue was only raised by AHPRA and the Medical Board following notification of the suspension decision. 53 I should at this point return to how Dr Pathmanathan ultimately framed each of her discrimination claims in her oral closing submissions. It was put to me that a group of doctors within the hospital were working in conjunction with Dr Pracilio in order to identify complaints, group them and then use the complaints as the basis to deny accreditation rights to Dr Pathmanathan with, ultimately, the effect of terminating her career as a specialist anaesthetist. The following exchange then occurred: HIS HONOUR: So you say I should infer from that that there was this cabal of white, male doctors who had decided that you had to go. DR PATHMANATHAN: I think - - - HIS HONOUR: Is that what you're asking me to find? DR PATHMANATHAN: Yes. I've spoken to Dr Watts, so this isn't in evidence, so I'm not sure that I can - - - HIS HONOUR: No. Well, you can't tell me about that. DR PATHMANATHAN: Can't say it. Okay. So let me just say this. HIS HONOUR: Well, let me just make a note of that, because I want to make certain I understand what you're putting to me. I should find there was a cabal of white, male doctors - - - DR PATHMANATHAN: Senior. HIS HONOUR: - - - who were determined, what, to end my career? DR PATHMANATHAN: To target me and to get rid of me, to terminate my career. They stated in mid-2013. They've been going for a while and they thought this was it. This was enough. This iron infusion was enough to move into the next phase. HIS HONOUR: I understand what you want me to find. Yes. 54 A little later Dr Pathmanathan submitted to me that a group of senior doctors, some of which she identified in her evidence, worked in collusion and implemented a strategy which she described as a "playbook", the foundations of which were laid out in mid-2013 and which was ultimately executed on 11 November 2014 when her accreditation rights were suspended. An immediate difficulty that Dr Pathmanathan must face is that these contentions were not fairly put to a number of senior doctors who gave evidence and who were within the group of alleged bad actors. When questioned by me as to why these serious allegations were not put to individual witnesses, Dr Pathmanathan answered that she did not have "all the evidence" to do so. As I explain later in these reasons there are two straightforward answers to that assertion. One, Dr Pathmanathan produced an extraordinary amount of affidavit and documentary evidence gathered by her between 2015 and 2022 and it is difficult to accept that she failed to turn up evidence within that period to support her overall case theory. The other, that there is simply no credible basis in any of the evidence adduced which lends support to this serious allegation of misconduct.
Breach of contract claims 55 Dr Pathmanathan contends that she was offered and accepted accreditation and thereby entered into a contract with the respondent pursuant to which she would admit patients or provide anaesthetic services to patients at the hospital, and it would benefit by charging various hospital fees to the patients. There is no suggestion that a fee was required to be paid to either putative party. Material terms of the contract included mutuality of obligation whereby the respondent agreed to act in accordance with its corporate governance documentation to "create a culture that values and supports caregivers, with employment relations based on trust and principles centred on and aligned with" the mission and values of the respondent. Further, the contract was subject to the respondent's By-Laws for Health Professionals (By-Laws) with clauses to the effect that the applicant would be treated fairly and with respect. 56 Accordingly, it is submitted that the decision taken to suspend Dr Pathmanathan's accreditation rights was in breach of contract. Tangentially I have understood this claim as extending to a contractual failure to provide procedural fairness in the conduct of an investigation (which Dr Pathmanathan contends did not take place) and prior to taking the decision to suspend her accreditation rights.
Negligence 57 The claim is that the respondent was bound by a common law duty to provide a workplace to Dr Pathmanathan that was safe and free from bullying, harassment and discrimination. The duty extended to acting fairly and impartially in the investigation of any complaints made against her and to take "educational rather than punitive action". The claim is that the respondent breached those respective duties by the manner in which it permitted others to interact with Dr Pathmanathan, failed to fairly and impartially investigate allegations made against her, failed to provide a safe workplace and implemented a punitive disciplinary and suspension process. 58 A particular aspect of this claim is the somewhat novel contention that the respondent was subject to a common law duty to afford procedural fairness to Dr Pathmanathan by conducting a thorough and objective investigation and was bound to put each allegation to her before deciding to suspend her accreditation.
Fraud and fraudulent misrepresentation 59 The claim is that the respondent knowingly made various false statements about the applicant to third parties, permitted others to notify fraudulent incidents relating to her conduct as an anaesthetist, permitted malicious and false rumours to be circulated about the applicant within the hospital and took at face value and acted upon each of the fraudulent incident complaints, that I have set out in detail above.
Intimidation 60 Tortious intimidation is asserted. Dr Pathmanathan accepts, by reference to Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2014) 45 VR 571; [2014] VSCA 348, the elements of the tort require identification of the making of a demand, together with a threat, to commit an unlawful act which then caused the person threatened to comply with the demand. Just how those elements are said to be made out by Dr Pathmanathan in this case is obscure. Put at its highest, she contends that she was: …compelled into blindly trusting and having faith in the Respondent, the largest private hospital operator in Western Australia. The size of the Respondent in market share and influence enabled them to abuse their power by exploiting third parties known to the Applicant to her detriment. By way of its position and power, and ability to afford employment or appointments of high reputation, implicitly or [sic] threatens individuals whom it sought to act in its aide [sic] against the Applicant. 61 As examples of the asserted breach, Dr Pathmanathan contends that Dr Pracilio implicitly threatened another witness in this case, Dr Barry, who was threatened not to provide a witness statement, that Dr Chandraratna was "told" not to become involved in her case and that the respondent interfered with witnesses that the applicant proposed to call, or did call, at the trial.
Unlawful interference with trade or business relations 62 Dr Pathmanathan contends that there was a business or prospective business relationship between her and the respondent, that she was successful in developing her practice as an independent specialist anaesthetist, the respondent had knowledge of her success and various opportunities that would become available to her over time to be more successful in her career and that knowledge extended to business relationships between the applicant and other hospitals. With that knowledge the respondent by its employees or agents interfered with her professional and business relationships in order to isolate her, reduce her standing in the profession and to prejudice her economic interests, relied on "sham complaints" to suspend her accreditation rights at the hospital and caused her further damage by referring her conduct to AHPRA. It is said that all of this conduct amounted to an unauthorised interference and intentional infliction of economic harm.
Tort of conspiracy 63 Dr Pathmanathan contends that senior doctors with accreditation rights at the hospital and senior doctors who were executive representatives of the respondent conspired with nursing staff to formulate "sham complaints" and then acted in concert with MDA and lawyers appointed by it to act on its behalf and for Dr Pathmanathan to escalate and publicise the complaints in order to cause injury, both personal and economic, to her. The conspiracy alleged is broad and has very many tentacles extending to, at least: the respondent, individual senior doctors, MDA, Tottle Partners, Clayton Utz, AHPRA and the Medical Board. Each conspirator acted for an unlawful purpose being to interfere with the applicant's professional and business relationships, to cause harm to her and to end her career. 64 This claim is said to be established by drawing links between the association of individuals, professional and personal, and steps that were taken which caused harm to the applicant where, in addition, some steps are claimed to have been taken by lawyers for the applicant without her authority or by applying unjustified pressure on her amounting to undue influence.
Breach of trust and other equitable claims 65 Dr Pathmanathan relies on an array of equitable claims, but fails to grapple with how it is said they may arise on the facts of her case. The first is characterised as a breach of trust which rests on the contention that there was a trust relationship between Dr Pathmanathan and the respondent, the trust property being "reputational and clinical case and practice information (including style of practice)". Without descending into a plea of material facts, breach of trust is asserted with consequential damage. 66 The second is framed as a breach of fiduciary duty: a failure to act in the applicant's best interests by failing to disclose relevant information or misusing trust property. This contention extends to a conflict of interest where it is said that the respondent favoured its interests "over and above" those of the applicant and in consequence is "answerable in equity to a breach of fiduciary duty". 67 The third claim is framed as a breach of confidence. The applicant says that medical, dental, commercial and financial information of hers attracts the necessary quality of confidence, comprising information that was not generally known or available to the public, was imparted by her to the respondent in a commercial setting imparting an obligation of confidence and was disclosed to third party hospitals and to her professional colleagues, in breach of that confidence. 68 The fourth is a generalised claim of unconscionable conduct resting on the contention that the applicant's circumstances amounted to a special disadvantage by reason of her relatively young age, sex, ethnicity and legal illiteracy - the latter being relevant to her dealings with the respondent from 2014. The particular complaint is that the respondent exploited the applicant's special disadvantage in that there was no reasonable degree of equality in its dealings with her and it procured her consent to legal representation where she believed (wrongly) that such representation would be independent and free from influence of the respondent. In fact, as the contention is developed, the legal representation provided to the applicant by Tottle Partners and Clayton Utz was not independent and placed her under significant duress. This claim is further asserted somewhat differently as amounting to undue influence exerted by the respondent over her decision-making in responding to the allegations made against her.
Invasion of privacy 69 The applicant invites this Court to recognise, as part of the law of Australia, the tort of breach of privacy relying upon Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 (Lenah Game Meats). The contention is that the applicant's privacy was unlawfully exposed by painting her in a false light when the respondent caused to be disseminated information relating to her medical practice, her patients and her health contrary to her human dignity. The specific contention is that the respondent caused to be published "vague or specific personal health information" relating to her such that she was subjected to supervision and mentoring and suffered from a mental health impairment or other form of personality disorder.
Defamation 70 The claim is that the respondent "and their conspirators" published information about Dr Pathmanathan imputing to her an adverse conduct finding, an adverse performance finding and an adverse health finding, each of which impacted on her ability to practice as an anaesthetist. Very many publications are relied upon at different points in time, commencing with asserted malicious rumours in February 2013, extending through the process of investigating the four complaints made against her and, thereafter, the publication of material relating to the applicant to AHPRA and the Medical Board. 71 Dr Pathmanathan fails to address the limitation period of one year set by s 15 of the Limitation Act 2005 (WA) (which the respondent relies upon in defence) and the effect of s 237(1) of the National Law which provides immunity for notifications made in good faith to AHPRA.
Torture 72 The claim that is pressed is that the respondent on and from 11 November 2014, and with knowledge that suspension and referral of allegations concerning the applicant to AHPRA would cause her harm, intentionally acted so as to inflict such harm upon her or otherwise acted recklessly, and unconscionably with "conscious contumelious disregard to the Applicant's rights". This conduct was engaged in not only by the respondent but also by MDA and lawyers appointed to act on the applicant's behalf so as to obtain information or a confession from her by "gaslighting", soliciting or otherwise obtaining information by way of fabricating submissions and meeting minutes. This conduct, as the allegations develop went so far as to inducing AHPRA "to conduct a prejudiced investigation" into the complaints.
Equity in justice 73 Finally, just what is meant by this claim is difficult to comprehend. Dr Pathmanathan prays in aid r 1.32 of the Rules which empowers this Court, in procedural case management, to make any orders that it considers appropriate in the interests of justice and in the particular circumstances of individual cases. Reliance is also placed on s 46PR of the Commission Act which as I have noted, dispenses with technicalities or legal forms in the conduct of this proceeding. From there Dr Pathmanathan contends that this Court "should act in the best interest of the proper administration of justice to cure any wrongs and damage caused by the Respondent". How that amounts to a cause of action was left unexplained by her.
Some observations about the claims advanced and maintained 74 Dr Pathmanathan has pleaded or attempted to plead her claims first in a statement of claim comprising two parts: one lodged 29 March 2019 and the other on 30 March 2019 and where the second part is in the form of an additional pleading which responds to certain affidavits of the respondent filed on 29 March 2019, relevant to the application for leave to proceed. Pursuant to case management orders that I made, Dr Pathmanathan filed a consolidated and amended statement of claim on 13 May 2022 comprising 54 pages. The respondent delivered an amended defence to that document on 30 June 2022, and addressed many of the contentions of the applicant by pleading a failure to disclose a reasonable cause of action, that many of the allegations were scandalous, frivolous or vexatious and, where relevant, that the pleading was likely to cause delay in this proceeding and amounted to an abuse of process. 75 In response, Dr Pathmanathan on 4 October 2022 filed a reply comprising 343 pages and without adopting, in the main, sequentially numbered paragraphs. The reply is a very difficult document to read and to understand. It is replete with argumentative contentions, submissions and repeated references to asserted facts. 76 Acting as a self-represented litigant does not relieve individuals of the obligation to conduct proceedings consistently with the overarching purpose of civil practice and procedure at ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Dr Pathmanathan's pleadings are evidence of failure on her part to conduct this litigation as quickly, inexpensively and efficiently as possible. That observation extends to the 24 voluminous affidavits that comprise her evidence-in-chief upon the trial. In many respects those affidavits are replete with scandalous, irrelevant and argumentative material. 77 The respondent did not move to strike out any component of Dr Pathmanathan's pleadings on any one or more of the grounds set out at r 16.21 of the Rules. 78 Managing the trial so as to confine it to relevantly pleaded matters of fact was challenging. I am in no doubt that the hearing was significantly prolonged by reason of these matters. 79 Nonetheless, I record that Dr Pathmanathan and Mr Millar of counsel for the respondent each conducted themselves with civility and politeness throughout the trial. 80 As I explain in detail many of the contentions formulated and ultimately pressed by Dr Pathmanathan are hopeless. However, one must be careful not to dismiss the entirety of the proceeding by reference to such generalities as, buried within the morass of material, the argumentative and sometimes illogical propositions relied upon, may lurk the kernel of a cause of action that is of merit.
My approach to the assessment of the evidence 81 The primary events in this matter occurred between 2013 and 2015. A large number of witnesses gave oral evidence as to events witnessed, steps taken and conversations conducted many years ago. As is well understood, that gives rise to difficulty in making findings of fact. I proceed in accordance with the well-known and often cited reasons of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319, albeit in the context of a claim for misleading and deceptive conduct but which in my view is of general application: Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. 82 As Wheelahan J has recently observed, the evaluation testimony involves much more than evaluation of the impressionistic appearance of a witness. Evidence is more reliably evaluated with the contemporaneous documents and the fact that a conclusion is reached that a witness has given false or knowingly false evidence on one matter is not necessarily a reason to reject evidence as to other matters or the entirety of the testimony: Fair Work Ombudsman v Roach (the Melbourne Quarter Case) [2023] FCA 156 at [187]-[188].
Findings of fact 83 Many findings are required, informed by a large amount of documentary, affidavit and oral evidence. I proceed by addressing the main issues to be resolved.
Dr Pathmanathan is granted accreditation 84 Dr Pathmanathan's application for accreditation at the hospital was approved on the terms set out in a letter from Dr Levitt, then Director of Medical Services, dated 23 February 2012. Relevantly it provides: I am delighted to advise you that your application for accreditation at St John of God Hospital, Subiaco in Anaesthesia has been successful. I believe you have met with Dr Joe Pracilio Head of Anaesthesia and understand the terms of your accreditation specific to this site in regards to an after hours roster commitment. You are expected, at all times, to undertake only those clinical activities which your training and experience make safe and reasonable. It is important to emphasise that any extension of your clinical practice must only be undertaken following your application to, and written authorization from, the Medical Advisory Committee. All Clinicians accredited at St John of God Hospital, Subiaco are expected to participate fully in the teaching of Medical Students and Junior Medical Officers where called upon to do so. Likewise, it is an expectation of all accredited Medical Practitioners that you will comply with the Hospital's By-Laws, a copy of which you received with the accreditation application. In particular, you are expected to actively participate in clinical audit, cooperate fully with Hospital Management and Heads of Department and act at all times in concert with the Hospital's Mission and Values. Finally, I have enclosed a copy of the document titled "Bringing our values to life through our behaviour" which describes the expectation that every person working within St John of God Health Care will embrace the highest standards of interpersonal behaviour. Once again, congratulations on being accredited at St John of God Hospital, Subiaco. 85 The hospital By-Laws are in evidence, individual clauses of which were emphasised by Dr Pathmanathan and the respondent. It was not suggested that the By-Laws were amended after February 2012 in a material way that affects the case. Larissa Johnstone annexes a copy of the By-Laws to her affidavit of 29 March 2019. The preamble states, inter alia, that the By-Laws establish the principles which apply to the accreditation of health professionals at the hospital and govern the relationship between the respondent and accredited health professionals. 86 Accreditation is defined as the process of credentialing by which a practitioner is granted authority to provide healthcare services with specified limits at the hospital. Credentialing is defined as collecting, verifying and assessing information relating to the education, training and experience of medical practitioners. Clause 2 sets out the mission and vision of the respondent, including to develop a culture where each person is respected and there is a deep commitment to its values. Clause 3 sets out the core values by reference to a statement of beliefs and principles being hospitality, compassion, respect, justice and excellence. Clause 7.1 provides: Only Practitioners who have been accredited and granted clinical privileges at a Division may admit patients to and consult and attend patients of that Division. Reciprocal accreditation with another Division may be granted at the discretion of its Chief Executive Officer after application is made with the appropriate Credentialing Committee. 87 Clause 12 is concerned with the accreditation of anaesthetists. By cl 12.2, all anaesthetists who administer anaesthesia at the hospital shall comply with and practice in accordance with all professional standards of ANZCA and all professional documents and publications published by that College. 88 Clause 23 is concerned with the constitution, role and function of the credentialing committee. The committee receives all applications for accreditation, makes recommendations thereon to the Chief Executive Officer and reviews "as required from time to time the scope of clinical practice of any Practitioner, and make recommendations concerning the amendment of those privileges, conditions of accreditation, or suspension or termination of accreditation." 89 Clause 25.16 is concerned with confidentiality and provides: Every Practitioner including the applicant must treat as confidential the proceedings relating to the granting to Practitioners of accreditation or re-accreditation and the delineation of privileges. 90 Accreditation is granted for a period that must not exceed three years, but accredited practitioners may be re-accredited: cll 25.13 and 26.1. If a practitioner does not seek re-accreditation or renewal, the accreditation lapses: cl 26.6. 91 By cl 27 certain powers are conferred upon the Chief Executive Officer in relation to accredited practitioners. This clause was the focus of much evidence at the hearing. Relevantly it provides: 27.1 Fitness of Practitioner (a) Any concerns about the current fitness of a Practitioner should be directed to the Divisional Chief Executive Officer. (b) The Divisional Chief Executive Officer may either independently, or together with another member of the Medical Advisory Committee, meet with the Practitioner concerned to determine whether there are grounds as to the Practitioner's lack of current fitness. 27.2 Suspension or Termination of Accreditation or Refusal of Re-Accreditation The Divisional Chief Executive Officer may suspend or terminate the accreditation of any Practitioner or may refuse the re-accreditation of any Practitioner: (a) who has been guilty of a breach of these By-Laws; or (b) where the Divisional Chief Executive Officer has formed the opinion that: (i) the Practitioner has engaged in practices which are contrary to the Values of SJGHC or these By-Laws; or (ii) the Practitioner has been guilty of abuse (whether physical, sexual or verbal) or harassment or has caused unnecessary or unwarranted stress to other persons working in or visiting the Hospital; or (iii) the conduct of the Practitioner has been or is reasonably likely to be contrary or inimical to the interests of the Division; or (iv) the Practitioner is not of good repute; or (v) the Practitioner is not competent or appropriately skilled in the discipline or practise in which the Practitioner seeks accreditation or is accredited or practises (as the case may be); or (vi) the accreditation or continued accreditation of the applicant would be contrary to the best interests of the Division or its patients or patient care at the Hospital; or (c) if the Divisional Chief Executive Officer does not have confidence in the Practitioner practising at the Hospital for any reason including but not limited to: (i) the practice, or the standard of practice, or the competence or the general behaviour of the Practitioner; (ii) the ability of the Practitioner to conduct his or her practice within the Division, to an appropriate or proper standard; (iii) any matter or thing affecting the Practitioner's practice or ability to practise to an appropriate or proper standard; or (iv) any allegation of incompetence, negligence or malpractice concerning the Practitioner; or (d) if the Divisional Chief Executive Officer is not satisfied that the Practitioner has satisfactory professional indemnity insurance or is appropriately registered; or (e) if, in the opinion of the Divisional Chief Executive Officer, there exists any other fact or circumstance which renders it inappropriate or undesirable that accreditation be granted to the Practitioner or that accreditation of the Practitioner be continued. 92 Part VII establishes a system for appeals that may be brought by an accredited practitioner against a decision made under cl 27. Amongst other things, an Appeals Committee is to be constituted to hear any appeal by an accredited practitioner from a decision to suspend or terminate the accreditation: cl 32.3. Dr Pathmanathan did not invoke that appeal procedure to review the decision to suspend her accreditation, although she did lodge a review application with the SAT against a decision of the Medical Board. It was not proceeded with. 93 Part IX is concerned with the effect of the By-Laws and provides: 38. BINDING EFFECT 38.1 Agreement of Practitioners Each Accredited Practitioner agrees that: (a) he or she will be bound by these By-Laws (as amended from time to time) upon seeking or renewing accreditation, or by continuing to practise at the Division following receipt of these By-Laws or notification of the publication of these By-Laws; and (b) he or she will comply with these By-Laws during his or her practice at the Division.
