Legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 49, 68

Health Professionals Act 2004 (ACT) ss 18, 47, 122, 137, Pt. 12

Health Professionals (ACT Medical Board Standards Statement) Approval 2006 (No.1) (Notifiable Instrument NI2006 - 175)

Health Professional Regulations 2004 (ACT), ss 114, 115, 136, 137, 139, 157

Case law: Bell v The Chiropractors Board of South Australia [2006] SASC 250

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429

Health Care Complaints Commission v Wallach [2004] NSWSC 927

HCCC v Nicholls [2010] NSWNMT 5

That pursuant to Section 68 (3) of the ACT Civil and Administrative Tribunal Act 2008 (ACT):

1. The decision of the Professional Standards Panel of the Respondent made on 18 June 2009 be set aside;

2. The Tribunal is not satisfied to the degree required that any of the allegations against the Applicant set out in the notice of enquiry dated 15 April 2009 have been made out.

1. This is an application to review a decision made by a Professional Standards Panel ("panel") pursuant to the Health Professionals Act 2004 (ACT) ("HP Act"). The panel made a decision that Dr Leslie Yeaman, a registered medical practitioner specialising in the field of urology ("the doctor") was guilty of the following breaches:

• (i) the doctor contravened the required standard of practice as set out in Section 137 of the Health Professionals Regulations 2004 (ACT) ("HP Regulations"); and

• (ii) the doctor breached the required standard of practice by failing to provide good clinical care pursuant to the code of conduct set out in the Standards Statement notified 16 May 2006 pursuant to Section 139 of the HP Regulations.

2. The panel determined that the doctor does satisfy the suitability to practice requirements as set out in Sections 114 (1) (c) and 115 (1) (b) of the HP Regulations.

3. The doctor has appealed to this Tribunal against the findings numbers (i) and (ii) above, by an application for review dated 18 August 2009. The grounds set out in the application were that:

- the decision-maker's findings were not supported by evidence before the decision-makers; and

- the decision-maker's findings were not supported by the decision-maker's reasons for the decision.

1. Under Part 12 of the HP Act, the Respondent ACT Medical Board ("board") as a health profession board under the HP Act established the panel to enquire into the practice of the doctor. The decision under review is a decision of that panel.

2. Under Section 47 of the HP Act, provision is made for the review of decisions. Section 47 provides:

"in this part: reviewable decision means a decision prescribed by regulations."

1. Regulation 157 AA of the HP Regulations provides that the following is prescribed as a reviewable decision for the purposes of Section 47:

"A decision mentioned in schedule 20, column 3 made under a provision mentioned in column 2 in relation to the decision."

Schedule 20 of the HP Regulations provides in item 1, column 3, that a decision of the professional standards panel is a reviewable decision when made under Section 122 of the HP Act.

"After an enquiry about a health professional, a professional standards panel must decide whether

(a) the health professional is contravening, or has contravened, the required standard of practice or does not satisfy the suitability to practice requirements; or

(b) the health professional is putting, or has put, public safety at risk."

1. If the professional standards panel is satisfied that the health professional has breached either or both of these sections, there are various decisions that it can take. These include counselling the health professional, or requiring additional training or supervision that the professional standards panel may think fit. None of those were ordered. The board noted in its reasons for decision that the doctor had acted reasonably at the time based on his assessment of the patient's condition and his own state of knowledge in 2002. The panel was of the view that no further action was necessary.

"If the professional standards panel acts under subsection (2) other than under paragraph (i) or (j) the act is an act of the health profession board."

In this case, no action under either of the subparagraphs referred to was made. Accordingly, the decision of the professional standards panel is the act of the board.

1. What the doctor it is left with are two adverse findings concerning a contravention of the required standard of practice and a failure to provide good clinical care. Obviously, such findings are serious matters for a person in his position.

2. This Tribunal is established by the ACT Civil and Administrative Tribunal Act 2008 (ACT) ("ACAT Act"). Section 49 of the ACAT Act provides that a person who is interested in or whose interests are affected by a decision that constitutes a reviewable decision for the purposes of the HP Act, may apply to the Tribunal for review of a reviewable decision. As noted in paragraph 6, this is a reviewable decision. Accordingly, this matter is properly before the Tribunal for review pursuant to the ACAT Act.

