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MISCONDUCT BY HEALTH PRACTITIONERS:

DISCIPLINARY PROCEEDINGS,

CONSEQUENCES

AND CLASS ACTIONS†

ANNA ROBERTSON*

† Paper delivered to the 7th Annual National Obstetrics and Gynaecology Malpractice Conference, at Melbourne, on Monday 22 June 2015 *BSC, LLB (Monash), Barrister at the Victorian Bar practising in insurance and administrative law. She regularly acts on behalf of the Australian Health Practitioners’ Regulatory Authority in disciplinary and regulatory proceedings; and on behalf of medical defence insurers and private clients in administrative law cases including discrimination, health and information privacy and freedom of information; coronial inquiries (medical) and a range of common law insurance matters, including medical and other negligence claims. Anna has substantial experience appearing in class actions; having recently appeared at trial in the Kilmore East bushfires litigation and in the Murrindindi bushfires litigation. She may be contacted via T: (03) 9225 8539 E: anna.robertson@vicbar.com.au or via her clerk, Michael Green, T: (03) 9225 7222. Anna gratefully acknowledges the assistance of Jessica Clark, Bar Reader, Greenslist, in conducting research to prepare this paper.

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1. When a patient makes a complaint, suffers an adverse outcome, or worse dies, the conduct of

doctors, nurses and midwives’ (practitioners) comes under scrutiny. Practitioners may be

required to respond to employer investigations, health care complaints bodies, coronial

inquiries or other investigations. They may also be faced with criminal charges or civil

claims, or be required to defend their conduct to the Australian Health Practitioner Regulatory

Authority (AHPRA) or before a responsible tribunal1. This paper will focus principally on the

types of complaints which are notified to AHPRA; referrals to responsible tribunals and how

they are dealt with; and what practitioners can learn from recent cases including the recent

class action in A v Schulberg & Ors (the hepatitis C class action).2

Why do patients complain?

2. Patients make complaints generally because something has gone wrong and what they

expected to happen has not. Complaints cover a variety of areas including consultation,

communication, disclosure / consent, treatment, patient care, access to records.

3. How a complaint is handled depends on the nature of the complaint, and when and by whom

it is received. In some cases, a patient may make an initial complaint directly to the health

practitioner or to the relevant hospital or employer of the health practitioner. Depending on

the type of conduct complained about, it may be possible for the health practitioner or

employer to seek to resolve the complaint directly with the patient. However, in other cases,

the conduct of the health practitioner may be such that there are obligations on health

practitioners and employers to make a mandatory notification to AHPRA.

When is a mandatory notification to AHPRA required?

4. Not all conduct is required to be reported to AHPRA. For instance, if a patient complained

that there was a delay in a medical procedure being undertaken or that an appointment had

been cancelled, those would not require notification to AHPRA unless they resulted in the

patient being put at risk of harm. Generally complaints such as those can be managed by

either the health practitioner or a suitably qualified administrative staff member, speaking

with the patient, acknowledging and dealing with the patient’s problem.

1 The Health Practitioner Regulation National Law (National Law) as in operation in each Australian

state or territory came into operation on 1 July 2010. Section 5 of the National Law provides that a responsible tribunal is a tribunal or court that— (a) is declared, by the Act applying this Law in a participating jurisdiction, to be the responsible tribunal for that jurisdiction for the purposes of this Law as applied in that jurisdiction, or (b) is declared, by a law that substantially corresponds to this Law enacted in a participating jurisdiction, to be the responsible tribunal for that jurisdiction for the purposes of the law of that jurisdiction

2 A v Schulberg & Ors (No 2) [2014] VSC 258

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5. There is however, a mandatory obligation on health practitioners3 and employers4 to report

‘notifiable conduct.’5

6. Notifiable conduct in relation to a health practitioner means the practitioner has –

(1) practised the practitioner’s profession while intoxicated by alcohol or drugs; or

(2) engaged in sexual misconduct in connection with the practice of the practitioner’s

profession; or

(3) placed the public at risk of substantial harm in the practitioner’s practice of the

profession because the practitioner has an impairment; or

(4) placed the public at risk of harm because the practitioner has practised the profession in

a way that constitutes a significant departure from accepted professional standards.6

7. Where a registered health practitioner in the course of practising forms a reasonable belief

that another registered health practitioner has behaved in a way that constitutes notifiable

conduct7 or that a student has an impairment that, in the course of the student undertaking

clinical training, may place the public at substantial risk of harm,8 the first registered health

practitioner must notify AHPRA of the notifiable conduct or the student’s impairment.9

8. Voluntary notifications about a registered health practitioner may also be made to AHPRA.

These may include notifications by a patient, a family member of a patient or another third

party. Voluntary notifications can be made on the grounds that:

(1) the practitioner’s professional conduct is, or may be, of a lesser standard than that

which might reasonably be expected of the practitioner by the public or the

practitioner’s professional peers;