The applicant's case 94 It is logical to commence with the discrimination claims, noting that the evidence relied on is common to each claim. The discrimination claims open for consideration the largest area of factual contest. The focus however is upon the four reported incidents concerning the professional conduct of Dr Pathmanathan, the most prominent and important of which is the iron infusion incident.
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.
Findings concerning the iron infusion incident 179 I accept the evidence of the respondent's witnesses, and I find accordingly. Whilst there was some discussion between Dr Pathmanathan and, at least, Dr Longhorn, that at some point on 28 October 2014, Dr Pathmanathan may receive an iron infusion, I find that the decision to proceed with the infusion whilst her anaesthetised patient was being operated upon by Mr Chandraratna was made by Dr Pathmanathan. Thereafter, I find that Dr Pathmanathan wrote out a prescription for Ferinject and requested Ms Morris to obtain it from the hospital pharmacy. Whilst Ms Morris was attending to that task, Dr Pathmanathan organised the necessary apparatus in order to perform the iron infusion comprising a cannula, a stand for the gravity feeding of the fluid, a bag into which the fluid would be placed, a tourniquet and some bandages. Most of these items are commonly found in an anaesthetist's trolley. When Ms Morris returned and noticed this arrangement, she expressed concern that the process should not be undertaken during a theatre procedure. Dr Pathmanathan ignored her. 180 At some point prior to the commencement of the procedure, Dr Pathmanathan left her theatre and went into the adjoining theatre to speak with Dr Longhorn. She advised him of her intent to perform the procedure, but did not clearly state that she intended to do it whilst an operation was underway on her patient. Dr Longhorn gave a noncommittal response "we will see" which did not amount to agreement that Dr Pathmanathan would undertake the iron infusion during a surgical procedure on her patient. 181 Dr Pathmanathan herself placed the needle into a vein in the back of her left hand. At that point Ms Morris obtained a dressing and handed it to Dr Pathmanathan. Dr Pathmanathan then connected the cannula and tube attached to the plastic bag, which by then had been hung on the supporting gravity device. The Ferinject formula was then administered. The administration process took between five and ten minutes to complete. No other person assisted Dr Pathmanathan with the procedure. 182 Whilst the procedure was undertaken, Dr Pathmanathan's patient remained anaesthetised and was being operated upon by Mr Chandraratna. 183 I reject entirely the evidence of Dr Pathmanathan to the effect that undertaking the iron infusion procedure whilst she was responsible for the care of an anaesthetised patient was the result of "group thinking", a "group discussion" a "groupthink" or some other form of joint decision-making process. To the extent to which other persons were made aware that an iron infusion might be received by Dr Pathmanathan, their understanding was that it may occur at the end of the surgical list for that day. 184 I make these primary findings of fact for the following reasons. First, I accept as honest and credible the evidence of Ms Morris. I am satisfied that her evidence was carefully given and is based on the best of her recollection of the actual events. Her evidence is not the product of reconstruction or, as suggested by Dr Pathmanathan, falsehood. It was not coerced. Her evidence is entirely consistent with the verbal report that she made to Dr Pracilio on 30 October 2014 and the relatively contemporaneous RiskPro report that she authored on 10 November 2014. Ms Morris was extensively cross-examined by Dr Pathmanathan, she responded to the questions in a calm and considered manner and maintained her evidence. Nothing that was put to her in cross-examination, or the answers elicited, cause me to doubt the truthfulness of her evidence. She witnessed the fact of insertion of the needle by Dr Pathmanathan. The fact that she does not recall how the cannula was attached does not affect the weight of her evidence. Ms Morris impressed as an objective, careful and considered witness of the truth. Her evidence is also entirely consistent with that of other witnesses and documents that I will shortly mention. 185 Secondly, I accept the uncontroversial evidence of Dr Barry that she did not assist with the cannulation and infusion procedure nor was she made aware of Dr Pathmanathan's intent to perform it during the surgical list. 186 Thirdly, I accept the evidence of Mr Chandraratna that he did have several discussions over an extended period of weeks with Dr Pathmanathan concerning her iron deficiency and the potential administration of an iron infusion. He did not advise her to have the infusion during his surgical list. He understood, from what Dr Pathmanathan had said, that another anaesthetist would insert the cannula at the conclusion of the surgical list. However, during the course of the afternoon and evening, Dr Pathmanathan advised him that she had managed to cannulate herself, at which point Mr Chandraratna noticed that the gravity infusion was in place. He continued operating on his patient, as one might expect. Mr Chandraratna was extensively cross-examined by Dr Pathmanathan, maintained his account and impressed me as an independent witness who gave evidence based on his recollection and not by way of reconstruction. I accept his account as honest and credible. 187 Fourthly, I accept the evidence of Dr Longhorn. In particular, when he had finished with his patient, he went into the adjoining operating theatre and observed Dr Pathmanathan sitting in a chair, proximate to her anaesthetised patient, with a cannula in place and the iron infusion was occurring. When questioned, Dr Pathmanathan in substance admitted that she was administering to herself and iron infusion and, further, admitted to Dr Longhorn that "I've just cannulated myself". At that point Dr Longhorn inquired as to the condition of Dr Pathmanathan's patient, received a comforting answer and then returned to his operating theatre. His remark "look if there's any problems, give me a call", was no more than a statement made to Ms Morris and Dr Pathmanathan to the effect that if something did go wrong, he should be contacted. At no point did Dr Pathmanathan request Dr Longhorn assume the responsibility for the monitoring of her patient, and he did not do so in fact. I also accept Dr Longhorn evidence that self-cannulation by insertion of a needle into the dorsal side of one's hand is possible, although it may be difficult. 188 Dr Longhorn's evidence was not undermined in cross-examination. He gave his answers clearly and succinctly to what were, very often, long questions containing multiple propositions. He gave his evidence carefully and convincingly. There is no reason to doubt his honesty or credibility and no aspect of his evidence causes me to find that it was the product of reconstruction, rather than genuine recollection. 189 Fifthly, I accept the evidence of Dr Pracilio that when he met with Dr Pathmanathan on 11 November 2014, she admitted to him that she self-cannulated in order to administer an iron infusion during a surgical procedure on 28 October 2014. Dr Pracilio was also an impressive witness who, despite sustained questioning in cross-examination, was not undermined in any material respect. Indeed, he gave his evidence with passion and conviction, clearly demonstrating a concern for Dr Pathmanathan and the impact of the suspension upon her career. He was, in my assessment of the entirety of his evidence, a very convincing and credible witness. Where, on occasion, he genuinely could not recall the specifics of an incident or a conversation, he said so. I have also concluded that his evidence reflected genuine recollection rather than reconstruction. 190 Sixthly, my findings are consistent with other contemporaneous admissions made by or on behalf of Dr Pathmanathan in the submission of Tottle Partners of 25 November 2014, at a meeting with representatives of the respondent on 17 December 2014, in Dr Pathmanathan's email response to Clayton Utz of 21 January 2015, with what Dr Pathmanathan told Dr Uzma during their consultation on 14 January 2015 and with her oral and written presentation to the Board on 21 October 2015. 191 I reject the evidence and submissions of Dr Pathmanathan that Tottle Partners pressured or coerced her into making admissions against her interest and to not disclose the alleged involvement of other persons in the iron infusion incident. That evidence and that allegation are each untenable. Apart from unimpressive and incredulous speculation on the part of Dr Pathmanathan to the effect that Tottle Partners conspired with MDA, the respondent and others to undermine her position, there is simply no evidence to support these allegations. It beggars belief that a law firm appointed by an insurer to act in the best interests of it and the insured would engage in such serious misconduct. The claims of Dr Pathmanathan are implausible and inherently improbable as demonstrated by some of her oral evidence. 192 When Dr Pathmanathan was taken to the submission of Tottle Partners of 25 November 2014 addressed to Dr Henderson, she objected to the question on the ground that the evidence was inadmissible because the lawyers did not have her authority to provide the submission as she was under duress and that the lawyers failed to declare a conflict of interest. I ruled against that objection and the cross-examination continued: At paragraph 6.1, you will see that the Tottle Partners have said in their submission on your behalf: The practitioner admits that on 28 October 2014, she cannulated herself and administered an iron infusion. You are aware that that's what was said on your behalf?---I'm aware that Tottle Partners coached me and tried to tell me that I was professionally isolated and that I should not involve anyone else. Well, in terms of the objection that you're raising, as I understand what you've said, you don't deny that this was sent on your behalf, and you were aware of it at the time. Do you agree with that?---I was quite shocked at the time. I'm not sure that I read it properly. I don't recall it, and Tottle Partners signed this, not me. Well, your objection, as I understand it, is that there was some duress involved in the admission that are made here. But putting that to one side, you don't doubt that this communication was sent on your behalf and with your knowledge at the time?---The communication was sent on my behalf but not with my informed knowledge. So it was sent with me under duress, being harassed and coached by Tottle Partners and being manipulated. So it was sent while I was being gaslighted, but whether I had full conscious knowledge of this, I would say no. … You had told the lawyers to send this response. You had approved it?---I was asked under the advice that they gave me if they could send it, and I was asked on the advice that I should not involve anyone else. I was told - I was told that I should send this, so I agreed when I was told to do so. Well, you were provided with a copy of this proposed response and approved it being sent?---Once again, I was being gaslighted at the time, and the copy of this - I don't think I fully understood - - - Well - - -?--- - - - what was being said. I'm not sure that I agreed to it. I was being coached and told to send - to say yes. Well, what - - -?---And I was then later harassed as well, and eventually, my gut instinct told me that something really bad was happening. I couldn't quite put my finger on it because I didn't have all the documents at the time, but I did ask for a second opinion on 8 December 2014 from an employment lawyer, and [MDA] refused. Well, going back to what you said before, what do you mean by you were being gaslighted? What are you driving at with that expression?---I was being coached, I was being manipulated. I was being told what to say, and at one instance, Ms [sic] Jane Deacon actually added extra information about an allegation which I had denied immediately on 13 November 2013. Well, when you say you were being coached, you mean you were receiving legal advice and acting upon it?---No, I was being told what to say in contradiction to what actually happened. You're a - - -?---That's called coaching. You're an intelligent, confident person. If your lawyers are putting something before you for your approval, you know that you are free to say yes, no or make the following changes. What do you say to that?---I was suspended. I was shocked. I was under duress. I eventually did ask for a second opinion of the legal advice I was receiving because I was not sure that I was receiving the correct legal advice. I do defer to experts of - other people's expertise. So, say, Jack is a dentist, and I would defer to Jack for his dental expertise. I would defer to a pharmacist for their pharmaceutical expertise. What - - -?---I defer to experts, so if there's a lawyer who's telling me something, I would defer to their expertise. Once I start to sense that this is headed the wrong way, I would question whether the advice was correct. It's like when you go see a doctor. Typically, in that relationship, they have the knowledge and they have the greater power in a sense. Okay. But…..? - And you defer to what they say. 193 I questioned Dr Pathmanathan as to what she meant by gaslighting which she defined as: Where people make you believe things that you don't believe. They change your reality. So they - they - they tell you things that, you know, you - you might believe something. So you might believe, yes, I should have investigation records. I should have been told before the suspension, but they make you believe that that's not required. 194 I reject entirely that Tottle Partners advised and acted as claimed by Dr Pathmanathan. Quite apart from the obvious inconsistency between the statement that the submission was sent without the knowledge of Dr Pathmanathan and that she did not read it properly or it was sent without informed knowledge, this evidence defies credulity. For a law firm to act in the manner asserted requires the professionals involved to engage in very serious professional misconduct and to place in peril their professional reputations and entitlement to practice. There is simply no evidence to support this speculative assertion. 195 The difficulties for Dr Pathmanathan are compounded when one turns to her contention that Tottle Partners acted when conflicted. That assertion which is pleaded in various forms in Dr Pathmanathan's reply and purportedly supported by "evidence" in several of her affidavits is that Tottle Partners were working in conjunction with MDA and respondent to disadvantage Dr Pathmanathan. There is no credible evidence in support of the allegation, it is scandalous and should not have been made. 196 The same reasoning applies to the submissions made and advice given by Clayton Utz that Dr Pathmanathan now claims were infected by conflicts of interest and designed to harm her. 197 In short, I prefer, accept and find according to the contemporaneous documents relating to the iron infusion incident as reliable accounts of what occurred at the time and as accurately reflecting the instructions given by Dr Pathmanathan to her lawyers. I reject entirely the duress claims as implausible. I reject the contrary evidence of Dr Pathmanathan as unreliable, often incredulous and materially irreconcilable with the documentary trail that I have set out. 198 It does not follow that I reject Dr Pathmanathan's evidence that she was under a good deal of stress at the time, and was probably suffering from a degree of confusion. Those findings accord with common sense and the impact that the suspension had upon her, both emotionally and professionally. But none of that supports the conspiratorial speculation of Dr Pathmanathan which infects almost the entirety of her case. 199 Even if I were to accept the evidence of Dr Pathmanathan that the medical student (Dr Nameless) who could not be identified somehow assisted her with the cannulation and infusion procedure, that is not exculpatory of her conduct. She is the individual who decided to have the iron infusion, organised for Ms Morris to obtain Ferinject by prescription from the hospital pharmacy and set up the necessary apparatus so that the infusion may be administered whilst an anaesthetised patient for which she was responsible was being operated upon by Mr Chandraratna. In the hierarchy of the operating theatre on that day, Dr Pathmanathan was senior to the medical student and it is incredulous that he was a primary actor in the procedure. In any event, for the reasons given I do not accept that if a medical student was present that he was involved as asserted by Dr Pathmanathan. 200 Finally, I reject the evidence of Dr Pathmanathan where inconsistent with the evidence of Ms Morris, Mr Chandraratna, Dr Longhorn and Dr Pracilio. Dr Pathmanathan did not at all impress me as a witness. Her evidence was dissembling. Dr Pathmanathan repeatedly failed to answer simple and straightforward questions as put to her in cross-examination. She repeatedly engaged in self-justifying answers and made speeches, a lot of it in the form of submissions, from the witness box. Her demeanour was entirely argumentative when giving evidence. Her answers were continuously defensive, most often couched in anticipation of the pathway intended to be undertaken by the cross-examiner. Dr Pathmanathan continuously interrupted Mr Millar's questions before they could be completely formulated. 201 On very many occasions the answers provided by Dr Pathmanathan, both in her evidence-in-chief and in cross-examination, placed continuous emphasis on her characterisation of the decision-making on 28 October 2014 as a group decision. As already noted, Dr Pathmanathan continuously employed phrases such as "all of us", "it was a group discussion", "we all thought", "we all decided" and that "this is what everyone agreed to and a conclusion everyone arrived at". It may be that Dr Pathmanathan believes these claims to be true. It is not necessary that I make a positive finding that her evidence was knowingly false in material respects. Rather, my conclusion is that in large measure her evidence about the iron infusion procedure is the product of reconstruction and not recollection. Dr Pathmanathan has had many years to reflect on the circumstances that led to the suspension of her accreditation at the hospital on 11 November 2014. The 24 affidavits that she relies upon in this proceeding stand as unequivocal evidence of her industry and capacity to locate, collate and present a very considerable volume of documentary evidence. I am in no doubt that Dr Pathmanathan has spent years and very considerable energy and personal resources on constructing her narrative. Her encyclopaedic recall of documents contained in the court book is strong evidence in support of my conclusion that in material respects her evidence is the product of reconstruction. 202 However, her reconstructed evidence as presented faces insurmountable hurdles in the form of the contemporaneous documents that are entirely consistent with the respondent's witnesses and her own admissions. In order to accept Dr Pathmanathan's evidence, I would also need to accept her evidence and submissions that the evidence of Ms Morris is false, that the RiskPro document which Ms Morris authored on 10 November 2014 is a fabrication, that she did not make an admission of self-cannulation to Dr Longhorn on 28 October 2014 or to Dr Pracilio on 11 November 2014. For the reasons that I have given, I find all of that evidence to be truthful. 203 To the extent necessary, I find that Dr Pathmanathan has reconstructed her version of events to fit the mould of her overall case theory and narrative. The difficulty that she faces is the significant hurdles presented by the oral evidence from the respondent's witnesses and the contemporaneous documents that she has failed to surmount. 204 I do not find that the entirety of Dr Pathmanathan's evidence about the iron infusion event is unreliable. Clearly, some of it is consistent with the evidence of the respondent's witnesses and contemporaneous documents. It is open to me to reject critical evidence where inconsistent with the respondent's witnesses and contemporaneous documents, whilst accepting other aspects of her account both as to the iron infusion incident and other matters where her account aligns with other evidence or is neutral. On the critical issue of whether other persons were involved in the decision-making to perform the procedure and to actually conduct it during a surgical procedure, I accept the respondent's evidence and I reject Dr Pathmanathan's account.