3. Under Section 68 (2) of the ACAT Act, where the Tribunal has the power to review a decision of an entity, it may exercise any function given by any other act to that entity. The Tribunal is then directed by Section 68 (3) to make an order to:

(ii) remit the matter that is the subject of the decision for reconsideration by the decision maker in accordance with any direction or recommendation of the tribunal."

1. In accordance with the provisions of this section, the Tribunal conducted the application as a new hearing to satisfy itself whether "the decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made."[1]

THE OBLIGATIONS UNDER THE HEALTH PROFESSIONS ACT

1. Section 18 of this act specified the required standard of practice. The terms of it are as follows:

"(1) The required standard of practice, for a health professional, is the exercise of professional judgement, knowledge, skill and conduct at a level that maintains public protection and safety.

(2) A regulation may prescribe, but does not limit, what behaviour does and does not meet the required standard of practice."

1. Chapter 4 of the HP Regulations allows a health profession board to decide what behaviour does and does not meet the required standard of practice and to set out those standards in a standards statement.

In addition to the detail that may be in a standards statement, Regulation 136 provides as follows:

"A registered health professional breaches the required standard of practice if the health professional engages in a standard of practice that endangers public health and safety".

"A registered health professional breaches the required standard of practice if the health professional engages in a standard of practice that demonstrates a lack of competence to practice, knowledge, skill, judgement or care by the health professional."

1. The board has approved a standards statement in relation to medical practitioners requiring the provision of good clinical care in the ACT.[2] It is against the provisions of Section 18 of the HP Act and Regulations 136 and 137 and the provisions of the standards statement that the conduct of the doctor has to be evaluated.

1. The proceedings against the doctor arose from his treatment of a 45-year-old male patient. The patient had a total left hip replacement operation on 22nd May 2002. The patient had a catheter inserted during the operation, which was removed on 24 May after the surgeon had seen the patient at 8am.[3] The nursing notes indicate that the patient subsequently had pain in the bladder and difficulty voiding. As a result, the catheter was re-inserted by the registrar on behalf of the surgeon later in the morning of 24 May. There is also a note for 24 May indicating that the patient has a history of intermittent urinary difficulties previously. The note for 24 May at 11.45am indicates that the catheter was inserted with considerable difficulty. The second catheter was removed on 26 May at approximately 3:30pm. There is a note to indicate that the patient walked for a short distance with ease at that time and there is no reference to an erection.[4]

2. In the afternoon or evening of 26 May, the doctor was asked by the orthopaedic surgeon to attend the patient because of concern about a persistent erection. This condition, being the maintenance of an erection without sexual stimulation or desire, known as priapism is recognised as a serious medical condition requiring attention.

3. The doctor attended the patient in the evening of 26 May as requested. The hospital notes indicate that the time was 22.30 hours, but the doctor gave evidence that he thought it was several hours earlier. The note following the first note in the doctor's handwriting in the records for 26 May is timed at 22.15 hours. It refers to the review by the doctor, and records the administration of the drug that he prescribed. This would indicate that the time of the earlier entry is incorrect and that the doctor saw the patient before 22.30. It also refers to the patient having had an erection since the removal of the catheter.

4. This would indicate that the patient had had the condition for about five hours before he was seen by the doctor, on the basis that the doctor saw him at about 20.30 hours on that day. There is no indication as to where the information about "erection since ? 14:00 hours" comes from, although the surgeon saw the patient at 12:30 hours and was sufficiently concerned to call in the doctor.
5. The doctor was committed to a surgery list at Bega on the following day and still needed to drive to that town from Canberra in the evening. He prescribed doses of Sudafed.[5] The doctor made arrangements for the patient to be seen by another senior and experienced urologist, Dr Hughes. The doctor gave evidence that he rang Dr Hughes that night to brief him on the patient. The doctor again rang Dr Hughes at about 6 am on the following day from Bega, and Dr Hughes attended the patient at about 8 am on 27 May. He instituted a treatment program including injections of certain drugs, which were not successful in reducing the priapism.

6. The doctor returned from Bega on 27 May and saw the patient at about 7:45pm.[6] The erection had still not subsided. The doctor decided to undertake a surgical "stab shunt" procedure next morning to relieve the pressure in the penis and reduce the erection to the normal flaccid state. He said that he did not feel that it was necessary to operate that night. This procedure was undertaken next morning and the erection slowly subsided. The patient was left with some erectile difficulties but these gradually improved over time.[7] At the time of the initial complaint to the Health Complaints Commissioner some two years later (5 June 2004) the patient still complained of significant loss of erectile function.[8]

An extract from the American Urological Association Education and Research Inc's publication "Guidelines on the Management of Priapism" (referred to as the "Guidelines") was before the panel and was accepted as an authoritative publication. It should be noted that it was copyrighted in 2003, and would not have been available until the time of publication.