(2) the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the

practice of the practitioner’s health profession is, or may be, below the standard

reasonably expected;

(3) the practitioner is not, or may not be, a suitable person to hold registration in the health

profession, including, for example, that the practitioner is not a fit and proper person to

be registered in the profession;

(4) the practitioner has, or may have, an impairment;

3 National Law, s 141 4 National Law, s 142 5 National Law, s 140 6 National Law, s 140 7 National Law, s 141(1)(a) 8 National Law, s 141(1)(b) 9 National Law, s 141(2)

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(5) the practitioner has, or may have, contravened the National Law;

(6) the practitioner has, or may have, contravened a condition of the practitioner’s

registration or an undertaking given by the practitioner to a National Board; or

(7) the practitioner’s registration was, or may have been, improperly obtained because the

practitioner or someone else gave the National Board information or a document that

was false or misleading in a material particular.10

AHPRA process after notification made

9. Once a notification is made, AHPRA is required to refer the notification to the National

Board that registered the health practitioner or student11 and then to conduct a preliminary

assessment of the complaint to decide whether or not the notification relates to a person who

is a health practitioner or a student registered by the Board; whether or not the notification

relates to a matter that is a ground for notification; and whether or not it is a notification that

could also be made to a health complaints entity.

10. Assuming a preliminary assessment is made, a National Board may decide to take immediate

action in relation to the health practitioner or student:

(1) if the National Board reasonably believes that:

(i) because of the registered health practitioner’s conduct, performance or health, the

practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety; or

(2) the National Board reasonably believes that

(i) the student poses a serious risk to persons because the student

(A) has been charged with an offence, or has been convicted or found guilty of

an offence, that is punishable by 12 months imprisonment or more; or

(B) has, or may have, an impairment; or

(C) has, or may have, contravened a condition of the student’s registration or an

undertaking given by the student to a National Board; and

(ii) it is necessary to take immediate action to protect public health or safety; or

(3) the registered health practitioner’s registration was improperly obtained because the

practitioner or someone else gave the National Board information or a document that

was false or misleading in a material particular; or

10 National Law, s 145(1) 11 National Law, s 148

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(4) the registered health practitioner’s or student’s registration has been cancelled or

suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not

a participating jurisdiction.12

11. A National Board may investigate a registered health practitioner or student registered by the

Board if it decides it is necessary or appropriate13 because

(1) the Board has received a notification about the practitioner or student; or

(2) because the Board for any other reason

(i) believes the practitioner or student has or may have an impairment; or

(ii) for a practitioner –

(A) the way the practitioner practises the profession is or may be

unsatisfactory; or

(B) the practitioner’s conduct is or may be unsatisfactory; or

(C) to ensure the practitioner or student –

i. is complying with conditions imposed on the practitioner’s or

student’s registration; or

ii. an undertaking given by the practitioner or student to the Board.14

12. After considering an investigator’s report, the National Board must decide:

(1) to take no further action in relation to the matter; or

(2) to do either or both of the following:

(i) take the action the Board considers necessary or appropriate under another

Division;

(ii) refer the matter to another entity, including, for example, a health complaints

entity, for investigation or other action.15

13. A National Board must refer a matter about a registered health practitioner or student to a

responsible tribunal if –

(1) for a registered health practitioner, the Board reasonably believes, based on a

notification or for any other reason

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

12 National Law, s 156(1) 13 National Law, s 160(1) 14 National Law, s 160(1) 15 National Law, s 167

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(ii) the practitioner’s registration was improperly obtained because the practitioner or

someone else gave the Board information or a document that was false or

misleading in a material particular; or

(2) for a registered health practitioner or student, a panel established by the Board requires

the Board to refer the matter to a responsible tribunal.16

14. Once a referral is made to a responsible tribunal, the further conduct of the complaint will be

governed by orders made by the responsible tribunal.

What types of complaints have been referred to responsible tribunals recently?

15. The majority of health practitioner disciplinary cases which are referred to responsible

tribunals, such as the Victorian Civil and Administrative Tribunal, involve medical

practitioners. A smaller number of cases involve nurses, midwives as well as other health

professionals. Proportionally there are only a limited number of cases each year involving

obstetricians, gynaecologists or nurses / midwives involved in births. This of course is a good

thing.

16. The power given to the Tribunal in considering what, if any, disciplinary action to take

against a health practitioner, is protective in character.17 They are not intended to be

punitive.18 However, at times “.. deterring the person concerned from further inappropriate

conduct (specific deterrence), deterrence of other practitioners minded to conduct themselves

similarly (general deterrence) and facilitation of rehabilitation on the part of the

practitioner”19 may also be important.

17. The determinations which a tribunal makes are often influenced, not only by the nature of the

conduct complained about, but also by the degree to which the practitioner has acquired

insight into his or her offending conduct.20 The tribunal weighs the public interest in the

practitioner remaining in practice against the public interest in protecting patients and

ensuring that patients are able to rely on the relevant Board to appropriately regulate

practitioners.