Patient risk by reason of the iron infusion incident 205 Dr Pathmanathan directed considerable time in her evidence and in cross-examination to her claim that the iron infusion was a safe procedure and involved no appreciable risk to her patient. I accept the evidence, which was confirmed by other witnesses, that Ferinject has a low anaphylactic risk: something in the order of 1 in 100,000 or greater. I consider that the experts with most knowledge of this risk are consultant anaesthetists. Dr Longhorn agreed in cross-examination that the anaphylaxis risk is "very low". He also agreed that associated risks, such as hypertension, were also very low. 206 However, approaching this issue by confining the framework of the analysis to the risk that Dr Pathmanathan may have had an adverse reaction detracts from whether in proceeding as she did, Dr Pathmanathan complied with applicable professional standards. Dr Longhorn in cross-examination said that there was "no way" that he would have proceeded as Dr Pathmanathan did, adding that in 20 years of medical practice he had never observed another doctor "behave in such a way" and was shocked at what he observed. 207 Dr Pracilio in cross-examination, when questioned about the relative risk of an anaphylactic reaction, stated that the role of an anaesthetist is "to care for people… You abrogated your responsibility the moment you cannulated yourself" and added that what occurred was "so far away from excellence of practice I can't even put a value on it." 208 Dr David Knox is a consultant anaesthetist and gave evidence as a witness subpoenaed by Dr Pathmanathan. He commenced the anaesthetic training program in 1989 and obtained his fellowship in 1995. In cross-examination he was taken to the letter from Dr Henderson of 11 November 2014 and, on the hypothetical assumption that the events there set out concerning the iron infusion event were true, he was asked to express his opinion as to whether the conduct fell short of acceptable professional standards, to which he responded: "yes. It's a short answer." He was then asked why that is so and responded: Well, you've got a - you've got a patient asleep that you're attending to. You're obviously concentrating on other things other than the patient. I had never heard of an anaesthetist cannulating themselves in theatre ever before this incident, and certainly - especially back then, iron transfusions had a high - not necessarily high, but they have a higher incidence of reactions to being given iron. So if a person - an anaesthetist giving themselves iron in theatre, and they had a reaction, then the patient is going to suffer because there is no one to look after the patient. So I think it's highly inappropriate. 209 Further questions were put on the assumption that someone else may have assisted the procedure and whether that affected his opinion. He answered: I suspect it's not as bad if someone else is cannulated because at least there's a second person involved. But that person would then - the cannulation per say isn't the problem. It's a problem that you can give yourself - through that cannulate, you can give yourself whatever drug you like. So cannulation is a problem - that is the first thing. But then, the second thing is the iron transfusion and the anaphylaxis or an allergic reaction to it. So there is two problems with it, regardless of who did the cannulation. You made reference in your answer to having another person involved. If that person was a medical student, would that give you any cause for comfort about the procedure being undertaken?---Well, that would give cause for discomfort. I wouldn't - I wouldn't trust a medical student to cannulate me anyway. Medical students haven't done - usually haven't done that many… 210 His answer was cut short by an objection made by Dr Pathmanathan. I ruled against her objection on the basis that it is perfectly permissible in cross-examination to ask an expert for an opinion based on a hypothetical. Dr Knox was then invited to continue his answer and he said: So I - I think it's a real problem, a medical student cannulating an anaesthetist. A medical student is not aware of the facts. A medical student may not have known what it was going to be for and may not know the implications of allergic reactions to iron transfusions. So I don't think it's appropriate to ask a medical student to cannulate a consultant anaesthetist in theatre. I think it's completely inappropriate. 211 Dr Knox was an impressive witness, well qualified to express opinions as to appropriate professional standards and conduct to be observed by anaesthetists in Australia and I accept his evidence without hesitation. I find according to it. 212 There are other witnesses who expressed opinions on this question, consistently with the evidence of Dr Knox. Dr Watts is also a consultant anaesthetist, who gave evidence for Dr Pathmanathan. He attained his fellowship in 1996. He made an affidavit on 3 March 2022. He attached to it some correspondence relevant to attempts made by Dr Pathmanathan to obtain accreditation at other hospitals. His affidavit does not deal with any discussion that he had with Dr Pracilio on 8 November 2014. In cross-examination he was taken to the letter of 11 November 2014 from Dr Henderson and, on the assumption that the iron infusion incident there outlined occurred, his opinion was requested as to whether that conduct was of an appropriate professional standard for an anaesthetist. He answered that it was not. He was not asked to elaborate. 213 Dr Henderson is a general practitioner. Dr Pathmanathan cross-examined him on the topic of appropriate professional conduct, introducing the question with whether he had noticed other events in hospitals in the course of his professional career that he regarded as alarming or incredulous. He answered: So in over 25 years in being either a clinical practitioner or administering my role as CEO of hospitals, I've never heard of an anaesthetist self-cannulating while a patient is asleep and under their care. That's the incredulity. 214 Professor Michael also gave evidence for Dr Pathmanathan under subpoena. He was in 2015 and 2016, the Chair of the Board. He is a Fellow of the Royal College of Obstetricians and Gynaecologists of London, a fellow of the Australian and New Zealand College of Obstetricians and Gynaecologists, as an Honorary Doctor of Laws from the University of Notre Dame and an Honorary Doctor of Science from Curtin University. He is now retired. For a time he was the group director of the respondent, managing 16 hospitals. Dr Pathmanathan asked him a lot of questions about his personal and professional associations with other doctors and organisations in Western Australia and beyond, apparently for the purpose of establishing the degree of power and influence that the respondent exercises. These questions and answers did not at all assist me and most certainly did not lay any foundation for Dr Pathmanthan's contentions. 215 His attention was directed to correspondence sent by him to Dr Pathmanathan dated 27 May 2016. He was questioned about the procedures that apply upon receipt by AHPRA of a notification concerning a health practitioner. Many questions were put to him about the investigation process, with a view to exposing some form of bias against Dr Pathmanathan or interference in that process by the respondent, very few of which assisted my resolution of the issues in this proceeding but which in any event he denied. When questioned about whether the Medical Board considered risk to the patient in consequence of the iron infusion procedure he answered: The board - the Medical Board decides on conduct issues - well, let me say that paramount to all of this is patient safety and that is what the board is about. Conduct and performance are the two major issues that the board assesses as to whether - either have an effect on patient safety. Conduct deals with impairment. It was thought that you may have had an impairment, and this was investigated so that it was to your advantage. Not the board being in any way - looking for reasons to - to provide - well, impose conditions - or performance. Performance may be unsatisfactory professional performance or it may be professional misconduct. 216 I accept the emphasis of Professor Michael on patient safety arising from the iron infusion incident, where practitioner conduct is the material consideration, not simply the relative risk of a particular drug. 217 The cross-examination of Professor Michael was productive. He stated that at no point during the investigation process did he have contact with representatives of the respondent in relation to decision-making of the Medical Board. He confirmed that Dr Pathmanathan's ethnicity, age, sex or imputed disability had nothing to do with decisions made by the Medical Board. 218 Professor Michael was a very impressive witness. His evidence was given with a degree of thoughtfulness and was precise. What emerges from the multiple attempts by Dr Pathmanathan to have him concede that the respondent, or its agents, influenced AHPRA or the Medical Board to make decisions relating to her, is that these conspiratorial assertions have absolutely no basis in fact and are absurd. 219 I do not accept the evidence or submissions of Dr Pathmanathan that because Ferinject has a very low risk of an adverse reaction, therefore I should find that patient safety was not compromised when the procedure was performed or that her conduct did not depart from, or at least was not a serious departure from, appropriate professional standards for consultant anaesthetists in Australia at the time. I find in accordance with the evidence of Dr Pracilio, Dr Knox, Dr Watts, Dr Henderson and Professor Michael that undertaking the iron infusion procedure whilst in an operating theatre during which the patient of an anaesthetist is undergoing a surgical procedure amounted to a serious departure from professional standards of practice. It was far more serious than the characterisation of Dr Pathmanathan that "it was a silly thing to do". 220 The seriousness of her conduct was such that the Immediate Action Committee at its meeting on 15 December 2014 resolved to take immediate action to suspend Dr Pathmanathan's right to practice until completion of a health assessment and further determination by the Medical Board that she was fit to resume practice. I accept that this determination was also made on the basis of three other complaints, but plainly the iron infusion incident was the most serious matter considered by the Committee according to the minutes of the meeting. Indeed, the Committee considered the conduct of Dr Pathmanathan to be so serious that in its view she "may have developed an impairment which affected [her] ability to practice the profession safely". That is the reason why Dr Pathmanathan was suspended from practice, as explained in detail in correspondence from the Medical Board, signed by Professor Michael, dated 27 May 2016, where in part it is said: On 2 December 2014, and after considering the available information, the Board decided to investigate the issues raised by SJOGS. Further correspondence was received from your legal representative on 9 December 2014 advising AHPRA of three additional incidents at SJOGS. These included the failure to attend a compromised post-anaesthetic patient, neglecting to manage a patient with severe pain in the ICU and unspecified "general concerns" related to your communication skills. As a result of this additional information, the Board determined that you may have developed an impairment which affected your ability to practise the profession safely, and proposed to take immediate action. As a result, a condition was imposed on your registration which prohibited you from practising until you had undergone a health assessment and considered fit to return to practise by the Board. This decision, along with the Board's reasons, was communicated to your legal representative on 15 December 2014. The Board took the proposed immediate action on 19 December 2014. I do not believe that the Board acted as a result of "erroneous perceptions" as you state in your letter. The Board considered the relatively short period of time during which these incidents occurred, formed a reasonable belief that you may have suddenly developed an impairment and, because of the responsibilities to the public while at the same time safeguarding your personal health, believed after considerable discussion that the action imposed was necessary. 221 Those statements are credible, consistent with the contemporaneous course of events and I accept each as accurate and find accordingly.
The patient in the corridor incident 222 This is the second issue of concern raised by Dr Henderson in his letter of 11 November 2014. Dr Pathmanathan strenuously disputes the facts asserted in the RiskPro report of 13 November 2013, describing it as a fraudulent misrepresentation. The author of that report, and the apparent witness to the event, did not give evidence before me. This report was not raised with Dr Pathmanathan until summarised in the letter of 11 November 2014. Tottle Partners corresponded with the respondent on 17 November 2017, but did not seek specific details by way of further particularisation of this incident. Rather, a request was made for information relating to "all the matters which might have contributed to the loss of confidence" in Dr Pathmanthan's ability to practice. To that end, the request was framed as one for "any further issues", apart from those disclosed in the letter of 11 November 2014. 223 On 26 November 2014, Dr Henderson provided a response to Tottle Partners. He did not include any further information concerning this incident, but raised two additional allegations. 224 Despite what might be considered as a paucity of information, Tottle Partners responded in detail to this allegation, as well as the iron infusion incident, in their submission to Dr Henderson of 25 November 2014. The response to this incident provides: 7. Response to Issue 2: Leaving patient whilst en-route to ICU 7.1 We note that this incident has not previously been raised with our client, and that no particulars (even the date) of the incident have been provided. This makes responding to the allegation difficult. 7.2 The Practitioner does not recall ever having left a patient en route to ICU to change her clothes. 7.3 She does admit that on one occasion, on a date she cannot recall, she paused on the way to ICU with a post-operative bariatric patient, walked approximately 10 metres to the change room. She returned within a very short period to the patient's side. 7.4 She estimates she was away from the patient for approximately 30 seconds. 7.5 The patient was clinically stable, was not intubated, and was experiencing no particular adverse effects. 7.6 The patient was being transferred to ICU as a matter of routine, in accordance with routine practice in relation to patients having revisional bariatric surgery, rather than as a result of any particular complication. 7.7 It is apposite to note that the Practitioner has been advised by intensivist, Dr David Morgan and others, that it is not necessary to transfer revisional bariatric patients to ICU unless it is felt there is a clinical need to do so. Nonetheless, the Practitioner and Dr Chandraratna continue to adhere to this practice. 7.8 In the circumstances, the Practitioner did not believe that she was putting the patient at significant risk. 7.9 The anaesthetic nurse and registered nurse attended the patient in the 30 seconds she was away from the patient. She remained within earshot, and could have been with the patient in seconds. 7.10 She did not believe the patient to be at any risk of sudden deterioration. 7.11 Even though there was no significant risk to the patient, the Practitioner realises that it was not appropriate to leave a patient for any length of time. 7.12 She acknowledges that in doing this, she has breached Policy Pr101 "Escort of the Patient from Operating Suite/Procedural Area to ICU". 7.13 She wishes to convey to you her sincere regret regarding this incident, and to assure you that there will be no repetition of conduct of this nature. (Original emphasis.) 225 In an AHPRA investigation report prepared on 16 May 2015, the investigator summarises the response of Dr Pathmanathan to this allegation. It commences with the statement that: "the practitioner states that she finds it difficult to recall much about" the incident. However, and to the best of her recollection, the patient was being transferred from ICU as a matter of usual practice, and not by reason of any particular complication. Dr Pathmanathan is recorded as not ever recalling having left a patient en route to ICU to change her clothes. With the passage of time, she could not recall whether the version provided to the respondent by Tottle Partners was correct. 226 In evidence before me, Dr Pathmanathan confirmed that she is not able to recall this incident, adding that she denies the allegation. 227 Without the benefit of evidence from the person who apparently witnessed this incident and reported it, I am not satisfied that it occurred precisely in accordance with the facts set out in the RiskPro report of 13 November 2013. I accept that this is the incident referred to in the submission from Tottle Partners to the respondent and I accept as factually correct the matters there set out. 228 It follows that Dr Pathmanathan, as invited by Dr Henderson's letter of 11 November 2014, did provide an explanation distinctly at variance with the facts as set out in the RiskPro report. At best this incident was a relatively minor breach of the procedures then in place for the transfer of a patient from an operating theatre to the ICU. If this incident had been considered by the respondent to be of greater concern or seriousness, it is likely that it would have been the subject of investigation at the time and would have been raised with Dr Pathanathan. It was not. I accept Dr Pathmanathan's evidence that the patient was clinically stable, and therefore there was no material risk of patient harm. On those findings, there was no material failure to observe appropriate professional standards by Dr Pathmanathan and of itself, this incident would not have justified any continuation of the suspension of her accreditation rights, following the receipt of her explanation.