The Guidelines indicate that priapism is a relatively rare disorder, and is a medical emergency. Two forms of priapism relevant to this case need to be considered.

Ischaemic or low flow priapism is the state where blood makes the penis erect but there is no satisfactory blood flow back into the body. On aspiration with a needle the blood is of a darker colour. The lack of oxygen and blood glucose may over time lead to a loss of erectile function because of damage to the tissues. The Guidelines note "Patients typically report pain."[9] One of the experts who provided a report to the board, Dr Brooks, noted that "low flow priapism is usually treated as a relative emergency due to the risks of inflammation and fibrosis occurring in the penis if left untreated for a prolonged period of time."[10] These cases are "associated with significant discomfort."[11]

The other expert who provided a report to the Health Complaints Commissioner, Professor Costello, also comments on the ischaemic or low flow priapism being "usually associated with considerable discomfort in the penis whereas high flow priapism is technically painless."[12]

Non-ischaemic or high flow priapism is a situation where the erection persists but the blood flow is sufficient to provide oxygen and associated nutrients to the tissues in sufficient quantities to avoid damage to the tissues. The Guidelines note: "Typically the penis is neither fully rigid nor painful... non-ischaemic priapism does not require emergency treatment."[13]

Dr Brooks notes: "High flow (non-ischaemic) priapism does not compromise the nutrition of the penis and does not result in prolonged deformity and is usually treated on an elective basis."[14] Professor Costello notes in his report, when discussing high flow priapism, "the majority of these cases resolve spontaneously and as the patient is not usually in severe discomfort it is reasonable to adopt expectant management in the first instance for cases of high flow priapism."[15]

The doctor gave evidence that in making an initial diagnosis of what form of priapism he was faced with, the issue of pain or the lack of it in the penis was one that was important in the initial diagnosis. 8. The other tests that were indicated by the Guidelines were aspiration of blood from the corpora to determine its colour, and thus judge its oxygen levels, or the pathology test of blood gas analysis.

9. Both Dr Brooks[16] and Prof Costello[17] concluded that the evidence indicated that the patient had a form of low flow or ischaemic priapism. It was on these reports that the panel based its judgement that the doctor had failed to satisfactorily diagnose and manage the patient's condition. Neither of these experts had seen the patient, nor had they been available for questioning before the panel itself. The doctor himself gave evidence and as the panel noted, engaged in a forthright and open interchange with members of the panel, which included a specialist urologist.

10. In this situation, the Tribunal considers that to rely on expert evidence as a basis for making a finding, where the expert's views are not subject to the same scrutiny as the doctor's, is a course that should be approached with caution.

THE ALLEGATIONS AND FINDINGS AGAINST THE DOCTOR

1. The panel considered three allegations against the doctor. They were as follows:

• (i) The doctor failed to adequately assess the patient's condition by failing to diagnose the type of priapism;

• (ii) The doctor failed to perform or arrange the performance of appropriate treatment, being an aspiration and intracavernosal injection, until 27 May 2002; and

• (iii) The doctor failed to adequately and appropriately treat the priapism by not achieving the detumescence of the patient's penis in a timely fashion, which may have led to long-term physical damage.

2. In matters of professional misconduct, or breach of standards, it is necessary that the allegations are made with precision and refer to specific acts or omissions alleged to fall below the required standards. Unless this is done, the doctor is not given clear notice of the case he has to meet. While an ongoing course of treatment as well as specific acts or omissions may constitute a failure to comply with proper standards, that does not avoid the requirement that the allegations and findings on those allegations be specific. Similarly, an adverse finding should refer back to the specific allegations made.

3. The panel's findings did not follow this process. The first finding is that:

"The allegations against Dr Yeaman, referred to at paragraph 2 above, are substantiated."

Presumably, the panel meant that this was an adverse finding on all three allegations.