16 National Law, s 193 17 Dickens v Law Society (Unrept, Supreme Court of Tasmania, 42, 1981 at 15-16); Psychology Board of

Australia v Mair [2010] VSC 628; Chinese Medicine Registration Board v Woo (Occupational and Business Regulation) [2010] VCAT 753 at [46]

18 Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183; Morris v Psychologists Registration Board (Unrept Supreme Court of Victoria, 19 November 1997, per Harper J at 12); Mullany v Psychologists Registration Board (Unrept Supreme Court of Victoria, 22 December 1997 per Gillard J at 12)

19 Medical Board of Australia v Jansz [2011] VCAT 1026 at [367] 20 Psychologists Registration Board v Schirmer [2009] VCAT 2349 at [45]; Medical Practitioners Board

of Victoria v Grolaux (No 2) [2009] VCAT 978 at [8]; Williams v Medical Board of Victoria [2008] VCAT 1784 at [99]

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18. Of the cases that are referred to responsible tribunals throughout Australia, the cases generally

fall into four categories:

(1) cases involving health practitioners becoming involved in inappropriate relationships

with clients; often of a sexual nature.

(2) errors in treatment and diagnosis;

(3) drug and alcohol use or prescription;

(4) record keeping and other issues such as informed consent.

Sexual misconduct cases

19. Cases alleging inappropriate relationships are commonly referred to tribunals. Such cases

often involve boundary transgressions. In Medical Board of Australian v Skehan21 VCAT

members Howard J (Vice-President), Dr Reddy and Mr Collopy, found that the doctor in

question had engaged in an inappropriate emotional relationship with an adult female patient

which in all likelihood involved sexual intimacy. The Tribunal considered this to be a “grave

transgression of ethical boundaries.”22 The doctor continued the relationship with the patient

after he ceased to be her treating practitioner. The Tribunal considered that the conduct should

be characterized as professional misconduct.23 It fell short of, to a substantial degree, the

standard of professional conduct observed by members of the medical profession of good

repute and competency. An appeal to the Court of Appeal24 failed.

20. In Wilks v Medical Practitioners Board of Victoria [2007] VCAT 2439 (17 December 2007)

three female patients of Dr Wilks made complaints about his sexually inappropriate conduct

towards them.

21. The first patient alleged that while Dr Wilks was prescribing a contraceptive pill for her, he

told her that he preferred to examine younger women and that older women did nothing for

him. He then confided to her inappropriate information of a personal sexual nature, and

shortly after the patient left the consultation room he sent an SMS message propositioning

her.

22. The second patient complained that during her first antenatal consultation with Dr Wilks, he

commented on how her breasts had grown and how he bet her husband loved that; he told

sexually explicit jokes; and he failed to provide appropriate patient privacy screens.

21 [2011] VCAT 1935 22 Ibid at page 3 23 Ibid at page 4 (although it is noted that this may be a typographical error and be intended to be a

reference to finding 2) 24 Skehan v Medical Board of Australia [2012] VSCA 9

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23. In relation to the third patient, Dr Wilks commenced a sexual relationship with her while she

was in a vulnerable condition. He did so in circumstances where he was seeing both the

patient and her husband for sexual problems and where he continued to treat them both as

their medical practitioner. Dr Wilks also misled the Medical Practitioners Board of Victoria

during its investigation by advising it that he had ceased treating the patient once his sexual

relationship with her commenced

24. A Medical Board panel found that Dr Wilks had engaged in unprofessional conduct as

defined in paragraphs (a), (b), (c) and (d) of the definition of “unprofessional conduct” in s

3(1) of the Medical Practice Act 1994, and that such conduct was of a serious nature. His

registration was cancelled effective from 22 May 2007 and he was disqualified from applying

for registration for a period of 5 years from 22 May 2007. Mr Wilks applied to VCAT for

review of that decision.

25. On appeal to VCAT, the decision of the Medical Board to cancel his registration was

affirmed.25 The decision disqualifying Mr Wilks from applying for registration under s 5 of

the Act for a period of 5 years from 22 May 2007 was varied so that he was disqualified from

applying for registration until 17 December 2010.

26. In its decision26 VCAT discussed why doctors must not engage in sexual relationships with

patients:

“Sexual relationships between patients and doctors are always inappropriate. Medical

practitioners are placed in a position of trust in the community and have available to

them intimate knowledge of their patients’ physical and psychological well being. This

places the practitioner in a position to exploit the trust that has been given to them.

The community expects that when they attend a medical practitioner, they will not be

regarded as potential sexual parties nor that their relationship with the doctor will be

sexualised. Likewise, the profession expects its members to refrain from using the

consulting room as a means of establishing sexual relationships with patients. To do

otherwise brings the profession into disrepute by reducing the trust that the community

has in the profession.”