The lunch incident 229 This incident was not reported to Dr Pathmanathan in a timely way following lodgement of the RiskPro assessment on 27 May 2014. It was first raised in the letter from Dr Henderson to Tottle Partners of 26 November 2014 and was summarised as: On the 27 May 2014 Dr Pathmanathan did not respond, in a timely manner, to a call for assistance initiated by the Post Anaesthetic Care Unit (PACU) nurses for a compromised patient, stating she needed to finish her lunch, and then commencing a further case without attending the PACU. The patient was hypertensive (BP 254/109 mm Hg) and hypoxic requiring 15L/min of oxygen to maintain her saturation at 94%. The nursing staff had sufficient concern that, due to the response of Dr Pathmanathan they requested the assistance of another anaesthetist who provided immediate attention to the patient. 230 Tottle Partners did not provide a separate submission to the respondent concerning this allegation. Rather, on 9 December 2014, the firm corresponded with AHPRA and advised that further allegations had been made by the respondent which had not previously been raised with Dr Pathmanathan. Those allegations were summarised and, as the correspondence makes clear, no meaningful response was capable of being provided absent further material from the respondent. 231 Dr Pathmanathan vehemently denies this allegation as fraudulent. The AHPRA investigation report of 16 May 2015 records Dr Pathmanathan's response to it as follows: In relation to the allegation that she failed to attend patient [redacted], the Practitioner states that: • She is unable to recall either the patient or the request. • Late last year, she reviewed SJOG's 'theatrenet' (computer system timing) which, to the best of her recollection, demonstrated a short gap between Ms [redacted]] procedure and the next patient who was in theatre at 12:28. • She returned to theatre between 12:20 and 12:30 after transferring Ms [redacted]at 12:08 hours. • Between cases she would have had to review the next patient pre-operatively in the holding bay, which would take about 5-10 minutes, to check that the patient is fit to proceed. • She would not have had an opportunity to take advantage of a significant window of time to engage in a lengthy break in any event. Board members will appreciate the difficult, lengthy and challenging shifts that practitioners are exposed to, including surgeons and anaesthetists. • The recovery/ PACU charts demonstrate that she received a number of calls after her second case had commenced, during which she gave orders for clonidine and naloxone and, in giving these orders, she would have relied on information provided to her over the phone. • Theatre 18 is quite a distance from the PACU, and attending in person is difficult. • She is unable to recall Dr Knox attending her theatre to collect her, and she believes that she may have instead received a call from him. Dr Knox may not have fully assessed the patient, but might have deferred to her for management. • Her primary responsibility at the time was the patient on the table in theatre as there are other practitioners available to help in the PACU when required. • There is also a medical emergency team ('MET') team that can be called throughout the Hospital if the situation is serious, and as far as she is aware, this was not trigged in the case of Ms [redacted]. • When it was safe for her to attend and clinically review Ms [redacted], she did so, and provided Ms [redacted]with a further dose of Sugammadex, which seemed to treat the patient. • Leaving a patient while in theatre is not common, however practitioners are instructed that if it is an emergency situation, or if the nurses are insistent, it may be done. • She endeavours not to do this, as there is a patient on the table, and recovery is a considerable distance from theatre. • Backup systems, including ICU and MET availability, are frequently used where necessary. It is therefore expected and anticipated that ongoing care will be provided to a patient post-theatre as routine. • She has helped out with patients of colleagues where they are tied up in theatre. • ICU is also used frequently because practitioners feel comforted knowing they can leave a patient in a highly monitored and managed setting. • She reiterates that she considers her primary responsibility to be the patient on the table in theatre, especially where there are other practitioners available to help in PACU when required, and there is a MET that can be called. • She attempted to treat the patient initially over the phone as best as she could based on the information provided by the attending nurses. • She did attend in person as soon as she was able. 232 When this allegation was put to Dr Pathmanathan in cross-examination, she denied it. And she did so by reference to the medical records of the respondent. In summary, the records disclose that Dr Pathmanathan was in the PACU at 12.08 pm until 12.13 pm. In contrast, the RiskPro complaint asserts that Dr Pathmanathan was in the tea room at 12.10 pm. Dr Pathmanathan also contests the assertion that she prescribed Sugammedex, Clonidine and Naloxone to be administered at the same time. She points out, correctly, that according to the medicines chart, those medications were not administered. There are other inconsistencies that she drew attention to in her evidence by reference to a detailed examination of the medical records. 233 The medical records also disclosed that Dr Knox attended the patient at 1 pm. He said that he was concerned about the patient, who was obese. On closer questioning, it became apparent that he had very little recollection of this incident. At its highest, his evidence was that he only recalled treating the patient because of a concern about low oxygen levels and as the patient had not woken from the administration of the anaesthetic. He accepted however that the medical records disclosed that at 1. pm he attended the patient and administered Clonidine, which was effective and shortly thereafter the patient was aroused. On that basis, Dr Knox accepted that the patient was not asleep when taken to the recovery room, contrary to a statement made in the RiskPro analysis. Dr Pathmanathan also established in her cross-examination by reference to the medical records, that there was no material risk to the patient and the outcome was satisfactory. 234 The author of the RiskPro complaint, who apparently witnessed this incident, did not give evidence before me. In that circumstance, I am not prepared to make findings of fact in accordance with the untested allegations as set out in that document. I accept the explanation provided by Dr Pathmanathan to AHPRA, as supplemented before me by reference to the hospital medical records. It follows that I am not satisfied that Dr Pathmanathan failed to attend this patient because she was at lunch. 235 It further follows that I do not find, as contended by the respondent, that this incident amounted to a significant or material departure from appropriate or acceptable professional standards of practice for an anaesthetist at the time. A further reason for that conclusion is that if the respondent considered at the time that this was a serious incident, then it is likely it would have been investigated and raised with Dr Pathmanathan.
The distressed patient incident 236 This incident as reported on 25 June 2014, relates to an event the previous day. Once again, the author and the apparent witness to the events did not give evidence before me. Dr Pathmanathan contends that this incident is a fraudulent report which asserts that she failed to adequately treat an ICU patient suffering severe pain. 237 This incident was not raised with Dr Pathmanathan until 26 November 2014 where in the correspondence of that day from Dr Henderson to Tottle Partners the allegation was summarised as: On the 25 June 2014 Dr Pathmanathan escorted her patient to ICU. On arrival the patient was extremely distressed, crying loudly, clutching her upper abdomen clearly in extreme pain. The patient was tachycardic and hypertensive (systolic pressure 205mm Hg). When asked for assistance in managing the patient's pain by ICU staff, Dr Pathmanathan asked "where is the RMO?" and left the ICU. The patient, over a 2 hour period, required significant doses of opioids and co-analgesics to settle her pain. 238 Dr Pathmanathan's detailed response to this allegation is summarised in her response to AHPRA as set out in the investigation report of 16 May 2015: • She had pre-operatively identified [redacted] as a difficult pain patient, and she gave post-operative recommendations about pain management. Specifically, she recommended to staff in the ICU during handover and in the post-operative instructions box on the anaesthetic chart to involve the acute pain service, which is a pain specialist team who see patients post-operatively and in ICU. She recorded in the notes '>fentanyl PCA and pain team review.' • Patients assessed as difficult pain patients can be particularly prone to psychosocial issues that can lead to low pain thresholds and interpretation of pain/discomfort. However, obese patients are also at risk of obstructive sleep apnoea and hypoventilation syndrome. As a result, it is the Practitioner's practice to use low doses of opioids and a number of non-opioid drugs to manage the patients to avoid post-operative respiratory issues. • In theatre, is it her usual practice to treat as per patient haemodynamics and signs. • She has reviewed the anaesthetics chart for [redated] and considers her intraoperative pain management plan was appropriate and in keeping with the patient's haemodynamics. • Specifically, she used Fentanyl 200mcg, Parecoxib and Precedex, and in addition, the patient had a pre-med of Pregabalin and Paracetamol. • These are not insignificant doses for an opioid naive patient (i.e. a patient who did not have a record of using significant analgesics at home). • In taking Precedex, a patient will usually feel calm immediately post-operatively and during transfer, whilst preserving their respiratory drive as best possible. • She would not consider adding further opioids at this point, as this could compromise the patient's respiratory drive en route, and when not fully prepared to deal with that response. • She considers that it may have been en route that [redated] woke more fully and was therefore in pain on arrival. • Although pain may be an issue, it is not critical to address the same en route during transfer especially where the patient is high risk. • She may not have had any medications on her during transfer of [redated] which would not be unusual. • The notes indicate that [redacted] was subsequently treated with pain relieve in ICU under the care of ICU staff. In ICU, pain management is the intensivists responsibility. • In her role as anaesthetist, it is appropriate for her to suggest care such as the acute pain service, and advise the intensivist, but it would not be appropriate for her to initiate care once in the ICU without discussions with the intensivist. (Redactions as per original.) 239 Dr Pathmanathan was not cross-examined on this explanation. Rather, the questions focused only on the content of the RiskPro report. When some of the facts recorded in that report were put to Dr Pathmanathan, she denied them. She questioned the ability of nursing staff to make the assessments about the patient's condition as recorded in the report. 240 I find in accordance with the explanation given by Dr Pathmanathan to AHPRA, because the author of the RiskPro report did not give evidence before me combined with the absence of any cross-examination of the explanation provided by Dr Pathmanathan to AHPRA. It follows that I am not satisfied, as submitted by the respondent, that the treatment provided by Dr Pathmanathan to this patient departed from appropriate professional standards for an anaesthetist at the time. Once again, I find that if the respondent considered at the time that this incident amounted to a serious departure from standards of professional practice, it is likely that it would have been investigated in a timely way and raised with Dr Pathmanathan.
Adequacy of the respondent's investigation 241 Dr Pathmanathan relies on detailed evidence and submissions to the effect that the respondent failed to undertake any, or any adequate, investigation before the decision was made on 10 November 2014 to suspend her accreditation at the hospital which is confined to the iron infusion and patient in the corridor incidents. Very many questions were put on this issue in cross-examination to Dr Henderson, Dr Pracilio and Professor Michael. Dr Pathmanathan called evidence from Dr Levitt, partly to establish this aspect of her case. A basal complaint of Dr Pathmanathan is that the decision was taken on hearsay evidence, the evidence was otherwise insufficient and that she, as the subject matter of the investigation, was not asked about her version of the events until after the decision was made. 242 In cross-examination, this issue was pursued in detail with Dr Pracilio. He said that he was alarmed by what he had been told by Ms Morris and the content of her RiskPro notification. He said that he had "serious concerns" if the incident as reported by her was true. He commenced to review the available information on 8 November 2014. He did not form a view as to the truthfulness of the iron infusion allegation until he met with Dr Pathmanathan on 11 November 2014 during which, as I have found, Dr Pathmanathan admitted to self-cannulating. He gave as the reason for not speaking to Dr Pathmanathan at an earlier time that he was conducting a review of her pattern of practice. He answered "definitely not" to the suggestion that he had "omitted pretty elementary steps in investigating" the complaints made about Dr Pathmanathan. 243 Having gathered what he considered to be sufficient information, he spoke with Dr Henderson to advise him "that there was possibly a big problem" with Dr Pathmanathan. The view that he conveyed to Dr Henderson was that if the iron infusion event had occurred, then the accreditation right of Dr Pathmanathan should be suspended pending further investigation. Dr Henderson agreed with that assessment. Dr Pracilio formed that view because, in his words, Dr Pathmanathan's role was to care for her patient and she abrogated her responsibility "the moment you cannulated yourself". 244 When questioned about the relatively low risk that the iron infusion presented to Dr Pathmanathan, Dr Pracilio explained that the absence of an adverse event was not the question in his mind. He elaborated: Your performance is what is getting questioned here. You need to look at the definitions of what we're trying to do here. Your performance didn't cause harm, but your performance was substandard. 245 Dr Pracilio stated, on several occasions, that he did not form a conclusion as to the fact of the iron infusion incident until Dr Pathmanathan made the self-cannulation admission to him on 11 November 2014. 246 Dr Henderson was carefully questioned by Dr Pathmanathan about the hierarchy of evidence that is examined in the medical profession before conclusions are reached as to medical conditions and treatment. This was described as "evidence-based medicine", which he accepted. He also accepted that as a manager he is assisted in his decision-making by gathering facts and comprehending and analysing those facts before a decision is made. He agreed that this is Bloom's Taxonomy. He accepted that he did not follow a legal hierarchy in making his suspension decision: that is by only considering and weighing admissible evidence. He said that he applies the same procedure to everyone, without distinction as to race, age or sex. 247 Dr Henderson was taken, in some detail, through various clauses in the By-Laws, the clinical governance framework document and the RiskPro system. He confirmed that his decision was based on his conclusion that the iron infusion incident if true amounted to a significant departure from the standards which he expected of an accredited specialist anaesthetist at the hospital. He confirmed that as the reason for his conclusion that he had lost confidence in Dr Pathmanathan is expressed in his letter of 11 November 2014. He confirmed that as reported to him by Dr Pracilio, he regarded this incident as alarming. When questioned as to whether he had sufficient information to so conclude, he stated that he relied in good faith on what was reported by Ms Morris and Dr Pracilio. He disagreed with the suggestion that it was inappropriate to delegate the investigation task to Dr Pracilio. In his view it was entirely appropriate to delegate that function to the Director of Medical Services at the hospital. He confirmed that he was not aware of any suggestion at the time that someone else was also involved in the incident, in particular Dr Longhorn or a medical student. On the hypothetical that if he had information that Dr Longhorn was knowingly concerned in the incident, he would have sought further detail regarding his involvement. He gave the same answer on the hypothetical assumption that Dr Barry may have been involved. If he had information to that effect he would have ensured that these people would also be spoken to by Dr Pracilio as part of his investigation. 248 When questioned as to whether an adequate investigation had been undertaken before making the suspension decision, Dr Henderson stated that he had no reason to disbelieve what he was told by Dr Pracilio and the questions and answers then proceeded as follows: But you don't know if he has done a thorough investigation, do you?---Well, from what's reported to me, it seemed like a pretty - a pretty clear case of someone self- cannulated in theatre. But it's word-of-mouth, wasn't it, so you don't have any objective evidence?---I - I have the evidence that he has presented to me, so I'm reliant on his evidence to me. 249 Dr Henderson further explained that by delegating responsibility to investigate to Dr Pracilio, he was not required to undertake a further detailed investigation as to whether the iron infusion incident occurred or not. In his view he had sufficient information to inform the making of the suspension decision. 250 Another witness who have evidence on subpoena for Dr Pathmanathan was Dr Levitt. He graduated in medicine from the University of Western Australia in 1980. He is a fellow of the Royal Australasian College of Surgeons and has been in continuous practice as a colorectal and general surgeon since 1990. He has a long association with the hospital. When Dr Pathmanathan was granted accreditation at the hospital in February 2012, he was the Director of Medical Services and in that capacity signed the letter addressed to her to that effect. He ceased to perform that role in 2013. In his capacity as Director of Medical Services, he was not made aware of any conduct complaints relating to Dr Pathmanathan. 251 He did perform medical procedures at the hospital with Dr Pathmanathan as anaesthetist. He confirmed that he did not have any concerns about her professional conduct and was not aware of any incident whereby Dr Pathmanathan had put her patients at risk. To his observation, Dr Pathmanathan did not suffer from any mental health impairment. He was not aware of any concerns relating to Dr Pathmanathan's ability to communicate. By April 2015, he was working as the Director of Medical Services at Osborne Park Hospital. In that capacity he offered Dr Pathmanathan accreditation at that hospital. 252 At the request of Dr Pathmanathan, he met with her on 19 January 2017. This is the meeting where Dr Pathmanathan surreptitiously made an audio recording of the discussion. Having ruled that recording, and the transcript of it, inadmissible I permitted Dr Pathmanathan to ask questions confined to her recollection of the matters discussed. He accepted that he had expressed the view at that time that he was aware of "thoughtless gossip" which had circulated concerning the conduct of Dr Pathmanathan relating to the iron infusion incident. He referenced the "witches of Salem" by which he meant that a loss of credentials at one hospital often has a domino effect whereby false assumptions are made about the professional capacity and ability of the individual concerned. He gave this as a general example of what may happen in the medical profession, rather than his view of what had occurred in the case of Dr Pathmanathan. 253 Dr Pathmanathan then attempted to ask a series of questions concerned to elicit an opinion from Dr Levitt as to whether she had been unfairly treated and whether he considered the various investigations undertaken by the respondent, AHPRA or the Medical Board to have been adequate. Unsurprisingly, these questions were successfully objected to, as were further questions designed to have him express an opinion as to whether Dr Pathmanathan was the subject of unlawful discrimination. Overall I was not greatly assisted by the evidence of Dr Levitt. 254 I accept the evidence of Dr Pracilio and Dr Henderson as to how the investigation was undertaken which led to the suspension decision, and I find according their evidence. In the circumstances of this case the investigation was adequate and, contrary to the evidence and submissions of Dr Pathmanathan, was based on objective evidence provided orally and in writing by Ms Morris who witnessed the event. Once Dr Pathmanathan admitted to self-cannulation to Dr Pracilio, there was no reason to undertake any further investigation before implementing the suspension decision. Thereafter, as is made plain by the letter from Dr Henderson of 11 November 2014, her suspension operated "forthwith, pending the satisfactory resolution" of the two issues of concern regarding the professional practice of Dr Pathmanathan. That point was further emphasised in the penultimate and ultimate paragraphs of the letter which invited Dr Pathmanathan to provide "a satisfactory explanation of your conduct", which if provided would be considered before taking further action. 255 Something needs to be said about the patient in the corridor incident which is the second event referred to in the letter of 11 November 2014 and which informed the opinion that Dr Henderson reached that he had lost confidence in Dr Pathmanathan's ability to practice to an appropriate professional standard. As these reasons make clear, the primary and operative consideration which informed that decision was the iron infusion incident. My conclusion that I do not accept the version of events relied upon by the respondent concerning the patient in the corridor incident or that it was a matter of serious professional concern does not detract from two considerations. First, the iron infusion event would clearly, considered alone, have produced the same outcome and secondly, Dr Henderson believed the facts as reported to him concerning the patient in the corridor incident to be true. What must not be overlooked is that Dr Henderson invited Dr Pathmanathan to provide a written response in relation to each allegation, which he stated he would then consider before taking further action. 256 Nor does it matter for the purposes of the various challenges that Dr Pathmanathan makes in relation to the subsequent decision-making of the respondent, that I am not satisfied as to the facts relied upon by the respondent in relation to the lunch incident or the distressed patient incident. Neither incident was relied upon by Dr Henderson in his decision to suspend the accreditation of Dr Pathmanathan, pending further investigation and receipt of submissions from her. To the extent that any of the claim as now pressed by Dr Pathmanathan concerns the respondent's misunderstanding of the facts of either of these incidents, it is simply not to the point that the respondent may have made decisions or have taken action after 11 November 2014 on a view of the facts that is not consistent with my findings. What cannot be gainsaid is that Dr Henderson honestly believed the facts as recorded in the RiskPro reports and as summarised in his correspondence of 26 November 2014 to be true. It is this belief that informed his decision-making.