1. Under the heading "Reasons for the Decision," the panel noted:

"The panel is unable to find strong support for a diagnosis of high flow priapism amongst the experts in this case. Conversely it is more likely than not that (the patient's) priapism was ischemic and accordingly required to be managed as an emergency. The failure of Dr Yeaman to do this may have affected (the patient's) sexual health, although this cannot be determined with any degree of certainty.[18]

On balance, the evidence presented at the hearing (including the forthright and open interchange between the panel and Dr Yeaman and the well researched and robust submissions by Dr Yeaman's legal representatives) is insufficient to persuade the panel that either Dr Hughes or Dr Yeaman had aspirated the penis either to attempt the detumescence in a timely fashion or took appropriate steps to assess whether the blood was dark or bright red in colour."[19]

1. These quotations indicate that the panel considered that it was up to the doctor to disprove the board's case, and that if he could not do so then an adverse finding could be made against him. This point is critical.

2. The findings are further complicated by the statement

"In the panel's view, Dr Yeaman acted reasonably at the time based on his assessment of the patient's condition and his state of knowledge in 2002."

The panel also expressed the view that it believed that the doctor "had learnt considerably from this experience and this hearing and has indicated that he would now act differently if presented with a similar situation." It is not apparent from the transcript that the doctor conceded that his diagnosis or treatment was inappropriate, or a breach of standards. It is not clear to the Tribunal what this comment is intended to add to or qualify in the findings.

1. There is considerable force in the argument of counsel for the doctor that if the doctor acted reasonably based on his assessment of the patient's condition, then he cannot be said to have breached the required standard of practice.

1. The board has the onus of proving the allegations it makes against the doctor. The question of the standard of proof that must be established needs further consideration.

2. Where a body is required to make a decision about the professional conduct of a practitioner, the standard of proof required is more than a balancing of the appropriate cases, with a preference for one over the other. The general formulation is that the body making the decision should be "comfortably satisfied, having regard to the gravity of the matter." The line of authority on this point goes back to the case of Briginshaw v Briginshaw[20] where Dixon J said:

"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgement if the question was whether some act had been done involving grave moral delinquency."

1. While the standard is a civil standard on the balance of probabilities, the degree of satisfaction required varies, depending on the gravity of the matter to be proved.

2. In Bell v The Chiropractors Board of South Australia[21] Debelle J quoted an extract from the case of Re Ward [1953 SASR 308] where Napier CJ with whom Ligertwood J agreed, said of the standard of proof on the charge of unprofessional conduct against a physiotherapist :

"It is not to be supposed that the board would find against the respondent, unless they were fully convinced of the fact, but I think that it is wrong to say that the judge requires the same strictness of proof as in the case of a criminal charge.-------. In my view the charges of a sufficient gravity and the consequences sufficiently serious that there must be a standard of proof higher than the mere balance of probabilities. For that reason the result is not to be reached by what Dixon J called "a mere comparison of probabilities" but instead the board, or on appeal this court, must feel "an actual persuasion" of the existence of the facts alleged against the appellant."

The court then referred to Briginshaw v Briginshaw.

1. In the case of Health Care Complaints Commission v Wallach[22] the following is an extract from paragraph 22 of the decision_:_

"The civil standard applies to allegations of bias. The principal expounded in Briginshaw and Briginshaw also applies. The court must be actually or comfortably satisfied of the fact alleged and the more serious the allegation the more the evidence that will be required to give comfort."

1. A recent example of the application of the Briginshaw test is the case of HCCC v Nicholls[23] where in paragraph 5 the Nurses and Midwives Tribunal of N.S.W.in that case defined the standard of proof required as follows:

"Although the standard of proof required to establish a complaint in this jurisdiction is essentially the civil standard, because of the seriousness of the allegations and the gravity of their consequences, the tribunal must be "comfortably satisfied" that the particulars of complaint had been established. This qualifies the civil standard that is applied by the tribunal."

1. A complaint of a failure to comply with professional standards is a serious matter for a medical specialist, or indeed any medical practitioner. It is likely to affect the way in which his peers and referring doctors regard him. Patients who are referred to the doctor and who have heard of the outcome but do not understand the complexity of the decision may reach unwarranted conclusions. All of these considerations lead to the conclusion that the seriousness of the matter requires the body making the decision to be "comfortably satisfied." The panel did not apply that standard, and its decision in that regard is therefore flawed.