Improper treatment or diagnosis

27. Improper treatment or diagnosis cases cover a spectrum of conduct. In relation to nurses and

midwives, the conduct may involve failing to properly triage a patient, failing to take an

appropriate history or explain risks, ignoring policies and guidelines of nursing and midwifery

25 Under s45A(h) of the Medical Practice Act 1994 26 Wilks v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2007]

VCAT 2439

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bodies with consequences to patient safety or it may involve conduct which is dangerous such

as prescribing or administering incorrect drugs. There are also cases where nurses have acted

beyond their role as a nurse or midwife.

28. In the case of doctors, conduct may involve misdiagnosis,27 performance of procedures

without taking appropriate safety precautions (i.e. failing to wear gloves);28 failing to

introduce drugs when required (for instance, drugs used for induction of labour)29 and

performing inappropriate procedures or improper performance of procedures30 and

mismanagement of patients.31

29. In some matters there is a very strong need to signal to the public and the profession that

certain types of conduct will not be tolerated. “The deterrent effect of disciplinary

proceedings on those in the profession who might be tempted to engage in such conduct and

the importance of maintaining the public’s confidence”32 cannot be underestimated.

30. Nursing & Midwifery Board of Australia v Barrett [2014] SAHPT 1 (11 March 2014) is an

example of a case involving extreme professional misconduct in the treatment or management

of a patient by a registered nurse and midwife where the tribunal considered it necessary to

impose severe sanctions on the health practitioner involved. In that case, a former midwife

arranged and/ or was involved with or present at, a series of homebirths. Four babies died.

31. In the first homebirth case, the mother, “S” went into labour. By 4.00am she started to push

and by 4.15am “S” was pushing with contractions. At 5.10am the head was crowned and at

5.20am the head was out. It was determined that the baby’s shoulders were stuck and at

5.30am the former midwife requested that a friend of the mother’s, who was present at the 27 A former gynaecologist, Graeme Stephen Reeves, has in April 2015 appeared in court charged with

manslaughter of a patient at the Hills Private Hospital in 1996. The patient died from septicemia caused by a misdiagnosed bacterial infection.

28 Health Care Complaints Commission v Hasil [2012] NSWMT 1 where complaints were made against an obstetrics and gynaecology registrar by 15 former patients. The complaints were in relation to inadequate records about patient care and treatment; inadequate or insufficient note taking regarding each patient; rudeness and the use of inappropriate language; performance of a procedure without wearing gloves; failure to introduce oxytocin (Syntocinon), at a reasonable time, and failure to notify the New South Wales Medical Board of the fact that he had been convicted of an offence

29 Health Care Complaints Commission v Hasil [2012] NSWMT 1 30 Nassief, Dr Samy Alfy [2013] NSWMPSC 9 where an obstetrician failed to respond or treat a number

of patients appropriately. The failures were many and varied but included by way of example, failing to treat or seek surgical assistance in relation to complications arising from the trauma caused to a patient’s right common iliac artery and vein; inappropriately conducting an infertility treatment on a patient and failing to conduct a hysteroscopy; failed to achieve an adequate standard of technique in the insertion of the trocar and the veress needle, and in the use of the camera.

31 Medical Board of Western Australia v Roberman [2005] WASAT 81 where the obstetrician failed to attend upon a patient for more than 4 hours or arrange for an alternate consultant obstetrician, senior registrar or registrar to attend the patient urgently to assess or undertake an urgent caesarean section, in circumstances where the patient had presented with suspected premature rupture of membranes at 25 weeks gestation, an abnormal fetal heart rate had been observed, the child was in an unstable oblique lie, and the doctor had received advice that the child was experiencing persistent tachycardia.

32 Honey v Medical Practitioners’ Board of Victoria [2007] VCAT 526 at [40]

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birth, call an ambulance and also attempt to insert her hand into the mother’s vagina to

remove the baby’s shoulder. Throughout this time the heart rate of the baby was being

measured using a Doppler; however the last recorded heart rate by the former midwife was at

4.45am and at that point it was 120 beats per minutes.

32. The baby was ultimately delivered after a delay of twenty minutes. After delivery

resuscitation was attempted, but unfortunately was to no avail. The baby died and the cause of

death was found to be hypoxia as a result of delay in delivery.

33. The history of the mother included that she was obese. She had previously had a diagnosis of

moderate/severe pre-eclampsia. She had previously been pregnant and had laboured

satisfactorily; however, progression beyond 3cm of cervical dilatation did not occur and as a

result the mother had undergone a caesarean section. The baby had been born with a birth

weight greater than the 90th percentile.

34. The guidelines published by the Australian College of Midwives, stipulated conditions in

which homebirths were precluded or contraindicated. These included a prior history of

caesarean section. The tribunal found that the midwife should have referred the mother to a

medical practitioner so that the progress of labour could be monitored in hospital so a

caesarean section could be performed if necessary. The former midwife demonstrated an

unwillingness to follow standard protocols; she ignored advice, did not provide proper written

information regarding risks, did not have a second midwife as a backup at the time of birth

and grossly over estimated her own professional skills. Any reasonable midwife would have

had this patient in hospital. The shoulder dystocia may still have occurred, but the backup

team would have been there to assist. Further, the Tribunal found that the risks of a vaginal

delivery needed to be clearly explained to the patient and they were not. A finding of

professional misconduct was made against the former midwife.