Procedural fairness 257 Dr Pathmanathan in evidence and submissions place considerable emphasis on her contention that she was denied natural justice. She contends that the RiskPro report for the iron infusion incident should have been accompanied by an investigation report before the decision was made to suspend her accreditation. On her case as put to me: "a suspension is not a walk in the park. A suspension is a very serious thing." I accept that the suspension of Dr Pathmanathan's accreditation at the hospital did have serious and adverse consequences for her, professionally and personally. However, balanced against that is the duty of care that a hospital owes to its patients and, as I have found, Dr Pathmanathan's serious departure from appropriate standards of professional practice in administering the iron infusion in the course of an operation upon her anaesthetised patient. 258 The simple answer to the procedural fairness contentions of Dr Pathmanathan is that the content of the obligation varies depending upon the circumstances of individual cases. The grant of accreditation to Dr Pathmanathan was made in accordance with and was subject to the By-Laws. There is no right of practise absent a grant of accreditation. That right may be suspended or terminated pursuant to cl 27.2 by the Chief Executive Officer if inter alia, he or she does not have confidence in the practitioner practising at the hospital "for any reason" - including the practice or the standard of practice of the accredited practitioner. 259 That is the reason given by Dr Henderson in his letter of 11 November 2014, which he adhered to in evidence and which I accept. Dr Pathmanathan's accreditation right was suspended pending satisfactory resolution of Dr Henderson's concerns relating to her practice. Dr Pathmanathan was afforded the opportunity of providing an explanation for her conduct in writing by 5 pm on 25 November 2014. 260 In the particular circumstances of this case, I am satisfied that this procedure did not amount to a denial of procedural fairness, even if it is assumed that an administrative obligation of that type applied to the decision made by Dr Henderson.
Events after 11 November 2014 261 Very many of Dr Pathmanathan's allegations concern events that occurred after the decision was made to suspend her accreditation. In proceeding in that way, Dr Pathmanathan seeks to bring within the ambit of her claims against the respondent the conduct of numerous individuals as well as MDA, AHPRA and the Medical Board. It is rather difficult to understand and to synthesise her allegations in a coherent way. It is not necessary that I address each individually as I am satisfied that there is simply no evidence to support Dr Pathmanathan's conspiratorial joining of tenuous links between individuals in order to navigate to her overall conclusion that a "circuit of power" with the respondent at its apex operated to promulgate false allegations about her in order to end her career as an anaesthetist. In summary I reject as unsupported by any evidence and scandalous, allegations to the effect that: (1) the MDA weaponised AHPRA to make decisions which adversely affected Dr Pathmanathan because of her age, sex and/or ethnicity; (2) the respondent and/or MDA interfered with the legal representation afforded to the applicant by Tottle Partners and Clayton Utz; (3) the respondent incited AHPRA to initially prevent Dr Pathmanathan from practising and then to impose conditions upon her right to practice; (4) the respondent interfered with Dr Pathmanathan's ability to adduce evidence from witnesses at the trial. During the course of the trial when this matter was specifically raised as a contempt, in rejecting the assertion as baseless, I invited Dr Pathmanathan to withdraw this most serious allegation. She did not at that time, although in a subsequent email withdrew it against the respondents lawyers, but not as against the respondent; (5) the respondent fraudulently and maliciously notified AHPRA of allegations concerning Dr Pathmanathan that were untrue; (6) the respondent conspired with the AHPRA investigator to omit basic documents from the investigation report; (7) Tottle Partners conspired with the respondent to give credibility to the fraudulent allegations that had been made about Dr Pathmanathan's professional conduct; (8) AHPRA published defamatory and fraudulent allegations concerning the professional conduct of Dr Pathmanathan; (9) Clayton Utz unlawfully forced Dr Pathmanathan to resign from the hospital; and (10) the Medical Board of Australia, and the Western Australian Committee thereof, failed to investigate the fraudulent allegations concerning Dr Pathmanathan as notified to AHPRA. 262 This summary is by no means complete. There are approximately 300 separate references to fraud or fraudulent conduct in the Dr Pathmanathan's pleadings and affidavits. None of it has been substantiated in the evidence. 263 What did occur after 11 November 2014 to the extent relevant to the discrimination and other claims that do not turn upon baseless allegations of fraud, misconduct or conspiracy may be shortly stated. I find according to the evidence as follows. 264 On 1 December 2014, Dr Pracilio completed in handwriting, and Dr Henderson signed, a standard form notification of two incidents to AHPRA being the iron infusion and patient in the corridor incidents. As I have noted, on 9 December 2014, Tottle Partners corresponded with AHPRA and notified it of the allegations relating to the lunch and distressed patient incidents. 265 On 15 December 2014, the Immediate Action Committee met and resolved to propose to take immediate action by imposing a requirement that Dr Pathmanathan must not practice, must undergo a health assessment and must not resume practice until determined fit to do so by the Medical Board. Later that day AHPRA corresponded with Tottle Partners, advised them of the decision taken by the Immediate Action Committee and invited Dr Pathmanathan to respond to the proposed immediate action by 18 December 2014. It is important to note that the practice restriction was not imposed on 15 December 2014. 266 On 17 December 2014, Dr Pathmanathan and lawyers from Tottle Partners, met with Dr Deacon from MDA, Dr Pracilio and representatives of the respondent. The purpose of that meeting was to discuss the provision of further information by Dr Pathmanathan before a scheduled meeting of the credentialing committee of the respondent in mid-February 2015. The four incidents relating to Dr Pathmanathan's conduct were discussed. During the meeting, as I have found, Dr Pathmanathan admitted to the iron infusion incident as set out in the RiskPro report confirming that "it was the wrong thing to do". 267 On 18 December 2014, Tottle Partners provided a response to AHPRA. I noted that relevantly this response replicated paragraphs from the earlier correspondence of 25 November 2014 sent to the respondent concerning the iron infusion incident. The balance of the letter to AHPRA deals with the three other incidents. In addressing whether the proposed immediate action should be taken, the submission provides: 12. Submissions as to whether immediate action should be taken 12.1 We understand Issue 1 is main issue that gives rise to the Board's concerns. 12.2 It is submitted that there is insufficient evidence in respect of Issues 2 - 5 inclusive to give rise to a reasonable belief that the Practitioner's health gives rise to a serious risk to persons or public health and safety. 12.3 Issue 1 should not give rise to a generalised lack of confidence or a view that the Practitioner's health poses a serious risk to persons, or to public health and safety. 12.4 Issue 1 reveals a lapse of judgment, which should not be considered endemic to her practice, or an indication of impairment. 12.5 This incident, in its full context, is not sufficiently serious to support a finding that the Practitioners is impaired or poses a serious risk to persons, or to public health and safety. 12.6 The Practitioners does not consider this is a circumstances in which the Board is required to take immediate action and impose a condition on her registration to the effect that she will not practise until she has undergone a health assessment. 13. If the Board is of the view that immediate action is necessary, what is the appropriate order? 13.1 If the Board proposes taking immediate action against her, the Practitioner proposes that she give an undertaking, pursuant to section 155(b) of the Health Practitioner Regulation National Law in the following terms: (a) The Practitioner will undergo a health assessment with a health practitioner nominated by the Board within a time period specified by the Board; (b) The Practitioner will not attend to any personal matter unless it is unavoidable, whilst she has an anaesthetised patient in her care; (c) Until further order the Practitioner will: (i) Regularly attend upon her GP and her endocrinologist, with the frequency of that attendance to be determined by her GP and her endocrinologist; (ii) Report to AHPRA any exacerbation of hypothyroidism within 7 days. (iii) Regularly consult with a mentor, to be approved by the Board. 13.2 It is submitted there is no reason for the Practitioner to be suspended pending a health assessment. 13.3 It is submitted that this proposal is a proper reflection of the concerns about the Practitioner's health, and will be sufficient to ensure safe practice. 13.4 At the relevant time, she was suffering from health issues, stress and tiredness. These issues have now been resolved. 13.5 She has made full and candid admissions surrounding Issue 1. 13.6 Her response indicates that not only is she remorseful, but also that she understands the nature of the problem in respect of Issue 1. She has insight into the nature of the lapse that she made. 13.7 This response, which we are instructed by the Practitioner to submit, is also demonstrative of a high degree of contrition. 13.8 The demonstration of remorse, insight and contrition are matters that ought to weigh heavily in the Practitioner's favour. These factors, taken together, make the repetition of similar conduct much less likely. 13.9 Suspension should be imposed only in the most serious of cases, 13.10 The imposition of interim suspension in this matter would be punitive, and more than would be required to protect the public interest , 13.11 The Practitioner has no prior disciplinary history with the Medical Board of Australia or its predecessors. 13.12 It is submitted that suspension in the circumstances [sic]. 13.13 That is particularly so given the circumstances of the Practitioner at the time that the iron infusion incident occurred, and the fact that the Practitioner appeared to have the support of senior colleagues for her conduct. 13.14 The Practitioner's candour and awareness of the nature of her mistake should provide reassurance in relation to the issue of patient safety. 13.15 The Practitioner has learned a great deal from this experience. She has reflected at length upon the need for constant vigilance in the conduct of her practice as an anaesthetist. 13.16 She has made a commitment to similar vigilance with her health issues. She proposes to regularly consult with her GP and endocrinologist. 13.17 The Practitioner's response must provide reassurance that despite the issues raised, she has the ability to conduct her practice to an appropriate standard. (Original emphasis.) 268 It is to be noted that the lawyers for Dr Pathmanathan accepted in that submission, which amounted to an admission made on behalf of their client, that Dr Pathmanathan had suffered "a lapse of judgement", but not one sufficiently serious to support a finding that she posed a serious risk to her patients or to public health and safety. Dr Pathmanathan vigorously asserts in her evidence that this submission was made in consequence of her being "coached, I had been harassed" and that she was suffering from confusion at the time because matters had moved "it was like a tornado". 269 I accept that Dr Pathmanathan was under considerable personal stress in December 2014. However, the evidence does not support her generalised assertion that her own lawyers coached and harassed her into making statements contrary to her self-interest or the facts as they were then known. 270 On 19 December 2014, the Immediate Action Committee met, considered the allegations made against Dr Pathmanathan and the responses provided by her lawyers and resolved to take immediate action by imposing a condition that Dr Pathmanathan must not practice as a medical practitioner until she has undergone a health assessment and has been deemed fit to return to practice by the Medical Board. 271 On 6 January 2015, AHPRA engaged Dr Uzma, a clinical psychiatrist, to review Dr Pathmanathan and provide a report. The letter of engagement set out the background history, including each of the complaints made. 272 On 9 January 2015, Clayton Utz then acting for Dr Pathmanathan, lodged a review application with the SAT against the decision made by the Immediate Action Committee on 19 December 2014. That application was not proceeded with. The evidence does not reveal why. 273 On 23 January 2015, Dr Uzma provided a report to AHPRA. Dr Uzma expressed the opinion that Dr Pathmanathan did not suffer any psychiatric impairment but did have narcissistic personality features. I have found that Dr Pathmanathan admitted to Dr Uzma during the review that she self-cannulated in order to receive the iron infusion on 28 October 2014. 274 On 9 February 2015, Clayton Utz corresponded with AHPRA and proposed a resolution of the notified matters in accordance with a voluntary undertaking of Dr Pathmanathan signed and dated 10 February 2015. I infer that the covering letter was drafted and prepared before the undertaking was executed. The undertaking provides: Dr Ajintha Pathmanathan Voluntary Undertaking to the Medical Board of Australia I, Dr Ajintha Pathmanathan, hereby undertake to the Medical Board of Australia as follows: Mentoring 1. I will nominate, for the Board's approval, a medical practitioner in a senior positon to act as my mentor, and: (a) I will communicate with my mentor regularly, and meet in person at least once per month; and (b) I will take all responsible steps to ensure that the mentor provide to the Board at the end of a 3-month period, a report confirming my attendance at the scheduled meetings. Education - Ethics and Code of Conduct 2. I will attend an educational course focussed towards ethical and safe medical practice, and will review the Australian Medical Council publication: "Good Medical Practice: code of conduct for doctors in Australia". Medical Reviews 3. I will attend medical reviews either with my General Practitioner (currently: insert name) or my Endocrinologist (currently: insert name) regularly, at a frequency to be agreed between me and my treating practitioner. 4. I will inform the Board immediately should I change, or cease attending, my practitioner. Psychotherapy 5. I will attend 6 sessions of psychotherapy designed toward developing insight to, and acceptance of, the following factors: (a) that my medical condition needs to be treated by appropriate medical practitioners and not by my surgical and anaesthetic colleagues, and the need to ensure processes are in place (including by virtue of these conditions) to ensure my ongoing care and health is maintained. (b) limitations and vulnerabilities to practise particularly when feeling physically unwell; and (c) the need for time off to restore my own well-being when unwell. 275 On 10 February 2015, the Health Committee met to consider the notifications relating to Dr Pathmanathan, the decision of the Immediate Action Committee and Dr Uzma's report. The Health Committee decided to remove the restriction imposed upon Dr Pathmanathan's right to practice and to continue with the investigation into the complaints. The undertaking offered by Dr Pathmanathan was not accepted. This decision was communicated by AHPRA to Clayton Utz on 11 February 2015. 276 On 12 February 2015, Clayton Utz corresponded with Dr Henderson and proposed that Dr Pathmanathan would surrender her accreditation on certain conditions. The letter provides: Voluntary surrender of accreditation: St John of God Subiaco Hospital We refer to Dr Pathmanathan's accreditation as an anaesthetist at St John of God Subiaco Hospital (SJOG Subiaco), suspended on 11 November 2014. We write to inform to inform you of Dr Pathmanathan's offer to voluntarily surrender her accreditation at SJOG Subiaco. She offers to surrender her accreditation on the following basis: 1. her surrender be treated as strictly confidential and there be no further discussion within SJOG Subiaco or otherwise in relation to this matter and the allegations made by SJOG Subiaco; and 2. her surrender does not in any way constitute an admission by her in relation to any concerns raised or allegations made by SJOG Subiaco as to her practice or competence generally, or otherwise related to, the decision on 11 November 2014 to suspend her accreditation. Please advise if SJOG Subiaco is agreeable to Dr Pathmanathan's offer to voluntarily surrender her accreditation on the terms as set out. We look forward to hearing from you. Please do not hesitate to contact either Nick Cooper or Hayley Cormann if you would like to discuss the matter. 277 Dr Pathmanathan asserts that she was subjected to "gaslighting" by Clayton Utz and was subject to duress which caused her to instruct that this letter be sent. There is no credible evidence (or any evidence, apart from hers) to support those contentions, they are incredulous and I reject these claims. 278 On 19 February 2015, Ms Morgan-Hobbs, legal counsel to the respondent corresponded with Clayton Utz as follows: I refer to your letter of 12 February 2015 to Dr Lachlan Henderson, CEO of St John of God Subiaco Hospital, in which Dr Pathmanathan offered to surrender her accreditation. In our telephone discussion prior to the letter you informed me that AHPRA had advised that Dr Pathmanathan's period of immediate action suspension was over and that there were no conditions on her registration. The letter you subsequently provided from AHPRA confirms this but also says that AHPRA's investigation into Dr Pathmanathan's conduct will continue. As you know, the Hospital also notified AHPRA about Dr Pathmanathan. The Hospital is yet to receive any decision from AHPRA in relation to its notification, and it is apparent that AHPRA is still seeking further information in order to complete this investigation. In these circumstances, the Hospital's position is that Dr Pathmanathan's accreditation remains suspended, pending the outcome of the AHPRA notification. Should she choose to voluntarily withdraw her accreditation, that will be noted on her file. 279 On 20 February 2015, Dr Pathmanathan's accreditation with the hospital expired by effluxion of time. 280 On 16 June 2015, the Notifications Committee met and considered the notifications relating to Dr Pathmanathan. It resolved to defer making a decision in order to obtain an expert opinion from a specialist anaesthetist, further information from Dr Pathmanathan and copies of relevant policies from the respondent. 281 On 17 June 2015, Clayton Utz corresponded with AHPRA and provided a submission on behalf of Dr Pathmanathan. A proposal was put to resolve the complaints on the basis that Dr Pathmanathan had made "full and frank admissions" relating to the iron infusion incident that her conduct was inappropriate. The significant financial, professional and reputational consequences as a result of "her error of judgement" were emphasised. The offer as framed on 10 February 2015 in the form of the undertaking was noted and Dr Pathmanathan proposed that the complaints be resolved by the Board resolving to impose a caution, in acknowledgement of "the lapse in her professional judgment which she concedes she exercised on 28 October 2014" and that certain requirements be imposed on her right to practice including that she attend at least six sessions of psychotherapy "designed toward developing insight to, and acceptance of", the following factors: a. that her medical condition needs to be treated by appropriate medical practitioners and not by her surgical and anaesthetic colleagues, and the need to ensure adequate processes are in place (including by virtue of these conditions) to ensure her ongoing care and health is maintained; b. limitations and vulnerabilities to practice, particularly when feeling physically unwell; and c. the need to take time off to restore her own well-being when necessary. 282 Dr Pathmanathan claims that she was tricked and coerced into instructing that this proposal be submitted on her behalf, but the basis for that claim is illogical and unthinkable. It is rooted in the fact that the legal practitioner for Dr Pathmanathan discussed her case with an officer of AHPRA on 29 May 2015 on a without prejudice basis. A proposal to resolve the complaints was discussed. The legal practitioner reported the substance of that discussion to Dr Pathmanathan in an email of 29 May 2015. Dr Pathmanathan latches upon this unremarkable sequence of events, together with the absence of a file note made by the AHPRA officer of the discussion, to conclude that her legal practitioner colluded with MDA and AHPRA to solicit a concession from Dr Pathmanathan that she suffered from a health impairment. In addition, Dr Pathmanathan asserts that the legal practitioner was married to a politician who was the best friend of the Chief Executive of another hospital where Dr Uzma had practising rights and which hospital "injuriously conspired with the respondent" to harm her. Those allegations are not supported by any evidence, are irrational and scandalous. 283 The Notifications Committee considered the proposal of 17 June 2015 at its meeting on 1 July 2015. The Notifications Committee formed the belief that the way that Dr Pathmanathan had practised and her professional conduct may be unsatisfactory for the purposes of s 178 of the National Law and in consequence proposed to caution Dr Pathmanathan and impose seven conditions upon her registration, to the effect that she must attend counselling, nominate a registered practitioner to act as her supervisor for approval by the Board, must only practice under indirect supervision by the supervisor and must accept ancillary conditions. Notification of that decision was provided by AHPRA to Clayton Utz in correspondence dated 10 July 2015. A response to that course of action was requested by 1 August 2015. 284 On 11 August 2015, the Notifications Committee met again. The agenda item records that on 31 July 2015 submissions were received from Dr Pathmanathan's solicitors, but that document has not been produced in evidence. Similarly, a further document that is referred to, being a voluntary undertaking signed by Dr Pathmanathan on 7 August 2015, is also not in evidence. There is earlier email correspondence between Dr Pathmanathan and Clayton Utz commencing on 4 August 2015 with advice that two proposed draft undertakings would be prepared and emailed to Dr Pathmanathan each of which were to be carefully read and only signed if she was satisfied with the terms. In one email reply, Dr Pathmanathan advises that the lawyers should "hold off" on sending the response to the Medical Board, although later on that day Dr Pathmanathan advised that she would review the undertakings and return them. On 6 August 2015, Dr Pathmanathan stated to her solicitor that she would not "sign the full undertaking" which she did not agree to. 285 Returning to the minutes of meeting of the Committee of 11 August 2015, the recommendation invited the Board to note "the Practitioner's voluntary undertaking dated 6 August 2015" (the document is not in evidence) and then decide pursuant to the National Law to caution her and impose seven conditions upon her practice, which are identical to the proposed conditions as notified on 10 July 2015. The Committee accepted that advice and decided accordingly. The AHPRA register maintained for Dr Pathmanathan was amended on 11 August 2015 to reflect that decision. The wording of the internal and public registers differs in that the latter does not include any reference to the requirement that Dr Pathmanathan attend a clinical psychologist. The internal wording provides: Internal text: Caution - On 11 August 2015, the Medical Board of Australia cautioned the Practitioner. Conditions - Health On 11 August 2015, the Medical Board of Australia imposed the following conditions on the Practitioner's registration: 1) The Practitioner must attend at least six sessions of counselling with a clinical psychologist aimed at improving her capacity to be mindful of her health vulnerabilities and health needs, improving her judgement when making decisions about her own health and developing insight and acceptance of the following: a. that her personal health and medical condition must be treated by her GP, endocrinologist and/or other specialist(s) as required, her vulnerability and limitations of her capacity to practise, particularly when feeling physically unwell, and b. the need to take time off to restore her own well-being when necessary. 2) The Practitioner must continue to attend her treating GP, endocrinologist and/or other specialist(s) as required (collectively, 'Treating Practitioners') at a frequency to be determined by her Treating Practitioners. 5) The supervision is to include: a. confirmation that adequate processes are in place to ensure the Practitioner is managing her health and any impact this may have on her professional conduct and performance b. within six months of the commencement of supervision, a session of educational counselling on policies and guidelines of ethical and safe medical practice, and professional code of conduct, including review of "Good Medical Practice: A Code of Conduct for Doctors in Australia". 7) Within two weeks of being notified of the imposition of these conditions, the Practitioner must provide written acknowledgement of the following: a. that she consents to AHPRA sharing information with her Treating Practitioners in relation to these conditions b. AHPRA may seek written confirmation from her Treating Practitioners of her attendance and compliance with condition 2 c. AHPRA will seek a report from the Supervisor on a quarterly basis to confirm her compliance with conditions 4 and 5 Conditions - Practice On 11 August 2015, the Medical Board of Australia imposed the following conditions on the Practitioner's registration: 3) The Practitioner must nominate a registered medical practitioner to act as her supervisor, for approval by the Board, who must be senior to her by position or years of experience (Supervisor). 4) The Practitioner must only practise as a medical practitioner under indirect supervision by the Supervisor. For the purposes of this condition, indirect supervision is defined as being primarily in person and, in circumstances where the Supervisor is not physically present, they must always be contactable by telephone. 6) The Practitioner must inform the Australian Health Practitioner Regulation Agency (AHPRA) of all of her employers and places of practice and any changes to such on an ongoing basis. 7) Within two weeks of being notified of the imposition of these conditions, the Practitioner must provide written acknowledgement of the following: d. AHPRA will provide notice of the conditions to any and all of her employer(s) and place(s) of practice 286 On 24 August 2015, Clayton Utz corresponded with the respondent, noted the substance of the decision last made by the Medical Board and stated, inter alia: Dr Pathmanathan has advised in any event she now wishes to proceed with her offer to voluntarily surrender her accreditation at SJOG Subiaco on the basis previously set out in the letter of 12 February 2015. 287 The letter continued to the effect that Dr Pathmanathan intended to take steps to recover her practice and may decide in the future to reapply for accreditation at the hospital. If there was a response to that letter, it is not in evidence before me. 288 On 4 October 2015, Dr Pathmanathan corresponded with Dr Henderson and gave notice that: "I would like to withdraw my voluntary surrender of accreditation". She states that she was not aware at the time, that it had already expired by effluxion of time. 289 On 21 October 2015, the Board met to consider a compliance report and supporting documents provided by Dr Pathmanathan. It received from her a verbal submission. The minutes record that Dr Pathmanathan "expressed remorse about her error in self-administering an iron infusion." The Board resolved not to grant Dr Pathmanathan's application to remove each of the conditions imposed on her registration. However, the Board did resolve to remove those conditions which required Dr Pathmanathan to appoint a practice supervisor and in lieu altered the condition so as to provide that Dr Pathmanathan must nominate a new medical practitioner to act as a mentor. On 5 November 2015, AHPRA advised Dr Pathmanathan of this decision. 290 On 6 November 2015, Dr Henderson generically responded to the correspondence received concerning Dr Pathmanathan's accreditation. Dr Henderson noted the most recent decision of the Medical Board and advised that the Scope of Practice Committee had met on 19 October 2015 to consider Dr Pathmanathan's position. Dr Henderson then stated that based on the recommendation of the Committee, and the determination as made by AHPRA that: … I am not confident that your skill levels are sufficient for you to practice as an independent specialist at the Hospital. I also note that your accreditation at the Hospital expired on 20 February 2015 and therefore you are not currently an accredited Medical Practitioner. Upon the removal of the restrictions on your practice, you may reapply for accreditation and we will consider the position again at that time. 291 The Medical Board met again to consider Dr Pathmanathan on 9 December 2015. It received an oral presentation from Dr Pathmanathan. In consequence, it resolved to remove each of the remaining conditions imposed upon her registration for the reason that: The Board decided to remove the remaining conditions from your registration because the Board acknowledged that the requirement for supervision has impacted upon your ability to sustain full-time work and considers that there has been a material change in your circumstances in this regard. Accordingly, the Board considers that it is appropriate to remove the conditions that relate to supervision from your registration. 292 Dr Pathmanathan was advised of this decision on 11 December 2015. 293 On 17 November 2017, Dr Pathmanathan lodged a complaint with the Commission and alleged that the respondent had unlawfully discriminated against her because of her sex, race/colour, ethnic/nationality origin and age. She asserted that she had experienced racial hatred and had been treated unfairly including that she had been the subject of victimisation. In her complaint form and under the heading: "What happened?" She stated: A GROUP iron infusion incident happened at the hospital involving a number of senior colleagues. Without investigation the legal team and director of medical services coerced a false incident report from the assisting nurse and suspended me indefinitely. I was told in the one and only meeting after hours (no one else was around) where I was suspended indefinitely that I should not mention the other anaesthetists name (senior male colleague). I was threatened - if you mention Ralph's name I will put in other complaints about you. The director of medical services did make other force complaints. He tried to avoid giving the full medical records. The CEO wrote all of the letters. A false notification was made to AHPRA. Further AHPRA was fed unsolicited and damaging information about me. This is not how they treat other staff who have had incidents. I have been singled out and discriminated. Likely because this was seen as an opportunity to manipulate and restrict my career. 294 As correctly submitted for the respondent, this is the first occasion on which Dr Pathmanathan asserted that other persons were involved in the iron infusion incident. 295 The Commissioner requested additional information about the complaints from Dr Pathmanathan, to which she responded on 20 February 2018. The information provided is very extensive in the covering email and is cross-referenced to a large number of attached exhibits. On a fair reading of that documentation, Dr Pathmanathan complained that she first suffered unlawful discrimination at the hands of professional colleagues before being granted accreditation rights by the respondent. Some of the introductory paragraphs sufficiently expresses the gravamen of the multiple complaints: I am beleaguered by the false imputations to my abilities and character that has taken place (Exhibit B). The healthcare culture particularly in competitive and private sector areas where money and power resides is toxic, dominated by senior caucasian males (Evidence C). As evidenced from the scientific literature and conference discussions females and minority individuals are the most vulnerable (Exhibit D). It is no secret that I had the trifecta - foreign background, female, relatively young age and in combination I had gained significant success in private practice and was on a leadership pathway having founded an educational society speaking at conferences. … I understand the power and influence of organisations such as St John of God healthcare but they must take responsibility to not abuse that power, misuse their influence and to not misguide or harm any other soul - patients, practitioners or public. They must be held accountable to their missions, values and the governing laws. I hope that the AHRC is able to assist me in seeking justice for the discrimination and violation of my human rights that has taken place. 296 A central aspect of the complaint as articulated in that document is the assertion that Dr Pathmanathan was "singled out" in relation to the iron infusion incident when others present had been actively involved. Each of the other incident reports notified to her in November 2014 are addressed. What is notable for present purposes is that there is no reference in that document to disability discrimination. 297 On 28 February 2018, a delegate of the President of the Commission determined to terminate the complaint pursuant to ss 46PF(1)(b) and 46PH(1)(b) of the Commission Act. The delegate made that decision in exercise of the power to do so where a complaint is lodged more than six months after the alleged act or omission occurred, being the time period for events after to 13 April 2017 and 12 months for events before that date. Amongst other things, the delegate concluded that there was insufficient information to support the contention that the respondent suspended Dr Pathmanathan's accreditation right because of her age, race or sex. In the view of the delegate, the suspension was implemented because of concerns held by the respondent about Dr Pathmanathan's work practices. 298 On 3 July 2018, and without leave, Dr Pathmanathan commenced this proceeding. Leave is required where a complaint is terminated pursuant to s 46PO of the Commission Act. For reasons published on 5 September 2019, Steward J, in the leave judgment, granted to Dr Pathmanathan and extension of time to bring her proceeding together with the leave required by s 46PO.
Resolution of the discrimination claims 299 It is not easy to comprehend how Dr Pathmanathan precisely puts each of her claims of unlawful discrimination contrary to the Racial Discrimination Act, the Sex Discrimination Act, the Age Discrimination Act or the Disability Discrimination Act. Her pleadings, with respect to her skill and ingenuity, comprise a morass of complex interwoven conspiracy theories and unfounded assertions, the epicentre of which is the respondent and individuals for whom it is legally responsible. The respondent's tentacles as asserted extend to unlawful interference or influence upon decisions made by MDA as the insurer, the lawyers from time to time appointed by MDA to act for it and Dr Pathmanathan, AHPRA, the Western Australia Investigations Committee of the Medical Board and the Medical Board itself. 300 Doing the best that one can, and adopting a broad and beneficial interpretation of the matters that give rise to the core complaints of Dr Pathmanathan, what is central to the discrimination claims is the decision taken by the respondent on 10 November 2014 and confirmed in writing the following day to suspend her accreditation rights at the hospital for the reason that Dr Henderson had lost confidence in Dr Pathmanathan's ability to practise to an appropriate professional standard because of the iron infusion and patient in the corridor incidents. On Dr Pathmanathan's case, I should conclude that the reasons relied upon by the respondent were no more than a "smokescreen" and that the operative or at least a reason related to her race, sex, age or, as subsequently arose, an imputed disability relevant to her psychological state. 301 In submissions the respondent makes a particular complaint about how Dr Pathmanathan frames her claims and draws to my attention the decision of Flick J, as a member of the Full Court, in Walker v State of Victoria (2102) 297 SLR 284; [2012] FCAFC 38 at [119] who observed, in criticising a multiplicity of appeal grounds and supporting submissions: Although the general propositions may for present purposes be accepted, the manner in which those propositions became relevant to claims for discrimination under the Disability Discrimination Act was not developed. Any claim for relief pursuant to that Act must necessarily found the entitlement to relief in the provisions of the Act itself - not in some more "general legal perspective". 302 Dr Pathmanathan's pleadings and submissions consistently fail to anchor her factual assertions to a corresponding entitlement to relief in any of the statutes that she claims have been contravened. No attempt is made to identify the material facts relied upon which identify the relevant comparator or in order to assess her claims of unlawful discrimination beyond the broad statement of the obvious: she is female, was at the time relatively young and is of Sri Lankan origin which were not characteristics of the respondent's decision-makers from time to time. The failure to do so presents obvious further difficulties: Izzo v State of Victoria (Department of Education and Training) [2020] FCA 770 at [48]-[57] per Moshinsky J. In any event, I proceed to consider the discrimination claims on the broad basis that I have indicated. 303 It is necessary to mention where the burden of proof lies in each of the discrimination claims. The statutes are not uniform. The Racial Discrimination Act is silent on the onus of proof and therefore Dr Pathmanathan must prove the facts that found her claims pursuant to it on the civil standard. The Sex Discrimination Act in one respect at s 7C imposes a burden of proof that an act does not constitute discrimination because of s 7B on a respondent. Section 7B is concerned with indirect discrimination where it is said that a condition, requirement or practice, if imposed is reasonable in the circumstances. That provision is not in issue. Dr Pathmanathan carries the onus of proof on these claims. 304 The Age Discrimination Act at s 15(2) also imposes a burden on a respondent if indirect discrimination is sought to be justified on the ground that a condition, requirement or practice is reasonable in the circumstances. The respondent's case is that it did not engage in conduct amounting to indirect discrimination and therefore does not place reliance on this matter. Dr Pathmanathan carries the onus of proof on these claims. 305 There are two relevant onus provisions in the Disability Discrimination Act: ss 6(3) and 11(2). The former is concerned with indirect discrimination where a respondent contends that a condition, requirement or practice is reasonable in the circumstances and the latter deals with claims of unjustifiable hardship. I dealt with these provisions in Ponraj v Wycombe Services Pty Ltd [2023] FCA 118 at [67]. Once again, the respondent's case is its conduct did not amount to indirect discrimination and therefore those provisions are not in issue. Dr Pathmanathan carries the onus of proving the facts to establish her claim of disability discrimination. 306 Dealing first with the Racial Discrimination Act, and the provisions relied upon by Dr Pathmanathan, racial discrimination may be direct per s 9(1) or indirect per s 9(1A) which relevantly provides: (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. (1A) Where: (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and (b) the other person does not or cannot comply with the term, condition or requirement; and (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin. 307 By s 9(4) the succeeding provisions of Part II do not affect the generality of these provisions. Section 10 confers a right to equality before the law, but does not of itself make unlawful a particular act or omission. As explained by the Full Court in Bropho v Western Australia (2008) 169 FCR 59; [2008] FCAFC 100 at [73] ( Ryan, Moore and Tamberlin JJ), this provision applies where there is "unequal enjoyment of rights between racial or ethnic groups" and: Section 10(1) does not require the Court to ascertain whether the cessation of rights is by reason of race, with the clear words of s 10 demonstrating that the inquiry is whether the cessation of rights is "by reason of" of the legislation under challenge. Further, s 10 operates, not merely on the intention, purpose or form of legislation but also on the practical operation and effect of legislation (Gerhardy 159 CLR at 99; Mabo v Queensland (1988) 166 CLR 186 at 230-231; Western Australia v Ward 213 CLR at 103). 308 Dr Pathmanathan does not address how this provision is said to apply to her. She does not identify any discriminatory operation or effect of other legislation: Maloney v The Queen (2013) 252 CLR 168; [2013] FCA 28 at [11], French CJ. 309 Section 11 is concerned with access to places or facilities and provides: It is unlawful for a person: (a) to refuse to allow another person access to or use of any place or vehicle that members of the public are, or a section of the public is, entitled or allowed to enter or use, or to refuse to allow another person access to or use of any such place or vehicle except on less favourable terms or conditions than those upon or subject to which he or she would otherwise allow access to or use of that place or vehicle; (b) to refuse to allow another person use of any facilities in any such place or vehicle that are available to members of the public or to a section of the public, or to refuse to allow another person use of any such facilities except on less favourable terms or conditions than those upon or subject to which he or she would otherwise allow use of those facilities; or (c) to require another person to leave or cease to use any such place or vehicle or any such facilities; by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person. 310 Dr Pathmanathan, somewhat obliquely, appears to contend that the respondent refused her access to the hospital, by suspending her accreditation right, which is a facility to which a section of the public is entitled to access and did so by reason of her race, colour or national or ethnic origin. 311 A similar claim appears to be framed by reference to the prohibition at s 13 which provides: It is unlawful for a person who supplies goods or services to the public or to any section of the public: (a) to refuse or fail on demand to supply those goods or services to another person; or (b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services; by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person. 312 Adopting a broad view of the claim, Dr Pathmanathan's contention would seem to be that the respondent acted unlawfully when the suspension decision had the effect of depriving Dr Pathmanathan access to the medical services provided at the hospital by reason of her race, colour or national or ethnic origin. 313 Section 16 is concerned with the publication of advertisements which indicate, or could be reasonably understood as indicating, an intention to do an act that is unlawful by reason of another provision of Part II. No coherent basis for a claim of unlawful conduct by the respondent contrary to this provision has been identified by Dr Pathmanathan. 314 In submissions, Dr Pathmanathan asserted reliance on s 17, which was not the subject of her complaint to the Commission. It provides: It is unlawful for a person: (a) to incite the doing of an act that is unlawful by reason of a provision of this Part; or (b) to assist or promote whether by financial assistance or otherwise the doing of such an act. 315 When this provision was first raised by Dr Pathmanathan in the course of the hearing it was said that the respondent incited AHPRA and/or the Medical Board to unlawfully discriminate against her on the basis of her race, even though that contention is not made in the complaint to the Commission but is referenced, without any material facts in support, in her reply. The basis for the incitement contention rests in the generalised claims of conspiracy, inducement and inference by association assertions which I have found are untenable as having no evidentiary or logical basis. 316 Dr Pathmanathan also relies on s 18 which states that if an act is done for two or more reasons, one of which is unlawful pursuant to the act and whether or not it is the dominant or substantial reason, it is taken for the purposes of Part II to be done for that reason. 317 In accordance with my findings of fact, none of these contentions are made out. The respondent did not make the suspension decision, and no step which formed part of the complaints or the investigation which led to that decision, were taken or made because of or by reference to Dr Pathmanathan's race, colour or national or ethnic origin. The suspension decision was taken, and taken only, because of concerns which the respondent had about Dr Pathmanathan's standards of professional conduct, in particular the view that the iron infusion incident was a significant departure from the standards of professional practice that one expects from a consultant anaesthetist at the hospital at the time. I am entirely satisfied that Dr Pathmanathans' race, colour or national or ethnic origin formed no part of Dr Pracilio or Dr Henderson's thinking or decision-making and that those characteristics had nothing whatsoever to do with the decision to suspend Dr Pathmanathan's accreditation rights in November 2014 and nor did they form any part of the subsequent decisions and conduct of any of the individuals the subject of numerous adverse allegations advanced by Dr Pathmanathan in the course of this proceeding. 318 I accept as truthful and accurate the evidence of Dr Henderson given in cross-examination in response to the suggestion that he was motivated by unlawful discriminatory considerations: Okay. So I just put to you that you blinkered out whatever evidence I should have - I should have been able or given the opportunity to give because I was junior, so that's my age, and because I was brown and a female, so you just did not regard me in the same light as you regarded Dr Pracilio and maybe the other doctors in the room. I put that to you?---That - no, and I refute that totally. The decision to suspend you based on the allegation, later proven to be admitted to, of cannulating yourself with iron while your responsibility is to look after the airway of a patient who's asleep in one of my operating theatres - I put to you those allegations in the letter, which I would probably like up in front of me again. The - - - 319 I make the same finding in relation to Dr Pracilio. I accept as entirely truthful and consistent with the contemporaneous documents the evidence of Dr Pracilio in cross-examination that I have extracted at [167]. 320 Justice Steward in the leave judgment focused attention on the iron infusion incident and the contention of Dr Pathmanathan that others, in particular doctors, were involved and that she was the only person singled out, investigated and had her accreditation suspended. Necessarily, in hearing the extension of time and leave applications his Honour acted on incomplete and untested evidence. In part his Honour reasoned at [19]-[21]: The nub of the reason for granting leave is this: SJOG contends, in effect, that the Doctor exclusively participated in the Event, whereas the Doctor alleges that other medical staff and doctors at the SJOG hospital were part of it. The Doctor has filed numerous affidavits in which she alleges this. These are matters of fact which will need to be determined. For the moment, what can be said is that it is not disputed that the Event took place during a surgical procedure involving the Doctor and other medical staff in the same theatre. The Doctor had, during that surgery, a specific medical responsibility over a patient when the Event took place. There is no evidence presently before me that the other medical staff sought to stop or prevent the Event from taking place in any way. Based on the Doctor's presently uncontradicted evidence, I infer that the other medical staff were at least witnesses to it (whether that inference can be sustained will turn on the evidence to be led before me). This led to the question asked by me at the hearing of the application for leave: why was the Doctor the only medical staff member suspended and disciplined? Why was she singled out? The answer to that question might, in my view, either exclude or raise the possibility that the Doctor was differentially treated because of the Doctor's ethnicity, gender or age. I gave SJOG leave to file affidavit evidence concerning that issue. SJOG subsequently filed an affidavit sworn by the Chief Executive Officer (the "CEO") of the Hospital at the time of the Event. After deposing to breach by the Doctor of certain By Laws applicable to SJOG's health professionals, and after describing his understanding of the Event, that CEO said (amongst other things): I can also say that if, when I was informed of the [Event] or at any time during its investigation, there was any inference that other people in the theatre were involved, or in any way acquiesced, or "turned a blind eye", I would have ensured that those allegations were investigated and that I took appropriate disciplinary action taken [sic]. That was not the case. For the moment, I find this explanation to be unsatisfactory. The other medical staff were in the same theatre as the Doctor when the Event took place. As already mentioned, in the absence of contradictory evidence, I infer that they witnessed it. Their failure to take steps to stop the Event taking place could well constitute, in my view, an act of acquiescence or the turning "of a blind eye", which was known, or should have been known, to SJOG at the time. It follows, on the material before me, and applying a "filter" not intended to set a "high bar", I find that I cannot be confident that the Doctor has not been the subject of discrimination on the grounds of her ethnicity, gender or age, and that this explains why she was the only medical staff member disciplined. For these reasons, and given the grave importance of this matter to the Doctor, leave should be granted for the Doctor to proceed with her case against SJOG. 321 In accordance with my findings, the central premise of Dr Pathmanathan's case - the involvement of others in the iron infusion incident, is not only not made out, but is false. I pause to observe what his Honour said at [22] that, before him, Dr Pathmanathan "otherwise made a very great number of accusations in support of her claims that she has been unlawfully discriminated against" and that the "overwhelming bulk of the affidavit material and exhibits filed by her has, I find, been irrelevant, misconceived, inadmissible and/or scandalous." As I have explained in detail, I have reached the same conclusion. 322 It is, of course, the case that the patient in the corridor incident also informed the decision to suspend Dr Pathmanathan's accreditation rights at the hospital and is also relevant to subsequent decisions and actions of the respondent. I have concluded that this incident did not occur in accordance with the RiskPro complaint form. It does not follow, however, that this finding somehow supports the racial discrimination claims of Dr Pathmanathan. What is clear is that Dr Pracilio and Dr Henderson each believed the complaint as formulated to be true at the time and this is what motivated, at least in part, their decisions and actions. Moreover it is the iron infusion incident which was the predominant reason for the decisions made and action taken. The position is the same in relation to the lunch incident and the distressed patient incident to the extent relevant to decision-making by the respondent after 11 November 2014. 323 Dealing next with the Age Discrimination Act claims, direct and indirect discrimination is asserted within the meaning of ss 14 and 15 in that Dr Pathmanathan was treated less favourably than a more senior doctor in the events leading up to the suspension of accreditation rights and her treatment thereafter. Although not distinctly identified, I will assume her case on the grounds of direct discrimination is that her treatment over the entire period of her claim was less favourable in circumstances that are the same or are not materially different from how the respondent would have treated a person of a different age, in her case an older specialist accredited medical practitioner. Dr Pathmanathan's case of indirect discrimination would seem to be that the respondent discriminated against her on the ground of her age in that it imposed (at least) a condition, requirement or practice (suspension of accreditation) which was not reasonable in the circumstances and had the effect or was likely to have the effect of disadvantaging persons of the same or similar age as Dr Pathmanathan. 324 From those contentions, Dr Pathmanathan asserts unlawful conduct by the respondent in employment (s 18), against her as a contract worker (s 20) and or in the provision for the making available of services or facilities (s 28). 325 In each case, Dr Pathmanathan relies upon s 16: an act done for two or more reasons, one of which is discriminatory, is taken to be done because of the age of Dr Pathmanathan. 326 For the same reasons that I have given in relation to the Racial Discrimination Act claim, Dr Pathmanathan has failed to make out any of these contentions. The decision-making of Dr Pracilio, Dr Henderson, the action taken by them and indeed the steps taken by other persons who were responsible for notifying each incident of professional concern (primarily the iron infusion incident) were taken because of concerns relating to the standard of professional practice of Dr Pathmanathan. Her age had nothing whatsoever to do with any decision or action taken by or on behalf of the respondent. 327 Dr Pathmanathan's claims pursuant to the Sex Discrimination Act follow the same pattern and fail for the same reasons. Sex discrimination as defined at s 5 extends to both direct and indirect discrimination. Direct discrimination requires a finding that the aggrieved person was treated on the ground of his or her sex less favourably than persons of a different sex would be treated in circumstances that are the same or are not materially different. Indirect discrimination occurs on the ground of sex if the aggrieved person is subject to the imposition or proposed imposition of a condition, requirement or practice that has or is likely to have the effect of disadvantaging persons of the same sex. Dr Pathmanathan contends unlawful discrimination in employment contrary to s 14, discrimination against her as a contract worker contrary to s 16 and/or unlawful discrimination in the provision of services or the making available of facilities on the ground of her sex, contrary to s 22. These claims also fail at the fundamental threshold that Dr Pathmanathan has not established that any of the decision-making or conduct of the respondent of which she complains was because of, or included reasons that related to, her sex. 328 Dr Pathmanathan also asserts discrimination on the basis of an imputed disability, her psychological state, contrary to the Disability Discrimination Act. This claim fails for two reasons. One, at the factual level Dr Pathmanathan has failed to establish that she was subject to direct or indirect discrimination (ss 5 and 6) in any of the possible areas of operation of the Act: employment discrimination (s 15), discrimination against contract workers (s 17), access to premises (s23) or the provision of services or facilities (s 24). Whilst it is true that the Medical Board and AHPRA formed the view in December 2014 that Dr Pathmanathan may suffer from an impairment, which on the evidence must have been a concern about her psychological state, and that view was unfounded (arguably an imputed disability within the meaning of disability at s 4), the respondent did not act to suspend Dr Pathmanathan's accreditation by reference to her psychological state. This issue did not arise until well after the suspension decision was made and implemented and it was a view taken by the Medical Board which cannot be attributed to the respondent. 329 The other is that this claim was not made to the Commission as a component of Dr Pathmanathan's complaint as lodged on 17 November 2017 or as supplemented on 20 February 2018. Section 46PO(3) of the Commission Act requires that the unlawful discrimination alleged in this proceeding "must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint" or "must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint." The failure to mention unlawful discrimination contrary to the Disability Discrimination Act in the complaint as lodged, or supplemented, with the Commission is fatal for the simple reason that this claim is substantially wider and different in character to the matters initially complained of: Cumaiyi v Northern Territory of Australia [2020] FCA 1299 at [14]-[18] per White J. 330 Finally, I should deal two other arguments of Dr Pathmanathan. One is the intersectionality of protected attributes contention which is relied on as supporting her individual claims of discrimination. Even if one assumes that the intersection of one or more attributes is relevant to the determination of discrete claims pursuant to the individual statutes, this argument of Dr Pathmanathan does not assist in establishing any of those claims for the reason that each fails at the threshold of discriminatory conduct. 331 The other is the way in which Dr Pathmanathan framed her discrimination claims, ultimately, in her oral closing submission: that I should find that there was a cabal of white, senior, male doctors who, by unlawful means, were determined to end her career. There is absolutely no basis in any of the evidence to support a finding to that effect. It is untenable and scandalous. 332 For these reasons, the unlawful discrimination claims fail.
Breach of contract 333 I am not satisfied that Dr Pathmanathan and the respondent entered into a contractual relationship when the application for accreditation made on 7 November 2011, was granted by the respondent on 23 February 2012. I have set out the respondent's letter above. Accreditation was granted in accordance with the respondent's By-Laws. Accreditation is defined at cl 1.1 as a process by which a credentialed practitioner "is granted authority to provide health care services with specified limits" within a division of the hospital. Once accredited, a practitioner may exercise the rights conferred by cl 7.1: to admit patients and to consult and attend to patients within the hospital. Each accredited practitioner remains responsible for the care and treatment of his or her admitted patients in accordance with cl 7.2. A grant of accreditation is liable to suspension or termination in accordance with cl 27.2. No consideration is paid by or to an accredited practitioner for the grant of accreditation, or the subsequent right to admit and to provide medical services to patients at the hospital. 334 Clause 34 provides that no practitioner has any right, interest or legitimate expectation to any one or more of: the grant of accreditation, re-accreditation, the terms, conditions or privileges of accreditation. It also provides that the By-Laws exist only for the purpose of recording the procedures that will be observed and followed in the accreditation process and they do not exist for the purpose of conferring on any practitioner "any legally enforceable rights". 335 In some circumstances it has been concluded that an accreditation process may be contractual: Pisano v Health Solutions (WA) Pty Ltd [2014] WASC 356. The contrary conclusion was reached in Page v Healthscope Operations Pty Ltd [2016] NSWSC 1608 where Wilson J reasoned (at [63]), in the case of an anaesthetist, that the agreement of the practitioner: "to abide by the By-laws was no more than a promise he made to gain conditional access to the [hospital]" and "gave no promise or guarantee of anything of value in return for the plaintiff's promise". Justice Steward doubted that a contract existed between Dr Pathmanathan and Healthscope Operations Pty Ltd in a separate claim that she commenced, and which he dismissed summarily for failing to disclose a reasonable cause of action: Healthscope at [75]-[82]. 336 Whether the process of accrediting a medical practitioner with a right to admit and to provide medical services to patients at a hospital is contractual, necessarily in each case turns on a close examination of the facts. In this case, Dr Pathmanathan did not pay a fee to become an accredited practitioner. She was not subjected to an obligation to pay any fees to the respondent in respect of patients of hers admitted to the hospital. The grant of accreditation did not oblige her to admit any, or any minimum, number of patients. Dr Pathmanathan at all times retained her status as an independent medical practitioner, required to exercise her professional judgment but to do so in a way that complied with relevant professional standards and, from time to time, the policies practices and procedures as determined and published by the respondent. There was no promise of any value by the parties to this arrangement. Moreover, cl 34 expressly provides that nothing in the By-Laws, pursuant to which the accreditation was granted, conferred in favour of Dr Pathmanathan any legally enforceable right. These considerations compel the conclusion that there was no contract between Dr Pathmanathan and the respondent. The arrangement was no more than a licence. 337 In any event, even if there was a contract, or it could be said in favour of Dr Pathmanathan that some form of rights in her favour arose out of the By-Laws, on my findings Dr Henderson was entitled to and did suspend Dr Pathmanathan on 11 November 2014 in accordance with the procedure at cl 27.2 of the By-Laws in that he did not then have confidence in her ability to practise at the hospital because of her practice, her standard of practice, competence or general behaviour or her ability to conduct her practice to an appropriate or proper professional standard. 338 For these reasons the contract claims fail.
Negligence 339 Assuming favourably to Dr Pathmanathan that the respondent owed to her a common law duty of care to provide a safe work place, as the occupier of the hospital, extending to a duty to ensure that the hospital as a work place was free from bullying, harassment and/or discrimination this claim fails on the basis that Dr Pathmanathan has failed to establish that the respondent, or persons for whom it must accept legal responsibility, engaged in conduct that amounted to bullying or harassment, quite apart from my conclusion that Dr Pathmanathan has failed to establish that she was subject to unlawful discriminatory conduct by reason of her age, sex, race or imputed disability. 340 To the extent that this claim embraces the contention that the respondent was subject to a duty, actionable in negligence, to afford procedural fairness by conducting a thorough and objective investigation, it fails for two additional reasons. One, a denial of procedural fairness, absent a contractual right to it, does not found a cause of action in negligence: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 45, Deane J; New South Wales v Paige [2002] NSWCA 235 at [158]-[177]. 341 The other is that I have concluded in any event that there was no denial of procedural fairness by the respondent prior to the suspension decision.
Fraud and fraudulent misrepresentation 342 As explained by Gleeson CJ in Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 at [17] the tort of deceit "provides a legal remedy for harm suffered in consequence of dishonesty". There is no basis in the evidence that supports a finding that the respondent or any persons for whom it must accept legal responsibility caused fraudulent complaints to be made about Dr Pathmanathan, dishonestly made false statements relating to her professional conduct to third parties, permitted or acquiesced in the circulation of malicious rumours about her or otherwise acted dishonestly in the investigation of complaints about her. As I have explained, these claims by Dr Pathmanathan are scandalous and untenable.
Intimidation 343 It is exceptionally difficult to understand how Dr Pathmanathan puts this protean claim in her pleadings. In her statement of claim, one sees the contention that the respondent "wields significant power and influence in the healthcare, legal and political communities" and on that premise acted to injure Dr Pathmanathan by suspending her right of accreditation on 11 November 2014. Apparently in support of that contention, one sees another reference to the "circuit of power" whereby it is contended that the respondent caused MDA, Tottle Partners, Clayton Utz, AHPRA and the Medical Board to subsequently impose conditions upon her right to practice which in turn prevented her from seeking or holding accreditation at other hospitals. To this, Dr Pathmanathan adds that the respondent's "staff and accredited practitioners unlawfully colluded, intimidated, induced and interfered with" her commercial and regulatory relationships with intent to cause her injury and loss. None of this is intelligible. 344 In her reply, Dr Pathmanathan asserts that the respondent interfered with her right to independent and free legal representation in responding to the allegations made against her by the respondent and AHPRA. It is also said that from 2013 the respondent's "senior accredited practitioners and staff" acted to intimidate third parties who had a business relationship with Dr Pathmanathan by permitting malicious rumours and false complaints to circulate and be made. From this insecure foundation, Dr Pathmanathan next asserts that the respondent induced its nursing staff "to file fraudulent complaints" about her conduct. Thereafter, the respondent "implicitly threatened" MDA to appoint certain lawyers to act on its and Dr Pathmanathan's behalf. In support of the contention that the respondent made threats to commit an unlawful act, Dr Pathmanathan goes so far as to allege that it "induced" MDA, Tottle Partners and Clayton Utz "to commit fraud, negligence, unlawful discrimination, defamation, and breach of insurance contract". Next it is said the person threatened complied by acting to indefinitely suspend Dr Pathmanathan's accreditation with the consequence that it ended her career. 345 In her written closing submissions, Dr Pathmanathan did not abandon these claims, though she limited the focus of her attention to an asserted inconsistency in email correspondence between Dr Watts, a consultant anaesthetist who made an affidavit and gave evidence for Dr Pathmanathan, and Daniel Heredia, the Director of Medical Services at Hollywood Hospital, dated 11 November 2014 and his oral evidence which Dr Pathmanathan contends evidences that he was "induced by explicit or implicit threat" to comply with the respondent's demands. The email commences by referencing a discussion between Dr Watts and Dr Pracilio concerning Dr Pathmanathan. The question of imposing restrictions on the right of Dr Pathmanathan to practice is noted as "a possibility". Dr Watts then suggests to Daniel Heredia that "we should have a plan if restrictions are put in place" and that it may also be "sensible to consider a follow-up discussion to put in place some more formal guidance" at Hollywood Hospital. 346 In cross-examination, Dr Watts accepted that he had a discussion with Dr Pracilio, and was briefly informed as to the nature of the allegations made against Dr Pathmanathan. He confirmed that Hollywood Hospital had "similar concerns" with respect to Dr Pathmanathan's style of practice. Dr Watts accepted that he told Dr Pracilio about those concerns which he described as "not an absolute empty notebook with respect to this doctor." The concerns that he held were the subject of detailed cross-examination. He was also asked to express his opinion as to whether self-cannulation of an iron infusion during a surgical procedure was in accordance with appropriate professional practice to which he answered, not unexpectedly, that it was not. 347 In re-examination, Dr Watts was asked why he discussed the subject of the professional conduct of Dr Pathmanathan with Dr Pracilio. Dr Pracilio in his evidence confirmed that he discussed the allegations concerning Dr Pathmanathan with Dr Watts on 8 November 2014. Dr Pracilio denied that he suggested to Dr Watts that the accreditation of Dr Pathmanathan at Hollywood Hospital should be suspended. In re-examination, Dr Watts stated that he discussed the matter with Dr Pracilio because of the notification received from the head of the department at the hospital. In his view there was enough "circumstantial evidence" to raise the matter with Dr Heredia. 348 I have taken the time to address this issue in a little detail, to simply demonstrate that there is absolutely nothing in this evidence which founds the contention that Dr Pracilio explicitly or implicitly made a demand of Dr Watts together with a threat to commit some form of unlawful act, unless the demand was complied with. The contention of Dr Pathmanathan is nonsensical. 349 The other specific allegations under this head of claim are that on or about 15 December 2014, Dr Barry was threatened not to provide a witness statement and Mr Chandraratna was "told" not to become involved with Dr Pathmanathan's case. In cross-examination, Dr Barry was taken to a text message of 15 December 2014 from Dr Pathmanathan asserting that her lawyers had been unable to contact Dr Barry, apparently for the purpose of obtaining a witness statement from her. Dr Pathmanathan then asserted by way of a question that no further response had been forthcoming from Dr Barry and ultimately asked whether there was any reason why Dr Barry had not provided a witness statement in support of Dr Pathmanathan. She answered that she did not recall any further correspondence requesting a witness statement adding: I was also a bit distressed by an interaction with one of the other anaesthetists and I realised that from him talking to me that I was going to be blamed for the iron infusion and I really didn't want to be involved. 350 That anaesthetist was identified by name. He worked at a different hospital operated by the respondent. It was not put to Dr Barry that she was somehow threatened by the respondent not to provide a witness statement. 351 Dealing next with the specific assertion concerning Mr Chandraratna, on 17 December 2014, he provided an email to Tottle Partners which set out his recollection of the iron infusion incident. He concluded by stating his belief that Dr Pathmanathan "is a competent anaesthetist". In cross-examination, he was asked whether he or anyone else had been "threatened in terms of giving information about the iron infusion", to which he answered that he had not been. It was not put to him that he was otherwise "told" not to become involved with Dr Pathmanathan and her case. 352 Finally a generic submission is made by Dr Pathmanathan that: A number of documents and evidence record temporal instances where the Respondent had communicated with third parties seeking them to discriminate, boycott, restrict her work, propagate publications of misinformation and disinformation about the Applicant, and/or otherwise placed her under duress to cause loss of career and a severe mental health impairment. 353 Dr Pathmanathan did not identify any of the evidence relied upon by her as supporting this serious assertion. There is no credible evidence which supports any of the ways in which Dr Pathmanathan contends that the elements of the tort of intimidation are made out. Her contentions, no matter how expressed, are untenable. This claim fails.
Unlawful interference with trade or business relations 354 For this claim, Dr Pathmanathan casts her net to 1706 and the decision of Holt CJ in Keeble v Hickeringill (1706) 11 East 574; 103 ER 1127 at 575: "… [H]e that hinders another in his trade or livelihood is liable to an action for so hindering him." It is generally accepted that this proposition is stated too widely: Balkin & Davis, Law of Torts, 6th ed (Balkin & Davis) at [20.4]. It is doubtful that the tort is recognised in Australia: Sanders v Snell (1998) 196 CLR 329 at 341. On the assumption that it is, Balkin & Davis at [21.27] state its elements as: The tort of unlawful interference with trade, is now fashioned by [OBG Ltd v Allan [2008] 1 AC 1) involves three parties and has two distinct elements. The plaintiff must demonstrate (a) that the defendant engaged in wrongful interference with the actions of a third-party in which the plaintiff has an economic interest, and (b) that the defendant's intention was that the conduct would cause loss to the plaintiff. 355 Dr Pathmanathan's attempt to prove these elements fails at the elementary level: there is no evidence that the respondent engaged in some form of "wrongful" interference with the actions of any of the third parties the focus of Dr Pathmanathan's attention: professional colleagues, MDA, the Medical Board of Australia, AHPRA or other hospitals. To the extent to which the respondent communicated its concerns about the professional practice of Dr Pathmanathan, and/or notified those matters of concern to AHPRA, it acted entirely lawfully and appropriately for the reason that patient care and patient safety is paramount, which point was eloquently made by Professor Michael in his evidence-in-chief when asked about the relative degree of risk arising from the allegations made against Dr Pathmanathan, which evidence I have earlier set out and find according to.
Conspiracy 356 Conspiracy and conspire as a noun and verb feature very prominently in the pleadings and the evidence of Dr Pathmanathan. The conspiracy theories tend to be enveloped within the claims of interference with economic relations and intimidation. An example is the assertion that the respondent conspired with MDA to interfere with Dr Pathmanathan's legal representation provided by Tottle Partners and Clayton Utz, which is characterised as an "obstruction of justice". In a further iteration, Dr Pathmanathan contends that the respondent conspired with MDA, Tottle Partners, Clayton Utz, AHPRA and the Medical Board of Australia "to damage the Applicant's ability to hold medical registration, her broader reputation and ability to gain hospital accreditation at other sites." Separately there is a contention that an employee of AHPRA conspired with a lawyer at Tottle Partners to coerce Dr Pathmanathan into providing a voluntary undertaking to AHPRA. 357 Dr Pathmanathan in her written closing submission casts her net even more widely asserting that the respondent interfered with: …her third-party professional relationships to cause exclusion and boycott by those third parties, creating a hostile workplace by collecting complaints, omitting investigation, suspending as a disciplinary action, forcing voluntary surrender of accreditation at their organisation, interference with the applicant's medical licensure with AHPRA and MBA to cause regulatory restrictions, publications and loss of licensure, and causing the publication of imputations that she has a severe mental health impairment causing loss of employment and opportunities for employment. 358 This conduct is then asserted to be part of the plan to indefinitely suspend the practising rights of the applicant as the fruition of an agreed plan put in place some years ago by "a group of doctors with nodal positions at third-party organisations." 359 The elements of the tort of conspiracy require proof that the respondent did, by the use of lawful or unlawful means, enter into an agreement with someone else, which was performed and caused damage to Dr Pathmanathan: Crofter Hand Woven Harris Tweed Company Ltd v Veitch [1942] AC 435 at 439 per Viscount Simon LC. 360 There is simply no evidence that the respondent acted in concert with any of the asserted co-conspirators to cause damage to Dr Pathmanathan. I do not doubt that Dr Pathmanathan believes this to be so, but her belief is neither rational nor supported by any of her extensive evidence. These assertions are no more than wild speculation and are scandalous. 361 This claim fails.
Breach of trust and other equitable claims 362 The foundational premise of these claims is simply not made out. At no point was there a trust relationship between the respondent as trustee and the applicant as beneficiary, either express, implied, resulting or constructive. No property was held by the respondent for the benefit of Dr Pathmanathan. 363 The related claim of breach of fiduciary duty similarly fails in that there is no category of accepted fiduciary relationship nor, in this case, any evidence that the respondent undertook to act for and on behalf of or in the best interests of Dr Pathmanathan: Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 96-97 per Mason J. 364 The breach of confidence claim fails for the simple reason that there is no instance of publication by the respondent of confidential information of the applicant that was improperly obtained nor information that was imparted by Dr Pathmanathan to the respondent in confidence and which "ought not to be divulged": Lord Ashburton v Pape [1913] 2 Ch 469 at 475 per Swinfen Eady LJ. 365 Whilst it may be in the particular circumstances of this case that Dr Pathmanathan provided to the respondent "medical, dental, commercial and financial information" in accordance with her closing submission, which may have attracted an obligation binding the conscience of the respondent not to misuse such information, the disclosure which is asserted occurred on or about 8 November 2014 when Dr Pracilio communicated the substance of complaints and concerns that he held about those complaints to other hospitals. The flaw in Dr Pathmanathan's claim is that Dr Pracilio only passed on the fact of certain professional conduct complaints and the substance thereof. None of this information was imparted by Dr Pathmanathan to the respondent in confidence. 366 The final equitable claim, to the extent to which it is capable of being identified, is that somehow the respondent acted unconscionably in publishing false accusations to AHPRA, designed to place Dr Pathmanathan under duress and otherwise acted to undermine her professional reputation and ability to practise. In formulating these claims, Dr Pathmanathan in a very misconceived way relies on cases that are concerned with an unconscionable denial of equitable interests following the collapse of a personal relationship: Muschinski v Dodds (1985) 160 CLR 583. 367 Unconscionable conduct is not a freestanding principle that may be invoked because Dr Pathmanathan considers that she has been unfairly treated and disadvantaged: Lenah Game Meats at [17] per Gleeson CJ. Dr Pathmanathan has failed to identify how any recognised equitable principle which applies to address unconscionable conduct is engaged on the facts of this case. 368 For these reasons, each of the equitable claims fail.
Invasion of privacy 369 The tort of invasion of privacy is yet to be recognised in Australia: Smethurst v Commissioner of the Australian Federal Police (2021) 272 CLR 177; [202] HCA 14 at [86]-[88], Kiefel CJ, Bell and Keane JJ. Dr Pathmanathan, acknowledging this difficulty, nonetheless invites me to do so and to formulate the principles of the tort. She asserts that the collection and public dissemination of her "medical activity, patient cases, and personal health information" is "contrary to the interests of preserving human dignity" and is protected by a tort of privacy. 370 I decline Dr Pathmanathan's invitation, framed by reference to publicity which paints a person in a false light, which is a recognised category of invasion of a right to privacy in the United States: Lenah Game Meats at [120]-[128], Gummow and Hayne JJ. The evidence does not establish the elements of that tort, even if it were open to me to recognise a tort of invasion of privacy as part of Australian law. There is no basis in the evidence to conclude that the respondent publicised a matter concerning the private life of Dr Pathmanathan, which matter was highly offensive to a reasonable person and not of legitimate concern to the public. 371 The respondent published to other hospitals, and to AHPRA as the regulator, allegations concerning the conduct of Dr Pathmanathan which it believed to be true. The incidents of concern related to the professional conduct of Dr Pathmanathan. This did not concern the private life of Dr Pathmanathan. Moreover, and to the extent that AHPRA and the Medical Board of Australia became concerned about the psychological health of Dr Pathmanathan, that was not a matter which the respondent raised with either. 372 This claim fails.
Defamation 373 Dr Pathmanathan asserts that the respondent caused to be published defamatory matter on 8 November 2014, when Dr Pracilio spoke to representatives of other hospitals, by republishing the letter of 11 November 2014 of Dr Henderson and by publishing further allegations in the letter of 26 November 2014. It is further asserted that when AHPRA published on its website the restrictions imposed upon Dr Pathmanathan, it did so "in aid or as a channel for" the respondent and that on other unspecified occasions, publications relating to Dr Pathmanathan were apparently made to prospective employers or other hospitals. 374 The defamation claims have no merit whatsoever. Dr Pathmanathan ignores s 15 of the Limitation Act which imposes a statutory time bar or one year to the commencement of a proceeding following the publication of defamatory matter. The respondent pleads this defence. Each of the identified publications occurred well outside of that time. 375 Dr Pathmanathan also ignores the qualified privilege defence relied upon by the respondent pursuant to s 30 of the Defamation Act 2005 (WA): that each of the recipients of the information published by it clearly had an interest or an apparent interest in receiving the information, the respondent published the information for that purpose and the conduct of the respondent was reasonable in the circumstances of each publication. Plainly on my findings of fact each of these elements is made out. 376 Further, Dr Pathmanathan does not address another defence that the respondent relies upon: s 237(1)(d) of the National Law provides for immunity from suit, and in particular there is no liability for defamation, incurred by a person who makes a notification or gives information in the course of an investigation for the purposes of the National Law in good faith. 377 Despite these matters being pointed out to Dr Pathmanathan by Steward J in relation to her claims for defamation against another hospital in Healthscope at [109]-[114], the defamation claims were maintained throughout this proceeding. 378 These claims fail.
Torture 379 Manifestly, Dr Pathmanathan has not been tortured by the respondent. That she feels aggrieved by the consequences of the events that she has closely interrogated in the course of this proceeding, which at times resembled a Royal Commission of Inquiry into the respondent's practices, procedures and operation of the hospital, does not amount to the infliction of severe physical or mental suffering in order to obtain information from Dr Pathmanathan within the meaning of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In any event, these elements do not form a standalone tort, although aspects of torture may amount to, for example, battery. 380 This claim is of no merit and fails.
Equity in justice 381 This claim sits at the conclusion of Dr Pathmanathan's submissions, it would seem as some form of safety net in the event that each of her other claims fail. It does not amount to a recognised cause of action and it is not open to me to proceed, as Dr Pathmanathan submits I should to: …[A]ct in the best interest of the proper administration of justice to cure any wrongs and damage caused by the Respondent. To bring equity to the matter where the Applicant as an individual has limited resources and although has expert medical literacy has limited legal literacy and the Respondent as a multibillion-dollar [sic] corporation has abundant resources and a team with both expert medical and legal literacy. 382 Plainly that aspirational claim is not open as a matter of law, since the overruling of Beaudesert Shire Council v Smith (1966) 120 CLR 145 by the High Court in Northern Territory v Mengel (1995) 185 CLR 307
A late interlocutory application 383 After I reserved my decision following completion of oral submissions on 12 April 2023, Dr Pathmanathan filed an interlocutory application together with an affidavit of hers in support on 23 May 2023. It is in form an application for leave to amend her written closing submissions, in the form of 22 pages of amendments by way of additions, alterations to and elaboration of her written closing submission that was filed in accordance with my orders on 11 April 2023. Dr Pathmanathan at least understands that it is not open to a litigant to file a further closing submission without leave of the Court, but misunderstands that it is wrong in principle to manoeuvre around that obstacle by attaching the submission to the application. My Chambers advised Dr Pathmanathan and the solicitors for the respondent that I would not list this application for hearing, but rather that I would determine it on the papers subject to affording the respondent a right to make submissions in relation to the application. 384 On 24 May 2023, the respondent's solicitor submitted that the application is opposed, adding that: There are no matters raised by the Applicant which could not have been put before the Court at the hearing, nor are any matters raised which are capable of having any material impact upon the issues in dispute on the causes of action pursued by the Applicant. 385 Dr Pathmanathan was afforded substantial time at trial to make out her case. The evidence concluded on 20 March 2023 at which time I adjourned to receive written and oral closing submissions on 12 April 2023. Dr Pathmanathan filed extensive closing submissions on 11 April 2023 and elaborated her contentions orally for some hours on 12 April 2023. She had every opportunity to put her case in closing. 386 Various courts have long deprecated the filing of further submissions after judgment is reserved. Speaking of an appeal, but in terms equally applicable to a trial, in Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226, Allsop P, Giles JA and Tobias AJA said at [60]-[61]: The appeal is not an occasion merely for a discussion of the issues so that the parties can go away to marshall and develop their ideas further, bearing in mind the discussion with the court. It is the time and place when and where argument, and sometimes decision, occurs. Once the appeal is reserved, the parties' rights to argument and to be heard have been exhausted. The consequence of this is not only that sending submissions to the court is wrong, but also the court may (and generally will) ignore what has been sent. 387 The application was filed at a time when the drafting of these reasons was substantially advanced. It is not appropriate to grant leave to Dr Pathmanathan to re-agitate her arguments with different or new emphasis. I dismiss the interlocutory application, noting that I have not read the new submission.
Conclusion 388 There is no merit in any of the claims made by Dr Pathmanathan. The proceeding must be dismissed. I order as follows:
Pathmanathan
St John of God Healthcare Inc
FCA 65 Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460 Pisano v Health Solutions (WA) Pty Ltd [2014] WASC 356 Ponraj v Wycombe Services Pty Ltd [2023] FCA 118 Smethurst v Commissioner of the Australian Federal Police (2021) 272 CLR 177; [202] HCA 14 Walker v State of Victoria (2012) 297 ALR 284; [2012] FCAFC 38 Watson v Foxman (1995) 49 NSWLR 315 Balkin & Davis, Law of Torts, 6th ed (LexisNexis 2021) Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) Goldblatt, B "Intersectionality in International Anti-discrimination Law: Addressing Poverty in its Complexity" (2015) 21(1) Australian Journal of Human Rights 47
[2014] VSCA 348
[2014] WASC 356
(1990) 170 CLR 1
(2001) 208 CLR 199
(2011) 81 NSWLR 498
(1966) 120 CLR 145
(2008) 169 FCR 59
(2014) 45 VR 571
(1984) 156 CLR 41
(2006) 226 CLR 551
(2013) 252 CLR 168
(1985) 160 CLR 583
(1995) 185 CLR 307
(2021) 272 CLR 177
(2012) 297 ALR 284
(1995) 49 NSWLR 315
(1988) 166 CLR 186
(1998) 196 CLR 329
[2001] HCA 63