THE FIRST GROUND OF COMPLAINT: FAILURE TO ADEQUATELY DIAGNOSE

The doctor has given evidence that his initial diagnosis on the evening of 26 May, when he was called in to consult on the case of priapism, was that the patient had a non-ischaemic priapism. The significant factor was the absence of pain in the penis.[24] It was this diagnosis that the doctor made in the period that he saw him and on which he based his treatment plan set out in the notes.

The patient had been through major surgery in the preceding few days. That surgery, the provision of a replacement left hip, was in the same general area of the body as the penis. It is understandable that he was at best in some discomfort from the surgery as well as being concerned about the erection. The patient had at that time ceased using patient controlled analgesia, and it was agreed at the hearing that there was no reasonable prospect that any pain in the penis itself was being masked by the analgesic.[25]

There was some discussion at the panel hearing as to whether a blood gas analysis should have been undertaken on blood aspirated from the penis. Dr Brooks notes "Arterial blood gases, whilst used, are not essential to differentiate the forms of priapism. ... I think it reasonable to assume, on the basis of the history, (the patient) had low flow priapism with an unknown cause."[26]

The doctor gave evidence that a blood gas analysis was not a procedure that he was familiar with in this context.[27] He also said that he had discussed this procedure with his colleagues and none of them had done it either.[28]

The history of the patient included the recent difficult catheterisation. The doctor was concerned that this was a urethral irritant that may have led to a reflex erection of a persistent nature.[29]

The hospital records for the relevant period indicate that the patient had a history of intermittent urinary difficulty previously, and that the re-insertion of the catheter was with considerable difficulty.[30] There is also a note that he has had "a slow stream for years."[31]

On 26 May at 1530, the catheter was removed. The notes record that the patient "walked for short distances with ease." There is no reference to an erection.[32]

When the doctor saw the patient at (probably) 8.30 pm on 26 May the patient had the erection. The doctor prescribed Sudafed, and noted that he would defer aspiration or injection until the morning.

The doctor's note for 22.30 hours on 26 May did not refer to a particular diagnosis of high flow as against low flow priapism. Whether this was an oversight or because the notes were directed to the issue of treatment rather than diagnosis, is not clear.

The hospital notes for 22.15 and 23.00 on 26 May refer to the continuing erection, but make no mention of pain. The following note for 27 May at 06.15 indicates that "the patient felt that there had been a small improvement and he stated that he was comfortable after voiding at 23.00 hours." The patient was understandably distressed. The doctor was contacted and ordered more Sudafed. 11. Because of his medical commitments in Bega the next day, the doctor handed over the care of the patient to Dr Peter Hughes by telephone on the evening of 26 May. Dr Hughes is a senior urologist of long experience. The Tribunal accepts that while he would have appropriate regard to the diagnosis and treatment plan of his colleague, this would not have stopped him from forming his own views and treating accordingly if he thought that the initial treatment was inappropriate and that a more interventionist approach such as surgery was immediately required.

Dr Hughes saw the patient at 8.50 on 27 May and noted in the records: "Persistent direction 18 hours, not painful and able to void." Dr Hughes injected the penis with phenylephrine from his private supply,[33] and later with methylene blue. No emergency surgery was suggested by Dr Hughes. At 15.00 on that date, the notes indicate that the patient was mobilising with ease but remained anxious and needed encouragement and reassurance.

The doctor saw the patient at 19.45 on 27 May on his return from Bega. He decided at that stage that there should be surgical intervention next morning. This was performed by way of a stab shunt procedure, and the patient's erection initially subsided in the theatre but re-occurred on waking up. It gradually declined subsequently over a couple of weeks.[34]

The medical history of the patient has been set out at some length because before making an adverse finding against the doctor on count number one of the notice of enquiry[35] the panel was required to be comfortably satisfied that the allegation had been made out, having regard to the gravity of the matter. As discussed previously, the Tribunal considers that the panel applied the incorrect test on this question.

There were two opportunities for diagnosis of the patient by the doctor. The first was the occasion of the original diagnosis on the evening of 26 May. The second was in the evening of 27 May. Count number one does not specify which of these times are alleged to have been the time of failure. While the allegation lacks the appropriate precision that the doctor is entitled to on this point, both should be considered.