35. The second case involved similar circumstances to the first. The mother consulted the

midwife at about 20 week’s gestation. Thereafter she did not see an obstetrician. The

midwife’s notes at 28 weeks gestation stated that the baby was in the breech position. The

mother had previously had a caesarean section for her first pregnancy as a result of a failure to

progress and foetal distress.

36. The mother went into labour at home and the former midwife was present. At 7:23am the

former midwife checked the baby’s heart rate with a Doppler and at 7:47am the baby plus

placenta was delivered. The baby died in that period.

37. The expert evidence was to the effect that for midwives working within the frameworks of the

Australian College of Midwives (2008) National Midwifery Guidelines for Consultation and

Referral (2nd Edition) and Government of South Australia (2007) Policy for Planned Birth at

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Home in South Australia, the woman would have been advised to birth in the hospital for both

indicators of previous caesarean section and breech presentation. The former midwife should

have outlined the risks and benefits to the mother of a homebirth with a previous caesarean

section and a breech presentation and failed to do so. Again, a finding of professional

misconduct was made.

38. The third death involved a birth of twins. At the 19 week scan one twin was known to be in a

breech position. The mother was referred by her general practitioner to an obstetrician for a

20 week appointment but the mother did not attend; preferring instead to have the former

midwife consult with her and attend the homebirth. The general practitioner was concerned

about the mother and contacted the former midwife by telephone explaining that one of

“W’s” babies was in the breech position and stating that she was very concerned about “W”

having a homebirth for primigravida twins, one of whom was breech.

39. The mother went into labour. The first of the babies was in cephalic normal position and was

delivered healthy at 3.36am on 2 January 2010 (a labour of about 11½ hours).

40. Following the delivery of the first baby the mother continued to labour for a further 6 hours.

At that time palpitation of the second baby identified it as being in the breech position.

Labour progressed slowly and notes made by the respondent during the course of labour

record at that time: “Breech birth not really safe without sufficient contractions. ‘W’ tired and

not able to get up easily, decided to transfer to hospital. LW at WCH informed, not

emergency. FH good 130 BPM but to come in for likely caesarean section. Ambulance

called.”

41. The mother was transferred to hospital and when she arrived she was seen by a specialist. The

baby was in a footling breech position and the specialist recommended an emergency

caesarean. The baby was delivered healthy.

42. Expert evidence was given that after the first baby was born the second baby was at a clearly

increased risk because of intrapartum placental abruption and cord prolapse or cord

compression. The risk for cord prolapse was substantially higher with the second foetus in a

breech position; in particular a footling breech position. Recognition and management of cord

prolapse and/or intrapartum abruption were outside the scope of any midwife. Further, to

allow at least six hours without foetal monitoring of the second foetus after the birth of the

first baby was unacceptable. The tribunal held that the standard of care carried out by the

former midwife fell below the standard reasonably expected of her.

43. In the fourth case, the respondent was also involved in a home birth, but this time in Western

Australia. The mother was again pregnant with twins. At the time of delivery, one of the twins

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was in breech position. The second twin was delivered as was the placenta. The second twin

did not survive.

44. Finally, in another pregnancy involving twins, during the homebirth, the first twin was born

without complication. In relation to the second twin, the midwife gave advice and performed

procedures. She performed two vaginal examinations in quick succession determining that the

mother’s cervix was dilated and the baby was in a breech position with toes presenting. When

this was identified she gave advice about the significance of the baby being in a breech

position and gave the mother the option to decide whether to go to hospital because she could

not cope with the pain. She made no recommendation about whether or not the mother should

go to hospital. Nor did she describe any risks of remaining at home to the mother. The former

midwife ultimately performed a manual extraction of the baby because the birth was not

progressing. When the baby was born it was unresponsive. The former midwife performed

resuscitation, but the baby could not be revived.

45. Complaints were made against the former midwife. She agreed to forfeit her registration.

Notwithstanding that this occurred, the former midwife continued to provide advice and

services akin to midwifery to the public. In all instances, the Tribunal was satisfied that the

respondent’s conduct was professional misconduct.

46. At the time that the matter was heard by the South Australian tribunal, the respondent was no

longer registered. There were limitations as to what orders the Tribunal could make.33 The

Tribunal identified that the protection of the public was the paramount consideration when

considering the purpose of the proceedings and the imposition of discipline on the respondent.

For the protection of the public only health practitioners who are suitably trained and

qualified to practice in a competent and ethical manner are entitled to be registered.

47. The Tribunal ordered:

(1) the respondent is reprimanded in the strongest possible terms;

(2) the respondent is to pay a fine of $20,000 to the Nursing and Midwifery Board of

Australia within 60 days from the date of publication of these reasons;

(3) pursuant to s 196(4) of the National Law the respondent is permanently prohibited from

providing, undertaking or carrying out, whether directly or indirectly, services or any

other acts in any way related, or of and incidental to, the health service of the practice

of midwifery, including, without derogating from the generality of the same, the

assessment and monitoring of women during pregnancy, labour and the post-partum

period, and of their new born babies, the provision of care during the pregnancy, labour

33 The power to discipline the respondent arises from s 196(2)-(4) of the National Law

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and the post-partum period and the conducting of deliveries whether spontaneous

normal vaginal deliveries or otherwise

(4) for the purpose of order 3, practice (“Practice”) means any role, whether remunerated or

not, in which the individual uses their skills and knowledge as a midwife. Practice is not

restricted to the provision of direct clinical care. It also includes working in a direct non

clinical relationship with clients or others, working in management, administration,

education, research, advisory, regulatory or policy development roles, and any other

roles that impacts on safe, effective delivery of services in the profession and/or use of

their professional skills. For the avoidance of doubt and for illustrative purposes and

without limitation, Practice for these purposes also includes performance of the

following:

(i) communicating a diagnosis identifying, as the cause of a woman’s or newborn’s

symptoms, a disease or disorder whether from the results of a laboratory or other

test or investigation howsoever ordered or performed on a woman or a newborn

during pregnancy, labour and delivery and post-partum;

(ii) managing labour and conducting spontaneous normal vaginal deliveries or

complications in connection with a pregnancy, the labour or the birth;

(iii) inserting urinary catheters into women;

(iv) performing episiotomies and amniotomies and repairing episiotomies and

lacerations;

(v) administering, by injection or inhalation, a substance designated in The Standard

for the Uniform Scheduling of Medicines and Poisons (SUSMP);

(vi) prescribing or supplying drugs designated in SUSMP;

(vii) putting an instrument, hand or finger beyond the labia majora or anal verge

during pregnancy, labour and the post-partum period;

(viii) administering suppository drugs beyond the anal verge during pregnancy, labour

and the post-partum period;

(ix) administering drugs as vaginal pessaries beyond the labia majora during

pregnancy or labour;

(x) delivering the placenta;

(xi) taking blood samples from newborns by skin pricking or from persons from veins

or by skin pricking;

(xii) intubation beyond the larynx of a newborn;

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(xiii) administering a substance by injection or inhalation;

(xiv) the recommendation to others of treatment for, or the giving of opinions or advice

about, a person’s pregnancy, labour or delivery or a related condition or needs in

connection with the same;

(5) The respondent to pay the complainant’s costs of and incidental to the hearing and

determination of the within complaint to be taxed or agreed. Once the amount of costs

has been determined, either by agreement or by taxation, the respondent is to make

payment of the same within 60 days of being notified of the amount.

48. There are other recent examples of cases which reached tribunals and which involved either

the management of babies following homebirths or of babies dying following homebirths.34

The way the tribunal deals with such cases often depends on what has occurred after a

complaint has been made. Where, for example, a health practitioner has demonstrated

remorse, insight and has taken steps to remedy his or her conduct, then depending on the

nature of the conduct involved, a tribunal is likely to be more lenient in the determination it

makes.

49. Another example of a failure in patient care or treatment is the case of HCCC v Andrews

[2011] NSWNMPSC 4. That case involved the care provided by a registered nurse and

midwife, to a patient in the late second phase of labour. When the patient was examined by

the nurse, the nurse noted that there was significant vaginal loss of heavily blood stained

liquor, signs of full dilation and foetal decelerations on the CTG. The decelerations (down to

60 – 80bpm) were noted to have been becoming longer and deeper. In contravention of

hospital policy, the Respondent did not institute a Medical Emergency Team (MET) call, nor

did she notify the paediatric medical team of the non-reassuring foetal heart rate. Rather, the

Respondent performed a mityvac vacuum delivery on the patient, a procedure which was

outside the scope of her practice and failed to use the nurse assist button, or to notify the

midwife in charge of the situation.

50. The tribunal found that in performing the vacuum delivery, the Respondent was acting

outside of her scope of practice and the conduct amounted to unsatisfactory professional

conduct of a most serious nature. Failing to call a MET was well below the standard expected

of a midwife of an equivalent level of training and experience and amounted to unsatisfactory

professional conduct. Incorrectly positioning the patient to perform the vacumn delivery and

34 Nursing and Midwifery Board v Chapman [2010] VCAT 2042; Nursing & Midwifery Board of

Australia v Buckland [2012] VCAT 631; HCCC v Akal Kaur Khalsa [2013] (No 1) NSWNMT 20; Nursing and Midwifery Board of Australia v Sayers [2014] VCAT 252

15

failing to use the nurse assist button was conduct falling below the reasonable standard of care

and a finding of unsatisfactory professional practice in relation to this allegation was made.

51. The nurse was reprimanded and her registration was subjected to conditions that: (1) she

provide written evidence of satisfactory completion of the Australian College of Midwifery

further education course, Midwifery Practice Review or such other course that the Nursing

and Midwifery Council approved in writing as being of an equivalent standard; and (2) that

she be mentored in her practice until the Nursing and Midwifery Council of NSW advised

that it considered that the condition was no longer required, but at least until 20 November

2012.

52. In Crook v Health Care Complaints Commission [2014] NSWCATOD 50 (7 May 2014) a

woman, who was in the late stages of pregnancy, came to a hospital Emergency Department

at just before 2 am complaining of back pain. She was spoken to briefly by a nurse who

advised her there was no doctor on duty until 8 am and suggested to the woman she take

Panadol. The exchange between the patient and the practitioner was of about 20 second’s

duration. The patient left the emergency department and drove to another hospital where she

was admitted. A complaint was made against the nurse.

53. The Nursing and Midwifery Council imposed conditions on the practitioner's registration

under s 150 (1) (b) of the National Law and referred the complaint to the Healthcare

Complaints Commission for investigation.

54. The complaint was ultimately heard by a professional standards committee which found that

the practitioner had failed to undertake a thorough and complete nursing assessment of the

patient, including a failure to take general observations in contravention of a policy "Critical

Operations Standing Operating Procedure - When Medical Officer is Not available". The PSC

also found the practitioner had failed to triage the patient in accordance with the policy,

inappropriately advised the patient to take Panadol, and failed to create a record of the

patient's attendance at the hospital.

55. The practitioner was reprimanded and conditions were applied to her registration as follows:

(1) The practitioner must not be in charge or be the sole registered health practitioner on

any shift, ward or unit. The other registered health care practitioner must be either a

Registered Nurse or a Registered Medical Practitioner.

(2) The practitioner must not work for a nursing agency as a registered nurse or

registered midwife in a hospital.

(3) The practitioner must advise all current and future nursing hospital employers of any

conditions of registration and within one week provide the Nursing and Midwifery

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Council of NSW with a copy of the conditions signed by the employer or an authorised

officer of the employer as acknowledgement of that notification.

(4) The practitioner must authorise each nursing hospital employer to notify the Nursing

and Midwifery Council of NSW of any breach of these conditions, and within one week

of commencing work and practice in a hospital must provide written acknowledgement

of this signed by the employer.

Drugs and alcohol – the Hepatitis C Class Action

56. Many cases also come before tribunals involving practitioners who have become addicted to

drugs or have been abusing alcohol. The consequences for both practitioners and patients can

be dire.

57. The recent case of A v Schulberg is a stark reminder to practitioners about the risks posed

should they become addicted to drugs or alcohol. Dr James Latham Peters was a drug-

addicted anaesthetist suffering from hepatitis C. He had previous convictions for possessing a

drug of dependence and falsifying prescriptions. On fifty-five occasions Dr Peters injected

himself with fentanyl using the same syringe as that which he subsequently used to administer

intravenous anaesthetics to patients undergoing procedures for termination of pregnancy at

the Croydon Day Surgery. He knew of the risks of transmission of hepatitis C to the patients.

His conduct fell so far short of the standard of care expected of a reasonable anaesthetist. He

was charged and convicted of criminal offences.35 He was sentenced to 14 years

imprisonment.36

58. On 15 May 2012, following the criminal proceedings, a group proceeding was commenced

pursuant to Part 4A of the Supreme Court Act 1986. The Plaintiff claimed damages from Dr

Mark Schulberg (as the medical practitioner conducting the Croydon Day Surgery and with

supervision of Dr James Peters), Dr James Peters and the Australian Health Practitioner

Regulatory Authority (which as of 1 July 2010 assumed the assets and liabilities of the

Medical Practitioners Board of Victoria). A third party notice was also served on Carol Ann

Richards and the Department of Health.

59. The proceeding was commenced on behalf of all women who: (a) between January 2008 and

mid December 2009 underwent a termination procedure at the Croydon Day Surgery; and (b)

for the purposes of the termination procedure at the surgery were administered anaesthetics by

Dr James Latham Peters ; and (c) since undergoing the termination procedure at the surgery

had for the first time been diagnosed as having hepatitis C or found to be carrying hepatitis C

antibodies.

35 R v Peters [2013] VSC 93 36 An appeal against sentence to the Victorian Court of Appeal failed.

17

60. On 5 June 2014, Beach JA approved the settlement of the class action.37 The settlement sum

was reported as being $13.75million.38 It was a complex settlement with different women

receiving different payouts.

61. The case is of interest to lawyers and health practitioners because it was the first class action

of its kind, brought in Australia against a body responsible for regulating health practitioners.

Traditional litigation focuses on compensating individual plaintiffs rather than large groups of

people.

62. The case was a class action. Class actions require determination of questions common to all

parties. The need for commonality makes it difficult for class actions making allegations of

medical negligence to succeed against individual doctors. A product liability or other claim

can often be far simpler.

63. The gynecare mesh class action is an example of a case where the dividing line between

medical negligence and product liability is unclear. In the case of gynecare mesh, some

women had been successfully treated for pelvic organ prolapse or stress incontinence by use

of gynecare transvaginal mesh implants. For those women, the product seemed to have been

fit for purpose and to have operated correctly. On the other hand, some women complained

about soft tissue injury, pain, bleeding and infection after having mesh implants. Questions

arose about whether the product itself was unsafe or whether the injuries were really caused

by some negligence on the part of the medical practitioners involved with implanting them. A

class action was ultimately issued against the manufacturer of the gynecare mesh. The

number of different doctors involved with treating patients, as well as the array of

complications each patient suffered may have meant any medical negligence class action

would have lacked sufficient “common issues” to succeed.

64. It is possible to envisage other situations however, where a class action might be brought

against a regulatory authority or hospital based upon the negligence of a health practitioner, as

occurred in A v Schulberg. For instance, where there is a question that a regulatory authority

knew or ought to have known about deficiencies in a health practitioner’s practice or conduct,

the ability to pursue common questions about failing to protect patients, may be easier. Some

possible examples may include failures of hospitals to follow proper sterilisation or infection

control procedures resulting in an outbreak of an infectious disease;39 repeated sub-standard

care by a particular doctor40; or perhaps use by a doctor of a concealed camera.41

37 A v Schulberg & Ors (No 2) [2014] VSC 258 38 The Age, 5 June 2014 39 The Hepatitis B class action in Canada, similarly to A v Schulberg involved patients who were given

electroencephalograms (EEGs) at one of six clinics. Testing equipment used by his clinics was found to

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Records, consent and other issues

65. Finally, for doctors, a common issue which can arise, is whether the patient has given

informed consent to a procedure. Abdeen, Dr Mohamed El Sayed [2014] NSWMPSC 6 (27

May 2014) involved an obstetrics and gynaecology registrar who was consulted by a husband

and wife at an ante-natal clinic. During the consultation, a consent form was signed by the

patient agreeing to undergo an elective lower caesarean section (LSCS) for the delivery of her

fourth baby. The patient was admitted to hospital and the practitioner performed the LSCS to

deliver the baby. Following the procedure, the doctor, without the consent of the patient,

performed a tubal ligation on the patient. The doctor also failed to make an adequate

recording of the procedure.

66. The Committee did not find that the doctor deliberately performed the tubal ligation contrary

to the wishes of the patient. It found however, that his conduct in performing a tubal ligation

upon Patient A without her consent was significantly below the standard reasonably expected

of a practitioner of an equivalent level of training or experience and amounted to

unsatisfactory professional conduct. “He had every opportunity to clarify the patient’s wishes

both before and following the performance of the caesarean section, and also to make sure

that the consent was documented. He was careless in failing to do so.”42

67. The Tribunal found that the practitioner had a responsibility “to ensure that there was proper

communication about such an important and life-changing procedure as a tubal ligation,

particularly when there was no written consent to the procedure, and Patient A had just had

her fourth child delivered.”43

68. Medical Board of Australia v Steinberg44, similarly involved allegations of unprofessional

conduct not of a serious nature, where the practitioner involved failed in the antenatal period

have been improperly sterilised and to have infected many patients with hepatitis B. The class action, involving 18,000 patients, settled in 2009 for $27.5 million.

40 In the case of Dr Jayant Patel many patients died following operations performed on them by Dr Patel when he was director of surgery at Bundaberg Base Hospital between 2003 and 2005. The actions of Queensland Health and the Medical Board of Queensland were questioned because they had failed to scrutinise Dr Patel's credentials before he began working in Queensland and they had allowed him to conduct surgery notwithstanding that due to previous negligence, he was not permitted to do so in the United States. Similarly, in the Wai-Ping class action in Canada sub-standard care was alleged against Dr Wai-Ping including carrying out unnecessary hysterectomies. There were also allegations against the regulator for failing to investigate a series of earlier complaints against the doctor.

41 In Canada, a class action was commenced against Johns Hopkins Community Medicine the hospital where Dr Nikita Levy worked. Dr Levy was a gynaecologist and obstetrician who, for many years, filmed women during pelvic examinations using a camera concealed in a pen he wore around his neck. It was alleged against the hospital that it was responsible for failing in its oversight of Dr Levy and for causing emotional distress and an invasion of privacy of the women involved. The class action brought by more than 7,000 women, settled in Canada for $190 million in September 2014.

42 Abdeen, Dr Mohamed El Sayed [2014] NSWMPSC 6 (27 May 2014) at [46]-[47] 43 ibid at [74] 44 [2012] VCAT 218

19

to obtain the informed consent of the patient to the performance of an instrument-assisted

vaginal delivery and a caesarean section, should they have become necessary. The

practitioner failed to provide information to the patient about the risks and benefits of those

methods of delivery.