It should be noted that priapism is, fortunately, a "relatively uncommon disorder" and "rare and usually unpredictable."[36] The doctor gave evidence that this was the first case that he had seen in Canberra and he had only had experience of a couple of cases overseas. The urological specialist on the panel acknowledged that the doctor's experience of the condition was not far from his own, and that he had not seen many cases himself.[37]

The Tribunal sets out the factors which bear on the test of being "reasonably satisfied." The patient had a history of urinary difficulty over the years. He had just had major surgery on his hip which required difficult catheterisation. There was pain and irritation in the penis when this undertaken. There was an absence of pain in the penis from the erection and there was the doctor's concern that the appropriate treatment for non-ischaemic priapism included a period of cautious treatment to avoid unnecessary complications. Having regard to all these, the Tribunal is led to the conclusion that it cannot be satisfied that the doctor failed on this occasion to diagnose the type of priapism in a manner which breached the required standard of treatment.

The second occasion for diagnosis or re-diagnosis was when the doctor returned from Bega. The doctor was then concerned that steps should be taken to achieve detumescence, but considered that the difficulty of organising the opening of a theatre and the return of staff did not warrant operating that night and that the procedure could be undertaken next morning without significant deterioration in the condition of the patient.

It is clear that the doctor obtained some support in his continuing diagnosis from the fact that the patient had been seen by Dr Hughes who, while trying the additional procedure of drug injections, did not assess the patient as requiring immediate surgery.[38]

While Dr Hughes did not give evidence or provide a statement, the doctor gave evidence that Dr Hughes had told him that he had aspirated the patient on injection. According to the doctor's recollection, Dr Hughes had told him that the colour of the blood was bright red and consistent with the diagnosis of non-ischaemic priapism.[39] The value of this conversation as evidence is limited by the fact that this was some time after the event and the circumstances of its telling are unclear.

Dr Hughes sent an e-mail to the doctor on 9 June 2009 indicating that on examination of the patient in 2002, the skin of the penis was the normal pink colour and the patient had told Dr Hughes that he had no pain in the penis, indicating high blood flow rate priapism.[40]

None of this is in the hospital notes. Counsel for the board attacked the strength of this evidence by the doctor but it is at least consistent with Dr Hughes forming a judgement that the patient's condition did not require immediate surgical intervention.

It should be noted that Professor Costello indicated that while he considered the doctor had misdiagnosed a patient, he said in his further report: "I do not have significant concerns regarding Doctor Hughes practice."[41]

Having regard to all of the evidence, the Tribunal is not satisfied that there was a failure to correctly re-diagnose the patient's condition on the second occasion.

Accordingly, the Tribunal finds that ground 1 of the notice of allegations has not been made out to the required degree.

The second allegation is based on the premise that an aspiration and intracavernosal injection was the appropriate procedure. The doctor's evidence supports the conclusion that these procedures were undertaken by Dr Hughes on 27 May. He had the care of the patient.

74. The essence of the allegation appears to be that the doctor should have undertaken those procedures on the night of 26 May, rather than providing in the notes[42] that these procedures were to be carried out next day. Having regard to the diagnosis made by the doctor and to his balancing the risks and benefits of waiting as against intervening, the Tribunal cannot be satisfied that this allegation is made out to the required degree.

1. The third allegation rests upon the same evidence as would be required to satisfy an adverse finding on grounds one and two. Detumescence of the patient's penis in a timely fashion was the outcome that was sought. The diagnosis by the doctor of the nature of the priapism had as an accepted consequence that intervention by surgery be deferred for a time to allow the penis to reduce naturally rather than being the subject of immediate surgery. The Tribunal cannot be satisfied to the required degree that this ground has been made out.

2. As indicated in paragraph 12 above, the Tribunal may substitute its own decision for that of the entity from which the application for appeal is made, and the Tribunal has decided to do so in this case. Accordingly, the Tribunal determines that the decision of the panel in this matter should be set aside. There will be no adverse finding on the allegations made against the doctor as contained in the notice of inquiry.

[1] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at p429 per Smithers J.

[2] Medical Board Standards Statement notified 16 May 2006 - notifiable instrument NI 2006-175

[20] Briginshaw v Briginshaw (1938) CLR 336

[21] [2006] SASC 250

[22] [2004] NSWSC 927

[23] [2010] NSWNMT 5

TRIBUNAL MEMBER/S: Mr C G Chenoweth, Presiding Member

DATE/S OF HEARING: 10 March 2010 PLACE: CANBERRA

DATE/S OF DECISION: 4 May 2010 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )